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Sam Robinson, Associate Justice.
Appellant, Superior Forwarding Company, a common carrier operating trucks over highways in this State, petitioned the Arkansas Commerce Commission for authority to operate over four specific routes as follows:
No. 1. Between Jonesboro and Little Rock.
No. 2. Between Jonesboro and Stuttgart.
No. 3. Between Corning and Harrisburg.
No. 4. Between Little Rock and West Memphis.
Appellees, other carriers operating in the territory involved, protested the granting of such authority. The Commission granted the petition in part. Appellant was authorized to operate between Harrisburg and Jonesboro, and between Jonesboro and Hoxie. The remainder of the petition was denied.
East Texas Motor Freight Lines has authority to operate intrastate between Little Rock and the Missouri line, through Hoxie. Previously, with approval of the Commission, this permit had been leased to Superior. By reason of this leasing arrangement with East Texas Motor Freight, Superior had authority to operate between Little Rock and Hoxie. The Commission, therefore, did not give consideration to Superior’s petition to operate between those points, and so stated in its order. Since 1959 Superior had been authorized to operate between Little Rock, Hot Springs, Malvern, Pine Bluff, and intermediate points.
There is a practice in the transportation business known as “tacking”. This consists in transportation companies combining rights granted by separate permits so as to enable the carrier to furnish through service to points it is authorized to serve by the separate permits. In other words, by tacking its authority to haul from Harrisburg to Jonesboro, and its authority to haul from Jonesboro to Hoxie, and the authority it had under the lease from East Texas Motor Freight to haul from Hoxie to Little Rock, along with its authority to serve Hot Springs, Pine Bluff, etc., it could furnish straight through service between all those points. That is what happened here, and that is what this appeal involves.
The order of the Commission did not prohibit tacking and therefore, apparently everyone concerned considered that the authority granted to Superior did authorize the carrier to tack, and that Superior intended to do so. In their brief, appellees, the protesting carriers, state: ‘ ‘ Tacking together separate grants of operating authority enables a motor carrier to furnish a through service, if there be a point common to the separate authorities and operations are ■ conducted through a common point, where the certificates contain no restrictions against tacking. Appellant admitted it proposed a tacking of routes, if its application was granted.” (Emphasis ours.) Again appellees state: “In the absence of the Court directed restriction against tacking, appellant would be permitted to operate a through service ... ”. Appellees further state: “Arbitrarily, it [the Commission] refused, in spite of these findings, to specifically prohibit joinder or tacking, thereby granting authority for a through service . . .
Realizing that Superior would be able to tack since that procedure had not been prohibited by the Commission, appellees herein filed a petition with the Commission for a rehearing on that point and asked that Superior be denied the right to tack. The Commission overruled the petition, and by denying appellees’ motion to amend the original order by inserting a provision prohibiting tacking, the Commission made it clear that the authority granted to Superior allowed tacking. Appellees here, appealed to the Circuit Court. There, the matter was heard by the Court on the record made before the Commission and the order of the Commission denying the petition to prohibit tacking by Superior was reversed. Superior has appealed to this Court.
The practice of tacking is manifestly so reasonable and beneficial to the public that it should not be prohibited except in the most compelling circumstances, and such circumstances are not shown to exist here. Ordinarily, it would be useless and utterly ridiculous to require Superior to unload at Jonesboro, freight originating at Harrisburg, and load it on another truck to make the trip to Hoxie, and then unload it again and reload it for the trip to Little Rock, when Superior has authority to operate between all the points mentioned. Of course, it would actually cost a great deal more to handle freight in that manner, and the shipper or consignee would eventually pay the bill.
But, if by tacking Superior would be able to furnish, such competition that in the long run it would not be in the public interest, tacking should be prohibited; mere competition in itself, however, is no sound reason to deny the public the additional service. Atlanta-New Orleans Motor Freight Co. v. United States, 197 F. Supp. 364 (1961). In that case the Court quoted from Norfolk Southern Bus Corp. v. United States, 96 F. Supp. 756, as follows: ‘ ‘ Competition among public carriers may be in the public interest and the carrier first in business has no immunity against future competition. [Citations omitted]. Even though the resulting competition causes a decrease of revenue from one of the carriers, the public convenience and necessity may be served by the issuance of a certificate to a new competitor. ’ ’
Appellees offered no evidence in support of their motion that Superior be denied the right to tack. Their principal argument is that the record shows that the Commission denied Superior the authority to haul straight through because adequate service of that kind was being rendered by appellees. But by tacking, Superior could do the very thing the Commission denied it the right to do. Appellees stated in their brief: “. . . the Arkansas Commerce Commission has specifically found that the public convenience and necessity does not require any service from Jonesboro to Little Rock, and other points served by the appellees, because appellees are adequately and satisfactorily serving the public,
We do not construe the findings and order of the Commission as denying Superior the right to furnish through service; and neither did the Commission so construe its order, as evidenced by the fact that appellees’ petition to prohibit tacking was denied by the Commission. As we construe the order of the Commission, tacking was anticipated, and the denial of that part of appellant’s original petition for authority to haul from Hoxie to Little Rock was due to the fact that Superior already had that authority and would be permitted to tack. In this respect the Commission said: “For practical purposes, applicant holds interstate authority over substantially all of the routes embraced in this application. Vehicles are stationed at all terminals for road and pickup and delivery service. If this application is granted, it is proposed to give overnight delivery service to all points in Arkansas.” The Commission further said: “The record is clear that motor carrier service between Corning, Pocahontas, Newport, Jonesboro and Harrisburg is inadequate to meet the need of present shippers, not to mention the plans of such shippers for expansion of their business. Inasmuch as applicant is presently operating in intrastate commerce between Little Rock and the Arkansas-Missouri State line over U. S. Highway 67 with service at all intermediate points, and the statement of applicant that duplicate operating rights are not sought, no consideration will be given to a grant of authority over said route.” (Our emphasis.)
Moreover, in the Commission’s order in question there is set out some of the evidence considered in granting appellant additional authority. The Commission said: “The representative of a machine products company in Jacksonville [this is between Hoxie and Little Eock] testified he has 21 competitors in St. Louis that get overnight service to Jonesboro. He recently lost a $4,000 job due to inability to guarantee overnight delivery from Jacksonville to Jonesboro. Outbound shipments amount to about 2,000 pounds. The witness is not presently offered single line service which he considers essential to points in Arkansas ivhere his customers are located. [Our emphasis.]
“A manufacturer of shoe lasts located at Walnut Eidge also receives lasts from Jonesboro and Harrisburg to be repaired and returned. Its outbound daily volume amounts to between 2 and 4,000 pounds for Jonesboro, Paragould, Searcy, Harrisburg, Conway, and Eussellville. Presently he is getting better delivery service to St. Louis, Missouri, than to Harrisburg, Arkansas. He requires overnight service and prefers single line service for speed of delivery and redtiction of damage to merchandise.” (Our emphasis.)
The effect of the Commission’s order and denial of the motion to prohibit tacking is that tacking is permitted, and we should not lightly regard the findings of the Commission. This Court in Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604, quoted as follows from Arkansas Express, Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 205 S. W. 2d 716: “ ... it must be remembered that we are dealing with the finding of a tribunal erected by the Legislature for the special purpose of investigating and determining matters of the nature here involved; and the finding of such a tribunal on a fact situation may not be upset by the courts unless the finding is clearly against the weight of the testimony. ’ ’
Appellees cite a long list of cases from other states holding that the authority to tack must be based on convenience and necessity of the public, the same as any other authority is granted the carrier, and that the burden is on the applicant carrier to show such convenience and necessity. Appellant cites federal cases holding that the burden is on the one opposing the tacking to show that it should not be allowed. Our statutes do not specifically cover the point, nor has this Court had occasion to rule on that issue, and we do not reach it now, because by overruling the petition to prohibit tacking the Commission has specifically passed on the question of whether tacking in this case should be allowed and we cannot say that the finding of the Commission in that respect is contrary to the weight of the evidence. It follows, therefore, that the Circuit Court erred in overruling the Commission.
Reversed.
Harris, C. J., and MoFaddin and Ward, J. J., dissent. | [
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Carleton Harris, Chief Justice.
This is a Replevin action wherein all facts were stipulated hy counsel, and submitted to the Benton County Circuit Court for determination as a matter of law. The admitted facts, as set forth in the stipulation and pleadings, are as follows:
Stafford McCumber, a resident of Amite County, Mississippi, on June 10,1961, purchased from the Frazier Automobile Supply Company of McComb, Mississippi, a certain Plymouth automobile, under a conditional sales contract. This contract was sold and assigned to Fred Felder d/b/a Felder Finance Company of McComb on the same date. The conditional sales contract was not, and has never been, filed for record in the chattel mortgage records in the office of the Chancery Clerk of Amite County, Mississippi.
Thereafter, MeCumber brought the automobile to Benton County, Arkansas, and on December 21,1961, sold the car to Benton County Motors, Inc., appellant herein. This automobile was purchased by the company from Me-Cumber as a trade-in, without notice of any defect of title, in the ordinary course of trade, and as a tona ficle purchaser for value without notice. The conditional sales contract had not been filed within the State of Arkansas, nor has it ever been filed in this state. At the time of the institution of the suit by appellee, MeCumber was in default under the terms of the contract, and remained in default as of the time of the trial. After argument and the submission of briefs, the court, in addition to facts already enumerated, made the following findings:
That said title retaining note at the time of its execution to the present time constitutes a security interest between the maker, Stafford MeCumber and the Frazier Auto Supply Company, or its assignees.
That permission was not given to Stafford MeCumber by Frazier Auto Supply Company or its assignees to remove said automobile from the state of Mississippi.
That the plaintiff, Fred Felder, holds the title retaining note to the above-described automobile and as such holder is entitled to immediate possession thereof and that the title retaining note of plaintiff is superior to title certificate issued to defendant by the Commissioner of Revenue of the State of Arkansas.
That the certificate of title issued to the above described automobile by the Commissioner of Revenues of the State of Arkansas, should be and is hereby cancelled and set aside.”
Judgment was entered in accordance with these findings, and from such judgment comes this appeal.
We are of the opinion that the court erred in holding that Felder was entitled to the possession of the automobile, and that his title-retaining note was superior to the title held by appellant. Subsection 6 of Section 8075-01 {a part of the Motor Vehicle Sales Finance Act of Mississippi) M. V. S. F. provides as follows:
s* ‘Retail installment contract’ or ‘contract’ means an agreement, entered into in this state, pursuant to which the title to, or a lien upon the motor vehicle, which is the subject matter of a retail installation transaction, is retained or taken by a retail seller from a retail buyer as security, for the buyer’s obligation. The term includes a chattel mortgage, a conditional sales contract and a contract for the bailment or leasing of a motor vehicle by which the bailee or lessee contracts to pay as compensation for its use a sum substantially equivalent to or in excess of its value and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming, the owner of the contract. No such retail installment contract shall be valid and binding against subsequent lien holders or purchasers for value without notice unless the same shall be filed for recording in the chattel mortgage records in the office of the chancery clerk of the county of the residence of the retail buyer within ten (10) days after the date of said retail installment contract.”
Admittedly, this contract was not filed for recording.
Section 75-160, Ark. Stats. Anno., 1961 Supp., provides as follows:
“ (a) No conditional sale contract, conditional lease, chattel mortgage, or other lien or encumbrance or title retention instrument upon a registered vehicle, other than a lien dependent upon possession, is valid as against the creditors of an owner acquiring a lien by levy or attachment or subsequent purchasers or encumbrances with or without notice until the requirements of this article [§§ 75-160, 75-161] have been complied with.
(b) There shall be deposited with the department a copy of the instrument creating and evidencing such lien or encumbrance, which instrument is executed in the manner required by the laws of this State with an attached or indorsed certificate of a notary public stating that the same is a true and correct copy of the original and accompanied by the certificate of title last issued for such vehicle.
(c) If a vehicle is subject to a security interest when brought into this State, the validity of the security interest is determined by the law of the jurisdiction where the vehicle toas when the security interest attached, subject to the following:
1. If the parties understood at the time the security interest attached that the vehicle would be kept in this State and it was brought into this State within thirty (30) days thereafter for purposes other than transportation through this State, the validity of the security interest in this State is determined by the law of this State.
2. If the security interest was perfected under the law of the jurisdiction where the vehicle was when the security interest attached, the following rules apply:
(A) If the name of the lien holder is shown on an existing certificate of title issued hy that jurisdiction, his security interest continues perfected in this State.
(B) If the name of the lien holder is not shown on an existing certificate of title issued by that jurisdiction the security interest continues perfected in this State for four (4) months after a first certificate of title of the vehicle is issued in this State, and also, thereafter if, within the four (4) month period, it is perfected in this State. The security interest may also be perfected in this State after the expiration of the four (4) month period; in that case perfection dates from the time of perfection in this State.
3. If the security interest was not perfected under th e law of the jurisdiction tohere the vehicle was when the security interest attached, it may be perfected in this State; in that case, perfection dates from the time of perfection in this State.”
The italicized provisions determine the law in this litigation. According to Webster’s Third New International Dictionary, the word ‘ ‘ perfect ’ ’ means to ‘ finish; to complete or put in final form in conformity Avith law. ’ ’ Admittedly, this lien \Ams neither perfected under the laAV of Mississippi nor the laAV of Arkansas, and appellant Avas admittedly a bona ficle purchaser.
Appellee argues that the Mississippi recording and filing requirement does not affect the transaction between appellant and McCumber which occurred in Arkansas, asserting that the filing statute only protects bona fide purchasers dealing with the property within the state of Mississippi. Citations are given from authorities on conflict of laws. (Appellee then states that the law of the state to which the chattel was removed, and is situated at the time of the transaction, controls the effect of the subsequent transaction upon the title.) With this statement we agree, for we deem the Arkansas law controlling. However, appellee contends that Section 75-160 (heretofore quoted) has no effect upon this particular transaction because the Act only requires that conitional sales contracts on registered vehicles be filed. We do not consider this contention to be sound, for we are firmly of the opinion that the legislative purpose in enacting the legislation found in 75-160 was to protect bona fide purchasers. Certainly, the legislature did not intend to give to one, who complies neither with the statute requiring registration nor the statute requiring the filing of the conditional sales contract, a greater right than that given to one who complies only with the registration provision. A reading of the entire chapter (Title 75, Motor Vehicles) and amendatory acts seems to make clear that Section 75-160 has reference to all vehicles which are required to be registered. For that matter, though such fact is not included in the stipulation, the vehicle here in question was registered ; this we know by the fact that the court ordered the registration cancelled. The record does not reflect when the act of registration occurred, and, of course, the burden was upon appellee, as plaintiff, to establish his case.
In accordance with the views herein expressed, the judgment is reversed and the cause remanded with directions to enter judgment for the appellant.
Emphasis supplied.
Emphasis supplied.
Both parties have gone out of the record on this point. Appellee states that the appellant registered the vehicle “and secured a title after McCumber had sold it to appellant.” Appellant states that the vehicle in question was first registered in Mississippi to McCumber, and that after the car was brought to Arkansas, “application for Arkansas registration was made by McCumber, the Mississippi evidences surrendered to the proper Arkansas authorities and a certificate of title first issued to McCumber in Arkansas.” Appellant also asserts that this point is advanced here for the first time on appeal. We, of course, do not consider either version since the record does not reflect which is correct. | [
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Sam Robinson, Associate Justice.
This is an action to enforce a lien for an attorney’s fee. Dan Holmes died testate August 26, 1958. By his will he left 20 acres to his daughter, Eddie Mae Holmes Nelson. About a year after the death of Holmes his will had not been filed for probate and Eddie Mae employed as her attorney, appellee herein, Robert B. Gibson, to look after her interest and to get for her whatever she had coming under the terms of the will. The contract between attorney and client provides: “It is agreed by both parties that said attorney will receive for his services 33%% of any and all property received by Eddie Mae Holmes Nelson from the estate of Dan Holmes.” Gibson was successful in getting the Holmes will probated and the matter brought to a conclusion. In the meantime, Eddie Mae had deeded the 20 acres to appellant, Baxter Land Company, Inc. Gibson filed a motion in Probate Court to enforce his lien on authority of Ark. Stats. 25-301. The Probate Court granted the motion and entered an order in effect sustaining the lien.
On appeal appellant raises only one issue. It contends that the Prohate Court did not have jurisdiction of the subject matter; that is, jurisdiction to sustain the attorney’s lien. There is no contention that at the time of the purchase from Eddie Mae appellant did not know of appellee’s contract with her. There is no issue here of priority of equities.
Ark. Stats. 25-302 provides: “The court before which said action was instituted, or in which said action may be pending at the time of settlement, compromise, or verdict, upon the petition of the client or attorney, shall determine and enforce the lien created by this act [section].”
The matter was pending in the Probate Court at the time it was concluded. Under the terms of the contract Gibson was entitled to one-third of any and all property recovered by Eddie Mae. If he had failed to ask for the enforcement of his lien in the court where the matter was pending, he may have been barred from enforcing it in some other court. It is said in 7 C.J.S. 1206: “. . . where the forum is designated by statute and proceedings to enforce attorneys’ liens are purely statutory, such proceedings must be brought in the forum so designated.” Citing Carpenter v. Hazel, 128 Ark. 416, 194 S. W. 225.
Affirmed. | [
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Sam Robinson, Associate Justice.
This is a prohibition procedure wherein petitioners, I. Hal Millsap, Jr. and Millsap Oil & Gas Company, a Delaware Corporation, seek a Writ of Prohibition directed to the Honorable Paul X. Williams, Chancellor of the Logan Chancery Court, to prevent the trial of an action in Logan County wherein Herman Swartz, et al, are palintiffs, and petitioners herein are named as defendants. The petition for prohibition alleges that the Chancery Court of Logan County does not have proper venue and does not have jurisdiction of the subject matter.
The Complaint alleges that the defendants induced the plaintiffs to purchase stock in the Millsap Oil & Gas Company by false, fraudulent, and untrue representations ; that the corporation is now insolvent; and the complaint asked that a receiver be appointed for the corporation and an accounting be had, and that plaintiffs recover judgment against the individual defendants.
On September 24, 1961, summons was issued to the Sheriff of Pulaski County for I. Hal Millsap, Jr., I. Hal Millsap, Sr., and for the Millsap Oil & Gas Company. The Sheriff served copies of each on Nancy J. Hall, Secretary of State. On October 3,1961, a motion was filed to quash the summons. On July 27, 1962, summons was issued to the Sheriff of Benton County for I. Hal Millsap, Jr., I. Hal Millsap, Sr., and Millsap Oil & Gas Company. The return shows service on I. Hal Millsap, Jr. as agent for the corporation. On July 30, 1962, another summons was issued for I. Hal Millsap, Jr. and the return shows he was served in Benton County.
At a hearing on the motion to quash the service of summons it developed that the corporation’s authority to do business in this state had been revoked. It was also shown that parties living in Logan County may be indebted to the corporation. The trial court overruled the motion to quash. The petition here for prohibition followed.
Respondents base their right to maintain the action in Logan County on Ark. Stats. 27-608, which provides: “An action, other than one of those mentioned in sections 84, 85, and 90 [§§ 27-601 — 27-603], against a non-resident of this State, or a foreign corporation, may be brought in any county in which there may be property of or debts owing to the. defendant. ’ ’
Since it appears that the defendant corporation is not authorized to do business in this state, the above statute is applicable if there is property of or debts owing to the corporation in Logan County. There appears to be considerable controversy as to whether such debts exist. It is a question of fact. In Twin City Lines, Inc. v. Cummings, 212 Ark. 569, 206 S. W. 2d 438, it is pointed out that where the jurisdiction of the trial court depends on a question of fact, prohibition will not lie, citing Crowe v. Futrell, 186 Ark. 926, 56 S. W. 2d 1030; Terry v. Harris, 188 Ark. 60, 64 S. W. 2d 80; LaFargue v. Waggoner, 189 Ark. 757, 75 S. W. 2d 235 Chapman & Dewey Lumber Co. v. Means, 191 Ark. 1066, 88 S. W. 2d 829.
But petitioners also contend that Ark. Stats. 27-608 is not applicable here, because the corporation has a place of business or an office in Arkansas where service of summons may be obtained against an agent of the corporation; that the applicable statute is 27-347, dealing -with service on foreign corporations. A question of fact is again involved. I. Hal Millsap, Jr. testified:
“Q. Where is the office of Millsap Oil & Gras Company ?
A: The books and stock records are kept in Rogers by the Barclay Accounting Company.
Q: Where were the books and records on September 21,1961?
A: Rogers, Arkansas.
Q: Millsap Oil & Has Company has an office at Si-loam Springs ?
A: No, Sir. Only wherever I happen to be is the office. No furniture. I answer the correspondence -through my office from Siloam Springs. ’ ’
Petitioners further contend that the Chancery Court of Logan County has no jurisdiction to appoint a receiver for the corporation, and cite Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31. But in that case the court said: ‘4 The Central company is a foreign corporation, and the courts of this State have no authority to dissolve and wind up its business; the rights of courts of equity in this State are limited to taking charge of the property within the juris diction of the court and enforcing the rights of creditors here. Dickey v. Southwestern Surety Ins. Co., 119 Ark. 12, 173 S. W. 398, Ann. Cas. 1917B, 634, and cases cited.” Of course, a court of equity could take charge of property in its jurisdiction only through a receiver.
I. Hal Millsap, Jr. also argues that the action can he maintained against him only in the county in which he was served with summons. In this case, the Millsaps and the corporation are made joint defendants. I. Hal Millsap, Jr. was served in Benton County. It is possible that a judgment against him wonld be good, but if an invalid judgment is rendered against him he has an adequate remedy by appeal.
The petition for prohibition is denied. | [
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George Bose Smith, J.,
on rehearing. This is an appeal by the sellers from a decree directing specific performance of a contract for the sale of land. In our original opinion, in the belief that we were achieving substantial justice, we set aside the chancellor’s award of specific performance and instead limited the purchasers to their monetary damages, which we fixed as the difference between the contract price and the slightly greater sum for which the purchasers had agreed to sell the property to a third person, 235 Ark. 805.
This possibility of substituting damages for specific performance was not mentioned in the original briefs. In their petition for rehearing the appellees earnestly insist that our decision did not in fact reach a completely just result. Briefing the legal point for the first time, counsel contend that the court’s denial of specific performance is not warranted in the circumstances of this case.
After reconsidering the question we have concluded that the petition for rehearing is well-founded.
Our prior decisions recognize the possibility that in a few unusual situations a court of equity may in its discretion deny the plaintiff the right of specific performance. But the remedy of specific performance, in giving the complaining party exactly what he bargained for, ordinarily affords complete and perfect relief and therefore is usually to be awarded as a matter of course.
The point was discussed in Sims v. Best, 140 Ark. 384, 215 S. W. 519, where we said: “Finally, it is insisted that the right to specific performance is not absolute, but is a matter of discretion with the chancellor. "While this is true, the discretion is a sound judicial discretion, controlled by established principles of equity, and where the contract is in writing, is certain in its terms, is for a valu able consideration, is fair and just in all its provisions, and is capable of being enforced without hardship to either party, it is as much a matter of course for a court of equity to decree its specific performance as for a court of law to award a judgment of damages for its breach. ’ ’ (Italics added.) It will be noted that every one of the conditions just mentioned (a written contract, certainty, etc.) is present in the case at bar.
Much to the same effect is this holding in Dollar v. Knight, 145 Ark. 522, 224 S. W. 983: “Where land or any estate or interest in land is the subject-matter of the agreement, the jurisdiction to enforce specific performance is undisputed, and do,es not depend upon the inadequacy of the remedy in the particular case. It is as much a matter of course for courts of equity to decree a specific performance of a contract for the conveyance of real estate, which is in its nature unobjectionable, as it is for courts of law to give damages for its breach.” (Italics added.)
In the present case we find no valid reason for a denial of specific performance. To the contrary, the equities' in the case strongly demand that this remedy be afforded. The purchasers, according to the great weight of the evidence, expended some $5,000 or more, in money or in labor, in improving the property. Apparently the land in its improved state is worth more than the contract price, for otherwise the sellers would hardly be so strenuously resisting this suit for enforcement of the agreement. To deny specific performance, and to award instead an amount of damages far below the buyers’ expenditures in improving the property, would result in the sellers’ being unjustly enriched for their culpable refusal to carry out their promise.
The only reason that occurs to us for a denial of specific performance is the fact that the buyers entered into an agreement to sell the land to Dr. Hart, It is plain enough, however, that they had a perfect right to resell the land if they wanted to. Whether they kept it, sold it, or gave it away was of no concern to the sellers. To refuse specific relief on account of the proposed resale would establish an unsound precedent, diminishing the transferability of property, since in similar situations prospective buyers would be reluctant to bind themselves to a purchase contract, for fear that it might prove to be unenforceable.
Now that the appellees’ right to specific performance has been reinstated there remain three issues which were argued in the original briefs but which we did not find it necessary to decide in our original opinion.
First, the appellants insist that the purchasers are not entitled to prevail, for the reason that they failed to make a physical tender of $21,000 in cash within the period allowed for the exercise of their option to buy the property.
This argument fails to distinguish the two meanings which the term tender may have. When a duty of performance rests upon only one of the contracting parties, as in the case of an open account or promissory note, an actual offer of the money owed is essential to a valid tender. But the law is otherwise when both parties are under a duty to perform, and the question is whether one of them has made a sufficient offer of performance to put the other in default. Williston discusses this distinction clearly and accurately:
“It is said that the strict rules of tender are not applicable to a conditional offer to perform a concurrent condition; that what is essential is that it shall appear to the court and shall have been made clear to the other party to the contract that the exchange agreed upon would be carried out immediately if the latter would do his part. This requirement involves both ability on the part of the plaintiff to perform and an indication of that ability to the other party. The actual production of the money or other thing which the plaintiff is to give is said to be unnecessary.
“As the courts have said ‘the word “tender,” as used in connection with such a transaction, does not mean the same thing as when used with reference to the offer to pay money where it is absolutely due, but only a readiness and willingness to perforin in case of the concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness. ’ ’ ’ Williston on Contracts (3d Ed.), § 833.
Diehl testified that about two weeks before the expiration of his lease he told Loveless that he was exercising his option to purchase, that he had a man who was ready to pay for the property, and that he wanted a deed. Loveless promised to execute the deed and voluntarily added that the Federal Land Bank had a loan against the land and that he would get the abstract of title from the Land Bank so that it could be examined. Thereafter Loveless failed to make any move toward carrying out his agreement to sell, and as soon as the time expired he refused to consider the matter further. At no time during the life of the option did Loveless either demand or put himself in a position to demand that the purchase money be physically tendered. The chancellor’s finding that the purchasers made a sufficient offer of performance is not against the preponderance of the evidence.
Secondly, the appellants contend that the chancellor should not have charged them with $2,600 as the rental value of the land, at the rate of $100 a month, during the period between the expiration of the lease and the entry of the decree. The complaint was filed sixteen days after the termination of the lease and of course did not contain a prayer for rents, as none had then accrued. The undisputed proof showed that the land was rented for $100 a month both under the Loveless-Diehl lease and thereafter, and, further, that this was the fair rental value of the property. When the chancellor entered his decree 26 months after the inception of the controversy he treated the complaint as having been amended to conform to the proof and awarded the buyers a judgment for the rental value of the land.
The court was right in charging the sellers with the rental value of the land while they were in possession, but he should have gone farther and charged the purchasers with interest at the legal rate upon the unpaid purchase price during the same period. The two charges are equitably offsetting and should go together. The sellers are charged with the rental value because they have had the use of the buyers ’ land, and the buyers are charged with interest because they have had the use of the sellers’ money. Both charges are ordinarily made in situations where the creditor, such as a mortgagee, for example, has been in possession of the debtor’s property. Holcomb v. Bowe, 154 Ark. 543, 243 S. W. 803; Hamner v. Starling, 183 Ark. 948, 50 S. W. 2d 615; Zini v. First Nat. Bk., 228 Ark. 325, 307 S. W. 2d 874; Hughes, Arkansas Mortgages, §§ 521 and 525. To make either charge without the other is evidently unwarranted, for it gives-the favored party the use of both the land and the money. On this point the decree must be modified to require the purchasers to pay interest upon the purchase price and to require the sellers to pay interest upon each monthly installment of rent from its accrual.
Finally, by cross appeal the Diehls contend that the Lovelesses waived their right to collect the milking equipment note by repossessing that property. We think the chancellor was right in holding that the repossession was merely incidental to the sellers’ action in taking control of the farm as a whole and so did not amount to a waiver of their right to enforce the note. Inasmuch as the purchasers had been deprived of the use of their property the chancellor absolved them from payment of interest upon the note, which we think to be a proper balancing of the equities. When the purchasers obtain specific performance of the contract they will be entitled to the milking equipment and will be under a duty to pay for it.
The decree is modified as indicated, and the cause is remanded so that the account may be stated in accordance with this opinion and a final decree be entered.
Johnson, J., not participating.
Harris, C. J., and McFaddin, J., dissent. | [
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Frank Holt, Associate Justice.
This is a Workmen’s Compensation case in which the claimant-appellant, Ernest J. Cummings, contends that the payment of compensation benefits to him by the appellee, Maryland Casualty Company, was terminated prematurely.
On March 4, 1960, while employed by the appellee, United Motor Exchange, Inc., the appellant suffered a back injury when his foot slipped in some oil as he attempted to turn an automobile motor on the floor. As a result of this injury the appellant was paid Workmen’s Compensation benefits for a period of twenty-five weeks or until September 1, 1960. Appellant contends that the payments for temporary total disability and reasonable medical expenses should have continued until March 6, 1961. The Referee disallowed his claim, the full Commission agreed with the Referee, and from the Circuit Court’s judgment affirming the Commission comes this appeal.
The appellant urges for reversal the sole point that there is no substantial evidence he had sufficiently recovered from his unquestioned compensable injury to enable him to return to work on September 1, 1960.
The appellant had previously sustained a back injury in 1956 for which he was being paid a 10% permanent partial disability at the time of the present injury. Following the present injury and until he was discharged by I)r. Richardson it appears that he was hospitalized three separate times for observation and treatments consisting of physiotherapy and traction because of his persistent complaint of being in pain. He was examined by various doctors, including two neurosurgeons, who reviewed spinal myelograms made of him in August, 1957, and in June, 1960. They found no evidence of a herniated or ruptured disc. It is undisputed that his pain and discomfort persisted.
Dr. Richardson, in his final narrative report on July 19, 1960, wrote that upon seeing the appellant on July 12th. he ‘ ‘ was still complaining of discomfort in his right hip with activity” and “I discussed the problem again with Mr. Cummings and advised him to attempt to return to normal activity in hopes that this discomfort would disappear. As stated before, I am unable to find any physical cause for this man’s symptoms and I do not believe that he has any permanent disability.” Later he submitted his Surgeon’s Final Beport and Bill on a printed form according to which he had last seen the appellant on August 17, 1960 in his office. He indicated on this form that he had discharged him as cured and ready to return to work as of September 1, 1960. He did not see the appellant on this date or thereafter. The appellant did not return to work. His undisputed testimony is that following his discharge the discomfort and pain continued and as a result of his “misery” he was so disabled he could not and did not work and was confined to his house until December 27, 1960. On that date the appellant was admitted to the Veterans Administration Hospital where another spinal myelogram was made which then did not disclose a protruding disc. However, because of appellant’s persistent complaint upon physical therapy activity, a re-evaluation of this myelogram did show “L-5, S-l right protruding disc, and on 2-3-61 patient was taken to the operating room where he had an extruding nucleus pulposus removed from the L-5, S-l interspace on the right.” This operation relieved appellant of his pain.
In August, 1961, one of the physicians who originally observed the appellant following his present injury reviewed the Veterans Administration Hospital records and confirmed that the VA spinal myelogram “did show a definite defect at the L-5, S-l interspace on the right side.” He reiterated that the spinal myelograms made in August, 1957 and June, 1960 did not show such abnormality and, further, any disability in June, 1960 would have to be based on claimant’s subjective complaints. Dr. T. M. Fletcher, who performed the successful operation, reported:
‘ ‘ This man who has had symptoms of low back pain and sciatica for some time was operated on 2-3-61 with the removal of a herniated nucleus pulposus on the L-5, S-l interspace on the right. This was a fairly large lesion and was undoubtedly the cause of his severe symptology. His post operative course was quite good and he was free of pain. * * * At the time of the most recent back strain which occurred in March, 1960, while working, he probably sustained the extrusion of the disc, and from that time up until the time of this hospitalization was disabled with severe back and leg pain.”
We recognize the rule that a decision of the Workmen’s Compensation Commission will be affirmed if there is any substantial evidence to support it. Aluminum Company of America v. Williams, 232 Ark. 216, 335 S. W. 2d 315; McBride v. Ark-La Industries, 235 Ark. 675, 361 S. W. 2d 532. However, whether the evidence is substantial in nature is also a question of law. Boyd Excelsior Fuel Co., v. McKown, 226 Ark. 174, 288 S. W. 2d 614. In the case at bar we think there is no substantial evidence to support the Commission’s finding that appellant’s healing period ended September 1, 1960. It is true that various examining physicians were of the opinion that the spinal myelograms made in August, 1957 and June, 1960 did not disclose a herniated disc. Neither did the spinal myelogram made in January, 1961, at the Veterans Administration Hospital upon first interpretation. The crux of this case, however, is the question as to when appellant was physically able to return to work. The existence or non-existence of a herniated disc is not the primary issue — it is only a part of the total picture. Upon reviewing the evidence in this case we consider it to be overwhelming, and in fact the medical evidence so reflects, that the appellant was suffering pain and discomfort from an admitted compensable injury during all the time he was hospitalized or under observation. There is no evidence in this record to refute his claim that he continued to suffer pain and discomfort after September 1, 1960. His claim of disability is abundantly corroborated by his admission into the Veterans Administration Hospital on December 27, 1960 where he was hospitalized and treated for several weeks before Dr. Fletcher operated and removed a large lesion on February 3, 1961. Following this the appellant described his condition as follows: “I feel like a new man altogether since the operation.”
It is the intent and purpose of our Workmen’s Compensation laws that they should be liberally construed and, further, that doubtful cases are to be resolved in favor of the claimant. Boyd Excelsior Fuel Co., v. McKown, supra; McBride v. Ark.-La Industries, supra.
The judgment of the Circuit Court is, therefore, reversed and remanded with directions that the Circuit Court remand the case to the Workmen’s Compensation Commission with directions to award the appellant temporary total disability from September 1, 1960 to March 6, 1961, together with reasonable medical expenses. Reversed. | [
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Jim Johnson, Associate Justice.
Appellants, Jessie Collie and others, are preferred stockholders in appellee, Little River Cooperative, Inc., and are seeking an accounting and an order compelling appellee to comply with its articles of incorporation and by-laws, which provide that an amount not exceeding six per cent of the par value of the fully paid up preferred stock shall be set aside for payment of dividends on such stock, which dividends shall have preference over all other dividends and distributions, and that after such payment there shall be first reserved an amount equal to not less than five per cent of the net savings (net profits) for the purposes of establishing and maintaining an allocated reserve of not less than twenty-five per cent of the aggregate value of all outstanding stock, and that whenever the total amount exceeds this twenty-five per cent the board of directors may apply such excess to paying off ratably by years the oldest outstanding preferred stock in the same order as originally issued. In addition to an accounting, appellants prayed that appellee be enjoined from distributing any patronage refunds (an annual refund to customers of the gin) until the six per cent dividends have been paid, that appellee furnish appellants a financial statement of the corporation, that appellee be ordered to cancel all preferred stock issued in lieu of cash patronage refunds during those years that the business operated at a loss, that appellee be required to build up and maintain an allocated reserve of not less than twenty-five per cent of the aggregate par value of all the stock, and that appellee be ordered to apply all of the excess of the twenty-five per cent to redemption or retirement of preferred stock in accordance with the bylaws. The trial court found the issues in favor of appellee and dismissed the complaint, from which appellants appeal.
For reversal appellants contend that the trial court erred by ruling, in effect, that appellee’s directors had not abused their discretion in the matters of dividends and maintaining the reserve, or that appellants failed to show such abuse.
The Little Biver Cooperative, Inc., Avas organized in 1946 under Act 116 of the Acts of 1921 (Ark. Stats. §§ 77-901 et seq.), Cooperative Marketing Associations, which provides that five or more persons engaged in the production of agricultural products may form a nonprofit, cooperative association for processing, harvesting, marketing, etc., the products of the members. The principal products of this cooperative are cotton and cotton seed. It is empowered to do business with nonmembers so long as the business transacted with nonmembers is not greater in value than that transacted Avith members. The authorized 100 shares of common stock may be oAvned only by producers who agree to patronize the co-op, and no one may hold more than one share, or transfer it without approval of the board of directors. Common stock does not bear dividends.
Article 7, Sections 3 and 4 of the articles of incorporation read as follows:
“Section 3. The preferred stock of the association shall bear non-cumulative diAddends not to exceed six per cent (6%) per annum if earned and declared by the board of directors: and such dividends shall have prefer ence over all other dividends or distributions thereof declared in any year. At the discretion of the board of directors, all dividends on preferred stock, or any part thereof, may be paid in additional certificates of preferred stock and/or credits on preferred stock. The preferred stock shall carry no voting rights, and such stock, or any part thereof may be redeemed or retired upon call of the board of directors from time to time, provided said stock is called and retired in the same order as originally issued. All such preferred stock so retired shall be paid for in cash at the par value thereof, plus any dividend declared thereon and unpaid; and such stock shall not bear dividends after the date fixed in the call for its retirement. Upon distribution of the assets of the association, in the event of dissolution or liquidation, the holders of prefererd stock, plus any dividends declared thereon and unpaid, before any distribution is made on the common stock.
“Section 4. After providing for dividends on preferred stock if earned and declared by the board of directors, any balance of annual net income then remaining shall be allocated and/or credited to all patrons, members and non-members alike, on a patronage basis, including such amounts as may be set aside in reserve by the vote of the directors. Any distribution of reserved and other allocated savings at any time shall be made on the basis of patronage in such methods as may be prescribed in the by-laws or ordered by the board of directors. ’ ’
By-Laws Article X, Section 2, Allocation of Savings, reads as follows:
“The net savings, determined in the manner provided for in Section 1 of this Article, shall be allocated and distributed in the following order and manner:
“(a) An amount not exceeding six per cent (6%) of the par value of the fully paid-up shares of preferred stock outstanding shall be set aside for payment of dividends on such stock.
“(b) The remainder of the net savings shall be allocated to all patrons of the association on a patronage basis. The basis of allocation shall be prescribed by the board of directors and may show the division of net savings of each activity, or business of the association.
“(c) Before any distribution is made of the net savings after provision for the payment of dividends on stock, there shall first be reserved an amount equal to not less than five per cent (5%) of the net savings for the purpose of establishing, building up and maintaining an allocated reserve of not less than twenty-five per cent (25%) of the aggregate par value of all outstanding capital stock. Such deduction shall be made from the net income of each activity or business of the association as prescribed by the board of directors.
Appellants own about 2.3% of the preferred stock of the co-op, which they obtained in 1956. The co-op paid a 5% dividend on preferred stock in 1956, 4% in 1957, 2% in 1958, none in 1959, 2% in 1960, 3% in 1961 and 4% in 1962.
The general reserve of the association was approximately $4,000.00 as of March 31, 1961 (the end of the fiscal year). Over the years, losses resulting from various ventures of the co-op in the amounts of $5,000, $16,-000 and $1,000 have been charged against the general reserve. According to the testimony of the co-op manager, there would have been approximately $29,000 in the general reserve as of March 31, 1961, if these losses had not been deducted from the reserve.
In 1960 the net savings (profits) was $21,744.52; a 2% dividend, $4,100.00, was distributed to the owners of the 16,790 shares of outstanding preferred stock; the balance of the net profit ($17,744.52) was distributed to the 26 member and the few non-member patrons, 95% in cash and 5% in the general reserve to the patrons’ credit. In 1962 the net savings (profit) was $44,157.96; a 4% dividend, $8,200.63, was paid to the preferred stockholders ; $34,752.50 was distributed as advance patronage refunds. These years were selected at random from the record before us.
Appellants contend that this method of distribution of savings discriminates against the preferred stock holders in that there is no prospect for retirement or redemption of the preferred stock, and that although the co-op has shown a profit every year except 1959, a 6% dividend has never been paid, all of which is contended to be an abuse of discretion.
The preferred stock is non-voting stock.
From the record it is clear that the operation, management and control of this enterprise is absolutely vested in the hands of some 26 owners of common stock. From this group has been selected the board of directors who are responsible for the handling of the funds of the co-op. These people along with five or six non-members generally constitute the patrons of the gin here in question. It is undisputed that for many years the gin earned more than enough to pay the maximum six per cent dividend to the preferred stockholders, (and to set aside the minimum five per cent of profits for the allocated reserve), but rather than pay this amount the board voted to pay to themselves and the other patrons of the gin a lion’s share of the savings. One of appellee’s directors testified that he owns one share of common stock — one $100 share — and has no preferred stock; that for $100 he got in on the operation and last year alone (1961) saved $3,800.00. Appellee’s explanation of the handling of the funds of the gin in this manner was, “In order to keep the ginnings up [retain their patrons] so we can pay anything. If we pay six per cent every year, there would come a time when there wouldn’t be any earnings left to pay anybody anything.” Following this testimony the manager of the gin testified that, “We are putting in new high capacity machinery at a cost of $101,000.00, in order to take care of the business. . . . We lost a thousand bales or better last year in not being able to gin it.” Each year at the annual meeting, according to the testimony of one of the directors, the matter of setting up a fund to retire the preferred stock is brought up, and always voted down.
The co-op was built with borrowed money, that is, preferred stock, and there is now outstanding 16,790 shares of preferred stock representing, at $10 per share, $167,900.00. The 26 active and voting members of the co-op each have one share of common stock worth $100.00, for a total of $2,600.00. (Some of the active members also own substantial amounts of preferred stock. This is not in issue.) The co-op manager testified that there is no market value for the preferred stock. The C. P. A. for the co-op testified that based on ordinary losses, (under the system of distribution practiced by the co-op) it would be very hard to ever build up the general reserve to twenty-five per cent.
It is axiomatic that the owners of a profitable business are entitled to a reasonable share of the profits of that business as well as being able to sell their interest in that profitable business. That is one advantage of our capitalistic system. In the instant case, appellants have received some share of the profits, but have so far been effectively denied any assurance that their stock will be redeemed, while the active members enjoy a profitable return from the investment of the preferred stockholders, all of which impels us to the conclusion that appellee’s directors abused their discretion in failing to develop or maintain a rational balance between the amounts paid the preferred stockholders and the active members, and in failing to provide, maintain and build the allocated reserve required by the articles of incorporation.
We consider this case to be controlled by Driver v. Producers Cooperative, 233 Ark. 334, 345 S. W. 2d 16, and remand the cause for further development in the light of that opinion.
Reversed and remanded. | [
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Ed. F. McFaddin, Associate Justice.
This case arises from a traffic mishap between two trucks: one was owned by Appellant Campbell and driven by James Ellis; and the other was owned by appellees, Bastian Truck Service (hereinafter called “Bastian”), and driven by Dallas Peters. Both vehicles were proceeding in the same direction. The Campbell truck being in front, undertook to turn left to enter the driveway of the Campbell home; and the Bastian truck, undertaking to pass the Campbell vehicle, struck it and caused damage to both vehicles. Bastian filed action for damages; Campbell denied liability and cross complained for his damages. From a jury verdict and judgment for Bastian, Campbell brings this appeal, urging the points now to be discussed.
I. Continuance. The traffic mishap occurred in April 1960; the action was filed in September, 1960; and the case was continued in both the January 1961 term, and the June 1961 term. In the January 1962 term Campbell filed motion for continuance because of the absence of James Ellis, who was the driver of the Campbell vehicle in the traffic mishap; and the cause was continued for the term. When the new term started in June 1962, Campbell again moved for continuance because of the absence of James Ellis; the motion was denied; and the cause was tried on June 18, 1962. The denial of the motion for continuance in June 1962 is the point here argued.
We find no error committed by the Trial Court in denying the motion for continuance. The record shows that Campbell did not know the present whereabouts of Ellis and could give no assurance that he would be present if a further continuance should be granted. Campbell had obtained one or more continuances because of the absence of Ellis; yet Campbell, even in June 1962, had never located Ellis and could not say when, if ever, Ellis would be present. The Trial Court did not abuse its discretion in overruling the motion. See Black & White Cab Co. v. Doville, 221 Ark. 66, 251 S. W. 2d 1005, and cases there cited.
II. Campbell’s Motion For Instructed Verdict. At the close of the plaintiffs’ case, Campbell moved for an instructed verdict. This motion was denied and such ruling is assigned as error. We find no merit in this assignment. "When the Court denied Campbell’s motion for an instructed verdict at the close of Bastian’s case, Campbell proceeded to introduce his evidence, but did not renew his motion for an instructed verdict at the close of the entire case. In such a situation, Campbell’s original motion was waived. Grooms v. Neff, 79 Ark. 401, 96 S. W. 135; Ft. Smith Cotton Oil Co. v. Swift, 197 Ark. 594, 124 S. W. 2d 1; and Granite Mt. Rest Home v. Schwarz, 236 Ark. 46, 364 S. W. 2d 306 (Case No. 2840, Opn. February 4, 1963). We add, however, that even if the motion had been made at the end of the entire case, it should have been overruled.
III. Refusal of Requested Instruction. Campbell presented to the Court his requested Instruction No. 6, which contained this language:
“(B) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable or prudent having dne regard for the speed of such vehicles and the traffic upon and the condition of the highway. ’ ’
The refusal of the Court to give the above instruction is assigned as error; but we find this assignment to be without merit. The evidence showed that the Bastian truck was undertaking to pass the Campbell truck when the Campbell truck turned to the left; and the Court gave a series of instructions on the duty of a vehicle overtaking and undertaking to pass another vehicle proceeding in the same direction. This was not a case of a vehicle following behind another vehicle, but rather, a case of passing a vehicle; and it would have confused the issues for the Court to have given the “following too close” instruction in a case where all the testimony showed that it was an “overtaking and passing” situation.
IV. Agency Of James Ellis. The Trial Court instructed the jury that James Ellis was the agent of Camp-hell in driving the Campbell truck at the time of the collision; and Campbell insists that such agency was a question for the jury. In other words, Campbell claims that the question of agency should have been submitted to the jury rather than declared as a matter of law. It is true that, ordinarily, agency is a question of fact to he determined by the jury; but agency becomes a question of law for the court when the material facts concerning it are not disputed and only one reasonable conclusion can be drawn therefrom. 3 C.J.S. p. 325, “Agency” § 330. As the Court of Appeals of Kentucky said in Wolford v. Scott, 257 S. W. 2d 594:
“Where the facts are in dispute and the evidence is contradictory or conflicting the question of agency, like other questions of fact, is to be determined by a jury. However, where the facts are undisputed, the question becomes one of law for the court. Horne v. Hall (Ky.), 246 S. W. 2d 441.”
The Supreme Court of Vermont, in Luce v. Chandler, 195 A. 246, an automobile case, used this language:
‘ ‘ ‘Where the facts are undisputed and only one inference can reasonably be drawn from them, the court must determine whether they create an agency. ’ 1 Meacham on Agency (2d ed.) § 295. Clearly the evidence above admits of no opposing inference and is so conclusive in character that this question became one of law for the court rather than one of fact for the jury. ’ ’ ’
With the rule thus stated, we now examine the evidence to see if there are any material facts in dispute regarding agency; and we find that the admission made by Campbell when he was testifying destroys the foundation of his argument on this point. Here is Mr. Campbell’s testimony as to how Ellis happened to be driving the Campbell truck at the time of the traffic mishap:
Q. “What was the purpose of Mr. Ellis driving your truck?
A. “He didn’t have any account to drive it for me. It was parked by his house and I asked would he mind driving it out there for me and I would pick him up. ’ ’
This testimony by Campbell made Ellis his agent. In the American Law Institute’s Restatement of the Law of Agency, § 1 Comment A, this appears:
“The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control.”
In 2 Am. Jur. p. 13, “Agency” § 2, this appears:
“An agency may be defined as a contract, either express or implied, upon a consideration, for a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account, and by which that other assumes to do the business and render an account of it.”
In Black’s Law Dictionary an agent is defined as:
“A person authorized by another to act for him, one entrusted with another’s business.”
Campbell testified that he asked Ellis to drive his truck from Ellis’ house to Campbell’s house. Ellis was in the process of driving the truck on the prescribed route and was turning into Campbell’s driveway when the traffic mishap occurred. When an owner asks another person to drive a vehicle for him to a certain place and such requested person undertakes to comply with the request and is on the prescribed route, it is clear, as a matter of law, that the driver in such situation is acting as the agent of the owner and not as a bailee of the vehicle. Because of Campbell’s testimony as herein quoted, we find no error committed by the Trial Court in declaring as a matter of law that Ellis was the agent of Campbell.
Affirmed.
The terms of the court are fixed by § 22-310 Ark. Stats. In referring to these as the “June” and “January” terms, we are using convenient words for identification.
Among other instructions, there was theCourt’s Instruction No. 8 (given without objection), which contained this language:
“ (A) The operator of the vehicle in front has the superior right to use of the highway and the driver of the rear vehicle in handling of his vehicle must recognize the superior right of the vehicle in front although the forward vehicle operator is not relieved from the duty of exercising ordinary care for his own safety and the safety of others.
“(B) No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the righthand side of the roadway before coming within 100 feet of any vehicle approaching from the opposite direction.
“(C) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.
“A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.” | [
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Sam Bobinson, Associate Justice.
This is a workmen’s compensation case. Appellant, Hollis W. Bay, who lives at Sheridan, claims that he was injured while working for appellee, D. H. Garner Construction Company on a job in North Little Bock on June 10, 1960. The Workmen’s Compensation Commission denied compensation and Bay has appealed.
On the 23rd day of June, 1960, Bay was operated on for two ruptured discs. There is no question about the discs being ruptured. The only issue is whether there is substantial evidence to sustain the Commission’s finding that Ray was not injured in the course of his employment.
Appellant is 42 years of age and has been a heavy equipment operator for many years. He also preaches on occasion. In April, 1960, he went to work for appellee operating heavy equipment, such as bulldozers, motor graders, etc. Some time prior to June 11, 1960, he made arrangements with his employer to take off from work the week beginning June 13 so that he could help to conduct a revival meeting in Pine Bluff. ■ He worked up until noon Saturday, June 11, the usual quitting time for the week.
The next day, Sunday, June 12, and also on Monday and Tuesday, he preached at Pine Bluff. On Wednesday, June 16, he drove from his home at Sheridan to Pine Bluff to attend the revival service. His wife was with him and they stopped at a super market to get some groceries. He stooped over to get a box of crackers; a sharp and severe pain struck him in the back causing him to become prostrate with pain on his back on the floor of the super market. His wife called Dr. Heirs, a chiropractor of Pine Bluff who had treated Ray for back trouble 10 or 15 times since March 9,1960. Dr. Heirs immediately went to the super market where Ray was still on his back on the floor. With the help of others the doctor got him into an automobile and took him to the doctor’s office. There, a medical doctor was called who administered some shots for pain.
Later Ray returned to his home and the next day went to see Dr. Guy Smith, a chiropractor in Little Rock. This was on Thursday. The following Saturday Dr. Smith recommended surgery to relieve the back condition, and then, for the first time, Ray notified his employer of his claim of having been injured eight days previously. Dr. Horace Murphy was called and the following week, on June 23, he operated and found two ruptured discs which he repaired. Ray was off from work about 4 months and has a 20% permanent disability.
The issue is not whether the evidence is sufficient to sustain a finding other than that made by the Commission, but is there substantial evidence to sustain the order that the Commission did make. Definitely, there is substantial evidence to sustain the Commission.
Appellant claims he was injured in the course of his employment in this manner: He testified that a short time before the end of the work day on Friday, June 10, he cleaned the tracks of the tractor he was operating, and a stone weighing 10 or 12 pounds was lodged in one of the drive sprockets; that he dislodged it; that he tossed it aside and felt a sharp and severe pain in his back. He claims that at that time he injured his back and that such injury resulted in two ruptured discs. This is the alleged injury for which the Commission denied compensation.
There is no evidence at all that appellant received an injury as he claims, except what he says about it; but there is substantial evidence that the discs in appellant’s back were not ruptured as he claims on June 10, 1960. Appellant does not say that he felt any pain when he removed the rock from the sprocket, but claims that when he tossed it aside he felt a sharp and severe pain, but notwithstanding such pain he got back on the tractor and drove it to the usual parking place for the night. Although there were two other men on the job, he said nothing to them about having been injured and nothing about being in pain. He drove to his home at Sheridan Friday night and drove back to work the next day and worked the usual time for Saturdays, 5% hours. Again he said nothing about having been injured and his fellow workers observed nothing unusual about him as he went about his work in the ordinary manner.
Although in making his claim for compensation he says he was in great pain the Saturday morning following the alleged injury on Friday, he drove from his work in North Little Bock to his home at Sheridan, and on Sunday he went to Pine Bluff to preach at the revival. He again attended the revival on Monday and Tuesday. On Wednesday he drove from his home at Sheridan to Pine Bluff, and while stooping for a box of crackers in a super market, he suffered the injury that disabled him. He claims to have had a severe pain in his back ever since the alleged injury in North Little Rock on Friday. It would not be unreasonable for the Commission to believe that if he was suffering such pain he would not have stooped for the crackers.
The act of stooping in itself was sufficient to cause his disability. Appellant says that he bent his knees in stooping for the crackers. This would put him in a squatting position. Dr. Murphy, who operated on him, testified that a squatting position seems to produce more ruptured discs than anything else. Moreover, Dr. Murphy testified that it does not take a severe injury to cause a ruptured disc; that it can be caused by pushing back a chair or bending over; that a slight motion can cause this type of injury; such things as coughing or sneezing could cause this particular condition that appellant complained of. No doubt appellant had a weak back when he stooped for the crackers. He testified to having had trouble with his back for 10 or 15 years. Dr. Smith corroborated him on that point.
Furthermore, appellant testified that prior to the time of the alleged injury he had X-ray pictures made of his back, but at the time of the hearing before the Commission he said he could not remember who made the pictures. He spoke in a derogatory manner of the doctors who made the pictures, but still could not remember who the doctor was, nor did he produce the pictures. His testimony on that point may have caused the Commission to believe that if his memory was a little better the doctor who made the pictures could have been called as a witness and the X-rays produced, clearing up the question of when the discs ruptured.
Appellant admitted to having had a pain in his back at the point of the ruptured disc ever since two weeks after he went to work for appellee; that the pain had been constant since that time up to the time of the operation; that the pain had gone down into his toes and the ball of his foot. He stated that he had taken sleeping pills in order to sleep; that the pills had been prescribed for his wife, but he did not know what doctor had prescribed the sleeping medicine. Perhaps the Commission thought it remarkably strange that a man would not know what doctor was prescribing for his wife.
Dr. John Hundley, an orthopedic surgeon, examined Ray on behalf of the appellee and testified positively that Ray denied to him that he had ever had any trouble with his back prior to the alleged episode on June 10, 1960. The record is replete with evidence to the effect that Ray had been having trouble with his back for many years. Dr. Hundley also testified that if appellant had received an injury causing a ruptured disc as he claims on June 10, the pain would have been so excruciating he could not have worked 5% hours the following day and could not have preached at Pine Bluff.
When all the evidence is considered, it cannot be said that it is not substantial to sustain the finding of the Commission.
Affirmed..
Harris, C. J., and Johnson, J., dissent. | [
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George Bose Smith, J.
Boy L. Frisby and Gene A. Hathcote were both killed when the truck in which they were riding left the highway and overturned. The truck was owned by Olin Mathieson Chemical Corporation and was being driven by Hathcote, its employee. The appellant, Buby Frisby, as the administratrix of her husband ’s estate, first brought an action for wrongful death against the Mathieson company, in the federal court. Later on she brought this action, also for wrongful death, against the appellee, as the administrator of Hathcote’s estate. The federal case was tried first and resulted in a jury verdict for the defendant. The appellee then moved for a dismissal of the state court action, pleading the judgment in the federal court as res judicata. This is an appeal from an order sustaining that motion and dismissing the suit.
The question is whether the judgment in favor of the employer, as the defendant in the first action, is res judicata in the second action brought by the same plaintiff against the employee whose negligence was involved.
This question was fully analyzed in Davis v. Perryman, 225 Ark. 963, 286 S. W. 2d 844, which controls the case at bar. There we noted that in most instances a judgment for or against the employer is not conclusive in a later action against the employee, because the two defendants are not in privity. But we recognized and gave effect to a narrow but well-established exception to this general rule; that is, “the plaintiff, after a prior unsuccessful damage action against the master or servant for alleged negligence of the servant, is barred from maintaining a subsequent action involving the same mishap when it was and is conceded in both actions that the servant was all the time acting within the scope of his employment and the only questions in the two actions are negligence and contributory negligence. ’ ’ The reason for the limited exception is that in the specific situation to which it applies the plaintiff has already had his day in court upon the issue of the servant’s negligence and as a matter of public policy is not entitled to a second trial upon that exact issue. We repeatedly emphasized in the Davis case that the first judgment is res judicata, under the exception, only when it is conceded that the servant was acting in the scope of his employment, for only in that situation can it be known with certainty that the earlier decision against the plaintiff was based upon the issue of negligence.
The case at bar does not fall within the exception to the general rule. In the federal court the Mathieson company relied upon three defenses, all involving issues of fact that were submitted to the jury: First, Frisby was a guest in the truck, so that Mathieson would not be liable for ordinary negligence on the part of Hathcote. Second, Hathcote was not acting within the scope of his employment in allowing Frisby to ride in the vehicle, so that Frisby was a trespasser toward whom Mathieson did not owe a duty of ordinary care. Third, Hathcote was not negligent. The federal court case, submitted to the jury without interrogatories, resulted in a general verdict for the defendant. It is possible that the jury believed Hathcote to have been negligent but nevertheless exempted Mathieson from liability, upon a finding that Hathcote was acting outside the scope of his employment in permitting Frisby to ride in the truck. "We cannot be certain that the appellant lost the first case upon the sole issue of Hathcote’s negligence. The exceptional bar of res judicata is therefore inapplicable, and this action can be maintained.
Beversed, | [
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Frank Holt, Associate Justice.
The appellant, Dag-mar Joy Johnson Lytton, brought this suit against the appellee, Lewis P. Johnson, individually and as executor, to have a recorded deed declared void on the allegation of it being a forgery. The original deed was not produced in evidence.
The chancery court dismissed appelant’s complaint “for lack of proper proof and evidence and for want of equity.” On appeal, for reversal appellant relies on the following points: (1) The legal presumption given to a recorded deed, properly acknowledged, was overcome by appellant’s proof and (2) the preponderance of the testimony shows that the deed and acknowledgment was a forgery.
Appellant is the daughter of Mabel F. Johnson and Charles H. Johnson, both deceased, the mother and father having been divorced in 1924. Subsequent to the divorce, the father of appellant conveyed several lots of property to her and had the deed recorded on April 13, 1926. Appellant testified that she did not know of the conveyance by her father to her until the death of her mother in April, 1961.
A deed, dated November 12, 1929, from appellant to Mabel F. Johnson reflects that it was acknowledged before a notary public on November 15, 1929. The deed was recorded in 1938. The deed recited consideration of $500.00 and love and affection. Appellant, also, claims no knowledge of this deed from her to her mother. It is this deed that appellant alleges to be a forgery.
Mabel Johnson married the appellee, Lewis P. Johnson, a nephew of her former husband who was Dagmar’s father, in May, 1930. Appellee testified that his wife kept the deed in the safe in her flower shop and gave it to him to have recorded in 1938 so that a loan could be procured by them for the purpose of building a residence on such property which they did. He testified that he has not been able to find the original deed.
Appellant testified that the purported date of the acknowledgment of the deed, November 15, 1929, was the date on which she married a previous husband. She testified that she did see a notary public that day but that it was for the purpose of transferring some traveler’s checks. Appellant asserts that the failure of appellee to produce the original deed created the presumption that if such deed were produced it would be favorable to appellant’s claim. The failure or inability of the appellee to produce the original deed, under the facts in this case, raised only suspicions against the validity of the duly recorded instrument. Temple, Administrator v. Smith, et al, 222 Ark. 834, 262 S. W. 2d 898.
Although we do not have the original deed before us, we have held:
“A certificate of acknowledgment was appended to the mortgage, and it was duly placed of record, and this made a prima facie case of the proper execution of the deed. Crawford & Moses’ Digest, § 1532 [Ark. Stat. 28-921]; Polk v. Brown, 117 Ark. 321, 174 S. W. 562; Nevada County Bank v. Gee, 130 Ark. 312, 197 S. W. 680.” Straughan v. Bennett, 153 Ark. 254.
See also Lynn v. Quillen, 178 Ark. 1150, 13 S. W. 2d 624.
The burden is upon appellant, therefore, to disprove the authenticity of the acknowledgment. In the case of Miles v. Jerry, 158 Ark. 314, 250 S. W. 34, we said:
“ * * * This court has uniformly held that where a grantor appears and makes some kind of acknowledgment before an officer authorized by law to take such acknowledgment, the recitals of the certificate of such officer, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therein stated. Bell v. Castleberry, 96 Ark. 564, 132 S. W. 649.
A different question presents itself in the case of a certificate of acknowledgment alleged to have been forged. A proper acknowledgment is an essential part of the execution of a conveyance of land, and it is competent for the grantor to show the falsity of a certificate of acknowledgment. Where the grantor never appears before an officer to acknowledge the deed and the officer makes a false certificate that the grantor did appear, his act is wholly without authority of law, and void. Every one must be subject to the risk of forgery by officers authorized to take acknowledgments. No one can claim that an estate in land should be divested by forgery, and the forgery need only be established by a preponderance of the evidence.”
Whether it be contended that the acknowledgment was wrongfully made by the notary or that the notary’s acknowledgment was forged, we feel that from a review of the record appellant has failed to sustain her burden of proof. This court was faced with a similar situation in O’Kane v. First National Bank of Paris, 189 Ark. 396, 72 S. W. 2d 537, where we said:
“ * * * Appellant stands alone in denying that she appeared and acknowledged the instrument. She is contradicted, not only by her interest in the result of this lawsuit, but by the certificate of the officer and two officers and employees of the bank, and by her admission that she actually signed her name to it. The burden was upon her to establish the falsity of the certificate of the notary, and this she has failed to'meet.”
In the instant case, appellant admitted that she appeared before a notary on November 15, 1929, for the purpose of transferring some traveler’s checks. We cannot think of a situation in which it would be necessary for a notary to acknowledge such a transaction and there is no such proof offered. This statement, that she appeared before a notary, along with the fact of appellant’s interest in the lawsuit, plus several inconsistencies in her testimony, warranted the chancellor in ruling that she had not sustained her burden of proof. We cannot say that the chancellor’s finding was against the preponderance of the evidence.
The decree is, therefore, affirmed.
At the time this deed was recorded in 1938, nine years after its date, facilities for photostating such instruments were not available in the recorder’s office. | [
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Carleton Harris, Chief Justice.
Benton C. Mize, who died in 1898, was survived by his widow and five children, namely, Maggie Lawhon, Jeff Mize, Mattie Hamilton, Dora Sheridan, and Henry B. Mize. At the time of his death, he ivas the owner of a certain 120 acres of land located in Saline County. The widow died in 1904, and thereafter various members of the family occupied portions of the land until 1913, when D. J. Sheridan, husband of Dora, purchased the interest of three of the heirs, viz., Maggie Lawhon, Jeff Mize and Mattie Hamilton. D. J. and Dora Sheridan lived on the land and reared a family there. Dora died in 1927, and D. J. died in 1931. There after, in 1933, their heirs agreed on the division of the 120 aeres. There were five children, L. B. Sheridan, Havis Sheridan, Will Sheridan, Thomas Sheridan, and Bella Reed. Thomas, the eldest brother, did not desire any of the land, and deeds were prepared by a Benton attorney, and executed by the parties, conveying 30 acres to each of the other heirs. The four children each assumed responsibility for their respective 30 acres, and paid taxes in their own names. Henry Mize died in 1958, leaving a widow and several children. In. October, 1959, appellants (some of the heirs of Maggie Lawhon, Mattie Hamilton, Jeff Mize and Henry B. Mize) instituted suit in the Saline Chancery Court, seeking partition of the 120 acres. The court held that the heirs of Maggie Lawhon, Mattie Hamilton, and Jeff Mize, were bound by the deeds executed by their ancestors to D. J. Sheridan; further, “that a deed was never delivered by H. B. (Henry) Mize, but that the heirs of Henry Mize are now barred by laches and they are estopped from claiming any interest in said land; that the defendants, Will Sheridan, L. B. Sheridan and Havis Sheridan, derived their respective interest in said land by inheritance from their mother, Dora Mize Sheridan, and their father, D. J. Sheridan, and by exchange of deeds among themselves and purchases from others; * * * Title was quieted in appellees, L. B. Sheridan, Havis Sheridan and Will Sheridan. From the decree so entered, comes this appeal. For reversal, appellants simply assert that the doctrine of laches does not apply against those seeking to enforce a legal title.
Able counsel for appellants cite several cases in support of their contention; on the other hand, counsel for appellees cite approximately a like number of cases to sustain their position. Actually, both sides cite several of the same cases. It is apparent that the decision in each case is controlled by the facts of the particular litigation.
In the instant case, the evidence reflects that Henry B. Mize, as a boy, lived in the home of B. J. Sheridan for quite some period of time, paying no room or board. While proof on the part of appellees was that Mize promised to execute a deed for his interest in the property, we attach no significance to this testimony, since Henry Mize was, at the time, a minor. After leaving the farm here involved, Mize farmed at Hensley, subsequently lived for about nine years south of Little Rock on the Arch Street Pike, and after other moves, bought a place on Base Line Road, and lived there for twenty years until his death.
According to the testimony, when D. J. Sheridan sold timber off the land in 1927, Henry contended that he owned a 1/5 interest. Sheridan contended that he owned the property and it was finally agreed that the lumber company would hold the money and Henry could make his claim; however, the latter never did make claim to the money, and it was eventually paid to Sheridan. The evidence further showed that Henry Mize visited the property at times throughout the years. In 1947, the Sheridan heirs had the land surveyed and the corners marked and lines blazed. Adjoining land owners were notified of the survey and a notice was published in the newspaper. It certainly would appear that Mize, a resident of Pulaski County for most of his life after leaving Sheridan’s home, and having made at least some trips back to the area, would have been cognizant of the fact that the Sheridan heirs were claiming the property as their own. Improvements were made by the Sheridans, parts of the land cultivated, taxes paid on the separate tracts, and these acts were certainly indicative of a claim of absolute ownership.
At any rate, according to Mrs. Mize, widow of Henry, her husband decided to “do something” four or five years before his death. Evidence presented by Mrs. Mize and Bill Mize, a son, reflected that Henry had an abstract prepared in 1952 or 1953, and talked with a lawyer. The attorney held the abstract for a time, and turned it over to another attorney, who died with the abstract in his possession. Mrs. Mize testified that her husband then had another abstract made, but no subse quent action was taken. The widow also stated that her husband had known that L. B. Sheridan and Havis Sheridan had bnilt homes on the land.
From the facts herein enumerated, it is established that for a period of more than forty years, though he lived within a comparatively short distance of the land, did some visiting with members of the Sheridan family, and was aware of the improvements that had been made to the premises, no action was ever taken by Henry Mize to enforce his claim to the property. As stated at the outset, authority is cited by both sides, though some of the cases cited by appellants likewise recognize the defense of laches where the facts justify that defense.
For instance, in Tatum v. Arkansas Lbr. Co., 103 Ark. 251, 146 S. W. 135, this court said,
“Laches in legal significance is not mere delay, but delay that works disadvantage to another. So long as parties are in the same condition, it matters little whether he presses a right promptly or slowly within limits allowed by law; but when knowing his rights he takes no step to enforce them until the condition of the other party has in good faith become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but, when a court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief. ’ ’
We have held that as between co-tenants, possession of one is the possession of all, unless there has been an actual ouster or the possession be hostile to the right of the others. Ashley v. Garrett, 218 Ark. 126, 234 S. W. 2d 513. We are of the view that the proof in the instant case sustains the argument of appellees. A case that bears some similarity to the one at bar is Mitchell v. Malvern Lbr. Co., 222 Ark. 266, 258 S. W. 2d 549. There, we said,
“With a variety of defenses suggested by the appellee, we select laches as the one on which to rest the affirmance. The uncontradicted evidence established:
(a) that even though the lands ivere wild and unimproved, nevertheless Malvern has all the time since 1934 paid all taxes on the lands under a deed duly of record and definitely describing the lands, and Malvern has all the time had the lines around the lands painted and blazed, and two of its employees have regularly checked the lands at least twice each month to see that there was no trespassing;
(b) that some of the plaintiffs have resided within one mile of the lands and have frequently passed by the said lands;
(c) that McKinley Mitchell — the moving spirit in the present litigation — learned in 1942 of the sale of the lands to Malvern and of Malvern’s possession of the lands, and offered in that year to ‘redeem’ the lands;
(d) that after learning of Malvern’s deed and possession in 1942, there was a delay until 1952 before instituting the present suit;” * * *
It is also, of course, noticeable that though, according to the proof, Mize apparently made some preliminary preparations in 1952 or 1953, to seek enforcement of his claim, he never did institute suit, and this litigation did not commence until after his death.
We think the facts support the conclusion reached by the Chancellor.
Affirmed.
Della Reed failed to pay the taxes on her 30 acres and it subsequently forfeited to the state, was sold by the state to one Albert Childress, and was later purchased by L. B. Sheridan and Havis Sheridan. | [
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Sam Robinson, Associate Justice.
On August 13,1959, appellant, Roy Stillman, and appellee, Jim Walter Corporation, entered into a written contract, Jim Walter Corporation being designated as “contractor” and appellant, Roy Stillman, designated as “sub-contractor”, whereby the Jim Walter Corporation engaged Stillman to build houses for a specified consideration, the amount of the consideration depending on the type of house constructed. Stillman was to furnish only the labor.
Item 5 of the contract provides: “Sub-Contractor shall furnish Contractor a Certificate of Workmen’s Compensation coverage on Sub-Contractor and all employees of Sub-Contractor or, in the absence of such Certificate, all payments hereunder shall be subject to a 3% deduction and Contractor will furnish such Workmen’s Compensation coverage.”
Subsequently, Stillman was injured on the job. His medical expenses were paid by the insurance carrier, but when it was determined that he needed an operation due to the condition of his back, no further payments were made. Stillman filed a claim with the Workmen’s Compensation Commission. The matter was heard and the Commission denied compensation on the ground that under the terms of the contract of employment Stillman was an independent contractor, not an employee, and therefore he could not collect under the workmen’s compensation law for his injury. The Commission never reached the issue of whether the claimant was injured in the course of his employment, nor the extent of his injuries.
The parties had entered into a valid agreement whereby for the consideration of 3% of the contract price payable to Stillman for building the houses, Walter agreed to furnish workmen’s compensation coverage for Stillman and his employees. With Stillman’s consent, the 3% was deducted and the coverage furnished. If Stillman had suffered the loss of a leg, or other very serious injury through the negligence of agents or servants of the Jim Walter Corporation, the employer or insurance carrier could have claimed that recovery could be had only according to the terms of the workmen’s compensation law; that Stillman was estopped to contend otherwise.
Eegardless of whether Stillman was, in fact, an independent contractor or an employee, under the facts in this case, the Jim Walter Corporation is estopped to say that he is not entitled to workmen’s compensation. Carpenter v. Madden, 90 So. 2d 508 (1956). And, in Garner v. Southern Pulpwood Ins. Co., 149 So. 2d 157 (1963), the court pointed out that in the Carpenter case the employer was bound to furnish workmen’s compensation coverage because he had obligated himself to do so, and had collected money purportedly to pay for compensation insurance. That is the exact situation in the case at bar.
Here, after the injury occurred, the employer and the insurance carrier attempted to rescind the coverage. Ark. Stat. Ann. § 81-1305 (Eepl. 1960) provides: “. . . The primary obligation to pay compensation is upon the employer and the procurement of a policy of insurance by an employer to cover the obligation in respect to this act shall not relieve him of such obligation.” The contract to furnish insurance was between the Jim Walter Corporation and Stillman. The Corporation was bound by its contract, and had no right to repudiate its obligation regardless of the attitude of the insurance carrier. It was the employer’s contract, not the insurance company’s.
In support of its position that the employer is not estopped to deny liability for workmen’s compensation, appellee cites Smith v. West Lake Quarry & Material Co., 231 Ark. 294, 329 S. W. 2d 167. We did touch on the question to some extent in that case; however, there, the employer made no deduction from the worker’s earnings for workmen’s compensation; there was no contract to furnish workmen’s compensation, and apparently no insurance coverage was provided. In the cases of Farrell-Cooper Lumber Co. v. Mason, 216 Ark. 797, 227 S. W. 2d 445, and Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S. W. 2d 341, we said that the fact that workmen’s compensation coverage was provided could be considered in determining whether an employer-employee relationship existed. The cases did not turn on the question of estoppel. And, it was specifically pointed out in the Ozan Lumber Company case that in the circumstances of that case it was not necessary to decide whether the procurement of insurance in itself was sufficient to establish the relationship of master and servant. There, the court said: “It is unnecessary to decide whether the procurement of such insurance [workmen’s compensation insurance] is sufficient in itself to establish the relationship of master and servant.”
In view of the written contract, supported by a valuable consideration which was paid, obligating appellee to furnish workmen’s compensation coverage on Stillman and the other workers, we do not reach the question of whether the mere deduction of the 3%, plus the actual procurement of coverage by the employer, estopped the Jim Walter Corporation from denying that Stillman and the other men working with him were employees. In recent years, however, several courts have dealt with the proposition of whether the payment of an insurance premium for coverage under the workmen’s compensation law on a particular person estops the employer and insurance carrier from denying that such person on whom the insurance is paid is an employee. The weight of authority appears to be that in circumstances of that kind, the doctrine of estoppel is applicable. Hall v. Spurlock, 310 S. W. 2d 259; Ham v. Mullins Lumber Co., 7 S. E. 2d 712; Nash v. Meguschar, 89 N. E. 2d 227; Herndon v. Slayton, 83 So. 2d 726; Hano v. Kinchen, 122 So. 2d 889; Southern Underwriters v. Jones, 125 S. W. 2d 393; Smith Coal Co. v. Feltner, 260 S. W. 2d 398.
Reversed and remanded for the determination of the questions of whether Stillman was injured in the course of his employment, and, if so, the extent of his injuries. | [
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Paul Ward, Associate Justice.
In separate memorandum opinions (dated June 2 and July 25, 1962) the circuit court approved certain steps taken by the County Judge and County Court of Lafayette County to procure and develop industry in said county under the provisions of Amendment No. 49 of the State Constitution. Appellants, as taxpayers, now prosecute this appeal for a reversal on grounds hereafter set out and discussed. Because of the limited issues raised it is not necessary to copy or fully abstract much of the testimony or the numerous exhibits contained in the record.
On March 7, 1962 appellee, the County Judge of Lafayette County, signed an order consisting of four pages, detailing a proposed bond issue in the amount of $210,000 under the provisions of Amendment No. 49 to the Constitution of Arkansas for the purpose of securing and developing industry within the county. The order calls for an election to be held April 10, 1962, sets forth the form of ballot to be used, and specifies four weeks notice in a newspaper — all in regular and approved form. The notice was given, the election was held, and the vote was 1,205 for and 888 against the bond issue.
On April 11, 1962 the county judge signed an order (four pages) directing that notice be given of the sale of $210,000 of bonds “for the purpose of aiding in securing and developing industry within Lafayette County” —to be held May 10, 1962. The procedural steps and the form and contents of the orders are not challenged.
Certain taxpayers took an appeal from the above mentioned orders to the circuit court, and other taxpayers asked the circuit court to review the orders on a petition for a writ of certiorari. Pending a hearing on the above, White and Company, Inc. (the company purporting to establish an upholstery business under a memorandum agreement with the county judge, dated February 26, 1962) filed an intervention, claiming it was interested in the pending litigation. To this pleading the taxpayers filed an answer and cross-complaint stating, among other things, that Amendment No. 49 requires a final contract before bonds can be legally issued. To the above cross-complaint White and Company, Inc. filed a demurrer which the trial court sustained.
Certified copies of the orders previously mentioned, together with other exhibits were filed in the circuit eourt, and testimony was introduced. Thereupon the trial court found all issues against the appellants (taxpayers), and this appeal follows.
Appellants make the following contentions: One, the two orders signed by the county judge are not valid; and, Two, the trial court erred in sustaining the demurrer filed by White and Company, Inc.
One. It is the contention of the taxpayers that the order dated March 7, 1962, calling the election, and the order dated April 11, 1962, directing notice of the bond sale, are invalid because the county court was not legally in session when the orders were entered. There is no merit in this contention, considering the applicable law and the facts of the case as shown by the record. Ark. Stats. § 22-115 reads:
“If any court shall not be held on the first day of the term, such court shall stand adjourned from day to day, until the evening of the third day.”
Section 22-116 reads:
“If at that time the court shall not be opened such court shall stand adjourned until the next regular term, and all cases, civil, penal and criminal shall stand adjourned over until the next term of such court.”
A reference to the Revised Statutes, Chapter 43, and Ark. Stats. 7 22-101 leaves no doubt that the above quoted statutes deal with county courts.
There is ample testimony in the record to support the trial judge’s finding that Judge Tackett (the County Judge) transacted county court business within the first three days of the January Term and the April Term, 1962. The county clerk testified the records showed court was held on January 3, 1962 and on April 2, 1962. Judge Tackett testified likewise, and the circuit court entered its finding in accord therewith. Appellants also point out there is no showing that the sheriff was present as required by Ark. Stats. § 22-614 or that court was held with open doors as required by Ark. Stats. § 22-608. In our opinion the last section simply means the doors shall not be locked or that people shall not be prevented from attending court. There is nothing in the record to show either of these situations obtained in this ease. We interpret the other section to mean the sheriff can be forced to attend a session of the county court, but not that he could prevent a session from being legally held merely by staying away. Any other interpretation would be most unreasonable.
Two. In the cross-complaint (to the intervention) filed by the taxpayers it was in substance alleged: The memorandum agreement dated February 26, 1962 was never approved by the county court, and is not legally binding on the county; The bond issue is not for the best interest of the county; Amendment No. 49 requires a final contract containing all details before any bonds are sold; and, no tax can be voted without the county court’s approval.
In our opinion the trial court properly sustained the demurrer to the above cross-complaint. If, as alleged, the memorandum agreement is invalid, that is no legal defense to the procedure followed by the county judge for he was in no way relying on it. Under the provisions of Amendment No. 49, the people, by their votes, decide whether a project of this kind is or is not for their best interest. The trial court was correct in finding that Amendment No. 49 does not require a final contract before bonds can be issued. Insofar as the amendment requires, the contract can be (and perhaps should be) executed after the bonds are sold. It is only then that the parties are in a position to make definite commitments. Most of appellants’ professed fears should be allayed by the language found in Section 5 of the amendment which insures that
“. . . the County Court of the county shall exer cise jurisdiction over the sale or exchange of any such bonds voted by the electors at an election held for that purpose and shall expend economically the funds so provided. ’ ’
As stated in the case of Hackler v. Baker, County Judge, 233 Ark. 690, 346 S. W. 2d 677, we see no reason why money derived from the sale of bonds in this case “. . . should not be subject to the same safeguards as any other revenues,” under the general law. Any taxpayer of Lafayette County will have the same right to challenge any future order of the county court relative to this undertaking that he had to challenge the previous orders, or to challenge any order affecting his interest.
Finding no error, the judgment of the trial court is affirmed.
Affirmed. | [
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George Rose Smith, J.
The appellee Southland owns a greyhound race track near West Memphis. The appellant Griffin buys, breeds, and sells racing dogs. The management of Southland decided that Griffin was not a desirable spectator at the track and refused to admit him to the premises. Griffin brought this suit to restrain Southland from denying him admittance to the track. This appeal is from an order sustaining a demurrer to Griffin’s evidence and dismissing his complaint. In reviewing such an order we give the plaintiff’s proof its strongest probative force. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225.
Griffin owns a half interest in 120 shares of stock in the Southland corporation. He seeks admission to the track, however, not in the exercise of his rights as a stockholder but in the pursuit of his vocation, for he must observe dog races at firsthand to select the best animals for breeding.
In his complaint Griffin based his cause of action upon the fact that he held two free passes to the South-land track. One was a stockholder’s pass issued by Southland, the other a tax-free season pass issued by the Arkansas Racing Commission. Each pass recites that it may be revoked by the issuer. Griffin’s stockholder’s pass was revoked by Southland before the trial beloAv, but his tax-free pass has not been revoked by the Racing Commission.
The chancellor’s decision was correct. If Griffin had based his complaint upon his willingness to pay the price of admission to the track rather than upon his possession of the two passes it is clear that he could not have stated a cause of action. Apart from any possible issue of civil rights, which are not involved here, the controlling rules of law are firmly settled by many decisions in many jurisdictions. The proprietor of a privately owned place of amusement, such as a race track or a theater, is not under a common carrier’s duty to render service to everyone who seeks it. It is uniformly held that the proprietor may refuse to admit, or may eject from his premises, persons he thinks to be undesirable. If the prospective patron has already bought his ticket he may be able to maintain an action for breach of contract, or if he is ejected with unnecessary force he may be able to maintain an action in tort. But, owing to the management’s right to exclude anyone it pleases, the patron cannot obtain the aid of the courts in seeking to compel his admission to the premises. Many of the cases are reviewed in Garifine v. Monmouth Park Jockey Club, 29 N. J. 47, 148 A. 2d 1, and Madden v. Queens County Jockey Club, 296 N. Y. 249, 72 N. E. 2d 697, annotated in 1 A. L. R. 2d 1160.
Griffin’s position is not strengthened by his possession of the unrevoked tax-free pass. The statute permits the Racing Commission to regulate the issuance of such courtesy passes, Ark. Stat. Ann. § 84-2835 (Repl. 1960), but in fact no regulations have been issued. Even though the passes are in form issued by the Commission the testimony shows that in reality the Commission leaves the whole matter to Southland, which distributes passes as it chooses. Griffin’s pass was not actually issued to him in the first instance; he received it as a gift from someone else.
It is quite apparent that these passes are intended to serve no purpose except that of providing free admission to the track, as an inducement to public attendance at the races. There is no indication that any effort is made to keep the passes from coming into the hands of bookmakers, touts, pickpockets, and others unwelcome at the track. Thus the pass does not represent in any degree whatever an expressed desire on the part of the Commission that a certain person is to be admitted to the track. The pass is simply a substitute for the price of admission—nothing more. It follows that since a prospective patron may be excluded by management even though he offers to pay the price of admission, he may be similarly excluded when he seeks entrance as the holder of a pass.
Affirmed.
Johnson, J., dissents. | [
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Frank Holt, Associate Justice.
On June 20, 1961, Julius Van Ecliaute died testate at 76 years of age. The appellee, Janie Van Echaute, was the testator’s second wife. The appellant, Emily Van Echaute Atkinson, and six other adult children by his first marriage also survive him. Appellant was nominated in the will to serve as executrix. The testator provided in his will that all of his property be sold or converted into cash as soon as possible after his death and that the cash proceeds be divided equally between his wife and his seven children. According to the inventory of his estate, the real property consisted of a forty (40) acre farm and the personal property consisted of household goods valued at $50.00.
After the will was duly probated the appellee-wiclow filed an instrument in which she elected to take against the will and asked that she be alloted her dower interest in the estate as provided by law. Later, upon her petition, the land was sold for $4,825.00 cash. Appellee then petitioned the court to allow her one-third (%) of the sale price as her dower. Upon a hearing on her petition the court found that she had elected to take against the will and have her dower awarded as provided by law and, further, “that because of the directions of the will, the court finds that the entire estate consisted of personal property at the death of Julius Van Echaute, and his widow, Janie Van Echaute, is entitled to one-third of the gross estate in fee”. The court ordered payment to her of one-third of the gross estate ($4,875.00) or $1,625.00. At a previous proceeding, upon petition of the appellee for her widow’s statutory allowances, the court awarded her $1,000.00 [Ark. Stat. 62-2501 (a)], certain items of furniture and furnishings [Ark. Stat. 62-2501 (b) ], and $250.00 as sustenance [Ark. Stat. 62-2501 (c)]. From these two separate orders appellant brings this appeal and for reversal relies on two points: (1) The court erred in the method of awarding appellee’s dower interest; and (2) the court erred in awarding $1,000.00 as a widow’s allowance. We hold that the appellant is correct in both of these contentions. Appellant takes no exception to the court’s allowance of household goods and sustenance.
POINT ONE. [Award of dower interest] Courts seek to give effect to the desires and intentions of a testator. In the case at bar the testator specifically provided in his will that upon his death his property was to be sold and converted into cash and divided equally between his wife and seven children. His widow, the appellee, renounced the will and elected to take against it. She asked that her dower interest be allotted as provided by law. This she had a right to do. Ark. Stats. 61-218 — 60-501. After her dissent from the will the realty was converted into $4,825.00 cash with her approval. She contends that by the doctrine of equitable conversion the realty consisted of personal property at the death of her husband. Thus, she asserts her claim to one-third (%) absolutely of the gross estate $4,875.00) or $1,625.00. Ark. Stat. 61-202. If the proceeds of the gross estate were divided equally in eight shares, as directed by the testator, appellee would be entitled to approximately $610.00.
Intent is the determining factor in applying the doctrine of equitable conversion. In 19 Am. Jur., p. 4, Equitable Conversion, § 4, we find the governing rule in the case at bar expressed as follows:
“The purpose of the doctrine of equitable conversion is to give effect to the intention of the testator, settlor, or contracting parties, and it will not be given an effect contrary to such intention. For example, where the will of a decedent directs the executor to sell land left by the decedent and the decedent’s widow elects to take her share under the law aside from the will, equity does not regard the land as personalty so as to allow the widow to take a distributive share.”
Further, in § 5 we find:
“The doctrine of equitable conversion cannot be invoked where the intention of the testator fails or is incapable of accomplishment by reason of illegality, lapse, or other cause, because the sole purpose of the doctrine in the case of a will is to effectuate the testator’s intention.”
In the case at bar the testator’s intention fails or cannot be accomplished because appellee disclaimed the will. In 18 C.J.S., p. 77, Conversion, § 49, the rule is further announced that where the widow “elects to take against the will, there is no conversion so as to entitle the loidow to a share in the realty as personalty.” [Emphasis added.]
In 91 A.L.R., Anno. p. 868, we find the following comment on this subject:
“ Where the surviving spouse renounces the will and elects to take under the intestate laws, the courts are unanimous in holding that such survivor is not entitled to the benefit of a provision in the will directing a conversion. Having elected to take against the will, the surviving spouse cannot assert any claim under the will.”
When appellee renounced her husband’s will she destroyed the will as to herself. Consequently her dower rights vested as if her husband had died intestate. Ark. Stat. 60-501. That being true, her dower is to be carved from that property which her husband possessed at his death and not from the property thereafter changed from realty to personalty. Kitchens v. Jones, 87 Ark. 502, 113 S. W. 29; Johnson v. Johnson, 92 Ark. 292, 122 S. W. 656.
Our dower statute provides that the widow shall have a vested life interest in one-third of her husband’s lands. Ark. Stat. 61-201. Since the realty was sold for $4,825.00 cash, upon the request of appellee and with the approval of the court, she is entitled to a life estate in the proceeds of this sale. The proper and approved method of computing the present value of her vested life estate is outlined in Ark. Stats. 50-701 — 706. See also, Dowell v. Dowell, 209 Ark. 175, 189 S. W. 2d 797 and Godard v. Godard, 210 Ark. 769, 197 S. W. 2d 554. Appellee was 72 years of age at the time of the sale. According to the table in Ark. Stat. 50-705, her life expectancy then was 9 years. The record does not show a determination of the prevailing rate of interest and, therefore, we must use the legal rate of six percentum (6%). Dowell v. Dowell, supra. At the appropriate place in the table we find the figure 5.9212. By this statute we now compute the present value of appellee’s life estate in this manner: $4,825.00 -f- 3 = $1,608.33; $1,608.33 X 6% = $96.50; $96.50 X 5.9212 = $571.39 which, is the present value in commutation of her income rights before deduction of her proportionate share of the cost of sale which the record does not show.
POINT TWO. [Widow’s allowance] Appellant contends that the court erroneously awarded the appellee $1,000.00 cash as a widow’s allowance pursuant to Ark. Stat. 62-2501 (a). This statute provides in pertinent part:
“In addition to * homestead and dower rights, the widow *** shall be entitled to have ** out of the property owned by the decedent at the time of his death, personal property, *** of the value of one thousand dollars ***.” [Emphasis added.]
By the plain terms of this statute the allowance to a widow can only be made from whatever personal property existed at the husband’s death. In Kitchen v. Jones, supra, this court said:
“The status of the decedent’s estate is fixed under this statute when he dies, and the alloiuance contemplated by it must be made out of the personal property as it then existed, and not from the proceeds of realty which may thereafter assume personal form.” [Emphasis added.] Also, see McLerkin v. Schilling, 192 Ark. 1083, 96 S. W. 2d 445.
It follows, from this and our discussion of point one, that appellee’s allowance under this statute is limited in this case to the $50.00 which was the total value of the testator’s personal property at his death as listed in the inventory of the estate.
The decree is reversed and remanded with directions to 'enter a decree not inconsistent with this opinion.
By this action she waived her homestead rights. | [
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Frank Holt, Associate Justice.
The appellant was accused of the crimes of forgery and uttering in two separate informations which were consolidated for trial. The jury acquitted her in one case and convicted her in the other in which they assessed her punishment at two years in the State Penitentiary for forgery and another two years for uttering. From this jury verdict and the judgment of the Court the appellant brings this appeal.
The appellant alleges five assignments of error in her motion for a new trial. We group the first three assignments inasmuch as they question the sufficiency of the evidence. On appeal all the evidence submitted at the trial must be viewed in the light most favorable to a jury verdict and if there is any substantial evidence to support the verdict it is our duty to sustain it. Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374; Smith v. State, 222 Ark. 650, 262 S. W. 2d 272.
The witness to whom it is alleged the defendant presented the questioned check testified that she had seen the defendant before and that she observed the appellant, Alma Eollie, endorse the name “Vera Mae Wilson” on the check when the appellant made a purchase, receiving therefor certain articles and the balance in cash; that the appellant was in the store some fifteen to twenty minutes; that approximately fifteen minutes after the appellant left the store and after it was learned that possibly the crime of forgery and uttering had been committed she went out on the street and discovered the appellant and brought her back in the store, the appellant still having in her possession the purchased articles and some cash. The individual whose name was signed as the drawer of the cheek testified that it was not her signature and she had issued no such check. Vera Mae Wilson, whose name appeared on the check as the drawee, testified that she had received no such check, was due no such check and that she did not endorse it. The State also offered other evidence which is unnecessary to detail here. The appellant denied the accusations and contended that she knew nothing about it, thus presenting a question of fact for the determination of the jury. The evidence adduced in this case is not only sufficient but more than ample to support the verdict.
The appellant contends that the Court committed error in refusing to permit John Moye, Jr., a witness for the defendant, to testify that based upon his twenty-eight years experience in the banking business and being familiar with comparison of signatures, that in his opinion, after studying the endorsement and appellant’s known handwriting, the appellant did not endorse the cheek in question. The general rule is well stated in 20 Am. Jur., Evidence, § 842, p. 706 as follows:
“There is no test by which one can determine with precision how much experience or knowledge of handwriting a witness must have in order to qualify as an expert for comparison. This problem is, generally speaking, left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion.
It is not essential to qualify one as an expert to testify to comparisons of handwritings that he have professional knowledge or that he has made such work a specialty. It is enough that he has been engaged in some business which calls for frequent comparisons of hand-writings and that he has in fact been in the habit for a length of time of making such comparisons. Bank tellers and other bank officers and employees whose daily business and duties compel them to scrutinize and examine writings are competent experts respecting handwriting. * * *>> [Emphasis added.]
In view of Mr. Moye’s twenty-eight years of experience in the field of banking, during which time it appears he made frequent comparison of signatures, we perceive no reason why he would not be qualified to express his opinion on the subject of handwriting. However, in this case the appellant never offered sufficient proof to the Court that indicates she was prejudiced by the ruling of the Court. In answer to a question by appellant’s counsel and the Court if he was ‘ ‘ able to tell whether the endorsement “Vera Mae Wilson” on the check was in the same handwriting as the known handwriting of the appellant, Mr. Moye replied that he could not do so. Therefore, we think there was no abuse of discretion by the Trial Court in the ruling on this point.
The most serious question presented to us is the alleged error of the Court in not declaring a mistrial based upon the following occurrence which we must consider to be prejudicial and reversible error. After the jury retired to consider its verdict, one of the jurors left the jury room and came into the court room alone, the other eleven members of the panel remaining in the jury room. The Bill of Exceptions contains the following statement by the Court:
“In the first place, Mr. Ladd asked the Court about the form of the verdict and said if they voted to find her guilty on two counts and not guilty on two counts would that mean the same as one four year sentence and the Court advised him that it would. Whereupon, said juror returned to the jury room and soon thereafter the jury returned its verdict. The motion is overruled.”
Ark. Stat. Ann. § 43-2139 (1947) provides:
“After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.” [Emphasis added.]
This statute requires in unambiguous language that the entire jury and no less a number thereof must be present before the Court and counsel for the parties, or notice given to counsel, upon any proceeding affecting the rights of the defendant or the State as defined in this statute. Its provisions are mandatory. In the instant case it is undisputed that the entire membership of the jury was not in the presence of the Court nor the defendant or her counsel when this juror sought the advice of the Court in the manner so stated by the Trial Judge in his characteristic fairness.
In Aydelotte v. State, 177 Ark. 595, 281 S. W. 369, we said:
“The most serious question in this ease is whether or not the court erred in telling the foreman of the jury in the hall of the courthouse, apart from his fellows, in answer to a question propounded to the judge' by the foreman, that the jury could give less than one year for the lowest degree of homicide according to the instruction twice given to the jury. If this were all the record showed, it would undoubtedly be reversible error because contrary to § 3192, C. & M. Digest [Ark. Stat. 43- 2139] * * *. The provisions of the above statute are mandatory, and where the facts call for an application of its provisions, unless the rulings of the court comply with the statute, they will constitute prejudicial error.” [Emphasis added.]
However, in this case it was held that the manifest error was corrected by the Court when it repeated the communication in the presence of the entire jury and counsel in the court room before the verdict was received and after the Court ascertained if the occurrence had exerted anv influence on their verdict. Bell v. State, 223 Ark. 304, 265 S. W. 2d 709; Hopkins v. State, 174 Ark. 391, 295 S. W. 36; Hinson v. State, 133 Ark. 149, 201 S. W. 811; Wacaster v. State, 172 Ark. 983, 291 S. W. 85.
The State contends the record or Bill of Exceptions does not disclose that any objection and exception was made by appellant to this procedure until after the jury was discharged and sentence was pronounced and, therefore, appellant is precluded from raising this point in her motion for a new trial. This is the general rule, however, there are exceptions. This point was specifically and thoroughly considered in the more recent case of Bell v. State, supra. In that case we held that the defendant did not waive an alleged error similar to the one in this case and, therefore, could properly raise it for the first time in a motion for a new trial.
Reversed and remanded. | [
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Carleton Harris, Chief Justice.
This litigation presents solely a question of law. On April 7, 1959, appellant’s wife, Mildred Sisemore, was involved in an automobile accident with a car driven by appellee, Junior Neal. On May 14, 1959, Mrs. Sisemore instituted suit against appellee in the Washington Circuit Court, alleging certain acts of negligence, and praying judgment for pain and suffering, loss of earnings, and medical bills in her own right. In July, 1960, the case was tried, and the jury rendered a verdict for appellee herein. No appeal was taken from this judgment.
On November 21, 1961, appellant, Paul Sisemore, filed the instant suit in his own right, against Neal, seeking to recover for loss of consortium, and medical and hospital expenses, this suit arising out of the same accident. Judgment was sought in the amount of $27,000.00. Neal answered, contending that any cause of action stated by appellant “is barred by res judicata,” and subsequently filed his request for Admissions of Pact which were in due time answered by appellant.
Appellee then filed his motion for Summary Judgment as follows:
“That based on the pleadings in said case, on defendant’s Request for Admissions of Pact, on plaintiff’s Response to said Request for Admissions of Fact, and on the pleadings and judgment filed and rendered in Civil Case No. 3196 on file in the office of the Circuit Clerk of Washington County, Arkansas, and appearing of record in Volume 33 of the judgment records of said Circuit Clerk, there is no genuine issue as to any material fact and that said defendant is entitled to judgment as a matter of law. All the foregoing pleadings, admissions and judgment entered in Case No. 3196 are made a part of this motion by reference.”
The court granted the motion, and entered its judgment dismissing Sisemore’s complaint with prejudice. Prom such judgment, appellant brings this appeal.
Though a different type of action was involved, and the suit was heard in Chancery, this court, in Fleming v. Cooper, 225 Ark. 634, 284 S. W. 2d 857, quoted from 50 C. J. S., Section 798, Page 342, as stating the general and applicable rule:
‘ ‘ A wife will be concluded by a judgment in an action for or against her husband with respect to any right or interest which she claims through or under him; and so likewise will a husband be concluded by a judgment for or against the wife in respect of a right or interest which he claims through or under her. ’ ’
A similar situation presented itself in Tollett v. Mashburn, 183 F. Supp. 120 (U. S. District Court, W. D. Ark.). In that case, a husband sought recovery for medical expenses and loss of consortium as a result of injuries to his wife. Judge John E. Miller, in a persuasive opinion, noted that the wife was barred from recovering for her injuries by the statute of limitations, and then stated:
“Unless the defendants are liable to the plaintiff, Berthenia Tollett, they cannot be liable to her husband, Kelsio Tollett. Without doubt the claim of Berthenia Tollett is barred by the Statute of Limitations, and, since it is barred, the claims of Kelsie Tollett for damages, if any, arising from the assault and battery are likewise barred. ’ ’
The court then quoted from Desjourdy v. Mesrobian, 52 R. I. 146, 158 A. 719, as follows:
“ ‘The husband’s right of action for the loss of services and expense in caring for his wife is concomitant with and dependent upon an actionable injury to her. To recover he must prove in the first instance all that his wife would have to prove in order to recover. If the plaintiff’s contention is sustained, the analogous situation arises that the main action is barred and the dependent action may be prosecuted notwithstanding. ’ ’ ’
On appeal, the Court of Appeals, Eighth Circuit, affirmed this holding, stating :
“We conclude that the trial court correctly interpreted the law of Arkansas and that the appellant Kelsie Tollett’s claim must fall with that of his wife. It may be noted that this comports with the decisions of other jurisdictions that the husband’s right to special damages for medical expenses or loss of consortium is derivative and depends upon the wife’s successful suit for damages.”
In 27 Am. Jur., Section 506, Page 108, appears the following statement:
‘ ‘ Generally however, the cause of action for loss of consortium of the wife does not exist in the husband, unless the defendant would have been liable directly to the wife for the injury to her occasioning the consequential loss to the husband.”
Likewise, in Section 507, Page 109:
‘ ‘ Furthermore, it may be noted that ordinarily a defendant cannot be held liable for consequential injuries to the husband unless he also would have been liable to the wife for the direct injury to her. ’ ’
Appellant relies on the case of Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885. But that case only holds that the husband has a separate canse of action (distinct from his wife’s canse of action) for loss of consortium. The question now presented was not involved in that litigation.
We think logic unquestionably supports the view here taken. To permit a second suit would authorize “two bites ’ ’ and would have the actual effect of rendering the prior judgment, wherein Neal was exonerated of liability, a nullity.
Under the authorities herein cited, we hold that the action of the trial court in dismissing appellant’s complaint (on the ground that his derivative action for medical expenses and loss of consortium was barred by the adverse judgment in the wife’s suit) was correct, and should be affirmed.
It is so ordered.
Answers included admissions that Mrs. Sisemore, in her suit, sought recovery of some of the medical and doctor bills for which appellant seeks judgment in this case. Also, Mrs. Sisemore sought judgment for loss of earnings up to the time of filing her complaint.
Tollett v. Mashburn, 291 F. 2d 89 (1961). | [
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Paul Ward, Associate Justice.
One phase of this litigation has already been before this Court. In the case of Garland County Board of Election Commissioners v. Ennis, 227 Ark. 880, 302 S. W. 2d 76, we held that the matter of abolishing certain townships (and combining them with other townships) was properly before the circuit court on appeal from the county court.
Upon remand the circuit court heard testimony from those opposing abolition of the townships, overruled their motion to dismiss, and then affirmed the order of the county court of December 5, 1956 which abolished certain designated townships and consolidated them with other townships.
The appellants, who are citizens and taxpayers of the abolished townships, seek, on appeal, to reverse the judgment of the circuit court on the grounds hereafter discussed.
One. The primary contention of appellants is that Ark. Stat. Ann. § 18-101 (Repl. 1956) does not invest the county court with power to abolish townships. This section reads as follows:
‘ ‘ The county court of each county in this state, shall from time to time, as occasion may require, divide the county into convenient townships, subdivide those already established, and alter township lines.”
Although this section has apparently never been construed by this Court, we think its language, when read together with related sections, makes appellants’ contention untenable. It will be noted that under the quoted section the county court not only has the power to make the initial division, but it also has the power to make divisions “from time to time.” We can only conclude from the wording of the section that the legislature meant to give county courts full power over formation of townships in their respective counties—including the power to abolish townships already formed. Section 18-103 directs the county clerk to report to the Secretary of State the establishment of any “new township” which seems to confirm what we have just said. Actually the county court’s order “abolishes” nothing of substance, but merely assigns a name to a newly formed township.
Two. Appellants next challenge the sufficiency of the evidence to sustain the judgment of the circuit court. The petitioners, in asking the county court to abolish certain townships and combine them with others, gave as justification the improved conditions of transportation and the financial savings that would result to the county. This was not questioned by appellants. However, they presented testimony by residents of the several townships to show certain inconveniences would result to the people affected. In Davis Township some people would have to travel eight to twelve miles further to vote; in Wheatley Township some would be forced to travel about six miles further; In other instances the extra distance for some to travel was said to be from one to seven miles. On the other hand there was no showing that, with improved roads and improved modes of transportation, these people would be seriously inconvenienced. In the face of the record, as above indicated, we cannot say there was no substantial evidence to support the judgment of the trial court. In the case of Barker v. Wist, 163 Ark. 511, 260 S. W. 408, this Court considered an appeal from the circuit court on a matter which had been appealed to it from the county court. In that case we said;
“It is from the circuit court that the appeal comes to this court, and we do not try the case de novo, and . .. we do not, on appeal from the circuit court to this court, consider the question of the preponderance of the testimony. ’ ’
Three. Appellants say the trial court failed to pass upon appellants ’ motion to dismiss and upon Giles Evans-’ intervention because the court was of the opinion those questions were foreclosed by our opinion in the Ennis case, supra. It is contended this was error on the part of the trial court. An examination of the written findings included in the judgment negates this contention. A portion of such findings reads: “. . . the motion to dismiss filed herein on behalf of the respondents was considered by the court and the same was denied, and the motion to dismiss filed herein on behalf of - the intervenor was likewise considered by the court and the same was denied.”
The trial court’s judgment, in part, reads: “. . . the order of the Garland County Court, dated December 5, 1956, is in all things affirmed and approved.” Finding-no error, we affirm the judgment of the trial court.
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Sam Bobinson, Associate Justice.
Appellant, Maggie Phillips, and appellee, Henry Phillips, married April 19, 1946. Henry filed this suit for divorce on October 7, 1958. Maggie filed an answer and cross complaint denying the allegations of the complaint and asking that she be granted a divorce. The trial court denied Henry a divorce on his complaint, but granted Maggie a divorce on the cross complaint. Neither side has appealed from that part of the decree granting the divorce, but property rights are involved and Maggie has appealed from that part of the decree dealing with the property, and the failure of the court to award alimony, and has asked for an additional attorney’s fee.
At the time of the marriage, Maggie owned a piece of property of almost a city block in area on Albert Pike Street in Hot Springs, hereinafter called the Albert Pike property. This property, obtained by Maggie in a settlement with a former husband, cost $6,500.00; $2,500.00 had been paid on the purchase price, leaving a balance of $4,000.00 owed at the time of the conveyance to Maggie.
About two months after the marriage to appellee, Phillips, Maggie conveyed the property to a third party, who in turn conveyed it to Maggie and appellee as an estate by the entirety. In explaining her reason for creating the estate by the entirety in the property, at one point Maggie testified: “Well, you see, it ivas like this: He said to me, ‘if something would happen to you,’ he wouldn’t get anything, so he wanted to have his name on the deed, and he promised me he’d be good to me, and I said, ‘Well, all right then, we’ll just put your name on, add your name on the deed, ’ and we just added his name on the deed. ’ ’
At another point she testified:
“Q. ... Will you state why that transaction took place, why the deeds were made which put title in Mr. Phillips’ name?
A. Yes, because, you see, he told me when we got married, you see, that I put his name on the paper because he told me if I didn’t, well, he didn’t feel like working, didn’t feel like helping, and he was always fussing, so I thought if it would take that to go ahead and get along, you know, as wife and husband should get along, I’d put his name on, and I thought that any time he didn’t do right, I could take it back off, see. Instead it wasn’t that way, and then after I put his name on there, he started getting smart and not doing right. ’ ’
Again she testified:
“Q. Would you have put his name on the property other than the fact that you all were married?
A. No, I put his name only in there because he said-that if I would put his name in there he would be good to me, and he was a fussin ’ all the time so I put his name on there.”
Maggie contends first, that an estate by the entirety was created in the property in consideration of, or by reason of the marriage, and that the property should be reconveyed to her in pursuance to Ark. Stats. 34-1214 which provides: “In every final judgment for divorce from the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof;... ”
The above part of Ark. Stats. 34-1214, adopted in 1898, was copied from Section 462 of the Kentucky Code of Practice, adopted by Kentucky in 1854. In Phillips v. Phillips, 9 Bush (Ky.) 183, and Flood v. Flood, 5 Bush (Ky.) 167, the Kentucky Court construed Section 462 to mean: "... the word 'consideration’ in this act, [means] 'the act of marriage, or some agreement or contract touching or relating to the act of marriage,’ and the expression 'by reason thereof’ 'to relate to such property as either party may have obtained from or through the other by operation of the laws regulating the property rights of husband and wife. ’ ’ ’
Subsequently, in 1876, Kentucky adopted Section 425 of the Code which amended the 1854 act by adding the words “and any property so obtained without valuable consideration shall be deemed to have been obtained by reason of the marriage. ’ ’
In McNutt v. McNutt, 78 Ark. 346, 95 S. W. 778, it was pointed out that our statute 34-1214, passed by the General Assembly in 1893, was adopted from Kentucky’s 1854 Code and not from the Kentucky Code as amended by the act of 1876; that at the time of our adoption of the Kentucky Code it had been construed as above mentioned in the Phillips and Flood cases, and that we adopted along with the act the construction which had been placed on it by the Kentucky Court. The McNutt case has been followed consistently. Dickson v. Dickson, 102 Ark. 635, 145 S. W. 529; Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867; Turner v. Turner, 219 Ark. 259, 243 S. W. 2d 22; McClure v. McClure, 220 Ark. 312, 247 S. W. 2d 466.
It will be seen from the testimony of Mrs. Phillips in the case at bar, that the estate by the entirety was not created in consideration of the act of marriage. In fact, there is no substantial evidence that the property was ever mentioned or considered by the parties before the marriage, nor was Henry’s claimed interest in the property created by reason of the operation of law.
Next, Mrs. Phillips contends that if an interest in the property was not obtained by Phillips in consideration or by reason of the marriage within the meaning of the statute, it was conveyed to him as trustee and that he holds it in trust for her. The conveyance was made to Phillips 14 years before Mrs. Phillips made any claim that he was holding the property in trust. Even if it is assumed that by reason of the husband and wife relationship and no consideration being paid, Phillips was holding an interest in the property in trust for his wife, the direct testimony, including that of Mrs. Phillips, along with the circumstantial evidence, overcomes such presumption and proves by a preponderance of the evidence that the conveyance to Phillips was an outright gift. The effect of Mrs. Phillips’ testimony on that point is that Mr. Phillips did not want to do any work on the property unless he owned an interest, and for that reason in addition to his promise to be good to her, and to keep peace in the family, she made the conveyance.
In Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848, the Court said: “A wife, however, may make a direct gift or transfer of her property to her husband, and it will be sustained if not made through improper or undue influence. If the evidence clearly shows that it was the intention of the wife by such transfer to make a gift to her husband, then such transaction will be upheld. In such cases inquiry will be directed to the circumstances under which the instrument of transfer was executed by the wife. If it clearly appears that the transaction between the husband and wife was fairly entered into, and it was her intention to make him a gift, it will be held as binding as a transaction made between other parties.”
The enhancement in value of the property is not, in itself, sufficient to show the intention of the parties, but it does shed some light on the intention of the parties when borrowing money to improve the property. Mrs. Phillips owned only a $2,500.00 equity in the property at the time of the conveyance of the interest to Phillips. Subsequently, considerable improvements were made and the property is now worth between $50,000 and $75,000. Money was borrowed on the property several times for the purpose of buying and improving other property and to improve the Albert Pike property. Phillips signed the notes and obligated himself personally for the repayment of such loans. There is no showing that Mrs. Phil lips ever informed the banks at the time of obtaining loans that Phillips was not a bona fide owner of an interest in the property. We cannot say that the Chancellor’s finding that Phillips owns an estate by the entirety is contrary to a preponderance of the evidence.
In the year 1958, the parties borrowed money on the Albert Pike property for the purpose of constructing a store building oh leased property located on Highway 270 in G-arland County, west of Hot Springs, and to open a store in the building. Henry claims that he is the sole owner of the 270 store, and Maggie contends that she is a partner in that business. The Chancellor found in favor of Henry on this point. We have reached the conclusion that the preponderance of the evidence supports Maggie on this issue.
Ever since they were married, with the exception of one period of about a year, Henry and Maggie have operated a store at one place or another. Maggie is the one that had the “know how”. She had been operating a store or a market since she was a teen age girl. About 1953 they borrowed the necessary money and built a brick store building on the Albert Pike property. Later they sold the store to one Johnson. During the time Johnson was operating the store on the Albert Pike property, Henry and Maggie decided to open the store on Highway 270. It was then that they borrowed money, both being obligated for its repayment, and built and opened the 270 store.
The store was opened in December and Maggie worked there until about the following May. In the meantime Johnson had given up the store on the Albert Pike property and Maggie opened it again. In June she had to go to the hospital for an operation, and while there, Henry moved all the groceries and most of the fixtures to the 270 store.
Maggie was certainly a partner in establishing the 270 store and the evidence does not show that the parties dissolved the partnership, nor has it been dissolved by operation of law. Therefore, the parties are still partners in the 270 store, and Maggie is entitled to an ac counting1 from Henry on the operation of the store. Likewise, since Henry is an owner of an estate by the entirety along with Maggie in the Albert Pike property, he is entitled to an accounting from her on that property! Appellee makes no contention that Maggie is not the owner of the store on the Albert Pike property.
Maggie was granted the use of the house in which she lives, rent free, but was awarded no alimony. We believe that since she was awarded no alimony, she should also have rent free, that part of the store building in which she operates a store.
Appellant was allowed an attorney’s fee of $650.00 in the trial court. She is allowed an additional sum of $500.00 as attorney’s fee in this' court.
The cause is reversed with directions to enter a decree not inconsistent herewith. | [
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Paul Ward, Associate Justice.
This litigation stems from a dispute over the boundary line between two parcels of land. Appellees contend that a fence, located in the same place for the past thirty years or more, has been generally recognized as the east boundary line of their property during all of said time. Appellant denies this, and contends the fence is some one hundred to one hundred fifty feet east of his true west boundary line.
In order to better understand the issue and the testimony relating thereto, it is necessary to briefly set forth some of the background facts.
Appellees are the sole surviving heirs of J. H. Coe who died in 1946. Shortly before his death he purchased from one D. C. Johnson the land now owned by his heirs. The deed to him described the land as follows:
A strip of land Two (2) acres in width off and across the East side of the Northwest quarter of the Southwest quarter (NW[4 SW%) and the Southwest quarter of the Northwest quarter (SW% NW%) of Section Seven (7) in Township Fourteen (14) North, Range Twelve (12) West, lying North of the North Sylamore Creek Bluff and South, of State Highway No. 66, and containing 13 acres of land, more or less.
It is conceded that one John Stewart and his predecessors in title have, for many years, owned the Southeast quarter of the Northwest quarter of the same section above mentioned. It will be seen from the above that the forty acres belonging to Stewart lies east of and adjoins part of the Coe land. In 1959 appellant bought a parcel of land, consisting of one and eleven-hundredths acres, from his father, John Stewart. No definite description of appellant’s land is contained in the record, but, for the purpose of this opinion, we will assume it lies along the west line of the Stewart forty acres.
When appellant attempted to destroy part of the said fence, appellees petitioned the chancery court to enjoin him. After hearing testimony on both sides, the trial court found that appellees were “ . . . entitled to and are hereby vested with title to . . .” the land west of, and up to, the fence. The trial court’s finding and decree were based on seven years adverse possession by appellees, and also on ‘ ‘ long acquiescence ’ ’ by the owners of two parcels of land.
After a careful review of the testimony we are of the opinion the weight of the evidence supports the court’s finding that the fence was established as the boundary line by ‘ ‘ long acquiescence. ’ ’ The testimony is overwhelming, and in fact it is undisputed, that the fence between the two parcels of land has been in existence continuously and in the same position for more than thirty years. Since 1946 some of appellees have, at different times, lived on the Coe land during which time they have pastured the land, and on occasions they have cultivated the same land. Owners of the Stewart land have at no time during all the years objected to the location of the fence or complained about the occupancy by appellees of the land west of the fence—that is, not until the recent acts by appellant which precipitated this litigation.
It may be conceded, as claimed by appellant, that there never was any express agreement to treat the fence as the dividing line between the two parcels of land. Such an agreement, however, may be inferred by the actions of the parties. In the early case of Deidrech v. Simmons, 75 Ark. 400, 87 S. W. 649, this Court said:
“The proprietors of adjacent lands may by parol agreement establish an arbitrary division line, or an agreement may be inferred from long continued acquiescence and occupation according to such line, and they will be bound thereby. (Citing cases.)
“In Burris v. Fitch, supra, [76 Cal. 395, 18 Pac. 864] the Supreme Court of California held that the acquiescence by a landowner, manifested by silent assent or submission, with apparent consent, for a long period, in the location of a fence as the dividing line between his land and that of the adjoining proprietor, operates to estop him from questioning the correctness of the location.”
On this point, the principle announced in the Simmons case has been approved by us many times. See: Payne v. McBride, 96 Ark. 168, 131 S. W. 463; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710; Peebles v. McDonald, etc., 208 Ark. 834, 188 S. W. 2d 289; Lollar v. Appleby, 213 Ark. 424, 210 S. W. 2d 900; Batson v. Harlow, 215 Ark. 476, 221 S. W. 2d 17; and, Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490. In the last cited case, the trial court held a fence had not been accepted as the boundary line, but we reversed the trial court sajdng:
“We have frequently held that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. ’ ’
In the same case we quoted from Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18, this statement:
“ ‘It is true that in this case the original rail fence line was established without a prior dispute as to boundary • but the recognition of that line for the many intervening' years (34 in this case) shows a quietude and acquie scence for so many years that the law will presume an. agreement concerning the boundary. ’ ’ ’
See also Western v. Hilliard, 232 Ark, 535, 338 S. W. 2d 926. There can be no doubt, in this case, that the fence was visible, that it was in place for at least thirty-four years, and that the owners of the land east of the fence “silently acquiesced” in the location of the fence.
Appellant called as a witness the county surveyor and offered to introduce a survey of the subject lands on file in his office. The trial court refused the proffered survey and appellant assigns this action as reversible error. For several reasons, we are unable to agree with appellant. In the first place, what the official plat showed was immaterial, since appellees did not claim the fence was located on the true line. In the second place, since appellant did not set out what the survey would have shown relative to the position of the fence and the true line we cannot say appellant was prejudiced by its exclusion. In Wallace v. Riales, 218 Ark. 70, 234 S. W. 2d 199, we said:
“We have repeatedly held that an objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing of what the testimony would have been. ’ ’
See also Weston v. Hilliard, supra.
It is our conclusion therefore that the decree of the trial court should be, and it is hereby, affirmed,. | [
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Ed. F. McFaddin, Associate Justice.
This is an action to recover for loss of property entrusted to one alleged to be a bailee. The plaintiff-owner is Gordon & Ferguson, Inc., and the defendant-alleged bailee is LaFayette Hotel Company.
Mr. Goldstein was a traveling salesman, and appellee’s samples were plainly visible in his car. Gold-stein registered as a guest at the LaFayette Hotel; the doorman took the car and contents for overnight parking; and was specifically instructed by Mr. Goldstein to carefully lock the car. The doorman of the hotel parked the Goldstein car in the basement of a garage near the hotel. The next morning, when Mr. Goldstein requested the doorman to bring the car, it was discovered that someone had broken the glass of the car and stolen the samples. The theft was reported to the police, but none of the stolen property was ever recovered. Gordon & Ferguson, Inc. brought this action, claiming that the hotel company, as bailee, was liable for the loss of the stolen samples. The cause was submitted to a jury, which returned a verdict for the plaintiff-owner; and on this appeal the hotel company urges two points, both relating to instructions.
I. Refusal To Give An Instructed Verdict For Appellant. It is vigorously insisted that all the doorman of the hotel did was to take the car across the street, park it, and return the keys to the hotel desk; and that no negligence was shown to have been committed by the hotel or its employees. Based on this line of argument appellant claimed below, and insists here, that an instructed verdict should have been given for appellant. But there was other evidence in the case which we consider vital and now mention, (a) The hotel advertised “convenient garage services at the door”; (b) the hotel would store cars for its guests at no place other than the storage facilities used in this instance; (c) the desk clerk admitted — at one place in his testimony — that Mr. Goldstein asked him if the car' and contents would be safe and the desk clerk assured him that they would be; (d) the doorman of the hotel selected the place to store the car in the basement of the garage; (e) Mr. Goldstein testified that after the theft he observed the place where the car was stored was very poorly lighted; and (f) the only precautions taken by the storage garage against such a theft was the use of a merchant watchman who “came around about three times a night.”
The foregoing testimony, along with the other facts as previously detailed, made a case for the jury: there was the delivery of a ear by a guest to the hotel for storage; the hotel was advised that there were articles in the car; the hotel was instructed to lock the car; the hotel assured the guest that the car and contents would be safe; there was a failure to return the contents; and there was evidence sufficient to go to the jury on the question of negligence of the bailee in storing the car at a poorly lighted place, and also as to the sufficiency of the precautions taken against such a theft. The Trial Court was correct in refusing an instructed verdict for the defendant.
II. Giving Of Plaintiff’s Instructions Nos. 1 and 3. Even though there was sufficient testimony to take the case to the jury, nevertheless some of the instructions offered by the plaintiff were fatally defective and require a reversal of the judgment. Over the general and specific objections of the defendant, the Court gave the plaintiff’s Instructions Nos. 1 and 3, and each of these instructions was erroneous. Here is Instruction No. 1, with the erroneous matter italicized:
“You are instructed that it is the burden of the plaintiff to prove the delivery of the automobile containing the articles of clothing, the acceptance by the defendant or its agents, notice of the contents to the defendant or its agents and the failure of the defendant to return the contents. If these matters are proved, the plaintiff has established a prima facie case of negligence and the burden devolves upon the defendant to explain the loss by showing that it used due care. If the plaintiff proves these matters and the defendant fails to explain the loss by shoiuing that it used due care, your verdict will be for the plaintiff.”
Here is Instruction No. 3, with the erroneous matter italicized:
“You are instructed that a theft by a third person is not a defense for the defendant’s failure to return the articles unless the defendant shows that the theft was not occasioned by its failure to use due care.”
It will be observed that in both of these instructions the Court told the jury that the burden was on the defendant to show due care for the property, rather than the burden being on the plaintiff to show that the defendant-bailee was negligent. Such was the error in each instruction. In James v. Orrell, 68 Ark. 284, 57 S. W. 931, the very point here in issue was decided; and the Court quoted from Storey on Bailments, 8th Ed. § 410: “ ‘ . . . it would seem that the burden of the proof of negligence is on the bailor, and proof merely of the loss is not sufficient to put the bailee on his defense.’ ” In Turner v. Weitzel, 136 Ark. 503, 207 S. W. 39, Chief Justice McCulloch quoted from an earlier case: ‘ ‘ 1 The mere loss of the property does not ordinarily fix a liability for the loss upon him (bailee), but it must be further shown that said loss arose by reason of his negligence.’ ” In Hornor Trans. Co. v. Abrams, 150 Ark. 8, 233 S. W. 825, the Trial Court gave an instruction which said that if goods were stored with a bailee for hire “. . . and they were lost while in the possession of the defendant company (bailee), then you will find for the plaintiff for the value of the goods, as shown by the evidence.” In holding such instruction to be erroneous, Chief Justice McCulloch, speaking for this Court, said that if the goods were not returned, “... it devolved upon them (bailees) to explain the loss before the plaintiff (bailor) could be put u,pon proof as to negligence.” (Emphasis our own.)
In Scott v. Columbia Compress Co., 157 Ark. 521, 249 S. W. 13, the opinion recites:
‘ ‘ The instructions given by the court told the jury in substance, that the burden of proof rested upon appellee (bailee) to account for the loss of the cotton, but that if it was shown that it was destroyed by fire, the burden was upon the appellant (bailor) to establish negligence on the part of the appellee or its servants in permitting the cotton to be thus destroyed. These instructions were in accordance with the repeated decisions of this court. ’ ’
In Hall v. Stover, 215 Ark. 485, 221 S. W. 2d 41, we said that the burden was on the bailor to prove that the bailee’s negligence was the cause of the damage to the property. There is nothing in National Garages, Inc. v. Barry, 217 Ark. 593, 232 S. W. 2d 655, which changes the holding of these cases. We there quoted from American Jurisprudence to the effect that when the bailor proves the bailment and a failure to return the property, the duty devolves on the bailee to “go forward”; but we added: “One who brings an action against a garage or livery stable keeper based upon tlie latter’s negligence ordinarily bas the burden of proving such negligence or want of due care on the defendant’s part.”
The plaintiff’s Instructions Nos. 1 and 3, given by the Court over the specific objection of the defendant, placed the burden on the defendant-bailee to prove itself free of negligence instead of placing the burden on the bailor to prove the negligence of the bailee. The question of negligence was a vital issue, involving storing the car in the place where it was stored, and also the watchman service. These were the claimed matters of negligence; and the burden was on the appellee-plaintiff to prove the negligence, rather than on the appellant-defendant to prove absence of negligence. We cannot escape the fact that the Instructions Nos. 1 and 3 were fatally defective; and by reason thereof the judgment is reversed and the cause is remanded.
Harris, C.J., and Ward, J., would reverse and dismiss.
The samples consisted of wearing apparel and other articles, and the value of the stolen articles was stipulated to be $1,210.69.
On the question of the liability of a garage man for theft or unauthorized use of an automobile, see Annotations in 131 A.L.R. 117B and 48 A.L.R. 2d 403. In 24 Am. Jur. 490, “Garages” etc. § 13, in discussing the liability of the garageman for theft, the text states the rule: “In any case, of course, the owner, in order to recover, must establish negligence on the part of the garage keeper.” | [
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Prank Holt, Associate Justice.
This is ail appeal from the order of the Grant County Probate Court admitting the will of P. D. Sullivant to probate and dismissing the appellants ’ contest of the will.
Francis D. [P. D. or Bud] Sullivant, age 78, was found dead on the side of a road in Grant County, the county of his residence, on September 14, 1961. He was divorced and had no children. He was survived by three brothers, Austin, Raybon and Birt Sullivant, a sister, Della Lybrand, and two nephews, Carl and Earl Appling, the sons of a deceased sister [Jennie Appling] of Sullivant.
On September 16, 1961, a petition for the appointment of an administrator was filed by Austin Sullivant. All of the above named heirs, except Birt Sullivant, joined in this petition. The petition was granted on September 18, 1961, in an order appointing the National Bank of Commerce of Pine Bluff, Arkansas, as administrator and issuing Letters of Administration to said bank as administrator of the estate.
On December 8, 1961, the Probate Court [after a two-day trial, December 5 and 6] rendered its Order and Judgment wherein the court admitted to probate the questioned will; denied and dismissed the appellants’ petition challenging the validity of the will; appointed Birt Sullivant executor; removed the aforesaid bank as administrator and cancelled the Letters of Administration previously issued to the bank as administrator of the estate. The appellants appeal from this Order.
On appeal, this cause comes here de novo and this court will affirm unless the order of the Probate Court is against the preponderance of the evidence. Parette v. Ivey, 209 Ark. 364, 190 S. W. 2d 441.
Appellants’ first point for reversal includes questions concerning the making and proof of the will: No will was introduced in evidence; there is no will in the record; and the proponent failed to prove by competent testimony the execution of the will of P. D. Sullivant.
A study of the record in this case reveals that the will in question and proof of will were properly filed, together with the petition for probate thereof, on September 22, 1961. On the same date the record recites that the court entered an order in which the said will is referred to in these words:£i * * * on this date Birt Sullivant presented to the court a will, proof of will attached to a petition for admission thereof to probate * * * ” In this order the court granted the appellants sufficient time to file any pleadings desired to contest the will and set the case for trial.
At the trial the two attesting witnesses to the will testified in support of the validity of the will. James C. Cole, the attorney who drafted and witnessed the will testified in part:
“Q. In the file here it is filed what proposes to be the last will and testament of F. D. Sullivant. Is that your signature on that?
A. Yes sir. That is my signature.”
Lois Green, legal secretary who typed and witnessed the will, testified in part:
‘ ‘ Q. I hand you what proposes to be the last will and testament of Mr. Sullivant. Is that your signature?
A. Yes sir, it is.
Q. This will was dated October 11, 1960. Were you a member of Cole and Scott at that time?
A. Yes sir.
Q. This is your signature?
A. Yes sir.
* *
Q. I notice in this will that you and Mr. Cole initialed the first page of it. * * * Is that your initial?
A. Yes sir, I did.”
Also, in the final Order from which comes this appeal, the court found, among other things, that:
‘ ‘ The decedent left as his last will and testament an instrument dated the 11th day of October, 1960, and due and proper proof of the execution and publication thereof in the manner required by law has been made. The decedent, at the time the will was made, was of sound and disposing mind and memory and executed same as his own free will and act and not as a result of coercion, fraud or undue influence. Said will is entitled to be admitted to Probate as the last will and testament of the decedent * * * . IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that the instrument dated the 11th day of October, 1960, tendered to this court as the last will and testament of the decedent, should be and is hereby admitted to probate as such * * * .”
The record also reflects that a copy of said will is included in the record. The two attesting witnesses, James C. Cole and Lois Green, presented proper and sufficient proof of the will in compliance with Ark. Stats. §§ 60-403 and 62-2117. We find the questioned will was presented to and examined by the court, and further, was admitted to probate and made a part of the record in this case.
As a part of Point One the appellants also urge for reversal that the proponent of the will failed to prove by competent testimony the execution of the will by F. D. Sullivant. They assail the competency of the testimony of James C. Cole as being based upon privileged communication since Mr. Cole drafted and witnessed the will. Mr. Cole’s testimony was proper and competent. Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27; Peoples National Bank v. Cohn, 194 Ark. 1098, 110 S. W. 2d 42. Also, Mr. Cole’s testimony is challenged since he was employed by the proponent of the will to represent the estate. When the will contest developed, although Mr. Cole continued as an attorney of record, another attorney, Joe W. McCoy, was also employed who tried the case chiefly in the Probate Court and presented the case on oral argument before this court. In Rosenbaum v. Cahn, 234 Ark. 290, 351 S. W. 2d 857, we held to be qualified, as an attesting witness, the attorney who also drafted the will and was named therein as attorney for the estate. In the ease at bar, Mr. Cole drafted the will and was not named in the will in any manner. Since Mr. Cole was not named in the will as a beneficiary or otherwise, we hold Mr. Cole was qualified to testify as an attesting witness under Ark. Stat. § 60-402 (c).
Appellants7 second and remaining point for reversal includes the contention that F. D. Sullivant was not competent to make a will and that the will was procured by fraud and undue influence.
The burden of proving mental incompetency, undue influence or fraud which will defeat a will is. on the party contesting it: Werbe v. Holt, 218 Ark. 476, 237 S. W. 2d 478; Walsh v. Fairhead, 215 Ark. 218, 219 S. W. 2d 941; McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264.
Appellants attempt to shift this burden of proof to the proponent of the will by relying on the rule in Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667. There this court said;
“When it is shown that the will is drawn or procured by a beneficiary, there is a presumption of undue influence * * * . It is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid."
In that case the testatrix made four wills in less than a month. The proponent of the last will, the daughter-in-law, was one of the principal beneficiaries who had her own lawyer prepare the will according to her individual instructions and contrary to the terms of the first will. In the case at bar it is true that Birt Sullivant is the sole beneficiary and that he, his wife, Minnie, and son, Sidney, accompanied F. D. Sullivant to Mr. Cole’s office on October 11,1960, when the will was drafted. However, Mr. Cole was already representing F. D. Sullivant on two matters and had never represented Birt Sullivant. The will was drafted according to the explicit directions of F. D. Sullivant without any prompting or instructions from Birt or his family. F. D. paid for the will himself. These facts are not sufficient to shift the burden of proof to the proponent in this case.
We proceed now to a discussion and decision on the question of whether appellants have shown circumstances which preponderate in favor of a finding of mental incompetency, fraud or undue influence. We find no evidence of fraud in this case.
The questions of mental competency and undue influence are so closely related and interwoven that we treat them together. Parette v. Ivey, supra; Brown v. Emerson, 205 Ark. 735, 170 S. W. 2d 1019; Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d 352.
Numerous witnesses appeared for appellants and appellee at the trial of this cause. Lay witnesses, such as neighbors and acquaintances of the decedent, appeared on behalf of appellants. The testimony of these witnesses most favorable to the appellants can be summarized thusly: One witness testified that at times F. D. was all right but at times he had “spells” but she never witnessed these “spells”, also, that in her opinion he was not capable of managing his own affairs; another witness testified that she didn’t think F. D. was crazy but his mind wasn’t right at times; another witness testified that in her opinion “he was very incompetent” and he needed Christian fellowship; another testified that when he saw F. D. in April, 1961, he was irrational in his actions and speech and that he was not as alert in September, 1961; another expressed the opinion that F. D. ’s mind was bad; another, that he had bad eyesight but no other disabilities; another, he needed medical and spiritual attention and a better diet.
Mrs. B. L. Boss, a tax consultant, testified on behalf of appellants that F. D. Sullivant visited her office on several occasions with reference to tax matters and he seemed confused in his thinking; that he expressed intense dislike for most of his relatives, especially Birt and his family. Mrs. Boss testified about and exhibited a signed document she said she formulated and typed up at F. D. ’s request on April 19, 1960. This instrument is captioned “Facts I Want To Make Known While My Sister, Jennie Appling, Is Alive And Before My Memory and Eyesight Get Any Worse.” The document recites that he did not believe in wills and would never sign a will as long as he lived, had his right mind and knew what he was doing. Mrs. Boss testified that subsequently, on one of his last visits, she said to him, “Mr. Bud, one time you said you hated Mr. Birt as bad as you hate Mr. Austin,” and he said, “Yes, but we patched up our business.”
Eaybon Sullivant, a brother toward whom F. B. had no animosity, testified that he visited with F. B. six or seven times the last two years of his life and he saw him ten days before his death. He stated that the ill relationship between F. B. and Birt began to change for the better about April, 1960. He testified that since 1958 Bud’s mind and body seemed to have deteriorated faster and that Bud couldn’t remember things well; that he had a persecution complex and a confused mind. He testified that after their sister, Jennie Appling, died in June, 1960, Bud went all to pieces and “lost his cradle of support. ’ ’
- ■ We now proceed to examine the testimony presented on behalf of appellee, Birt Sullivant, in proving the validity of the will. Appellants object to such testimony on the basis that these witnesses did not have adequate opportunity to observe the manner, habits and conduct of F. B. Sullivant. We find no merit in this contention.
There was medical testimony from several witnesses that F. B. was capable of transacting business. The most persuasive medical evidence is that given by Dr. Arthur Fowler, Jr., who observed him almost twice daily as his patient when F. D. was in the Jefferson Memorial Hospital at Pine Bluff, Arkansas from September 27, 1960 until October 4, 1960. His complaint, at this time, referred to pain in his knees, his back, and a cough. Dr. Fowler gave as his opinion that F. D. Sullivant was in good general condition for a man of his age (77); that he was mentally alert and that in his opinion he was capable of transacting business. F. D. also told him he was going to make a will which he did a few days later on October 11, 1960.
There is testimony from bank officials with whom F. D. had business transactions that they considered him capable to transact his own business. Other witnesses testified in support of validity of the will but we do not deem it necessary to detail such. ,
No witness for contestants or contestee testified as to F. D. Sullivant’s mental capacity on October 11, 1960, the date the will was executed, except Mr. Cole who drafted and witnessed the will and his legal secretary, Lois Oreen, who typed and witnessed the will. Both testified that F. D. Sullivant was mentally competent and gave definite instructions as to the contents of the desired will without prompting or participation by anyone. He asked if he had to leave the heirs not getting anything a dollar; he heard the will dictated; the will was read to him after it was typed; he paid $15.00 and asked for a receipt after the will was signed.
During the discussion about the desired contents of the will, F. D. related that he and his brother Austin had not visited with each other in twenty-five years; however, that it hadn’t been that long since he and his sister, Mrs. J. W. (Della) Lybrand, had visited each other. Also, F. D. stated that they [Austin and Della] had “done so dirty”, by trying to lock him up, and he appeared “as mad as a wet hen. ’ ’ This attitude seems to stem from the filing of a petition on September 23, 1960, signed by Austin Sullivant and Mrs. J. W. (Della) Lybrand, seeking to commit him to the State Hospital. This action appears to have been prompted by F. D. ’s alleged show of violence and threats toward the wife of a nephew, Carl Appling, when she went to visit him on September 14, 1960. A warrant was issued thereon. The fifth paragraph of his will reads as follows:
‘ ‘ FIFTH: By way of explanation, I am aware that I have other brothers and sisters but due to personal relationships and the absence of personal relationships over a period of the last several years, I am intentionally omitting leaving anything to them in this will. ’ ’
The general consensus of all the testimony in this case is that F. D. Sullivant was characterized as a recluse and miser with many eccentricities and loved money, it seemed, to the exclusion of anything else.
In Parette v. Ivey, supra, we find the following cogent language which is most applicable to this case and we quote at length:
“ * * * As was said by this court in Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695: ‘It is elementary that, subject to statutory restrictions, every person of sound mind and disposing memory has the untrammeled right to dispose of his property by will as he pleases, however capricious and unjust such disposition may appear to be. Sound mind and disposing memory constitutes testamentary capacity which is said to be the ability of the testator to retain in memory without prompting the extent and condition of the property to be disposed of, to comprehend to whom he is giving it, and to realize the deserts and relations to him of those whom he excludes from the will. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405. This definition presupposes a mental capacity sufficient to execute a will free from undue influence. Tobin v. Jenkins, 29 Ark. 151. With respect to the ability to know the extent and condition of the property to be disposed of and to whom it is being given, and to appreciate the deserts and relations to the testator of others against whom he discriminates or excludes from participation in his estate, it is unnecessary that he actually has this knowledge. It is sufficient if he has the mental capacity to understand the effect of his will as executed. “Capacity to understand the effect of making one’s will, and not actual understanding, is the test of mental capacity required of the testator.” Huffaker v. Beers, 95 Ark. 158, 128 S. W. 1040; Emerich v. Arendt, 179 Ark. 186, 14 S. W. 2d 547,’ and in one of our early cases on the subject, McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 690, this court held: (Headnote 2) ‘The infirmities of age and even a partial eclipse of the mind, will not prevent a person from making a valid testament if he can retain in his memory, without prompting, the extent and condition of his property, and understands to whom he is giving it and is capable of appreciating the relations to him and merits of others whom he excludes from any participation in his estate, ’ and on the question of undue influence, (Headnote 1) ‘The undue influence which avoids a will is not the influence which springs from natural affection, or is acquired by kind offices, but it is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property. And it must be directly connected with the execution of the will and specially directed towards the object of procuring a will in favor of particular parties.’
See, also, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, wherein this court said: ‘Testators are not required by law to mete out equal and exact justice to all expectant relations in the disposition of their estates by will, and the motives of partiality, affection, or resentment, by which they naturally may be influenced, are not subject to examination and review by the courts. Barricklow v. Stewart, 163 Ind. 438, 72 N. E. 128; Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681. If one has the capacity indicated to make a will then he may make it as “ eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate. ” ’ ” [Citations omitted]
From all of the testimony we are unable to say that the findings of mental competency and lack of undue influence, by the Probate Court, were against the preponderance of the evidence. The decree is therefore affirmed.
Harris, C. J., not participating.
A pending criminal charge based on a warrant issued because of alleged threats and show of violence to the wife of his nephew, Carl Appling, on September 14, 1960. Also, a pending petition, signed by Austin Sullivant and Mrs. J. W. Lybrand, brother and sister of J. D., to commit him to the State Hospital. This petition was filed on September 23, 1960. | [
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Ed. F. McFaddin, Associate Justice.
This is a boundary line dispute between neighbors, and is here on both direct and cross appeal.
Mr. and Mrs. Gordon owned their home in Morrilton, and their property had a frontage of 95 feet on Griffin Street; and Mrs. Emma Lee Beaty owned a vacant lot, having a frontage of 60 feet on Griffin Street, and being immediately north of and adjacent to the Gordon property. In 1959 Mr. and Mrs. Beaty decided to build their home on the vacant lot; but there was no definite marking of the boundary line and no legal survey had been made. Mr. Beaty and three others were to construct the Beaty home, and Mr. Beaty consulted with Mr. Gordon about the division line. From that conversation, Mr. Beaty thought his foundation was being laid five feet north of the Gordon property line. After the Beaty home was completed and occupied, and this dispute arose as to the boundary, the Beatys, in August, 1961, had a survey made by Mr. Ragsdale, a civil engineer; and he reported that the foundation of the Beaty home was six or eight inches north of the Gordon north line.
Because of further dissension between the neighbors, Mrs. Beaty filed suit against the Gordons to quiet her title to the property she claimed. The Gordons cross complained, alleging that the eaves of the Beaty home actually extended over the Gordon property line; and they prayed:
“. . . that the Court compel the plaintiff to move her house five feet North of the boundary line separating the plaintiff’s property from the defendants’ property, and that the Court award the counterelaimants the sum of $1,000.00 for the unlawful trespass on defendants’ property, and for all other equitable relief to which they may be entitled.”
A new survey made by Mr. Ragsdale seemed to indicate that the eaves of the Beaty home extended over the property line. After a lengthy trial, and a personal inspection by the Chancellor, the Chancery Court found that the eaves of the Beaty roof actually extended six inches over the property line and thereby damaged the Gordon’s property $1,000.00. But the Chancery Court refused to require the Beatys to remove the roof encroachment because of the expense involved and because the Gordons had allowed the encroachment to be made. On her direct appeal Mrs. Beaty makes these points:
(A) The Parties made a Binding Agreement as to the Location of the Boundary Line Before Plaintiff Began Construction of Her House.
(B) The South Line of the Plaintiff’s Property has been Established by Acquiescence for Over 20 Years.
(C) No Damages Were Proved by Defendants.
(D) Defendants Are Estopped to Claim Any Damages.
On the cross appeal Mrs. Gordon claims that she is entitled to a mandatory injunction to compel Mrs. Beaty to remove the encroachment at all events; and Mrs. Gordon also contends that, because of the building code of Morrilton, Mrs. Beaty’s wall and foundation must be moved five feet from the property line.
So much for the history of the litigation and the issues. The learned Chancellor, in an evident effort to restore harmony between these neighbors, entered a decree whereby Mrs. Beaty would not be required to remove the encroaching eaves, but in lieu thereof would pay Mrs. Gordon $1,000.00 as damages. Such would have been a good settlement, but neither party was satisfied and the case comes to us on both direct appeal and cross appeal.
1. The Cross Appeal of Mrs. Gordon. We hold that the cross appeal of Mrs. Gordon is determinative of the litigation. The overwhelming weight of the evidence supports the Chancellor’s finding that the eaves of the Beaty house actually encroached on the Gordon property; and, under our cases, such encroachment, even though small, should be abated. We have repeatedly held that the doctrine of de minimis non curat lex has no application where real estate is involved. Fulks v. Fredeman, 224 Ark. 413, 273 S. W. 2d 528. In Leffingwell v. Glendenning, 218 Ark. 767, 238 S. W. 2d 942, it was held that the owner of a lot, whose contractor inadvertently built a retaining wall separating adjacent property, was under legal compulsion to remove a protrusion varying from a fraction of an inch to nearly four inches, over a distance of twenty-six feet. In Jernigan v. Baker, 221 Ark. 54, 251 S. W. 2d 999, the eaves of the offending* house extended over the building line (as fixed by bill of assurance, rather than municipal ordinance); and, in ordering the removal of the encroachment caused by the eaves, we said: “No one could seriously argue that eaves are not a part of the attached building, and in the instant case a projection of. more than three and a half feet constituted an invasion of the area Jernigan had every cause to believe would always remain unobstructed. It follows that a mandatory injunction requiring removal should have been given.”
To overcome the effect of these holdings, Mrs. Beaty urges: (a) that the line had been fixed by acquiescence- over many years; and (b) that Mr. Gordon agreed to the boundary line. The Chancery Court found the preponderance of the evidence to be contrary to these contentions; and we agree. The line had never been established, so there could have been no “acquiescence.” Mr. Gordon was old and feeble and had no authority from Mrs. Gordon to bind her to a boundary line agreement; and Mrs. Gordon offered a reasonable explanation as to why she delayed a very short time in objecting to the Beaty foundation: her son was a civil engineer and had to come from Kansas to survey the line and advise his mother. It must be remembered that Mrs. Beaty instigated this litigation by invoking the aid of equity to quiet her title; yet Mrs. Beaty admitted that no legal survey was made prior to construction. The burden was on Mrs. Beaty to be diligent in making a survey before she could ask equity to declare an estoppel against Mrs. Gordon for a short delay in protesting. For these reasons, language contained in Hamilton v. Smith, 212 Ark. 893, 208 S. W. 2d 425, is not applicable to the case at bar.
The Chancery Court should have ordered the removal of the encroachment of the eaves of the Beaty house, insofar as the eaves extended over the Gordon property line. Mrs. Gordon insists that the Beaty house should be moved five feet from the property line; but we do not agree that Mrs. Gordon has sustained her position to that extent. In Jernigan v. Baker, 221 Ark. 54, 251 S. W. 2d 999, the landowner had the benefit of a bill of assurance under which he could seek relief. In the case at bar, there is only a city ordinance of Morrilton. The City is not a party to this suit, and may have agreed to the Beaty construction, or may now be bound by it; so we cannot consider here the alleged violation of the ordinance. With the cross appeal of Mrs. Gordon granted to the extent herein stated, it follows that Points A, B, and D, urged by Mrs. Beaty (as previously listed), are decided adversely to her.
II. Damages. The Trial Court awarded Mrs. Gordon $1,000.00 damages because the eaves of the Beaty house would continue indefinitely to encroach on the Gordon property. Even assuming that the evidence as to such damages was sufficient to support the award, nevertheless the encroaching eaves are to be removed, so the amount of damages awarded must also be reversed.
CONCLUSION
To the extent herein stated, the decree is reversed on both direct appeal and cross appeal; and the cause is remanded with directions to the Chancery Court to enter a decree and have further proceedings in accordance with this opinion. All costs are assessed against appellant.
The city building code of Morrilton required an interval between tlie building and the property line, and the building inspector advised Mr. Beaty that the distance was five feet.
The Gordon property was owned by entirety; shortly after the trial below Mr. Gordon died, and the cause has been revived as to his estate because of the $1,000.00 judgment. | [
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George Rose Smith, J.
This is an action by K. B. Wagnon and his wife for damages sustained in a traffic collision between their car and that of the appellee, T. C. Barker. Mrs. Wagnon was injured and the Wagnon car was damaged. Submission of the case to the jury, without interrogatories, resulted in a general verdict for the defendant. For reversal the Wagnons question the sufficiency of the evidence and the court’s action in giving and refusing instructions.
The Wagnons owned their car jointly. At the time of the accident Mrs. Wagnon was being driven upon a shopping trip by her granddaughter, Sally Ann Bercher, in circumstances from which the jury were justified in finding that Mrs. Bercher was acting as her grandmother’s agent. This question of agency was submitted to the jury; we must assume that it was resolved against the appellants.
Just before the collision Barker had been parked, facing south, on the righthand side of Towson Avenue, a four-lane street in Fort Smith. Barker pulled away from the curbing, intending to make a U-turn and travel northward. After he had almost cleared the outer right-hand lane, where he had been parked, and was about three-fourths of the way across the inner lane, his engine died. Barker tried to start his ear, but it seemed to be flooded. He first saw the Wagnon automobile, approaching from the south, when it was about a block away. It appeared to Barker that Mrs. Bercher didn’t see him: “She was just coming too fast to stop, and it looked like she didn’t even see me there.” Barker stated that his car had been standing still in the street for ‘£ quite a while” before Mrs. Bercher applied her brakes. The Wagnon car left 72 feet of heavy skid marks and struck the Barker vehicle with great force, throwing Mrs. Wag-non into the windshield.
Mrs. Bercher admitted candidly that she did not see Barker’s car “until it was just too late. When I looked up he was in my lane, and I slammed on the brakes and went into him, and I couldn’t stop.” On cross-examination she confessed that she had not seen where Barker came from; he was already stopped when she first saw his car in her path.
Giving the evidence its strongest force in favor of the verdict, we think it plain that there is substantial proof to support a finding that Mrs. Bercher’s negligence was at least equal to that of Barker. (The jury could well have believed that if Mrs. Bercher had been traveling at a lawful speed and had been keeping a proper lookout she would have seen Barker in ample time to have stopped before reaching his car.) Under our comparative negligence act the plaintiffs were not entitled to recover if the negligence of their agent equaled or exceeded Barker’s negligence. Ark. Stats. 1947, § 27-1730.2.
It is now argued by the appellants that Mr. Wag-non, at least, should recover his share of the property damage, since Mrs. Bercher was his wife’s agent, not his. Had this contention been urged in the trial court the jury might have found that Mrs. Wagnon had implied authority to bind her husband in the selection of a driver for the family car. But this contention was not made below. To the contrary, the plaintiffs, by their requested instruction No. 2, asked the court to submit as an issue of fact the question of Mrs. Bercher’s agency for both the Wagnons, and that issue was actually submitted by the court’s instruction No. 4. A party who requests the submission of an issue of fact is not in a position to contend that no such issue existed. The Home Company v. Lammers, 221 Ark. 311, 254 S. W. 2d 65.
The court’s instruction No. 4 is challenged upon two grounds, but neither of the defects now urged was mentioned in the single specific objection that was made in the court below. There was no general objection. We have repeatedly held that when a party makes only a specific objection to an instruction he waives all other objections. Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048; Southern Bauxite Co. v. BrownPearson Cash Feed Store, 172 Ark. 117, 288 S. W. 377; Coca-Cola Bottling Co. of Blytheville v. Doud, 189 Ark. 986, 76 S. W. 2d 87: The opinion in Trumbull v. Martin, 137 Ark. 495, 208 S. W. 803, indicating that an unfounded specific objection may be treated in this court as a general objection, is contrary to our cases both before and after that decision and cannot be regarded as a correct statement of the law.
The court properly refused the plaintiffs’ instructions No. 4 and No. 5. The former would have been abstract and confusing to the jury, in that it embodied a number of traffic rules that were of no importance in this case. It mentioned, for example, a driver’s duty to signal for a turn during the last 100 feet before turning. But Mrs. Bercher admittedly was not looking ahead and did not even see the Barker automobile; so it is plain that whether Barker gave a signal was immaterial.
Instruction No. 5 would have told the jury that neither the owner of a car, nor a passenger, is liable, merely because of the relationship, for the, negligence of the driver. Liability on account of negligence was covered by the instructions that were given. We are wholly unwilling to order a new trial simply because the court refused to give a negative charge setting out matters that counsel were at liberty to argue to the jury upon the basis of the instructions that were actually given.
Affirmed. | [
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Carretón Harris, Chief Justice.
Appellant and appellee were married in Johnson County on June 9, 1962. The instant suit for divorce was instituted by appellee on August 30, 1962, a few days after the parties had separated, in which she alleged general indignities. Appellant answered with a general denial, specifically pleaded condonation, and filed a “counterclaim” for divorce, likewise alleging general indignities pursued until his condition in life had become intolerable. Following the filing of amendments to the pleadings, the cause proceeded to trial. At the conclusion of the evidence, the court entered its decree, granting appellee an absolute divorce, and from such decree, appellant brings this appeal.
We are unable to consider this appeal on its merits since appellant has failed to comply with Rule 9 (d) of the rules of this court. We have stated numerous times that we are not required to explore a record that is pre sented to us, but that the duty rests on appellant to furnish this court such an abridgment of the record as will enable us to understand the matters presented. See Allen v. Overturf, 236 Ark. 387, 366 S. W. 2d 189, and cases cited therein. The pleadings and decree in this case are abstracted, but there is no abstract whatsoever of the testimony and exhibits which cover approximately 65 pages. A few references are made, in the brief itself, to isolated portions of the testimony, but not to a sufficient extent that we can comprehend the full nature of the evidence. As stated in Reeves v. Miles, 236 Ark. 261, 365 S. W. 2d 460:
“Although the record contains more than fifty pages of pleadings, exhibits, and testimony, appellant has presented us with no abstract of the same. The casual references in the argument to this testimony are not sufficient for us to formulate an informed opinion on the merits of the case. In such a situation this Court has heretofore uniformly affirmed the trial court’s decree or judgment. See: Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Porter v. Time Stores, Inc., 227 Ark. 286, 298 S. W. 2d 51; Farmers Mutual Ins. Company v. Watt, et ux., 229 Ark. 622, 317 S. W. 2d 285; and, Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21.”
Affirmed.
According to appellant’s statement of the case, this “counterclaim” was dismissed prior to the trial. It is not involved in this appeal. | [
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Ed. F. McFaddin, Associate Justice.
On August 21, 1962, an election was held in the City of Newport on the issue of the City Manager form of municipal government. The official returns showed 888 votes against the City Manager plan, and 866 for the plan. In due time, the appelles herein instituted this election contest, claiming a number of named persons to have voted illegally. The contestees (appellants herein) cross complained and challenged a number of named voters. Trial in the Circuit Court resulted in a judgment finding and declaring that there were 849 legal votes for the City Manager plan, and only 834 legal votes against it. Thus, the Circuit Court judgment showed a majority of 15 votes for the City Manager plan; and from that judgment there is this appeal by the contestees, presenting the points herein discussed.
I. Convicted Felons. The contestants challenged a number of named voters, claiming: “The following-persons voted against the passage of said measure whose votes were illegal for the reason that each one had prior to said election been convicted of a felony and was therefore not a qualified elector and was ineligible to vote: ...” To that allegation, the contestees filed a special demurrer because the contestants had failed to negative the possibility of a pardon of the convicted felon. The Trial Court denied the demurrer, and we see no error. Section 3-101 Ark. Stats., in discussing persons disqualified, says:
“No one who has been convicted of any offense which is a felony at the common law, or by statute, shall be allowed to vote in any election in this State, unless such person shall have been pardoned by the Governor, and the record of the court wherein such person shall have been convicted shall be conclusive evidence of his conviction.”
The contestants alleging the disqualification had the burden of proving- the felony; and in the offering of such proof the contestees could easily have established that there had been a pardon. Certainly in the pleadings stage, the Trial Court was correct in overruling the contestees’ demurrer.
II. Irregularities In Box 1-A. The election officials of this box failed to place the number of the voter on the stub, as required by the statute: rather, the election officials endorsed the number of the voter on the back of the ballot, and the list of numbers on the tally sheet was from 1 to 110, consecutively, as the ballots had been numbered. The fact that the judges had not endorsed the number on the stub of each ballot was not contained in any of the pleadings. It was only when the box was opened that the irregularity was discovered. Appellants then claimed that since the election officials had failed to comply with the statute, no votes should be stricken from the Box 1-A. The Trial Court was correct in rejecting the appellants’ argument. There was no allegation of fraud in the Box 1-A; and it was not until the box was opened that it was discovered that the judges had endorsed the numbers on the back of the ballots instead of on the detachable stubs. In the absence of any allegation of fraud, it would be putting-form above substance to refuse to discard illegal votes from this box merely because the election officials put the number on the back of the ballot instead of on the detachable stub.
III. Irregularities In Box 1-B. Ballots Nos. 24 and 49 were challenged in this box; and when the box was opened to identify the challenged ballots it was discovered, for the first time, that the box was entirely empty. Thereupon, contestees (appellants here) moved:
“In the absence of any ballots being found in the official ballot box 1-B by which the Court may determine whether any challenged vote was cast ‘for’ or ‘against’ the City Manager proposition, defendants request the Court to declare that the integrity of box 1-B has been wholly destroyed, and that the results certified by the election commissioners for box 1-B be completely discarded and the results thereof subtracted from the ‘for’ and ‘against’ totals in the election as a whole.”
Tlie Court wisely reserved ruling on the motion until the conclusion of the litigation; and then when Box 1-A was opened there was found in Box 1-A a manila envelope containing what the Court found to he the original official ballots that had been cast in Box 1-B. In other words, the ballots from Box 1-B had been placed in a manila envelope and then placed in Box 1-A instead of in Box 1-B. The integrity of the ballots in Box 1-B was not completely destroyed. The appellants did not allege or attempt to prove any fraud by any of the election officials in Box 1-B. Only two questioned ballots were involved; and it would certainly be a deprivation of the right of franchise to the other voters in Box 1-B to have their entire ballots thrown out, when only two votes in the box were questioned. The Trial Court correctly overruled the defendants’ motion, as above copied.
At the beginning of the trial the Court announced the procedure in the election contest; and no one disagreed. Here was the announcement by the Court of the procedure :
“From this point on there will be no more amendments to the pleadings except the addition of names, if either side should choose to make that sort of an amendment, from issues already raised by the pleadings. In other words, the pleadings are settled as of this time. The procedure that we will follow will be that the contestants will be permitted to challenge and possibly disqualify all the votes that they question first, then the contestees will be permitted to challenge and possibly disqualify all of the votes which they question because both sides have questioned the legality of various votes. The Court will rule on each of these challenged votes compiling a list as we go and when this list is completed the record will be closed as far as evidence is concerned. The Court will then order the necessary ballot boxes, if any, brought to the courtroom at which time we will determine how many illegal votes were cast and these will be deducted from the certified totals.”
Under this procedure only the challenged ballots were involved, and not the unchallenged ballots, and the motion by contestees (appellants here) to discard the entire box was without merit.
IV. The Absentee Box. This box presents the most flagrant violation of election laws of which honest election officials could have been guilty, and gives us most serious concern ; but we emphasize that there is not the slightest allegation or suspicion of fraud; and it is this entire absence of any allegation or evidence of fraud of corruption that accounts, in a large measure, for the conclusion we reach on this absentee box. The contestees (appellants) insisted that the integrity of the box had been destroyed because: (a) one of the election officials tore up some of the ballots; (b) the absentee box was never delivered to the proper official at the court house; and (c) the box and the ballots cannot be found.
The evidence established that the judges and clerks of the absentee box counted the votes in the office of the County Clerk the night of the election, with a group of people present, varying from a few to more than a score. As each ballot was taken out of the box, the name of the voter was called, and how such person had voted, that is, “for” or “against’’ the City Manager plan. This list was compiled on a form for certificate of judges and clerks at the election (§ 3-1007 Ark. Stats.), but those counting the ballots had written “For” at the head of one column, and “Against” at the head of the other column; and the name of the voter was placed in the column as he had voted. Thus, all secrecy of the ballot was completely destroyed. A total of 88 votes were cast in the absentee box: 67 had voted for the City Manager plan, and 21 had voted against it. When the 88 votes were compiled, two of the election judges and one of the clerks signed the form and left it on the table in the County Clerk’s office; and this form remained in the County Clerk’s office. In a day or two, the Clerk requested the Circuit Judge to impound the form; and it was introduced in evidence in this case as Exhibit No. 17. This Exhibit No. 17 is all that was introduced from the absentee box. The ballots were scattered and lost; and this one Exhibit No. 17 is all that remains.
In the trial the Circuit Court accepted the Exhibit No. 17 as valid; and, using it as a basis, held seven votes to have been illegal in the absentee box. The question is whether we should allow this Exhibit No. 17 to be used to show the result of the absentee box. We need not mention the numerous sections of the statutes that were violated by the election officials of the absentee box: the question is whether the entire absentee box should be discarded, or whether only the challenged individual votes should be thrown out; and we emphasize again that there were no allegations of fraud or corruption against the officials of the absentee box.
We think the answer to our problem is contained in the case of Dixon v. Orr, 49 Ark. 238, 4 S. W. 774. In that case, no return was ever made from Little Biver Township in Miller County in the election for the office of Sheriff; and Dixon contended that the entire box should be suppressed. The box and tally sheets had been lost entirely, and “the election officers displayed a remarkable deficiency of memory as to the state of the vote.” But there were two witnesses who were present when the entire vote was counted in the box, and they testified that 114 votes were cast in the precinct; and of these Dixon received 27, and Orr 87. Such testimony was permitted to stand as the return from that box. The Court said:
“The real inquiry is, who received a majority of the legal votes cast in Miller County for the office of Sheriff ? Upon a contest all such votes must be counted, whether they were returned or not. Constitution of 1874, art. 3, sec. 11; Govan v. Jackson, 32 Ark. 553. Where an election has been legally held and fairly conducted, nothing will justify the exclusion of the vote of an entire precinct except the impossibility of ascertaining for whom the majority of votes were given.
“Now, the poll books and tally sheets made out and properly certified by the election officers, and the ballots themselves, are the primary evidence of the result of an election. But if these are lost, destroyed or stolen, this does not destroy the validity of the count, but resort must be had to secondary evidence.”
The authenticity and correctness of the Exhibit No. 17 introduced in the case at bar was thoroughly established. It shows the name of each person who voted an absentee ballot, and exactly how that person voted, and no one has attempted to dispute the correctness of the exhibit. In the absence of fraud or corruption, the Exhibit No. 17 should stand. We have a number of cases which hold that a voter is not to be disfranchised because of the failure of the election officials to obey all the election laws. Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257. In Baker v. Hedrick, 225 Ark. 778, 285 S. W. 2d 910, we quoted Judge Eakin’s language in the case of Patton v. Coates, 41 Ark. 111, as to the quantum of evidence required to destroy the integrity of an entire box:
“ ‘The wrong' should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, * * * . If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.’ ”
In Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723, Chief Justice Cockrill said:
“It is a serious thing to cast out the votes of innocent electors for acts done by others, and it is the province of courts to see that every legal vote cast is counted where the possibility exists.”
We therefore conclude that, in the absence of proof of fraud or corruption, and in the absence of evidence going to destroy the integrity and correctness of Exhibit No. 17, the Trial Court was correct in refusing to cast out the entire absentee box, and was correct in allowing Exhibit No. 17 in evidence.
Y. Individual Ballots. The remaining questions raised by the appellants relate to the correctness of the rulings of the Trial Court regarding the ballots of individual electors. The appellants claim that in thirteen instances the Trial Court held voters ineligible when, in fact, each such voter was eligible. Also the appellants claim that the Trial Court erred in refusing to cast out nineteen votes. It would unduly prolong this opinion and serve no useful purpose to discuss each of these ballots, give the factual situation, and the ruling of the Court thereon. In each instance it was a disputed question of fact as to the residence of the voter; and the determination of such question by the Trial Judge is as final and conclusive as is the verdict of a jury. Logan v. Moody, 219 Ark. 697, 244 S. W. 2d 499; Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024. We have carefully examined the evidence as to each of the thirty-two ballots in question, and conclude that no reversible error has been shown by appellants.
The judgment is affirmed.
Section 3-831 Ark. Stats, provides: “Every qualified elector shall be furnished with one (1) ballot. Before delivering- the ballot to the elector the Election Judge shall endorse his initials on the upper back (or outerside) of the ballot. A Judge shall also place the number of the voter (which is a designation of the order of his appearance according to the List of Voters) in the blank space in the lowest one (1) inch on the face of the ballot following the words ‘List of Voters Number . . .’ ”
The allegations of the contestees regarding this absentee ballot box are as follows: “Contestees allege that for the election held on August 21, 1962, in Newport, Arkansas, there was provided a separate and special ballot box for the reception of ‘absentee’ ballots. The ballots in said Absentee Box were counted under the supervision of (the three named Judges). The clerks on the Absentee Box were (named). During the process of counting the ballots in said box, it was observed that (one Judge) was tearing up ballots as they were counted and tossing the remnants in a waste basket. It is not known how many ballots this Judge destroyed before, his acts were discovered and stopped. Notwithstanding the fact that this Judge probably did not know he was violating a law, his actions utterly destroyed the integrity of the absentee box. When the count of ballots in the Absentee Box was almost complete, (one Judge) departed, leaving the ballot box in the custody of (the other election officials). The said Absentee Ballot Box has never to this day been delivered by either of said Judges—nor anyone else—into the custody of either the County Clerk or the County Treasurer. Although contestees, through their attorneys, have made a diligent effort to locate said ballot box, it has not been found. The integrity of the votes cast in the Absentee Ballot Box has been utterly and completely destroyed and the returns from said box should be purged from the totals cast up by the election officials.” We have omitted from the quotaton only the names of the Election Judges and Clerks, and indicated by parenthesis in each instance where such omission appears. | [
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Sam Robinson, Associate Justice.
Appellant, Billy Seabourn, was charged in Sebastian County with murder in the first degree in the killing of George Schuh, a soldier. He was convicted of murder in the second degree, sentenced to 21 years in the penitentiary, and has appealed.
Appellant owned and operated the Hi Boy Bar in Ft. Smith. There are two rooms. In the front room there are booths, a bar where beer is dispensed, and a music machine. In the back room there are booths, a small dance floor, and a speaker connected with the music machine.
About 1 a. m. on June 28, 1962, appellant, while in his place of business, shot and killed George Schuh, a private in the Army. Schuh was shot in the back of the head with a .38 caliber pistol held in the hands of appellant, who claims that the shooting was accidental while acting in self defense.
The principal contention of appellant on appeal is that the evidence is not sufficient to sustain a conviction of murder in the second degree.
Ark. Stats. 41-2201 provides: “Murder is the unlawful killing of a human being, in the peace of the State, with malice aforethought, either express or implied”. 41-2205 defines murder in the first degree as: “All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree. ’ ’ All other murder is murder in the second degree. Ark. Stats. 41-2206.
Oil appeal, the evidence must be viewed in the light most favorable to the State. Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964.
Appellant did not work at the Hi Boy Bar on the day of the killing. There were two employees on duty, Jack Jones, the bartender, and Ellen Rink, a waitress. Appellant was in and out of the place two or three times that day. The last time he went there was shortly after 10 p.m. and he stayed until after the killing, which occurred about 1 a.m. He drank several beers.
Beer was not served after 12:45 a.m. and the place closed at 1 a.m. Between 12:30 and 1 a.m., George Schuh, who was killed a very short time after he entered the bar, came into the place and went into the back room looking for a couple of friends. There were six or eight soldiers in the back room who had been there for some time drinking beer. Some of them had tried to date the waitress, Ellen Rink, and had “made passes” at her. She complained about the soldiers’ conduct in that respect and stated that she did not want to serve them any more beer; the last round of drinks was, therefore, taken to the soldiers by the bartender, Jones. The soldiers were laughing and drinking.
The appellant, Seabourn, who had been sitting at the bar since some time after 10 o’clock, went into the back room a few minutes before 1 o’clock and told the-soldiers that it was about time to close and time for them to leave. According to appellant, one little fellow got up and took his glass of beer back to a booth in the rear of the room, and Schuh placed his hand on Seabourn’s shoulder and told him that they would leave in a few minutes. Seabourn testified that he went back to the bar and got his .38 revolver that he kept in a drawer and went again to the back room for the purpose of getting the soldiers to leave, carrying the pistol as a bluff, thinking that the sight of the weapon would hurry the soldiers along.
The soldiers did leave and Seabourn claims that he followed them out to near the front of the building; that after all the soldiers were out except Schuh, and per haps one other, Schuh turned around and Seabourn claims that he struck Schuh with the .38 pistol thinking that Schuh was about to attack him, and that the gun went off accidentally.
But Ellen Rink, the waitress, testified that it was when the soldiers were actually leaving, and were in the front room on the way out the door that Seabourn got the pistol and followed them. In any event, Schuh was-shot in the back of the head, and appellant was unable to explain to the satisfaction of the jury just how he could have been shot in that manner if he was facing appellant.
Appellant’s version of the killing is not corroborated by the circumstances. In the first place, he claims that at the time he struck Schuh with the revolver it was in a holster. The holster — one with a closed end — was found on a table in the bar, and there was no bullet hole in it. After .the shooting there remained in the barroom one soldier, a Sgt. Redmond; the bartender, Jack Jones; the waitress,. Ellen Rink; and appellant, with the body of Schuh, who apparently was killed instantly.
■ A few minutes after the shooting, appellant’s wife arrived and she, appellant, and Redmond took Schuh to the hospital in appellant’s car. While at the hospital, appellant called the bartender, Jack Jones, and told him to get rid. of the .38 pistol; that he had hidden it behind the speaker. ■ However, Jones found the pistol on the floor where it must have fallen from behind the speaker. He and the waitress, Ellen Rink, put the pistol in Ellen’s purse, where it was found by officers the next day.
Appellant is married, but he had been dating the waitress, Ellen Rink. He had been drinking over a period of several hours, and although he contends that he consumed only a few beers, he could have been angry with the soldiers for having tried to date Ellen and having made passes at her. The soldiers had done or said nothing that justified appellant in getting his pistol and following them to the door. They were his customers, laughing and having a good time and drinking what he had to sell. If they sought to date the waitress it was nothing more than the natural result of having imbibed of appellant’s stock in trade. Moreover, since appellant is a married man, the soldiers were probably at greater liberty to date Ellen than was appellant.
There is not a scintilla of evidence that would lead any reasonable person to believe that Schuh was about to make an attack on appellant. But appellant did make a murderous attack on Schuh with a deadly weapon, if only used as a club. Ark. Stats. 41-2202 provides : ‘ ‘ The manner of the killing is not material, further than it may show the disposition of mind, or of the intent with which the act was committed”. 41-2204 provides: “Malice shall be implied when no considerable provocation appears or when all the circumstances of the lolling manifest an abandoned and wicked disposition”.
Ark. Stats. 41-2246 provides: “The killing being proved, the burden of proving circumstances of mitigation, that justify or excuse the homicide, shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest, that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’
No witness testified that he actually saw the shooting; the defendant is the only person who knows how it, occurred, and the jury did not believe his unreasonable version of it. It was proved beyond any doubt that appellant killed the deceased with a deadly weapon by shooting him in the back of the head.
In Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621, the Court quoted from Townsend v. State, 174 Ark. 1180, 298 S. W. 2 as follows: “The law implies malice where there is a killing with a deadly weapon and no circumstances of mitigation, justification, or excuse appear at the time of the killing. Inasmuch as no one can look into the mind of another, much latitude is allowed in the introduction of testimony on the question of motive, and the only way to decide upon the mental condition of the accused at the time of the killing is to judge it from the attendant circumstances.”
The intent to kill is not necessary to constitute murder in the second degree. Wooten v. State, 220 Ark. 750, 149 S. W. 2d 964.
Appellant objected to the failure of the Court to instruct the jury that the intent to kill was a necessary element of voluntary manslaughter. We fail to see how this could have been prejudicial to the appellant since he was convicted to second degree murder, but be that as it may, the intent to kill is not a necessary element in the crime of voluntary manslaughter. Robertson v. State, 212 Ark. 301, 206 S. W. 2d 748.
Appellant complains of the Court refusing to give a requested instruction telling the jury that in the event they found the defendant guilty of homicide and had a reasonable doubt as to the degree, they should give him the benefit of the doubt and find him guilty of the lower degree. The Court, on its own motion, gave a complete instruction fully and correctly explaining this point to the jury.
Finding no error, the judgment is affirmed. | [
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Jim Johnson, Associate Justice.
This appeal involves the interpretation and construction of the words “application made to the court” as contained in Ark. Stat. Ann. § 62-2125 (Supp. 1961), Time limit for probate and administration.
J. M. Minchew, a widower, had a will prepared and executed on July 5, 1946. After making nominal bequests to his living daughter, Dollie Minchew Tullís (the survivor of two daughters who married brothers), and his grandson (son of the deceased daughter), he left the residue of his property to his two sons, J. C. Minchew and Willie Y. Minchew, who lived and worked on the farm with their father, who were also named as executors in the will.
J. M. Minchew died on March 7, 1954, in Desha County. On March 10th a petition for probate was filed by the sons, together with the will, a proof of will executed by one of the attesting witnesses, and an affidavit of proof of signature of the other attesting witness who was a nonresident. The cause was placed on the Desha Probate docket as number 949. No further action was taken in the case until October 11, 1955, when the proceedings were removed from the active docket by order of the probate judge, with the provision that it might be reinstated upon request of any interested party to the probate clerk.
On May 21, 1957, Willie V. and J. C. Minchew petitioned the court to restore the case to the active docket, which was done by court order. (Willie V. Minchew died thereafter on October 25, 1961.)
On November 28, 1961, appellee Ezra Tullis, Jr., grandson of the deceased J. M. Minchew, filed objections to the admission of the will to probate, alleging failure of appellant, J. C. Minchew, to make application for probate of the will and a grant of administration within five years from the death of the decedent.
Appellant petitioned the court on December 6, 1961, for a hearing date on the petition to probate J. M. Min-chew Js will.
On March 22, 1962, trial was held before the Hon. Lawrence E. Dawson, Judge of the Probate Court of Jefferson County, Second Division, on exchange, in the Probate Court of Desha County, McGehee District. By agreement of counsel the matter was heard on the one issue of whether appellant had complied with Ark. Stat. Ann. § 62-2125 (Supp. 1961). It was further agreed that if appellant prevailed in the trial court, appellee could proceed with the trial of other issues or he could take an appeal on this one issue. The opposite was true, if appellee prevailed.
The opinion of the court was rendered on March 30, 1962, holding that the will was barred from admission to probate by the five year statute of limitation, Ark. Stat. Ann. § 62-2125 (Supp. 1961), since no application for the admission of the will to probate had been made to the probate court within five years from the death of the de cedent. An order was entered in accordance with the opinion on October 4, 1962. This appeal followed.
For reversal appellant maintains that the probate court erred in ruling that appellant had not made application to the court in the time and manner required by Ark. Stat. Ann. § 62-2125, when appellant filed a petition for probate, along with the will, three days after the death of the testator.
Ark. Stat. Ann. § 62-2125 (Sup. 1961) reads as follows:
“Time limit for probate and administration. No will shall be admitted to probate and no administration shall be granted unless application is made to the court for the same within five years from the death of the decedent; this section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.” [Italics ours.]
Appellee cites Sims v. Schavey, 234 Ark. 166, 351 S. W. 2d 145, in support of the trial court’s ruling that probate was here barred by the five-year limitation. In the Sims case we held that our five year statute on probation of wills applied to foreign wills as well as to wills of this state, in order to make secure the title to property. The Sims case, however, does not deal with the specific question here involved, which is conceded to be the interpretation and construction of the words “application made to the court ’ ’ as contained in § 62-2125, supra.
Since the enactment of the Probate Code in 1949, there have been no cases decided which dealt with the meaning of the term “application made to the court” as contained in this statute (§ 62-2125, supra). Appellant contends that “application made to the court” is synonymous to “petition is filed”, whereas appellee contends that “application made to the court” is virtually synonymous to “probate of a will”, although appellee does concede that the statute does not state that a will must be admitted to probate within the five years. The trial court in its opinion found, in essence, that a personal appear anee before tbe probate court is necessary to constitute ‘ ‘ application to tbe court ’ Appellee asserts that at least a hearing must be set on a petition for probate before “application” has been “made to the court”, although recognizing that the Probate Code allows the court to hear a petition for probate immediately upon filing or at such time and place as the court may direct.
We consider the Probate Code particularly thorough and perspicuous legislation. Examination of an earlier section of the Code leaves no doubt about the meaning of an “application made to the court”;
“Application to court by verified petition.—Every application to the court, unless otherwise provided, shall he hy petition, signed and verified by or on behalf of the petitioner. This requirement shall be mandatory but not jurisdictional, and non-compliance therewith shall not alone be ground for appeal.” Ark. Stat. Ann. § 62-2010 (Supp. 1961). [Emphasis ours.]
The above language clearly and unambiguously sets out the requirement for making “application to the probate court.” Willie Y. Minchew and J. C. Minchew filed their verified petition three days after the death of the testator. In so doing they complied with the provisions of Ark. Stat. Ann. § 62-2125. Nowhere in the Probate Code is more required than that the application be filed. To rule that, in addition, a personal appearance before the probate judge is required would be to read into the statute more than is stated. For eases to the same effect from other jurisdictions, see Dungon v. Superior Court, 149 Cal. 98, 84 Pac. 767; Price v. Marshall, 255 Ala. 447, 52 So. 2d 149; Peter v. Peter, 343 Ill. 493, 175 N. E. 846.
Reversed. | [
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Paul Ward, Associate Justice.
Appellant, James Thompson, owns a farm which he rented to appellee, Bill Fields, for the year 1960. The agreed rental was $20 per acre, or a total of $2,320, which amount was evidenced by a note signed by appellee and delivered to appellant.
It is not disputed that appellee took over the land (largely through an employee named James Ward) about the first of 1960, that he put it into cultivation (mostly cotton and soybeans), that he cultivated it until about the middle of July, 1960 when appellant took over the operation by cultivating, harvesting, and marketing the crops. This litigation arises out of a dispute as to whether appellee abandoned the crops and, if not, what accounting, if any, should appellant make to appellee.
On February 14, 1961 appellee filed a complaint in circuit court alleging that appellant “wrongfully assumed control of the entire crops.” He asked for the market value of the crops (at the time they were taken over), less the agreed rental and less certain other items about which there is no dispute.
In answer to the above, appellant admitted taking over the crops, but says he did so after appellee had abandoned the same, and then only to ‘ ‘ recoup his loss ’ ’ which (he says) would have resulted from the failure of appellee to properly cultivate the crops, and from the abandonment. Appellant also alleged that an accurate accounting of his expenses and income showed a deficit of $804.82 for which he asked judgment against appellee.
A jury trial resalted in a verdict against appellant and in favor of appellee in the amount of $3,465.10 for which judgment was rendered. For reasons hereafter set out, we have reached the conclusion the judgment of the trial court must be affirmed.
Since appellant, on appeal, raises no objection to any of the court’s instructions or to the admissibility of any testimony or to the size of the verdict, only one question is presented for our consideration. It is: Does the record reflect substantial evidence to support the jury’s verdict? In deciding this question we are holding, in view of the size of the verdict, that the jury had to find appellee did not abandon the crops and that appellant wrongfully took them over.
Appellee testified, in substance, that he rented the farm for the year 1960 for $2300, and gave a note to appellant in that amount; that on February 2 or 3 he moved James Ward on the place who, with the help of Joe Murphy and his (appellee’s) brother, planted the land in cotton and beans — using three tractors; that they planted all the land; that he farmed land in Missouri but also looked after the operation on appellant’s land; that they cultivated the crops, which looked fine, until about the middle of July when appellant told him he was taking over the crops, and that he did take over and proceeded to cultivate, harvest, and market the same. Appellee further testified he did not abandon the crops and never had any intention of doing so. In substance, James Ward said: I have worked the land for appellee; the crops were in good shape, still growing, and ready to “lay by” when appellant told me I was working for him and started paying me some time in July.
Appellant admitted he rented the land to appellee on the terms previously stated; that appellee placed it in cultivation; and, that he took over the crops. His defense was that the crops were not being worked properly, and that his action was necessary to prevent a loss to him. Several other witnesses testified concerning the conditions of the crops and the manner in which they were handled and marketed by appellant, but it throws very little, if any, light on the real issues previously mentioned. We have carefully examined the entire record and we find it contains substantial evidence, when viewed in the light most favorable to appellee, to sustain the jury’s verdict. See: Missouri Pacific Railroad Co. v. Hampton, 195 Ark. 335, 112 S. W. 2d 428, and Talley v. Morphis, 232 Ark. 91, 334 S. W. 2d 652.
Accordingly, the judgment of the trial court is affirmed.
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George Rose Smith, J.
The appellee sued for personal injuries sustained by her in a traffic accident that occurred in Pine Bluff. The jury’s verdict was for the defendant, but the trial court granted a new trial, finding the verdict to be against the weight of the evidence. Bockman v. World Ins. Co., 222 Ark. 877, 263 S. W. 2d 486. In appealing from this order the defendant has filed the required stipulation for judgment absolute if the order be affirmed. Ark. Stats. 1947, § 27-2101.
In a case of this kind the question is whether the trial court abused its discretion in ordering a new trial. As we said in Blackwood v. Eads, 98 Ark. 304, 135 S. W. 922: “The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.”
Here we think the trial judge’s action to have been clearly correct. There was hardly any question about the defendant’s negligence. Just before the accident three cars were standing in line in the street, waiting for the forward car to make a left turn at an intersection. The defendant, without any apparent excuse, drove his car into the rear end of the third vehicle and propelled it with great force against the middle car, in which the plaintiff was riding as a passenger.
The plaintiff alleged that the impact caused a whiplash injury to her neck and back and also caused her to develop a severe case of diabetes. Whether the trauma could have caused diabetes was a sharply disputed question of fact, but the allegation of a whiplash injury was supported by the decided weight of the proof. Hence the trial judge did not abuse his discretion in setting aside the verdict for the defendant.
The judgment is affirmed and the cause remanded for a new trial upon the issue of damages only. Ark. Stats., § 27-2150. | [
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Paul Ward, Associate Justice.
This proceeding calls for an interpretation of Ark. Stats. § 27-340, which provides a method of obtaining service on a “non-resident”' person, firm, partnership, etc. The decisive issue is. whether the above section of the statutes applies to the petitioner, Mary Ruth Wilhelm, under the facts and circumstances of this case.
Factual Background. The uncontroverted material facts pertinent to a decision of the issue above mentioned are as presently set out. Prior to 1953 the petitioner was a domiciliary of Kansas; about that time she moved to Helena, Arkansas where she began working, as an anesthesiologist, in a hospital; while so engaged she assisted Dr. Kirkman in operating on one Mose Tittle in June of 1959; on about the first of 1960 petitioner left Helena and went to Houston, Texas where she began work in a hospital and where she is still working. Petitioner remained in Helena continuously (or practically so) from the time she arrived in 1953 until she left in 1960.
On June 13, 1961 the said Tittle filed a suit in the Phillips County Circuit Court against the petitioner, Dr. Kirkman, the hospital (where the operation was performed) and the insurance carrier, seeking damages for (alleged) personal injuries caused by the (alleged) negligence of the petitioner and the doctor. No attempt was made to obtain service on petitioner until about the first of April 1962 when Tittle undertook (without success) to get personal service and to serve her as a domiciliary of Arkansas. Then, after the doctor and the insurance carrier had filed cross-complaints against petitioner, they attempted to get service on her as a “non-resident” of Arkansas under the statute first mentioned. It is conceded that the methods of service used conformed with the provisions of the statute.
In considering the issue presented it must be conceded that: (a) Petitioner was never at any time a domiciliary of this state; (b) petitioner lived constantly in this state about six years; (c) petitioner remained in Helena about six months after the operation on Tittle; (d) petitioner is now, and has been since January 1960, a resident of Texas.
Petitioner made a special appearance in the tort action and moved the trial court to quash the attempted service, and to dismiss the alleged cause of action against her on the ground the court had acquired no jurisdiction over her person. In denying the motion, the trial court, among other things said:
“. . . that the word ‘resident’ as used in Act No. 347 of the acts of 1947 (Section 27-340 Ark. Stats. Anno.) is synonymous with domicile and means one having a permanent residence or domicile within the State of Arkansas and as the defendant, Mary Ruth Wilhelm, was and is a non-resident of this state within the meaning of said Act, service upon the Secretary of State as therein provided is sufficient service to give this court jurisdiction of her person and her motion to quash service under said statute ought to be overruled ...”
After careful consideration we are led to the conclusion that the action of the trial court cannot be sustained. We have attempted below, for the sake of brevity, to copy only so much of § 27-340 as is applicable to the facts of this case.
“Any non-resident person . . . who shall do any . . . character of work or service in this State shall, by the doing of such ... be deemed to have appointed the Secretary of State ... to be the true and lawful attorney or agent of such non-resident, upon whom process may be served in any action accrued or accruing from . . . the performing of such work ... by any such non-resident ...”
(The statute further provides that such service will authorize a personal judgment.)
This Court has so many times, and so uniformly, recognized a distinct difference between “residence” and “domicile” that only a few typical decisions need be cited: See: Krone v. Cooper, 43 Ark. 547; Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765; Missouri Pacific Railroad Company, Thompson, Trustee v. Lawrence, 215 Ark. 718, 223 S. W. 2d 823. In the Cooper case, supra, it was pointed out that the word “domicile” had a broader meaning than the word “residence”, and that one could be a resident of a place without being domiciled there. In the Norton case, supra, it was held a person could “reside” in a place up to two years and not be domiciled there. The Court was there construing an Act of the Legislature, and said: “We do not think that ‘resided’, as used in this act, necessarily means one’s permanent abode or legal residence or domicile.” In the Lawrence case, supra, this Court was called upon to distinguish between the meaning of residence and domicile as applied to Act 314 of 1939 where a question of venue was raised. The question was posed and answered by the Court in the following language:
‘ ‘ The answer to the question of venue posed depends upon the answer to these two questions. (1) Is residence synonymous with domicile? (2) If not, was appellee a resident of Pulaski County at the time of his injury? If the words ‘Residence’ and ‘Domicile’ are synonymous, then the Clark County circuit court had jurisdiction, as we think the testimony was sufficient to support a finding that appellee’s domicile was in Clark County at the time of his injury.
“In our opinion the words are not synonymous and cannot properly be used interchangeably. Cases without number have pointed out the difference in meaning which the words import, and our own early case of Krone v. Cooper, 43 Ark. 547, is one of these.”
Prom the above and many other similar statements by this Court we are compelled to conclude the petitioner was, at the time the alleged tort action arose, a “resident” of Arkansas. That being true, it must follow that she was not a “non-resident”, and therefore not subject to service under § 27-340 of the Ark. Stats. This case is easily distinguished from Harrison v. Matthews (decided December 17,1962), 235 Ark. 915, 362 S. W. 2d 704, which deals with service on a non-resident who was also a domiciliary of this state.
Remedy. The respondent’s contention that prohibition is not the proper remedy, because the trial court’s order was based on a disputed question of fact, is without merit. We are unable to see where the court’s ruling involved any factual dispute.
Writ granted. | [
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George Rose Smith, J.
This is a taxpayer’s suit by which the appellant attacks the constitutionality of those statutes that permit the employees of the Arkansas Education Association (the AEA) and the Arkansas Teacher Association (the ATA) to participate in the State Teacher Retirement System. The defendants were the trustees of the Retirement System, the State Auditor, and the State Treasurer. The AEA and the ATA were permitted to in tervene and become the real defendants. The chancellor found the statutes to be valid and-accordingly dismissed the complaint. The principal issue is whether this use of state funds is for a public purpose.
The teacher retirement system was created by Act 266 of 1937. Under that act retirement benefits were available to public school teachers only. The plan was financed by deductions from the teachers’ salaries and by equal matching contributions on the part of the State. Bv Act 80 of 1949 the employees of the AEA and of the ATA were permitted to participate in the plan, their contributions also being matched by the State. This arrangement was continued in force when the statutes were re-codified by Act 93 of 1957. Ark. Stats. 1947, <§<§ 80-1437 et seq. The funds of the retirement system are kept in various accounts in the State treasury, the State’s annual contribution being transferred from the Public School Fund to the Employers Accumulation Account. Ark. Stats., § 80-1442.
The institution of this suit on February 14, 1961, seems to have been the immediate cause for an amendment to the statute. By Act 210 of 1961, approved one month after this proceeding was filed, the State discontinued its practice of using public funds to match the AEA and ATA contributions and required instead that the matching funds be provided by those organizations as a condition to their continued participation in the retirement system. Ark. Stats., § 80-1442 (6.3). In view of this amendment to the statute the appellant now makes two contentions: First, the State’s former practice of using tax moneys to match the contributions of the AEA and ATA employees should be declared unconstitutional, and the State Treasurer should be directed to set the matter right by making the necessary book entries to transfer those matching funds (about $18,750) from the Employers Accumulation Account back to the Public School Fund. Secondly, the AEA and ATA employees should be declared to be ineligible to participate in the State Teacher Retirement System.
After studying the matter with much care we have concluded that the appellant is right in both his contentions.
The parties have argued the constitutional questions largely with reference to only two provisions in the State Constitution — the privileges and immunities clause (Art. 2, § 18) and the illegal exactions clause (Art. 16, § 13). We have no hesitancy in considering the due process clause as well (Art. 2, § 8), for in a taxpayer’s suit the plaintiff represents the citizens as a whole and cannot be permitted to waive contentions that should be asserted. See McCarroll v. Farrar, 199 Ark. 320, 134 S. W. 2d 561, and Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72.
No principle of constitutional law is more fundamental or more firmly established than the rule that the State cannot, within the limits of due process, appropriate public funds to a private purpose. A century ago the basic doctrine was simply stated in the leading case of Brodhead v. City of Milwaukee, 19 Wis. 624: “The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. It cannot in the form of a tax take the money of the citizens and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well being of the community required to contribute.”
Our own decisions' are to the saíne effect. Since it is tacitly conceded in the case at bar that the controlling-issue is that of public purpose, we think it necessary to quote from only one of our cases, Texarkana-Forest Park Paving etc., Dist. v. State, 189 Ark. 617, 74 S. W. 2d 784: ‘ ‘ The power to pay gratuities to individuals is denied to the Legislature generally by constitutional mandate, and usually a gift of money to an individual would be an appropriation of public funds to private use, which cannot be justified in law.”
The question before us centers upon the essential nature of the ABA and the ATA: Are these organiza tions public or private in character? The testimony relates almost wholly to the AEA, the ATA being its counterpart among the Negro teachers and actually having no employees at present who participate in the teacher retirement system.
The AEA is a voluntary association, organized as a nonprofit corporation and having as its members active and retired public school teachers, administrative and clerical employees of public school institutions, and a few others such as textbook publishing company representatives. The AEA is supported solely by the dues paid by its members. It receives no funds from the State and is unquestionably a private organization rather than an agency of the State.
It was shown by the testimony of the AEA’s assistant executive secretary that some of the association’s activities, such as its continuing effort to raise the standards and status of teaching as a profession, have furthered the cause of public education within the state. On the other hand, the bylaws of the association provide for a standing Legislative Committee, and the witness in effect conceded that the association, with the assistance of its members, engages in lobbying activity in support of its legislative program. Except for the fact that the members of the association are for the most part public employees, the testimony does not indicate that the AEA is in any sense more dedicated to public service than a bar association, a medical society, or any other voluntary professional organization.
We can reach no conclusion except that the use of tax moneys to provide a retirement income for AEA and ATA staff employees cannot be classified as an expenditure for a public purpose. A retirement allowance represents compensation paid to the recipient. Daggett v. St. Francis Levee Dist., 226 Ark. 545, 291 S. W. 2d 254. The workers in question, however, are not employees of the State. There is no sound reason why their salaries should be supplemented by the taxpaying public. Although the cause of public education is undoubtedly furthered by the activities of the AEA members, there is no indication that the AEA employees devote their time to the public service. Even if such a showing had been made, the public services would still have been rendered by these people in the course of their work for a private employer, unsolicited by the State and affording no basis for a claim against the State.
Counsel for the intervenors seek to distinguish the AEA from a bar association or medical society on the ground that most of the AEA members are public employees. So they are, but there is no reason why public employees cannot form an association to advance their private interests. For example, the case of Potts v. Hay, 229 Ark. 830, 318 S. W. 2d 826, was concerned with a labor union composed of members of the Little Rock police force. All the members of the union were public employees and, as such, could be provided with retirement pay at public expense. Adamson v. City of Little Rock, 199 Ark. 435, 134 S. W. 2d 558. Yet it is obvious that the business agent of the union would not be a public employee and could not be given a retirement allowance from the pockets of the municipal taxpayers. The staff members of the AEA are in no better position.
The intervenors’ case is no stronger if their employees are considered simply as individuals, without reference to the identity of their employers. There is no constitutional justification for the State’s conferring upon these workers, in private employment, benefits that are denied to others in similar circumstances. Of course these retirement allowances are not comparable to welfare grants, unemployment compensation, and other payments that are available to everyone falling within a broad classification and are justified by the State’s power to relieve poverty and prevent the destitute from becoming public charges. The teacher retirement plan is not designed to take into account the financial condition of its beneficiaries.
Act 210 of 1961, requiring the AEA and the ATA to match their employees ’ contributions, does not remedy the situation. Tax moneys are still being devoted to a private purpose, because (a) the administrative expense of the system is in part borne by the State, and (b) the retirement allowances are life annuities, Ark. Stats., § 80-1445; so if an annuitant should live long enough to receive more in benefits than had been contributed to his account, the remaining annuity installments would have to be paid with public funds.
There is also proof in the record, and some discussion in the briefs, of a third organization, the Arkansas Athletic Association, which the statutes treat in the same manner as the AEA and the ATA. The complaint, however, sought no relief with respect to the AAA, nor is this organization a party to the case. Hence we express no opinion upon this phase of the case, for a declaratory judgment would not be binding upon an association which is not a party to the case. Laman v. Martin, 235 Ark. 938, 362 S. W. 2d 711.
The decree must be reversed and the cause remanded for the entry of a judgment declaring to be unconstitutional the statutes which seek to permit the AEA and ATA employees to participate in the State Teacher Retirement System. In harmony with our holding in Young v. Clayton, 223 Ark. 1, 264 S. W. 2d 41, the court will also direct the State Treasurer, to the extent that the funds have not been disbursed, to make the necessary entries to restore to the Public School Fund the unauthorized transfers to the Employers Accumulation Account.
Reversed.
Frank Holt, J., disqualified. | [
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Jim Johnson, Associate Justice.
On August 22,1956, appellant Southern Farm Bureau Casualty Insurance Company issued its automobile liability policy to Forrest B. Booth. The policy was in effect on May 28,1958, when Booth had an automobile accident in Illinois. At the time Booth was driving the car and appellee Bartis Robinson was a passenger. Robinson was injured and hospitalized. Booth returned to Arkansas.
On June 30, 1958, Robinson filed suit against Booth in Illinois and on July 15,1958, Booth received in Arkansas by registered mail a notice of the action and a copy of the process. There is evidence, controverted, that Booth did not forward the suit papers to appellant until October 10, 1958, and that it was not until September 16, 1958, that appellant learned of the Illinois action as a result of a telephone call from Robinson’s attorneys. Appellant took a non-waiver agreement from Booth on October 9, 1958, and then answered, entering his appearance in the Illinois action. Thereafter on October 21,1958, appellant filed a declaratory judgment action against Booth in the United States District Court, Eastern District of Arkansas, Northern Division, in which action appellant alleged that Booth did not deliver the suit papers to appellant as required by his policy and therefore it was not liable under the policy.
Booth did not answer appellant’s complaint, and on January 6, 1959, a judgment by default was entered against Booth. On February 1-, 1959, appellee filed a motion in the United States District Court to set aside the judgment and allow him to defend, which was denied.
On February 13,1959, appellant obtained permission of the Illinois court to withdraw the answer its Illinois attorneys had filed for Booth, and Booth was given notice thereof and time in which to employ counsel and defend the action if he so desired. Booth did not file an answer, and on September 13, 1960, Robinson took a default judgment against Booth in the amount of $20,-000.00 in the Illinois action. Thereafter on January 2, 1961, appellee reduced his Illinois judgment against Booth to an Arkansas judgment and an execution was issued against Booth which was returned unsatisfied.
Having exhausted his remedies against Booth, appellee then filed this suit directly against appellant in the Independence Circuit Court under the authority of Ark. Stats. § 66-526.
At trial the jury awarded appellee $5,000.00 damages, $818.94 medical expenses, no interest, and costs of $71.90. The trial court entered its judgment on October 27, 1961, for the amount of the jury award, together with interest on the Illinois judgment until it was reduced to an Arkansas judgment, interest on the Arkansas judgment, the statutory penalty, attorneys fees and costs against appellant. For reversal of that judgment, appellant relies on four points, each of which we shall consider separately.
I
“The trial court erred in holding that the judgment of the United States District Court was not conclusive of the single factual issue in the instant action.”
Restated, this question is, “Can a default declaratory judgment between an insurer and an insured, instituted while suit is pending in a foreign jurisdiction between the insured and an injured person, which suit the insurer is defending, destroy the rights of the injured person who was not a party to the declaratory judgment proceedings?”
When the United States District Court denied appellee’s motion to set aside the judgment and allow appellee to intervene and answer, the District Court filed a Memorandum Opinion denying the motion for lack of timeliness, in which the Court stated in part:
“Aside from that, however, I would give serious consideration to granting the motion, notwithstanding the movant’s lack of diligence if I felt that there was any real likelihood of his being seriously prejudiced in a subsequent action against the company on account of the entry of the default judgment. I do not believe, however, that there is any substantial danger of such prejudice. The movant has never been a party to this action and is not bound by the judgment; in my opinion he will be perfectly free, should he ultimately obtain a judgment against the insured, to litigate with the company the question of whether the insured complied with the requirements of the policy. Allstate Insurance Co. v. Thompson, D. C., Ark., 121 F. Supp. 696, 702-3.”
The manifest purpose of the “direct action statute” (Ark. Stats. § 66-526) is to protect the rights of the injured and not the rights of the insurer or the insured. The rights of the injured arose at the time of the injury, 46 C.J. S., § 1191, p. 122, and are antagonistic to the rights of both the insurer and the insured. Under the facts here presented, it cannot be said that the insured and appellee were in privity with each other either in law or in fact.
On the specific point here in question, Professor Appleman in his comprehensive works, Insurance Law and Practice, vol. 20, § 11371, states what appears to be the general rule as follows:
“Persons who have been injured in an automobile accident are certainly proper parties to a suit by the liability insurer to determine coverage of its policy and the better rule would seem to be that they are both proper and necessary parties to the maintenance of the suit. Hence, it would be error to dismiss such person from the declaratory judgment suit. . . However, if the court does not or cannot secure jurisdiction over them their rights cannot be destroyed by their non-appearance; nor can ^such rights be determined where they are not made parties to the suit.”
The rationale of this rule is sound and since the specific question here presented appears to be a case of first impression in this jurisdiction, we adopt it as our own.
Applying the rule as adopted to our consistent literal construction of the Arkansas Declaratory Judgment Act (Ark. Stats. § 34-2501, et seq.), “When the declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding,” Johnson v. Robbins, 223 Ark. 150, 264 S. W. 2d 640; Laman, Mayor, v. Martin, 235 Ark. 938, 362 S. W. 2d 711; we conclude that the U. S. District Court’s declaratory judgment was not res judicata as to appellee who was not a party to the action.
II.
“The trial court erred in refusing to grant appellant’s motion for a directed verdict on the ground that there was no substantial evidence that insured Booth complied with the policy provisions requiring immediate delivery to the company of suit papers.”
The policy provision here referred to is Section 3 of the Conditions of the policy:
“3. Insured’s Duties. The insured, or someone on his behalf, shall as soon as practicable after an accident or loss:
(a) give written notice to the Company containing all particulars;
# * #
(c) immediately deliver to the Company all papers in connection with any claims or suits; . . . ”
Appellant forcefully argues that Booth’s own testimony relative to delivery of the suit papers to the company in compliance with the policy provision was such as to fall short of fulfilling the requirement that it be substantial in nature. It is true that Booth’s testimony was generally contradictory, however he consistently main tained that he “showed” the papers to appellant’s agent shortly after receiving them. Be that as it may, the policy provides that notice shall be given by the insured, or someone on his behalf. There is substantial evidence that appellant received notice of the suit and that it was not prejudiced by delay in receiving such notice. Appellee’s Illinois attorney, William C. Murphy, testified that he was retained by appellee on June 8, 1958, and that on June 16,1958, he wrote appellant’s .agent about appellee’s claim. He exhibited a copy of his letter and the signed receipt. Suit Avas filed in Illinois on June 30th and service perfected on July 7th. In the meantime appellant employed, on June 24th, an Illinois claims adjusting-agency, who called on appellee’s attorney on June 26, 1958. Right after Labor Day, 1958, Mr. Murphy called appellant’s agent about the pending suit and at his suggestion called the Little Rock office of appellant. He followed up this conversation with a letter to the Little Rock office dated September 17, 1958. On October 1, 1958, Mr. Murphy sent appellant a notice that he would present the matter for default judgment on October 11, 1958. On October 8,1958, Edwards Streit, also an Illinois attorney, contacted Mr. Murphy stating that he represented appellant, and on that same date Mr. Murphy wrote Mr. Streit that he would do nothing further on the case until he was advised whether appellant was declining coverage or Avas accepting coverage. On November 1, 1958, Mr. Streit called Mr. Murphy and advised bim that appellant was in the case all the way.
Thereafter on November 17, 1958, appellant filed an answer, but then on February 13, 1959, appellant withdrew its answer.
In M. F. A. Mutual Ins. Co. v. White, 232 Ark. 28, 334 S. W. 2d 686, concerning a similar policy provision,, this court held:
“The purpose of the stipulation in the policy Avas. to afford the insurance company an opportunity to control the litigation and interpose a defense against the claim on the merits of the case. Since the first action Avas dismissed without prejudice there was no judgment,. no payment, and no liability against appellant was sought; hence, it is clear that there was no breach of the conditions of the policy by failure of appellee to give notice of the first suit. ’ ’
In that case, the first suit brought by the injured party was dismissed voluntarily and without prejudice even though she was entitled to a default judgment when she discovered that the insured had not given the insurer notice of the suit, and then immediately filed an identical suit. The insured complied with policy provisions on the second suit. In the case at bar, appellant had ample opportunity to investigate the case and interpose a defense, and the testimony is uncontroverted that appellant did both investigate the claim and interpose a defense. The state of the record being thus, we find that the trial court properly denied appellant’s motion for a directed verdict and properly submitted the question of compliance with the policy provisions to the jury.
m.
“The trial court erred in refusing to instruct the jury that appellee’s rights under appellant’s policy were no greater than the rights of its insured, Forrest B. Booth.”
Appellant objected to the trial court’s deletion of the following words from an offered instruction: “You are further instructed that the rights of the plaintiff are no greater than the rights of Booth.”
The record reveals that in the first and second paragraphs of appelant’s answer, appellant admitted that appellee “is entitled to recover in Ms own rigM for all medical expenses incurred within one, year after the date of the accident, ’ ’ and then denied that it is indebted to appellee in any manner under the policy except for the medical payments. This is inconsistent with the offered instruction. Appellant’s answer concedes that appellee’s' rights were greater than Booth’s, if only for the medical expense coverage, which disposes of the necessity of our reaching the question of whether Booth had, at the time of the present trial, lost his rights by the default judgment rendered against him in the TJ. S. District Court.
IV.
“The trial court erred in rendering judgment for appellee for certain interest despite the verdict of the jury refusing to award interest.”
Before retiring, the jury was instructed in part as follows :
“I will hand you three forms of verdict; the first one reads: ‘We, the jury, find for the plaintiff, Bartis Robinson, and fix his recovery as follows: Coverage A, $5,-000.00; Coverage C, $818.94; Interest, ’ and there you will find a dollar sign and a blank where you .would insert whatever amount you agreed upon, “Costs, $71.90.’
“The second form of verdict reads: ‘We, the jury, find for the plaintiff, Bartis Robinson, for his medical expenses only under Coverage C'and in the amount of $818.94.”
“The third form of verdict: ‘We, the jury, find for the defendant, Southern Farm Bureau Casualty Insurance Company.’ ”
The jury returned with the first verdict, signed by nine jurors, but with the interest left blank. In response to a question, the court advised the jury that they did not have to include interest. The attorneys for both parties objected to this instruction, on different grounds. The jury retired and then returned with the verdict form marked, “No. int.”, signed by all twelve jurors.
Appellee’s complaint prayed for interest on the full $20,000.00, in accordance with Paragraph 3 of the policy under its “insuring agreement” which provides:
“(b) All expenses of the company, all costs taxed against the insured in any suit and all interest accruing after entry of judgment and until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon. ’ ’
In onr view, this provision provides for interest on the entire judgment until tender has been made of an amount up to the policy limits. 76 A.L.R. 2d 983. There is no showing that tender has ever been made even of the medical payments which appellant admits it owes.
Arkansas Statutes § 29-121 provides as follows:
‘ ‘ Creditors shall be allowed to receive interest at the rate of six [6] per cent per annum on any judgment before any court or magistrate authorized to enter up the same from the day of signing judgment until the effects are sold or satisfaction be made; ...”
From the mandatory wording of this statute, it is apparent that as a matter of law appellee was entitled to interest if he was entitled to a judgment. The jury having found that appellee was entitled to judgment, the awarding of interest then becomes a matter of simple computation “of six per cent per annum from the date of signing judgment.” On motion of appellee, after briefs and argument of counsel, the court found that appellee was entitled to interest on the Illinois judgment until it was reduced to an Arkansas judgment, and interest on the Arkansas judgment from the date of its entry to the date of the trial. We find no error in the trial court’s correction of its own error in submitting the question of interest to the jury. After careful consideration of all points urged for reversal, we find no error and the judgment is therefore affirmed.
Counsel for appellee have moved for additional attorneys’ fee because of services rendered on this appeal. We are of the opinion that the motion should. be granted, and the fee is fixed at $500.00.
It is so ordered. | [
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Ed. F. MoFaddin, Associate Justice.
The posed question is the validity of a gift inter vivos. The appellants and appellees together constitute all the heirs at law of E. E. Corder, who died intestate on November 27, 1960, possessed of considerable realty. His estate has been administered and the heirs desire to partition the property. The only issue on this appeal is the validity and effect to be given an instrument executed by E. E. Corder to the appellee, Monte E. Corder.
In December 1952 E. E. Corder was the owner of the store building in Helena, Arkansas, described as 416 York Street, and Monte E. Corder was operating the Oorder Furniture Store in said building. On December 16th Mr. E. E. Corder executed the following instrument:
“In consideration of the affection that I have for my nephew, I, E. E. Corder, give to my said nephew, Monte E. Corder, the right to occupy a store building located at 416 York Street, Helena, Arkansas, where he now operates the Corder Furniture Company free of rental charges so long as he desires to continue said operation. /s/ B. E. Corder.”
This instrument was duly acknowledged and placed of record in Phillips County, Arkansas, by B. E. Corder, and delivered by him to Monte E. Corder, who has continued at all times from December 16, 1952 to the present to operate the Corder Furniture Store at 416 York Street, and has paid no rent to anyone for such use.
The appellants, as plaintiffs, filed this suit, praying that the said instrument be declared null and void and that the property be sold free of any claims of Monte E. Corder under said instrument. The appellees claim the instrument to be valid. The Chancery decree was in favor of the validity of the instrument; and on this appeal the appellants urge two points, which we now list and then consider together in deciding this case:
“I. The instrument in question does not meet the requirements of a gift ‘ inter vivos.
“II. The instrument in question does not meet the requirements of a lease agreement and is void for uncertainty. ’ ’
The intention of ft. E. Corder is clear; but the appellants insist that such intention was not accomplished in compliance with legal requirements. We agree with the Chancery decree that the instrument is valid. It was a completed gift inter vivos and conveyed to Monte E. Corder a right in the property analogous to a widow’s right of homestead. To make a valid gift inter vivos: (a) the donor at the time must have been of sound mind; (b) must have actually delivered the subject matter of the gift to the donee; (c) by such act must have intended to pass title thereto to the donee to take effect immediately; and (d) the donee must have actually accepted it as a gift. These are the requirements specifically stated in Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, and recognized in the authorities generally (24 Am. Jur. p. 738 et seq., “Gifts” § 20 et seq.).
(a) That the donor, ft. E. Corder, was of sound mind has not been questioned in this case, (b) That It. E. Corder actually delivered the subject matter of the gift to Monte E. Corder is clearly established, because Monte E. Corder was in possession of the property and the instrument was delivered and placed of record. 24 Am. Jur. p. 749, “Gifts” § 32 et seq.; 28 C. J. p. 637, “Gifts,” § 26; 38 C.J.S. p. 802, “Gifts” <§. 22; Annotations in 63 A.L.R. 545 and 48 A.L.R. 2d 1409. (c) That R. E. Corder intended to pass to the donee the title of the gift (i.e., the free use of the property for the limited time) is established by the fact that E. E. Corder continued to live from 1952 to 1960 and saw his donee occupy the property, rent free, during all such period of time, (d) That the donee, Monte E. Corder, accepted the gift is established by the fact that he has continued at all times in possession of the property, rent free. A gift inter vivos may be of any kind of property, i.e., real, personal, or mixed. 24 Am. Jur. p. 763 et seq., “Gifts” § 66 et seq.; 38 C.J.S. p. 808, “Gifts” § 30 et seq.
The appellants insist that the gift was conditional, since the free use of the building was to be for only so long as Monte E. Corder operated a furniture store therein. We hold the gift was absolutely unconditional. It was beyond the power of the donor, R. E. Corder, to make a termination of the gift after the delivery. The fact that when the gift should expire by its terms there would be a reversion to the estate of R. E. Corder did not and does not keep the gift from being unconditional. The reverter did not make the gift conditional: it showed the termination of the right of Monte E. Corder. The fact that on December 16, 1952, R. E. Corder did not know for how long such use would continue did not make the gift conditional or defeasible or uncertain.
The appellants insist that the instrument did not create a valid estate; and that at most it was an estate at sufferance and therefore could be terminated by either party. We do not agree with appellants’ contention. As we have said, the right of Monte E. Corder to use the store building at 416 York Street is analogous in many respects to the homestead right of a widow under Art. 9, § 6 of our Constitution. She has a homestead right for her life, subject to abandonment. Garibaldi v. Jones, 48 Ark. 230, 1 S. W. 149; Neeley v. Martin, 126 Ark. 1, 189 S. W. 182; Van Pelt v. Johnson, 212 Ark. 398, 259 S. W. 2d 519. In the case at bar, Monte E. Corder had the personal right to use the store building for a furniture store, subject to abandonment.
Finding no error, the decree of the Chancery Court is affirmed.
The Chancellor rendered a written opinion, which we copy:
“It is my understanding that at this stage of the litigation between the parties to this action the Chancellor is requested to make a determination only of the legal effect of the certain written instrument dated December 16th, 1952, executed by R. E. Corder, by which he gave or undertook to give to his nephew, Monte Corder, the right to occupy a store building located at 416 York Street in Helena, Arkansas, where he at this time operated the Corder Furniture Company free of rental as long as he desires to continue said operation. The instrument was executed by R. E. Corder, acknowledged in proper form and placed of record in the Recorder's Office which indicates delivery. As the stipulation seems to indicate possession and occupancy has been exercised by Monte Corder for nearly ten years since the date of the instrument. The question for decision seems to be to determine if Monte Corder has the right to continue to occupy the building free of rent as against the heirs and next of kin of R. E. Corder, deceased. The record seems to indicate that R. E. Corder died intestate and there was no testamentary provision with reference to this property or any of his other assets . . .
“I do not term this instrument as a lease agreement as between the parties making it but rather the donation or gift of a property right by an uncle to his nephew. The intentions of R. E. Corder as reflected by the writing appear to be definite and certain and I do not find any legal preclusion which would negate such a conveyance. While the instrument is not drawn as a good lawyer would have drawn it, the writing is clear and unambiguous though the term ‘as long as he desires to continue said operation' could have been couched in more certain terms. I think it is manifest that R. E. Corder intended for Monte E. Corder to occupy the premises for so long a time as he operated the furniture company in the location, and he should be permitted to continue his occupancy free of rent until he ceases to use the building for that purpose. Of course there would be no title in Monte Corder under the instrument and the rights he acquires by reason of it would terminate upon his death. The grant under the instrument could not be enlarged to include any other property or buildings other than at 416 York Street, Helena, Arkansas.” | [
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Paul Ward, Associate Justice.
Appellant, Bettye Jo Beyer, and appellee, Eva Victoria Pope, assert rival claims to approximately $9,000 on deposit with the First Federal Savings and Loan Association of Little Rock and approximately $4,500 on deposit with the Peoples Bank and Trust Company of Van Burén. Appellant is the daughter and appellee is the widow of Elmer Pope who died March 9, 1962. Although the building and loan association and the hank were made parties, neither has any further interest in this litigation, so we will hereafter refer to the daughter and widow as appellant and appellee respectively, and we will refer to the building and loan association as association and to the Van Burén hank as bank.
The facts and circumstances leading up to this appeal are hereafter briefly set out in approximately chronological order.
For some time prior to February 14, 1961 Elmer Pope and appellee lived together as husband and wife. On said date Pope filed a suit against appellee for a divorce. At that time Pope had on deposit (in his own name) the sums previously mentioned. No steps were taken in the suit until January 18, 1962 when a decree of divorce was entered in favor of Pope. A detailed property settlement was embodied in the decree but it has no bearing on the issues here presented.
On February 8, 1962 Pope (while in the hospital) executed a power of attorney authorizing Buby E. Hurley to “transfer and change” the account in the association and in the bank “to read as follows: Elmer Pope and Bettye Jo Beyer (with full right of survivorship)”. In a few days the said accounts were changed in substantial compliance with the terms of the power of attorney.
On February 9, 1962 the divorce decree was annulled, and five days later Pope executed a will leaving all his property to appellee. On the 19th of the same month Pope revoked the power of attorney, and promptly notified the association and the bank to change the accounts back to his name as they were originally.
George Tyler, the assistant secretary of the association, testified in substance: 1 have a record of Pope’s account: On January 16, 1962 it was in the name of Elmer Pope; on February 9, 1962 it was changed to Elmer Pope and Mrs. Bettye Jo Beyer with right of survivor-ship. The account was later changed to the name of ‘ ‘ Elmer Pope”. It remained that way until Pope’s death on March 9, 1962. J. J. Izard, president of the bank, testified by deposition: A savings account was opened February 1, 1961 in the sum of $9,000 in the name of Elmer Pope: A power of attorney came to me to change the account to make it “or Bettye Jo Beyer or survivor”: the account was changed to read “Elmer Pope and Bettye Jo Beyer” — the amount being $4,467.77; later I received a Bevocation of Power of Attorney signed by Elmer Pope, dated February 23, 1962; on February 23, 1962 I put the account back in the name of “Elmer Pope”, and wrote Mr. Pope the next day that the change had been made. Appellant, who lives in Pennsylvania, received from her attorneys herein the association book and signature cards; she signed the cards and returned them and the book to the attorneys; she never signed anything to release the money, and thought it took both signatures (her’s and her father’s) to release the money.
After Pope’s death, appellant filed a complaint against the association and the bank to have them pay the money to her as the survivor named in the joint accounts, and to enjoin them from paying the money to anyone else. Thereupon appellee intervened, claiming the said funds as the sole beneficiary under the will of her deceased husband. The trial court entered a decree in favor of appellee, and this appeal follows.
The pivotal issue is whether, under the above set of facts, Pope had the right to change the joint accounts to his own name? Or, to state the same issue another way, did appellant have a vested interest in the joint accounts? It is our conclusion, after careful consideration of the facts and the applicable law, appellant had no vested right in the accounts and that Pope did have a right to change them back to his own name. It is not disputed that if the money belonged to Pope at his death it passed to appellee under his will.
As pertains to the funds in the association the issue here, we think, is controlled by the decision in the ease of Davis v. Jackson, 232 Ark. 953, 341 S. W. 2d 762. There, Don L. Davis, a widower deposited $10,000 in a building and loan association in the name of “Don L. Davis or Patricia Jackson” (a granddaughter — appellee). Later he married appellant — Davis, and then had the association change the account to include the name of appellant instead of the name of appellee. Upon the death of Davis both parties claimed the money. The trial court held the granddaughter could recover because a joint tenancy had been created which could not be revoked at the pleasure of either party (to the account) alone. In reversing the trial court we made certain announcements which, we think, call for an affirmance of the case under consideration (as it pertains to the association account). In the cited case we held that Ark. Stats. § 67-820 (b) was applicable, and that it gave the depositor the right to change (during his lifetime) a joint account. We also called attention to Ferrell, Ad ministratrix v. Holland, 205 Ark. 523, 169 S. W. 2d 643, noting that a different result was reached there because the account had not been changed before the depositor died. Finally, in the cited case we find this conclusive statement: “Appellee takes the view that one Mrs. Jackson’s name was placed on the certificate, she had a vested interest in the property. This position cannot be maintained, for the statute itself precludes such a result.”
Based on the decision in the Davis case we must conclude therefore that appellant had no vested right in the account to which her name was added, and that Elmer Pope had the right to have the account placed back in his own name. It is apparent that the reasoning in the Davis case would have been the same if the word “and” instead of “or” had connected the names of the two payees.
Likewise, and for much the same reasons, we hold that the trial court was correct in awarding the bank deposit to appellee. Ark. Stats. § 67-521 reads, in pertinent part as follows:
“"When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the person so named, and may be paid to either during the lifetime of both. ...” (Emphasis added.)
If, therefore, Pope had the right to draw out the money in the bank (in the name of him and appellant) then it can hardly be contended he had no right to change the account back to his own name. It is not disputed that he did make such a change here during his lifetime. This question of a right to change the account did not arise in the case of Park v. McClemens, Executor, 231 Ark. 983, 334 S. W. 2d 709, relied on to some extent by appellant. In that case the depositor made no attempt, during her lifetime, to change the account to her own name.
Since, as we have above concluded, Pope had a right, during his lifetime, to change the joint accounts, it must follow that he did not irrevocably give the money (accounts) to appellant.
This is true, because it is essential to a gift inter vivos that the giver part with all control over the gift.
Appellant contends that the trial court erred in permitting appellee to testify to certain conversations with her husband, in violation of the so-called deadman’s statute. We need not discuss this contention since, in the opinion, we have not considered any of this testimony.
Affirmed.
Johnson, J., dissents. | [
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Ed. F. McFaddin, Associate Justice.
Appellant, Arkansas State Hospital for Nervous Diseases, filed this action against appellee, J. E. Nestle, to recover $1,710.00 for room, board, lodging, and treatment furnished Mrs. J. E. Nestle (wife of appellee) between the dates of March 1, 1959, and October 1, 1960. The Trial Court rendered judgment for Appellee Nestle and this appeal ensued, in which appellant urges three points:
“I. A husband is liable for the cost of maintaining his wife in the State Hospital under the provisions of Arkansas Statutes (1947), Section 59-230; and under the common law he is liable for the furnishing of necessaries to his wife.
“II. A husband is not liable for the 'observation’ period for his wife’s maintenance in the State Hospital under the provisions of Arkansas Statutes (1947), Section 43-1301, but his liability for a later commitment for medical treatment is not thereby altered.
“III. Court erred in construing Anna Kestle’s commitment as detention of a criminal or convict rather than the maintenance, care and medical treatment of a mentally ill person.”
We find it unnecessary to consider appellant’s second and third points, because our determination of the first point is fatal to appellant’s case. In the Trial Court a jury was waived and the cause was submitted to the Court upon stipulated facts, as contained in the Circuit Court judgment; and here are all of such stipulated facts:
' ‘ That at the time the said Anna Kestle was committed to the State Hospital for Nervous Diseases by Order of this Court, she was under charge of the crime of murder in the first degree; that it was to the best interests of the State of Arkansas and to the best interest of the said Anna Kestle that she be committed to the State Hospital for Nervous Diseases for treatment.
“That Anna Kestle was a patient in the State Hospital during the dates as pleaded in the complaint of the plaintiff, and received maintenance, medical care, and treatment while therein; that the said Anna Kestle is the lawful wife of the defendant, J. E. Kestle; that charges in the amount of, One Thousand Seven Hundred Ten Dollars ($1,710.00) were assessed for the maintenance, medical care, and treatment of the said Anna Kestle by the plaintiff, the Arkansas State Hospital for Nervous Diseases; that the deefndant, J. E. Kestle, had no connection with the hospitalization of his wife, Anna Kestle, but that the said Anna Kestle was committed by Order of the Court of Arkansas County on October 4, 1958, under the provisions of Act III of 1936, as amended (Arkansas Statutes (1947) Section 43-1301). That on November 1,1958, this Court further ordered that the said Anna Kestle be committed to the State Hospital for Nervous Diseases for treatment; that this was subsequent to and by virtue of the official report of the physicians at the State Hospital for Nervous Diseases declaring the wife of the defendant to be mentally ill at the time of her examination to the degree of legal irresponsibility.”
We emphasize that the foregoing are all of the facts shown in the record before us; and we rest our affirmance on the conclusion that these stipulated facts are not sufficient to support a' reversal of the Circuit Court judgment. Mrs. Kestle wds' charged with murder and committed to the State Hospital for observation on October 4, 1958, under the provisions of § 43-1301 Ark. Stats. On November 1, 1958, the State Hospital authorities reported to the Circuit Court that Mrs. Kestle was mentally ill; and the Circuit Court ordered that Mrs. Kestle be retained in the State Hospital for treatment. This order of the Circuit Court was apparently under the authority of Act No. 413 of 1957 and also Act No. 241 of 1943. Under the said order of the Circuit Court, Mrs. Kestle remained in the State Hospital for treatment until October 1, 1960 ; and the State Hospital filed this action, against Mr. Kestle on September 24, 1960, alleging that Mr. Kestle, as the lawful husband of Mrs. Kestle, was liable to the appellant, and that the $1,710.00 covered items of necessary services and maintenance rendered to Mr. Kestle’s wife. Under the first point in appellant’s brief, recovery against Mr. Kestle is based on § 59-230 Ark. Stats, and also on the claimed common law duty of a husband to furnish maintenance and necessaries for his wife. We consider these points separately.
I. The Duty Under The Statute. The germane portion of § 59-230 Ark. Stats, reads:
‘ ‘ Pay for maintenance of patients — If any patient admitted to the State Hospital be found, upon examination, to possess an estate, over and above all indebtedness, more than sufficient for the support of his or her dependents, his or her natural or legally appointed guardian shall pay out of such estate into the office of the business manager of the State Hospital, in advance, an amount equal to one (1) month’s maintenance, at a rate to be fixed by the Board of Control (State Hospital Board) from time to time on the basis of maintenance costs, and in addition, shall supply the patient with sufficient and suitable' clothing, and shall remove said patient when so required and notified by the Superintendent. If the patient remains in the State Hospital more than one (1) month, such payments shall be made, monthly in advance, for the whole period during which the patient remains in the State Hospital. If the patient has no such estate of his own, then his obligation shall exist against any person who is legally bound to support such patient. Inability to pay shall not, however, cause any person to be refused admission to or discharged from the State Hospital. ”
Thus, the statute places the primary duty of support on the “natural or legally appointed guardian.” Further along, the statute says, “If the patient has no such estate of his own, then his obligation shall exist against any person who is legally bound to support such patient.” Under the wording of this statute, the primary obligation is on the estate of the patient; and it is only after there has been a showing that the patient has no estate that the claim can be made against “any person legally bound to support such patient.”
In other words, the fact, that the statute first allowed recovery against the guardian and then later provided for recovery against others “if the patient has no estate,” convinces us that the burden was on the appellant in the case at bar to establish that Mrs. Kestle had no estate; and the establishment of that fact was a eon dition precedent to recovery against Mr. Kestle. If the Legislature had intended the husband to be liable under the statute, irrespective of the estate of his wife (the patient), then the statute would have imposed liability on the guardian of the patient “or any other person legally liable for the maintenance of the patient.”
Since the stipulated facts do not mention the presence or absence of any estate of Mrs. Kestle, and do not mention any prior effort to recover from her guardian, wTe are compelled to the conclusion that the appellant has failed in its burden of proof in seeking to recover from Mr. Kestle under the statute. What defenses the guardian might offer to an action is a matter not now before us, so we need not speculate on appellant’s second and third points.
II. The Common Lmo Liability Of The Husband To Support The Wife. The appellant argues that Mr. Kestle is liable for the amount claimed, regardless of § 59-230, because he is the husband of Mrs. Kestle; that the husband is liable at common law for necessaries furnished the wife; and that the amount claimed by the State Hospital is for the maintenance of Mrs. Kestle and is a necessary: But, even if the statute (§ 59-230) does not supersede the common law in a factual situation such as the one here (a point on which we now express no opinion), nevertheless the stipulated facts in this case are not sufficient to establish an absolute liability on Mr. Kestle for the support of his incarcerated wife.
All of the authorities, in discussing the relative obligations of marriage, are practically agreed that the husband is liable for necessaries furnished his wife only under certain conditions.
In 26 Am. Jur. 970, “Hnsbancl and Wife” § 372, in discussing the burden of proof, the text reads:
‘ ‘ One who furnishes a wife with necessaries takes the risk of establishing a case against the husband, and the burden is on him to prove the existence of the elements of the husband’s liability for the goods or services furnished. Thus, he has the burden to prove that the husband failed or neglected to support his wife, and that the articles furnished her were necessaries . . . The view has been taken that a person seeking to hold a husband liable for necessaries furnished his wife while they were living apart has the burden of showing that the separation has taken place under such circumstances as will render the husband liable; the fact that the person furnishing the wife with the necessaries had no knowledge of the separation does not relieve him from such burden of proof. ’ ’
In 26 Am. Jur. 995, “Husband and wife” § 399, there is a discussion of the liability of the husband for the maintenance of his wife while she is insane; and the holdings are summarized in this language:
“A husband who has neglected to provide support and care for his insane wife is liable for the expense of support and care furnished her by an individual or private asylum. However, there is a difference of opinion as to a husband’s duty to support and care for his wife and as to his liability for necessaries furnished her, where she is in a public institution because of insanity. One view is that there is such a duty and liability according to the husband’s financial ability. Statutes consistent with this view have been enacted in some jurisdictions. A contrary view is that the husband is under no such duty or liability while she is confined in a public institution for the insane, the theory being that the husband is not derelict in his duty to support her, since her presence at the institution and absence from home are not due to his refusal to support her at home or with his consent.”
We do not have to decide in this ease on which side of the conflicting authorities Arkansas will stand because we revert to the stipulated facts in the record before us. These facts do not recite that Mr. Kestle had any connection with the hospitalization of his wife. There is no stipulation that Mr. Kestle had failed to maintain a home for Mrs. Kestle or had been unwilling to provide her with treatment in a private institution. It seems unreasonable to say that the State can take a man’s wife away from him, incarcerate her in a hospital on an unproven charge, refuse to allow the husband to have his wife in a private institution for treatment, and still charge the husband for her maintenance. We do not know any of the facts in the case at bar, other than those that have been stipulated. We limit our present holding to those stipulated facts heretofore detailed; and, under them, we are unwilling to say that the appellant has made a case against Mr. Kestle sufficiently strong to reverse the Trial Court and render judgment for the appellant.
It therefore follows that the judgment is affirmed.
Act No. 235 of 1959 and Act No. 77 of 1961 were subsequent to Mrs. Kestle’s commitment in this case.
The 1957 Act Stated: “The Superintendent may also request a writ of commitment for any patient for whom he deems it to the best interest of the patient that such a writ be issued, for the purpose of retaining the patient in the hospital for such time as the superintendent deems necessary for proper care and treatment.”
The 1943 Act stated: “PATIENTS HELD UNTIL RESTORED. Any person admitted to the State Hospital under the provisions of Sections 9 and 10 of this Act, shall be there and then kept until restored to reason, which fact shall be ascertained as in case of other patients in the State Hospital.”
In fact, the record in this case does not disclose when or how she was released, if at all.
Typical of the general statements is this one from 26 Am. Jur. 954, “Husband and wife” § 355:
“Apart from the contractual liability of a husband for goods and services which are within the classification of necessaries, under certain conditions he is rendered liable by law- when such goods and services are furnished his wife. A husband is liable for necessaries furnished his wife where they are furnished her when he is derelict in his duty to support her, whether his dereliction lies in his refusal or in his neglect; and although he has a primary right, so long as he acts reasonably, to determine what are necessaries for her and to dictate the source from which they shall be procured and the manner in which they shall be purchased, he may be held liable for an article or service furnished her which is one of that class of items of goods or services with which he normally is required to provide her, as well as for an article or service, such as medical services, with which he is bound to provide her under particular circumstances, irrespective of the fact that he supports her generally, unless the article or service is furnished on her credit alone. Sometimes the rule is merely stated that he is liable for necessaries furnished her, but such a statement of the rule leaves open the question of when and under what circumstances goods or services furnished her are necessaries, and fails to indicate the effect of an extension of credit exclusively to the wife ... The burden of proof of the facts requisite to establish the liability of a husband for necessaries rests upon the party who asserts such liability. Whether or not the husband has made a suitable provision for the wife in reference to her support is a question for the jury, under all the facts and circumstances.”
We have carefully studied the cases cited to sustain the text, and have also studied the cited annotations. In addition, we call attention to the following: Thompson v. State Hospital, 208 Ark. 970, 188 S.W. 2d 503; annotation in 48 A.L.R. 733, entitled, “Constitutionality of statute imposing liability upon estate or relatives of insane person for his support in asylum”; annotation in 33 A.L.R. 2d 1257, entitled, “Liability of incompetent’s estate for care and maintenance furnished by public institution or hospital before incompetent’s acquisition of any estate or property”; annotation in 60 A.L.E. 2d 7, entitled, “Husband’s liability to third person for necessaries furnished to wife separated from him”; Briskman v. Central State Hospital (Ky.), 264 S.W. 2d 270; Sprain v. State Board (Wisc.), 263 N.W. 648; Guardianship of Gardner, 220 Wisc. 490; and see also 29 Am. Jur, 180 et seq., “Insane persons” § 57 et seq. | [
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J. Fred Jones, Justice.
This is an appeal by the Missouri Pacific Railroad Company from a judgment against it for personal injuries and property damages growing out of a train-truck collision at a railroad crossing in Benton, Arkansas.
On March 4, 1969, James E. Ellison, while in the course of his employment by East Texas Motor Freight Lines as a truck driver, drove an East Texas truck onto the Missouri Pacific Railroad Company’s track at the Neeley crossing in Benton, and it was struck by an eastbound Missouri Pacific freight train. The train stopped after the collision and Woodrow Utley, a brakeman in the employ of Missouri Pacific, injured his leg in crossing a ditch after alighting from the train.
Ellison filed suit in the Saline County Circuit Court against Missouri Pacific and its engineer, Wilson, for personal injuries. He alleged negligence in failure to keep a proper lookout and in failure to give the statutory signals. East Texas intervened for damage to its truck, tractor and trailer, and Fireman’s Fund Insurance Company intervened claiming statutory subrogation rights for the amount it had paid, and would be obligated to pay, to Ellison in workmen’s compensation benefits.
Missouri Pacific answered by general denial and affirmatively alleged that the plaintiff’s own negligence in failure to keep a proper lookout and in proceeding onto the tracks while blinded by the sun, was the sole and proximate cause of the collision. Missouri Pacific also counterclaimed against Ellison and East Texas for damages to its locomotive and for $1,633.85, representing the amount it had paid to its brakeman, Utley, in settlement of his claim against Missouri Pacific for personal injuries under the Federal Employers Liability Act. Missouri Pacific alleged that upon receipt of Utley’s demand, it advised East Texas that Utley’s claim could be settled for the- amount paid and that East Texas refused to recognize its responsibility to Utley, and refused to participate in the settlement; whereupon, Missouri Pacific consummated the settlement with Utley and took a release from him in favor of itself, Ellison and East Texas.
At the trial before a jury the trial court refused to submit the counterclaim for the amount paid to Utley to the jury and dismissed the counterclaim. The cause was submitted to the jury on interrogatories and the jury apportioned the negligence 60% to Missouri Pacific and 40% to Ellison. The'jury found that Ellison sustained damages in the amount of $65,000, and that East Texas had sustained property damage in the amount of $3,300. Judgment was entered for Ellison in the amount of $39,000 and for East Texas in the amount of $1,980. On appeal to this court Missouri Pacific relies on the following points for reversal:
"The defendants’ motion for directed verdict should have been granted.
The court erred in refusing to give defendants’ requested instruction No. ‘A.’
The court erred in giving plaintiff’s requested instruction No. 15.
The court erred in dismissing defendant Missouri Pacific Railroad Company’s counterclaim as to Woodrow Utley.”
Under its first point, Missouri Pacific argues that a verdict should have been directed in its favor for the reason that Ellison based his entire case upon the alleged fact that he failed to see the train because he was blinded by the sun, and that he was, therefore, excused from his duty to keep an effective lookout, and since he heard no train coming he proceeded across the crossing. In support of this argument, Missouri Pacific relies heavily on Missouri Pacific R. R. Co. v. Binkley, 208 Ark. 933, 188 S. W. 2d 291. There are considerable differences in the Binkley case and the case at bar. In the Binkley case Mr. Binkley was driving his automobile up a 38 foot wet “gumbo” incline to the railroad track. The wheels were spinning on the wet “gumbo.” Mrs. Binkley saw the train coming and advised Mr. Binkley. He also saw the train when it was between 70 and 100 yards away from him. He explained in detail how he continued in his attempt to drive the automobile from the track after he saw the train coming. Mr. Binkley did not testify as to how long it took him to reach the point of impact from the road at the foot of the slick incline, but as to his vision being affected by the sun, his testimony related to the time he left the road onto the incline and not as he drove onto the track.
“. . . you can see as far as you can see when you leave the road. But I looked down and couldn’t see it because the sun was so bright. I glanced and took a look and it was bright and I didn’t see a thing. Q. Did the engineer do everything possible, do you think? A. Yes, I do. He was just like I was, he gave me time; he thought I was going to get it out of the way and when he saw I wasn’t he did everything possible.”
The appellee’s theory in the case of Binkley was that the collision was due to the negligence of Missouri Pacific in maintaining a slick and muddy approach to its crossing. It was the company’s contention that Binkley was guilty of contributory negligence in failing to exercise caution necessary before driving onto the railroad track. Binkley met this contention in his brief as follows:
“ ‘Appellant insists that the plaintiff should have seen the train before he reached the track, but anyone who has ever tried driving a car on a gumbo dump when it is wet and slick will understand that it takes all the attention and all the skill of a good driver to keep the car from skidding and going into the ditch, and that he has no time for looking for trains or anything else.’ ”
The primary difference, however, between Binkley and the case at bar, is set out in the Binkley opinion in the following sentence:
“Here, appellee sued for property damage only, and any contributory negligence on his part would preclude recovery under the law at the time this action arose.”
Furthermore, in the case at bar, the jury did not absolve Ellison of negligence. The jury found that he was negligent to the extent of 40% of the total negligence. The trial court properly overruled Missouri Pacific’s motion for a directed verdict.
The trial éourt did not err in its refusal to give defendant’s requested instruction No. A, which is AMI No. 1801 as modified. The trial court did give AMI No. 1801 as follows:
“There was in force in the state of Arkansas at the time of the occurrence a statute which provided: A railroad is required to place on each locomotive a bell or whistle, and these shall be rung or whistled at a distance of at least a quarter mile from where the tracks cross any public street and shall be kept ringing or whistling until the locomotive has crossed the street.
A violation of this statute although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.”
This instruction was given in the format of AMI No. 903, as evidenced by the last paragraph of the instruction. The instruction offered by Missouri Pacific would have modified AMI No. 1801 almost beyond recognition. Missouri Pacific’s requested instruction No. A is as follows:
“The purpose of giving these signals is to warn the traveler of the approach of the train. But, if the train is in plain view, or if its presence is otherwise discoverable by the exercise of ordinary care, then the giving of signals ceases to be a factor in the case.
Therefore, if you have found from a preponderance of the evidence that the train in this case was in plain view or that its presence could have been otherwise discovered by the plaintiff, James Ellison, in the exercise of ordinary care, then you are instructed that the sounding of the whistle or bell on the locomotive ceases to be a factor to be considered in this case. (Tiren the failure to sound the whistle and bell by the trainmen should not be considered by you as evidence of negligence.)”
This instruction would have told the jury that if the presence of the train could have been discovered by Mr. Ellison in the exercise of ordinary care, that the sounding of the whistle or bell on the locomotive ceases to be a factor to be considered in the case; and that failure to sound the whistle or the bell should not be considered as evidence of negligence.
Missouri Pacific argues that the court’s refusal to give the instruction took away from the jury its duty to consider the train was in plain view, and that the presence was otherwise discoverable because some witnesses testified that they heard the noise of the train from a distance as far as a quarter of a mile away. We are unable to follow Missouri Pacific’s reasoning on this point. The refusal of the requested instruction did not take from the jury its duty to consider that the train was in plain view in the light of the other instructions given by the court, including AMI No. 1804; but, on the contrary, Missouri Pacific’s instruction No. A, if given as tendered, would have in effect, removed from the jury’s consideration as negligence, evidence of Missouri Pacific’s failure to sound the whistle or bell as required by statute, even had the engineer observed the truck approaching the crossing with all obvious intentions of driving across in front of the train. It would appear the the physical fact that one using the crossing would be looking into the setting sun on a clear day should make it even more necessary to sound the bell and whistle on a locomotive approaching the crossing from the west in the afternoon.
Missouri Pacific relies on the case of Kansas City Southern Ry Co. v. Baker, 233 Ark. 610, 346 S. W. 2d 215, but that case is distinguished from the case at bar by two sentences in the Baker opinion as follows:
“There is direct and circumstantial evidence that Mrs. Baker did see the train and tried to cross in front of it. There is no substantial evidence to the contrary.”
In Baker we quoted with approval from Missouri Pacific R. R. v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856, as follows:
“ ‘We have many times held that the purpose of giving signals is to warn the traveler of the approach of a train, but when the traveler has this knowledge otherwise, warning signals cease to be factors.’ ” (Emphasis added).
As we read the Baker case, it does not hold that “the giving of signals ceases to be a factor because the train was in plain view and easily discoverable” as argued by Missouri Pacific in the case at bar. As above stated, in the Baker case, Mrs. Baker did see the train and simply tried to outrun it. (Apparently because rain was falling).
The Missouri Pacific contends that the trial court erred in giving plaintiff’s requested instruction No. 15, which is AMI No. 180,2, as follows:
“All persons operating trains upon any railroad in this state have the duty to keep a constant lookout for persons upon, near, or approaching the railroad track. A violation of this duty is negligence.
This does not mean that each member of the train crew must keep a constant lookout, but it does mean that an efficient lookout must be kept by some member of the crew at all times.”
This instruction, as given by the court, placed less duty on Missouri Pacific than would have its own requested instruction No. 3, which was refused by the court. Missouri Pacific’s requested instruction No. 3 was AMI No. 1802 modified to include “property,” as well as “persons” upon, near, or approaching the railroad track. Furthermore, plaintiff’s instruction No. 15, as given by the court, was given in connection with plaintiff’s instruction No. 20 (AMI No. 2104) which reads, in part, as follows:
"If you should find that the defendants were not guilty of negligence, which was a proximate cause of the occurrence, then they are entitled to recover the full amount of any damages you may find they have sustained which were proximately caused by any negligence of James Ellison.”
Missouri Pacific, in support of its assignment of error in giving plaintiff’s instruction No. 15 (AMI No. 1802), argues that engineer Wilson testified that he did see Ellison’s truck when the engine was about 1400 to 1500 feet from the crossing and the truck was about 200 or 250 feet from the crossing, and that the truck was driving 20 or 25 miles per hour. But engineer Wilson also testified, as pointed out by Missouri Pacific in its brief, that when the train was within 200 or 250 feet of the crossing and it appeared that Ellison was not going to stop, he yelled at fireman Armstrong, who was operating the engine, to put it into emergency.
Fireman Armstrong also testified that he was acting as engineer at the time of the collision and that as such he sat in the righthand side of the locomotive cab and that Ellison approached the crossing from Armstrong’s left side. He testified that the windshield on the locomotive extends across the front of the cab to the door channels. He testified that there is glass in the front doors of the cab on each side of the locomotive and that he was able to see out of both sides of the cab. He testified that the engine was about 1500 to 1400 feet from the crossing when the truck-trailer came into his view. He says that Ellison was approximately 200 feet from the crossing at the time he first saw him and was traveling about 25 miles per hour after coming into his view. He testified that the truck seemed to be continuing to slow down as if it was going to stop at the crossing. He says that Mr. Wilson and Mr. Utley, as well as himself, were observing the truck very closely, and that when the truck approached the crossing to within 20 or 25 feet it looked as if the truck was going to stop, but that it didn’t and “I put the brake to emergency, and, of course, Mr. Wilson and Mr. Utley they had called my attention to go to emergency because they realized it was possible he wouldn’t stop, but he just eased down to the west rail and completed his stop and a fouling the west rail.” (Emphasis added).
It was brought out on cross-examination of Mr. Wilson as well as Mr. Armstrong that in prior depositions they had estimated that the truck was approximately 600 feet from the crossing when they first observed it. The train crew testified that the usual and statutory signals were given on approaching the Neeley crossing, but other witnesses, including Ellison, testified that they heard no bell or whistle signals; so, the jury might have reasonably concluded that neither Wilson nor Utley actually saw the truck until they shouted a warning to Armstrong, and that Armstrong did not see the truck until his attention was called to it, which was too late to avoid the collision. It is obvious that the estimates of distances by Wilson and Armstrong were not very accurate. Wilson was a party defendant and his testimony is not to be regarded as undisputed. French v. Browning, 187 Ark. 996, 65 S. W. 2d 647. In the light of all the evidence, as well as all the instructions both given and requested, we conclude that the trial court did not commit reversible error in giving the lookout instruction.
We are of the opinion that the trial court did not commit reversible error in dismissing Missouri Pacific’s counterclaim as to Woodrow Utley. As we view the record there was simply no causal relation between Mr. Utley’s injury and the negligence of Mr. Ellison. Mr. Wilson testified that the engine traveled about 1900 feet after the collision and that the engine stopped within about 10 feet of the Edison Avenue, or Bauxite crossing, which was the next crossing from the Neeley Street crossing where the collision occurred. Mr. Utley testified that after the collision occurred and the train had stopped he obtained the flagging equipment, as it was his duty to protect the head of the train, and that he went back to the engine to get off. He says that the front of the engine had oil all over it and was bent up so he alighted from the rear end of the engine. He says that there was a filling station at the crossing where the engine stopped and he saw the filling station attendent standing outside the station. He says that there was a little ditch between the railroad track and the filling station and that,
“I hopped over this ditch to get the attendent to call the ambulance and police and in doing this I pulled a ligament in the calf of my right leg. He said he would call the police and ambulance and I proceeded on to the front of the train with my flagging equipment to do my flagging duties.”
As to Missouri Pacific’s claim against East Texas for the amount it paid to Mr. Utley in settlement of his claim against the railroad, the record shows in-chambers proceedings as follows:
“MR. CABE: At the conclusion of the evidence the intervenor East Texas Motor Freight moves for a directed verdict on the claim of the Missouri Pacific Railroad Company seeking to recover by way of contributions for monies paid to W. W. Utley, its brakeman for the reason that the injury sustained by Mr. Utley was not proximately caused b/ this collision. The chain of events had been efficiently broken and there is insufficient evidence from which a jury might find that East Texas Motor Freight through its driver James Ellison was guilty of negligence which was a proximate cause of the injury and damages sustained by W. W. Utley.
MR. CLARK: Let the record show the Court has refused to give instructions on Mr. Utley’s claim for damages on the basis that Mr. Utley had a cause of action against East Texas Motor Freight, and the action on the part of Missouri Pacific Railroad in making the settlement and including East Texas Motor Freight and James Ellison in the settlement was purely voluntary.
THE COURT: I am saying he could have a cause of action otherwise I confirm what Mr. Clark says.
MR. CABE: We object to any instructions or interrogatories regarding Mr. Utley.
THE COURT: Sustained.
MR. CLARK: Save our exceptions.”
The railroad’s claim for the amount it had paid its employee, Utley, was apparently made under the theory of contribution between joint tort-feasors, and although the manner in which the trial court refused to give an instruction on Utley’s claim for damages is an awkward way of refusing to submit the Missouri Pacific’s counterclaim on this item to the jury, we agree with the results. If there was error in the manner or reasoning of the court in reaching the results, we consider such error harmless in this case.
The fact that Utley might have had a cause of action against East Texas, and that the Missouri Pacific Railroad’s settlement with Utley was purely voluntary, would not within itself justify withdrawing this part of the claim from consideration by the jury. Ark. Stat. Ann. §§ 34-1001—1009 (Repl. 1962). See also Lacewell v. Griffin, 214 Ark. 909, 219 S. W. 2d 227. But, proximate cause was properly defined in the instructions as, . . a cause which in a natural and continuous se quence, produces damage and without which the damage would not have occurred.”
The proximate cause of Mr. Utley’s injury was obviously his "hopping” across a small ditch to talk to a filling station attendant at a railroad crossing some 1900 feet from the point of collision; and when the engine, from which he alighted, was within 10 feet of the Bauxite crossing he was intending to protect, and did protect, as a flagman.
The judgment is affirmed.
Fogleman, J., concurs. | [
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John A. Fogleman, Justice.
Hudson Chevrolet Company, Inc., seeks reversal of a $7,500 judgment in favor of Donald Sparrow. It contends that this judgment was erroneous for want of a jury question on liability, because of erroneous admission of photographs into evidence, and because the amount of the jury verdict was excessive. We find that the judgment must be affirmed.
We will review the evidence favoring appellee in the light most favorable to him, as we must. Appellee Sparrow rented a garage apartment from appellant. His occupancy commenced on March 2, 1969, when he and his bride of a few days moved in. On the following day they returned after being away from the apartment and found their towels singed, and shower curtain and window shades burned as a result of a fire of some sort which had obviously occurred in the bathroom during their absence. The gas stove was burning in the bathroom both when the Sparrows left and when they returned. It was the only stove burning in the apartment on that day. Sparrow said that he reported the incident to his landlord on the next day and requested of the gas company that a check be made for gas leaks. Sparrow testified that he had smelled a “dirty” odor in the apartment prior to the first fire, which he had then thought was attributable to natural gas. Mrs. Sparrow had also detected an unpleasant odor while she was showering on that day. She said that it caused her eyes to burn and that she had told her husband she was not going to take further showers. Walter Hudson, president of appellant, testified he had suggested that the heaters might be bad and in need of adjusting when Sparrow told him of the odor in the apartment and that Sparrow replied that this was about what the gas company employees had indicated. After Sparrow discovered the results of fire in the apartment, he changed the gas heaters in the living room and in the bathroom using the gas outlets which he said were already provided. He installed the new heaters, which he had bought. After the installation was complete, Sparrow and his father, an employee of the Arkansas Power & Light Company, made a check for escaping gas, and found none.
According to Sparrow, he arose at 6:00 a.m. on the day after he installed the new heaters, went to the bathroom and returned to bed where he remained until 6:50. He stated that he had not smoked a cigarette or ignited a match on this trip to the bathroom. He testified that both he and his wife then arose and that she went into the kitchen to prepare a pot of coffee, and he went into the bathroom to light the heater. He was then wearing only his underwear. He said that he struck a match, lighted the heater and took a step toward the commode when the “whole room just blew up.” He related that his hair, the shower curtain and the contents of the waste basket caught fire. Mrs. Sparrow testified that she heard an explosion and ran to the bathroom where she found her husband standing in the doorway trying to extinguish the fire in his hair and calling for help. She left but returned with a neighbor, who helped extinguish the fire in the apartment and take Sparrow to the hospital. Appellee’s principal burns were on his left side, which would have been nearest the shower, according to his version of his position and movements between the time he entered the bathroom and the time of the fire or explosion. His wife described his left hand as badly burned.
Joe DeFatta, a licensed plumbing contractor, inspected all the gas lines in the building for a natural gas leak during March, at Hudson’s request, and found none. He went back to the building later the same day with a gas company representative. A pressure test they conducted revealed no leak, but DeFatta then detected the odor of sewer gas in the bathroom. After determining that the gas came from the shower, DeFatta found that the drain from the shower was not equipped with a trap to prevent the backup of sewer gas, but was a vertical line connecting directly with the city sewer system. He said that the shower plumbing was not in compliance with the Arkansas Code. He was familiar with the characteristics of sewer gas and had seen it burn on several occasions. He described it as highly explosive, and said that it would just “flare off,” make “one big flare” and then quit. He described this phenomenon as a “kind of an explosion.”
The city fire marshall and an Arkansas Power & Light Company employee also inspected the apartment after Sparrow was burned, and both detected sewer gas arising from the shower drain. Neither the power company employee nor a gas company employee, who also went to the apartment after the incident, found ■any gas leaks. A previous occupant, who testified on behalf of appellant, admitted that she kept a rubber stopper over the shower drain at all times.
Expert witnesses called by appellant admitted that natural gas will explode when mixed with air in sufficient concentration, that sewer gas may be of the same chemical composition as natural gas and that, if sewer gas is of sufficient concentration, it will burn, and within certain limits, explode.
Appellant argues that its motions for directed verdict should have been granted because this evidence left the jury to speculate as to the cause of the fire. It relies upon our opinions in Glidewell, Admr. v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4, and Williams, Admr. v. Lauderdale, 209 Ark. 418, 191 S. W. 2d 455. The opinion in the first case was principally predicated upon lack of evidence of negligence to remove the question from the realm of speculation. There was direct evidence of negligence here.
In Williams v. Lauderdale, the plaintiff sought to prove by the chief of the fire department that a fire which he reached shortly after the alarm was given, was caused by defective electrical wiring. Although he said that the “probable result” of the wiring “would cause a fire,” the chief named a number of things which might have caused that fire—such as a match, a lighted cigarette, a pilot light or a hot water heater. Although it was his opinion that the bad wiring caused the fire, he stated that he did not know what caused the fire and did not testify as to any physical condition found in the damaged building that would indicate that the fire was caused by bad wiring and eliminate other possible causes, without speculation. When the evidence here is viewed in the light most favorable to appellee, the jury was not left with as little evidentiary basis for exclusion of speculation as was the case in Williams. While no witness in this case expressed an opinion as to the cause of the fire, and Sparrow admitted he did not know what caused it, there was ample evidence that gas escaping into the room from the city sewer could have caused it and no evidence that anything else did. Appellant argues that appellee might have turned on the gas heater without lighting it when he first went into the bathroom so that enough gas escaped into the room to explode when he struck a match, and that this possibility is supported by the hospital emergency room report showing that the bathroom heater exploded. This result would depend upon sheer speculation. There is no evidence that the bathroom heater was turned on before Sparrow’s second expedition into the room, and there is no indication whatever as to the hospital employee’s source of information as to the cause of Sparrow’s injury. There is no evidence here, as there was in Williams, of any other possible cause of the fire. Furthermore, the physical conditions found on the two occasions when there were burned linens and burned curtains in the apartment tend to support appellee’s theory and supply an element which was lacking in Williams. Substantial support is further indicated by reason of the fact that there was testimony that the gas heater was burning both before and after the first fire and was not burning before the second.
We do not interpret Williams as requiring direct testimony as to the cause of the fire, or that the injured party state the cause. See Fidelity Phenix Ins. Co. v. Lynch, 248 Ark. 923, 455 S. W. 2d 79. Neither do we interpret Williams to require that in order to present a fact question a plaintiff must produce evidence to eliminate any possible cause which might be conceived, as distinguished from causes suggested by evidence in the case. In Hill v. Maxwell, 247 Ark. 811, 448 S. W. 2d 9, we recently said:
On the element of causation, the authorities, Prosser, Torts § 41 (3d ed. 1964), point out that the burden of proof is upon the plaintiff and that he must sustain his proof of causation by more than speculation and conjecture. However it is not necessary that the plaintiff negative entirely the possibility that the defendant’s conduct was not a cause. It is enough that the plaintiff introduce evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. Stated another way, it is not required that the proof eliminate every possible cause other than the one on which plaintiff relies, but only such other causes, if any, as fairly arise from the evidence. See Williams v. Reading Co. (3d Cir. 1949) 175 F. 2d 32.
Appellant says that since appellee lost only $345 in wages and had only a $75 doctor bill and $396.85 in hospital expense, the remaining $6,683.15 awarded by the jury is attributable to pain and suffering, and is grossly excessive. While we feel that the jury award of damages was very liberal, we cannot say that it was so excessive as to require reversal or reduction. Sparrow had first and second degree burns on his face and about 35% of his body. His hair, eyebrows and eyelashes were burned. The burns on his left hand were the worst. Butter which his wife applied to his body immediately after the incident- melted, and she said that he was black wherever the skin was burned. When his wife went to him- in the bathroom, she found him crying and shaking very badly and terrified that he would be scarred and marred like an acquaintance who had been burned. He was still shaking badly when he was in the emergency room at the hospital. He was kept in the hospital for 11 days on sterile sheets. During that time he was given intravenous fluids and pain medication, principally non-narcotic, and his body sprayed with medication at regular intervals. Hospital records indicated administration of pain medication at least 20 times. He rap fevér, and edema from the burns did not begin to subside until two days after he entered the hospital. Blebs on his hand had to be opened and blisters in several areas debrided. His physician gave him permission to return to work 10 days after his release from the hospital. Sparrow said he had a burned spot on his forehead and was burned on both hands and the left side of his body. He said the pain was like a burning for four or five days, when it lessened. He did return to his work as a rug and carpet dyer at the time the doctor advised, but was unable to perform his full duties for five or six weeks. He just supervised the weighing and application of the chemicals because of the danger of infection. He testified that he suffered pain intermittently for a week or ten days after he left the hospital, but only took aspirin for relief. Photographs (about which we will comment later) indicate that Sparrow’s burns were more than superficial.
Measurement of pain and suffering and translating it into dollar compensation is an exercise of extreme difficulty. Generally, it is best left to jurors who are called upon to apply their own observations, common knowledge and everyday experience in the affairs of life to the evidence. See AMI 102, Civil. No court has yet provided a yardstick for a jury’s use in meeting this portion of its responsibility. The human mind has not yet been able to devise any better gauge than the verdict of a jury based upon the collective judgment of its members. Appellate courts are naturally and appropriately extremely reluctant to reverse or reduce a jury’s verdict on such an element of damages. We do not feel that we would be justified in doing so here. We acknowledged in Breitenberg v. Parker, 237 Ark. 261, 372 S. W. 2d 828, that we could not constitutionally reduce a verdict if there was any substantial evidence, when given its highest probative force, to support it. We also reiterated the bases upon which a verdict will be set aside as excessive as: (1) the absence of any evidence on which the amount allowed could properly have been awarded; (2) where the verdict must of necessity be for a smaller sum than that awarded; (3) where the testimony most favorable to the successful party will not sustain the inference of fact on which the damages are estimated; (4) where the amount awarded is so excessive as to lead to the conclusion that the verdict was the result of passion and prejudice or of some error or mistake of principle, or to warrant the conclusion that the jury was not governed by the evidence. We could not, in good conscience, say that any of these bases existed in this case.
The most difficult question posed by appellant relates to the introduction of photographs offered by appellee to demonstrate the location and extent of the burns on his body. The pictures exhibited were apparently taken after Sparrow left the hospital. They appear in the record with rather vivid coloration on certain parts of Sparrow’s body, most of which is due to medication placed upon the burns for the purpose of more clearly delineating them for the camera. Their potential effect is best demonstrated by appellee’s concession that the pictures would have been such an unfair representation as to require their exclusion if they could have misled the jury to believe that the appearance of the medication reflected the true appearance of the burns. We agree and would not hesitate to hold that the circuit judge abused his discretion in admitting the pictures were it not for the fact that it was made perfectly clear at the time the pictures were offered and before they were exhibited to the jury that the burned portions of appellee’s body shown in the pictures were covered with medication used to help form a crust and develop scabs over the burns. With this fact made clear, we do not believe that the jury could have been misled, as appellee points out, and surely the jury observed that a picture taken to show the burned area on the back of appellee’s left hand discloses a burned area on his left leg without the medication. Yet when a picture showing only the outside of appellee’s left leg was taken, medication had been placed on the leg. There is no reversible error in the trial court’s admission of pictures showing injuries to a party into evidence, even though they are inflammatory, if the picture is an aid to make the testimony of witnesses more easily understood. Reed v. McGibboney, 243 Ark. 789, 422 S. W. 2d 115. We find no error in this respect.
The judgment is affirmed.
Harris, C. J. and Brown and Jones, JJ., dissent. | [
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J. Fred Jones, Justice.
Richard Neal Williams was convicted of first degree murder in the Hempstead County Circuit Court and sentenced to life in the Arkansas Penitentiary. On appeal to this court he relies on the following points for reversal:
“I. The circuit court abused its discretion in admitting State’s Exhibit 33 insofar as it consisted of a collection of contraceptive rubbers.
II. The circuit court erred in receiving in evidence State’s Exhibit 36, the bloody panties of Carolyn Cassidy.
III. There was no legitimate ground for letting in State’s Exhibit 39, a letter of ‘Jeannie Day.’
IV. Under the circumstances the Black Orchid Club card was more prejudicial than relevant.
V. State’s Exhibit 3 and 4, the photographs of the corpses, were gruesome, morbid, and shocking in the extreme, but barely relevant if at all. They should have been excluded.
VI. It was the duty of the circuit court to instruct the jury as to the limited purposes for which the evidence of other crimes could be considered.
VII. A manslaughter instruction should have been given.
VIII. Severe prejudice resulted from the circuit court’s omission of an instruction on the effect of drunkenness.”
The revolting facts of this case are not greatly in dispute except as to details; and as to whether the 15 year old defendant, Williams, or his 12 year old female companion, Carolyn Cassidy, fired the shots that killed her mother, Lou Dean Cassidy, and her mother’s companion and paramour, Paul Parsons.
On Monday morning, March 30, 1970, the bodies of Parsons and Mrs. Cassidy were found within about four feet of each other beside a dirt and gravel road near Nashville in Hempstead County. Parsons had been shot through the right eye and Mrs. Cassidy had been shot through the left eye. Both bodies appeared to have been dragged feet first a short distance from some automobile tracks in the road to where the bodies were found. About the same time the bodies were discovered, Williams was apprehended while driving Parsons’ automobile near Mt. Pleasant, Texas.
The undisputed background facts as gleaned from the testimony of Carolyn as well as that of Williams, appear as follows: Parsons was 40 years of age (according to his driver’s license) and Williams was 15 years of age and they both lived at Delight, Arkansas. Williams knew and liked Parsons, but had been warned by his mother against associating with him. On Sunday evening, March 29, 1970, Williams had planned to go fox hunting with some young friends but the plans miscarried and he came upon Parsons parked in his automobile at his favorite parking place on a street in Delight. In the course of conversation Parsons told Williams that he had a .22 caliber pistol that had been misfiring and Williams suggested that he might be able to fix it. They drove to Parsons’ home where they obtained the pistol, then drove to a lumber company building where Williams fired the pistol several times and where they drank some wine furnished by Parsons. After driving around and drinking some beer, Parsons suggested that they drive to Nashville where he knew a woman he could have a date with and Williams agreed to go along. Upon arrival at Nashville, they drove to the Cassidy home where Lou Dean Cassidy got into the automobile with them. They drove around Nashville for a short period of time and then returned to the Cassidy home where they picked up Mrs. Cassidy’s 12 year old daughter, Carolyn Susan Cassidy.
Parsons had placed the pistol under the front seat of the automobile and after Mrs. Cassidy and her daughter got into the automobile, they drove to a drive-in cafe where they purchased some cokes; and with Williams and Carolyn in the rear seat, and with Mrs. Cassidy beside him in the front seat, Parsons drove out into the country about 9:30 P.M. and parked the automobile on a dirt and gravel road. Parsons obtained a bottle of whisky from the trunk of the automobile and he and Mrs. Cassidy and Williams drank some whisky mixed with cokes. Parsons and Mrs. Cassidy then got into the rear seat of the automobile and Williams and Carolyn got into the front seat. Parsons and Mrs. Cassidy had sexual relations in the back seat but Carolyn refused to have sexual relations with Williams in the front seat. From this point on Carolyn and Williams differ in their versions of the events that transpired.
Carolyn testified that after her repeated refusals to have sexual relations with Williams, her mother as well as Parsons told Williams to leave her alone. She says Williams started crying and talking about a girl who had refused to marry him. She says that he got out of the automobile, fell to the ground, and complained that something was wrong with his legs and that he could not walk. She says that she got into the back seat of the automobile and her mother and Parsons picked Williams up from the ground and laid him on the front seat of the automobile. She says that her mother then put a handkerchief in Williams’ mouth to keep him from biting his tongue. She says that she was sitting on the left side of the back seat next to her mother, who was then sitting next to Parsons and partially on his lap. She admits that she was turning the dome light on in the car and that Parsons was insisting that she leave it off. She says that after Williams had lain on the front seat for about 20 minutes, he sat up, pulled her toward him, and demanded that she get back into the front seat with him. She says that when she refused, Williams showed her a pistol which he held in his hand and told her that if she did not get into the front seat with him he would kill her and her mother. She says that she told her mother what Williams had said but that her mother didn’t believe her. She says that her mother suggested to Williams that he turn the car radio on and that after attempting to do so, Williams told Parsons that the radio was broken and he should get it fixed. She says that Parsons answered that he would get it fixed the following day and that Williams told him he would not live long enough to get it fixed. She says Williams then shot Parsons in the face with the pistol; that Parsons fell over on her mother and that Williams then turned the pistol on her mother. She says that her mother said “please don’t shoot me,” but that Williams shot her mother. She says that Williams then demanded that she get into the front seat with him and that she did so. She says that when she moved from her position in the back seat, her mother fell over toward the left door. She says that Williams then removed all her clothing, except her brassiere, and that he jerked it from her body and that he then raped her. She says that after Williams raped her, he forced her to commit an act of sodomy and then ordered her to get dressed. She says that she put her clothes back on, except the brassiere which she threw out of the car, and that after Williams got dressed, he first dragged Parsons’ body out of the car by the legs and then dragged her mother’s body from the car in like manner. She says that Williams then removed articles, including her mother’s panties and shoes, from the car and threw them near the bodies; that he then cut the bloody seat covers from the rear seat of the automobile with his pocket knife and threw the seat covers and a bloody floor mat on the ground near the bodies. She testified that Williams then drove the car forward and turned it around; that he then drove back slowly past the bodies to the main highway and then drove south toward Texarkana. She says that Williams ordered her to take everything out of the glove compartment and examine for Parsons’ name. She says he made her throw Parsons’ wallet out of the car but that Williams altered Parsons’ driver’s license and kept it. She says that Williams did not drive through Texarkana but after driving around Texarkana, he stopped near a lake where he fired the pistol out of the automobile window to show her it would still shoot, and that after raping her again he drove on toward Redwater, Texas. She says that they stopped for gas and that Williams left without paying for the gas after telling the attendant that he had been in a fight in order to explain the blood in the car. She says that when they reached Maud, Texas, Williams told her he did not want her with him in the event he should be stopped by police; that he gave her 15 cents with which to place a collect phone call to her uncle in Mineral Springs, Arkansas, and that after admonishing her to say she didn’t know anything if ques tioned by the police, he then let her out of the automobile. She testified that she went to a nearby washateria where she reported what had happened; called her uncle collect and was soon picked up by police officers.
Officer David Ward, who apprehended Williams in Mt. Pleasant, Texas, testified that he was in Mt. Pleasant when he received a radio call describing an automobile which had left a filling station without paying for gas; that he was parked on the side of the highway waiting for the automobile when it arrived at about 80 miles an hour. He testified that he pursued the automobile and it failed to slow down or stop when he turned his red lights on. He says that he then turned on his siren and the automobile stopped at one of the turn-throughs at a highway intersection. He says that as he approached the automobile, the door opened and he saw a pistol in the armrest inside the door and that he took possession of it. He testified that Williams was driving the automobile and that before he had said anything to him, Williams said, “My God man, help me, I’ve just murdered two people.” He says that Williams then told him that he had been with a girl and that she had forced him to shoot two people.
Mr. George Oosterhous, special agent for the FBI, testified that he interviewed Williams at the office of the chief of police in Mt. Pleasant, Texas, about 1:30 p.m. on March 30. His testimony was to the effect that Williams related to him that Carolyn took a gun from under the front seat of the automobile and shot Parsons outside the car and then shot her mother; that she forced him to drag Mrs. Cassidy’s body from the car and then told him to leave the area; that she stated she would kill him if he tried to escape and that they drove for several hours while Carolyn was holding a gun on him. He says that Williams told him that at some time about midnight, Carolyn forced him to stop and have sexual relations with her; and that Williams stated that after this happened he was completely exhausted and went to sleep; that when he awoke it was nearly morning; that he did not know where he was but that he continued driving; that Carolyn told him to pull into a filling station and have the tank filled and then speed away which he did; that they continued to drive for about one-half hour when he finally talked Carolyn into letting him go, and that she asked to be let out at Maud, Texas. He says that Williams told him that after Carolyn let him go, he began searching for a law officer so that he could report what had happened during that long evening, and that he was finally able to find an officer at the Mt. Pleasant Police Station. He says that Williams told him that as they left Nashville, Carolyn made some excuse to go back into the house and that she brought out a pistol and put it under the front seat of Parsons’ automobile.
Mr. Sam Johnson testified that on March 30 about 6:00 a.m. he started to a nearby hay field and found the two bodies at the side of a gravel road at a place called Propps Creek; that after determining that the bodies were dead, he immediately called the sheriff.
Captain Milton Mosier, of the Arkansas State Police, testified that he arrived at the scene of the crime about 7:20 a.m. on March 30. He says that the two bodies were lying on the righthand side of the road partially in the ditch. He says that the bodies were lying side by side about four feet apart with their arms outstretched above their heads and with their heads and hands partially in the road and with their feet resting in the ditch and on the shoulder of the road. He testified that Parsons’ shirt was unbuttoned and that he had on a T-shirt under his other shirt. He says that Parsons had mud on the T-shirt and under his belt; that Parsons had his socks on and that one shoe was on and one off. He says that Parsons’ arms were over his head and his legs were pretty straight out. He testified that marks on the road indicated that Parsons’ body had been dragged to where it was lying. He testified that Mrs. Cassidy’s dress was bloody and up around her waist; that there was a brassier on the body and that another brassiere was found at the scene. He testified that a pair of lady’s panties were found hanging on some briers near the bodies; that Mrs. Cassidy’s body was lying on its back with the feet outstretched and that the body was naked from the waist down. He says that Mrs. Cassidy’s shoes were off and lying beside her body; that there was a pocket of blood under her left eye and that there was blood on her face and dress. He testified that the body had been dragged to where it was lying.
On cross-examination this witness testified that Parsons’ body was lying flat on its back with his face up and that Mrs. Cassidy’s body was lying about four feet from Parsons’ body with her face turned toward her left. He says that a ridge of dirt had washed down the hill filling the ditch where the bodies were found, and that the bodies had been dragged through the ridge of dirt. He testified that there was at least an inch of dirt wedged under Parsons’ belt. He says that the ground where the bodies were found was damp and that Parsons’ shirt was pulled out and up around his waist. He says the shirt was clean up under the arms but there was mud on the shirt up between the shoulders. He says there was mud on the left hip and side of Mrs. Cassidy but that her shoes were free of mud. He testified there was no indication of movement of the bodies while they were on the ground.
Dr. Rodney Carlton, state medical examiner, testified that Parsons was shot through the right eye and the brain, and that Mrs. Cassidy was shot through the left eye and the brain. He removed the bullets later identified as having been fired from Parsons’ gun.
Sergeant Carroll Page of the Arkansas State Police testified that he interviewed Williams at Mt. Pleasant, Texas, and that Williams told him practically the same story as testified to by the other officers. He testified that he examined the automobile and that there was a lot of blood under the cushion in the righthand corner and in the center of the back seat.
Williams testified in his own defense and his version of what took place at the scene of the crime and subsequent thereto, differs considerably from Carolyn’s version. Williams readily admitted that he tried to per suade Carolyn into sexual relations with him while her mother and Parsons were so engaged in the rear seat of the automobile, but he says he gave up when she refused. He denied that anyone told him to leave Carolyn alone and he denied that he fell outside the automobile and that Parsons and Mrs. Cassidy placed him in the front seat. He denied that he had sexual relations with Carolyn at all, and he denied giving the police any different version than that to which he testified. Williams testified that Carolyn kept turning the dome light on in the automobile and that Parsons told her in a rough manner to turn it off and leave it turned off. He says that Parsons then stepped out of the automobile “to use the bathroom” and that Carolyn stepped out of the automobile also. He says he heard a gunshot and that Carolyn then pointed the gun into the car at her mother. He says that Mrs. Cassidy exclaimed, “What are you doing with that gun! Give it to me,” and as she reached toward the gun, Carolyn shot her mother. He says that Carolyn then ordered him to drag Mrs. Cassidy’s body from the automobile and that he did so by holding her under the arms. He says that he laid the body beside the road and that Carolyn then handed him his own knife and ordered him to remove the bloody seat covers from the car which he did. He says that she then ordered him at gunpoint to drive toward Texas. He says that sometime in the morning hours he became completely exhausted and pulled the automobile over to the side of the road and stopped. He says that when he stopped Carolyn said, “come here” and as he scooted over toward her, he passed out and didn’t awake until 5 o’clock in the morning. He says that as soon as he awoke, Carolyn said “Let’s go.” He says that when they stopped for gas Carolyn ordered him to leave without paying for it. He says that she released and left him at Maud, Texas, and told him not to try contacting the police. He testified that prior to his release he had been driving about 80 miles per hour hoping that he would be stopped by police for speeding, and that after Carolyn left him at Maud, Texas, he continued driving at about 75 or 80 miles per hour in search of a police officer or a house where he could report what had happened. He testified that as he was entering Mt. Pleasant, Texas, he saw a police car and was slowing down to stop when the police car overtook him. He says that he said to the police officer, “My God, man, help me. I think I just helped kill two people.” He testified that he was quite sure Mrs. Cassidy was dead when he removed her body from the automobile, but that he thought Parsons might still be alive. According to Williams’ version, he was anxious to tell his story to the police officers so they could catch the girl.
Williams is represented on this appeal by different attorneys from the one who represented him at the trial. On oral argument they contend that under Act 333 of 1971 we are required to search the record for any error by the trial court, whether called to the trial court’s attention by objections made and saved or not; and that we should only concern ourselves with whether Williams received a fair and impartial trial. Act 333 is entitled: “AN ACT to Simplify the Procedure for Appeals From the Circuit Courts to the Supreme Court of Arkansas in Criminal Cases; and for Other Purposes.” Section 11 of the Act is the one most emphasized in oral argument and is as follows:
“Matters to be Considered on Appeal. The Supreme Court need only review those matters briefed and argued by the appellant provided that where either a sentence for life imprisonment or death, the Supreme Court shall review all errors prejudicial to the rights of the appellant.”
Act 333 became effective on March 22, 1971, approximately nine months after Williams was tried, but Williams’ attorneys argue that § 11 of the Act is procedural as applied to cases on appeal to this court and is retroactive to cases tried prior to the effective date of the Act. We do not pass on the application of Act 333 to the case at bar, for the reason that due to Williams’ tender age; and due to the absence of evidence of prior offenses or criminal tendencies, we have examined the record without regard to exceptions, and we find no reversible error therein.
The purpose of a criminal trial is to determine the guilt or innocence of the accused, and the primary function of a jury is to determine whether the accused did or did not commit the crime with which he is accused. A jury panel is composed of adult citizens and a fair and impartial jury is selected in a given case by the process of elimination through peremptory challenges and challenges for cause. A jury is charged with the responsibility and sworn duty to acquit an accused if found innocent, and to convict and fix punishment within the bounds of the law when the accused is found guilty. The burden rests on the state to prove the accused guilty beyond a reasonable doubt. As a practical matter, when the accused is found guilty, a jury may, and does, consider mitigating circumstances in assessing the penalty within the range fixed by law for the offense.
Under The evidence in the case at bar the jury had to choose between Carolyn’s version and Williams’ version of what occurred at the scene of the crime. The jury apparently believed Carolyn’s version rather than Williams’ and returned a verdict of guilty of murder in the first degree. There is no indication in the record before us that the jury’s task in reaching its verdict, was not as unpleasant as is our own in affirming it.
We have not attempted to retry this case under the different trial strategies the separate members of this court might have adopted had we been representing Williams; consequently, we have not examined the record for every possible objection that might have been made to the evidence that was submitted at the trial; and we have not attempted to weigh the effects such possible objections might have had on the verdict of the jury if they had been made and sustained or overruled. We have, however, concerned ourselves with whether Williams received a fair trial and we are of the opinion that he did.
It was the state’s theory that Williams killed Parsons and Mrs. Cassidy in order to force sexual relations on Carolyn without interference from her mother or Par sons. We now proceed to the errors assigned by Williams in the points he relies on and in the order they are presented.
As to Williams’ first point, Carolyn testified that the second time Williams raped her, he first attempted to use a contraceptive- rubber. The contraceptives introduced into evidence were admittedly taken by the officers from the glove compartment of Parsons’ automobile. There is no evidence that Carolyn knew they were in the automobile and the state had a right to introduce the exhibits in support of the credibility of Carolyn’s testimony that Williams twice raped her and in doing so, attempted to use a contraceptive device the second time. In Glover v. State, 194 Ark. 66, 105 S. W. 2d 82, we said:
“It is an accepted rule that a relevant fact will not be rejected because not sufficient in itself to establish the whole or any definite portion of a party’s connection, ‘but all that is required is that the fact must legitimately tend to prove some matter in issue, or to make a proposition in issue more or less probable. Indeed, it is sufficient if the fact may be expected to become relevant in connection with other facts, or if it forms a link in the chain of evidence necessary to support a party’s contention, although requiring other evidence to supplement it.’ 22 C. J. § 91, p. 164.”
Williams testified that the contraceptives belonged to Parsons and he denied that he attempted to use one. We find no prejudicial error in their acceptance in evidence.
The same rule applies to Williams’ second point. Carolyn testified that she got no blood on her clothing from her mother or Parsons. She testified that she was only 12 years of age; that she was raped twice, and that she had never experienced sexual intercourse before. Again this exhibit supported the credibility of Carolyn’s testimony that Williams raped her and in fact, supported the credibility of her testimony to the effect that Williams’ sexual lust was his motive for the crime of murder. The state had the right to offer the exhibit and Williams had a right to deny knowledge of the blood on Carolyn’s undergarment, or he had a right to attempt to explain it; he did both. He testified that he did not know how the blood got on the garment but that Carolyn could have been menstruating. Williams’ attorneys vigorously point out that no objections were made to the introduction of this exhibit, but we hold that the exhibit was admissible; therefore, if an objection had been made it should have been overruled.
Williams’ third point has to do with a vulgarly worded letter addressed to no one but simply beginning with the salutation “Hi.” This letter was picked up with other articles at the scene of the crime. The front of the one page letter complains that when the sender attempted to call, the intended recipient was always in Nashville cutting up cars. The front of the page concludes as follows: “By-by. P. S. Tell Wayne I said Hi. Carolyn said Hi! too.” Some vulgar language is written on the back of the page and is signed, “Love, Jeannie Day.” This letter was among other items apparently thrown out of the automobile at the scene of the crime, and it was not connected in any manner with Williams. There is no evidence that the letter was read to or by the jury, and if its contents could have reflected on the character of anyone involved, it could only have reflected on the character of the prosecuting witness, Carolyn Cassidy, by association; assuming of course t-hat she was the Carolyn referred to in the letter. There was no evidence that Williams was e-ver engaged in “cutting up cars” in Nashville or any where else. Both Carolyn and Williams testified that they were not acquainted with each other prior to the date of the homicides and if the acceptance of the letter in evidence was error, it was harmless error.
We are of the same opinion concerning the appellant’s fourth point. The Black Orchid Club card made out to Williams was found at the scene of the crime. It was irrelevant in the light of the testimony but it could not have prejudiced Williams. At the time of its introduction,-Williams- had not testified and the state had no way of knowing whether Williams would admit or deny that he was ever at the scene of the crime. It was explained in the testimony that the Black Orchid is a club in Hot Springs. Williams testified, that someone had given the card to his mother; that he had come into possession of it and had inserted his own name as member guest. His testimony was to the effect that he had exhibited the card to his young friends to impress them with his adult status and prestige. This exhibit could have only been some evidence that Williams was at the scene where the card was found, and this was admitted by Williams.
We likewise find no merit in Williams’ fifth point. The two pictures of the victims were first ruled inadmissible by the trial court in light of the investigating officers’ testimony as to the position of the bodies when found. The officers testified that both bodies had been dragged, feet first, to where they were found. Carolyn testified that Williams first dragged Parsons’ body and then her mother’s body from the automobile feet first. The officers testified that Williams had told them that Carolyn shot Parsons outside the automobile and that he only dragged Mrs. Cassidy’s body from- the automobile as ordered by Carolyn. The pictures were only admitted after this conflict in the testimony developed and they definitely supported the testimony, of Carolyn and the officers that both victims had been dragged to their positions feet first.
The admission and relevancy of photographs must necessarily rest largely in the discretion of the trial judge. Admissibility of photographs does not depend upon whether the objects they portray could be described in words, but rather on whether it would be useful to enable the witness better to describe and the jury better to understand, the testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17; Smith v. State, 216 Ark. 1, 223 S. W. 2d 1011 (cert. den. 339 U. S. 916); Jones v. State, 213 Ark. 863 , 213 S. W. 2d 974.
Photographs are admissible for the purpose of describing and identifying the premises which were the scene of the crime, and may also be admitted to establish the corpus delicti of the crime charged, to disclose the environment and to corroborate testimony. Stewart v. State, 233 Ark. 458, 345 S. W. 2d 472 (cert. den. 368 U. S. 935).
We find no merit in Williams’ sixth point. There was no evidence submitted to the jury of previous crimes committed by Williams. As a matter of fact Williams testified that he had never been in trouble before except that he got one ticket for failure to have a driver’s license. His mother also testified that he had never been in trouble before and that he had always been a good boy. Williams also put his character in issue through a number of witnesses whose testimony was not impeached or even questioned. It developed from the oral argument on appeal that the “other crimes” referred to in the sixth assignment were the crimes of rape testified to by Carolyn, and the probable crimes of grand larceny and violation of the Dyer Act in connection with the automobile; and the probable crime of kidnapping and violation of the Mann Act in taking Carolyn across the state line of Arkansas and Texas. We find no merit in this argument. Williams was accused of first degree murder. Sexual intercourse with Carolyn against her will and without interference from her mother or Parsons was the only motive shown for the commission of the homicides. The other crimes, if they all were crimes, were incidental to crimes of murder, and Williams’ flight from the scene of the crimes with which he was charged and for which he was being tried
In Banks v. State, 187 Ark. 962, 63 S. W. 2d 518, the appellant was convicted of first degree murder in the killing of Mark Goodson. Mrs. May was with Mark Goodson and witnessed the homicide and so testified at the trial. She further testified. that after the murder the appellant then raped her. It was insisted on appeal that this evidence was inadmissible because the appellant was not on trial for the crime of rape. In rejecting the con-tendon this court said:
“It is always entirely proper for the State to show, if it can, motive for the commission of the crime, and the evidence of Mrs. May, in reference to appellant forcing her to have sexual intercourse with him was entirely proper for this purpose. We understand the rule to be that the fact that evidence introduced to prove the motive of the crime for which the accused is on trial points him out as guilty of an independent and totally dissimilar offense is not sufficient grounds upon which tó reject the testimony.
* * *
Moreover, the testimony of Mrs. May was competent for another reason, that is to say, if several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense, which is itself a detail of the whole criminal scheme.” (Dunn v. State, 2 Ark. 229; Renfroe v. State, 84 Ark. 16, 104 S. W. 542).
Under the trial court’s instructions on first and second degree murder, there is no question that the jury knew that Williams was being tried on the charge of murder and not on other crimes incidental thereto. There is no evidence that the jury was not an intelligent one and capable of understanding the issues under the instructions given.
We likewise find no merit in Williams’ seventh point. Manslaughter is defined as the unlawful killing of a human being, without malice express or implied, and without deliberation. Ark. Stat. Ann. § 41-2207 (Repl. 1964). The appellant has correctly stated that voluntary manslaughter must be voluntary upon a sudden heat of passion, caused by a provocation, apparently sufficient to make the passion irresistible-. Ark. Stat. Ann. § 41-2208 (Repl. 1964). But, there was no such evidence in the case at bar. The only evidence in the record of provocation at all, is Carolyn’s testimony that her mother and Parsons told Williams to leave her alone. Williams denies this, but if he was provoked by such admonition, it fell far short of being legally sufficient for the creation of an irresistible passion to commit homicide in any degree. The jury was instructed on second degree murder as well as first degree, and it found Williams guilty of first degree murder.
It is well settled that in order to justify the court in giving an instruction on a lesser degree of homicide than that upon which the accused is being tried, there must be some substantial evidence to support such instruction. (Hearn v. State, 212 Ark. 360, 205 S. W. 2d 477).
In Walker v. State, 241 Ark. 300, 408 S. W. 2d 905, Walker was convicted of murder in the first degree. One of his assigned errors on appeal to this court was that the court refused to instruct the jury on manslaughter, and in that case we said:
“The court refused to grant appellant’s request for an instruction on manslaughter, and this ruling is assigned as error. The same circumstances were presented to this court in Outler v. State, 154 Ark. 598, 243 S. W. 851 (1922), where it was said: ‘At any rate, the verdict of the jury under this instruction (of first degree and second degree murder) necessarily implied a finding that the killing was not done under circumstances which would reduce the degree of the offense to manslaughter, and no prejudice resulted from the failure of the court to instruct on the subject of manslaughter.’ See Newsome v. State, 214 Ark. 48, 214 S. W. 2d 778 (1948), and also Talley v. State, 256 Ark. 911, 370 S. W. 2d 604 (1963), where again the refusal to instruct on manslaughter was considered harmless error in view of the fact that the appellant was found guilty of first or second degree murder.”
As to Williams’ last point, he would have known, perhaps better than anyone, whether he was drunk or sober. He did not interpose the defense of drunkenness in any degree, but in fact denied the implications that-he was under the influence of alcohol. If Williams was “crying drunk,” as argued in his brief, when Carolyn says he fell outside the automobile, his rapid recovery in the course of about 20 minutes, as also testified by Carolyn, would defy sound reasoning based on common knowledge. According to Carolyn’s version, there is no question that Williams had the presence of mind and physical ability to remove the body of Parsons as well as that of Mrs. Cassidy from the automobile; cut and remove the plastic seat cover as well as the blood stained floor mat from the rear of the automobile; remove the other articles that would tend to incriminate him if he should be apprehended in flight, even to the extent of altering the age of Parsons on his driver’s license with the intent (that could be logically assumed) of assuming Parsons’ identity if he found it convenient and necessary to do so. According to Williams’ own testimony, he did not fall outside the automobile and was perfectly aware of everything that took place, including his ability to follow Carolyn’s orders and instructions explicitly. The nearest Williams’ own evidence comes to indicating that he might have been under the influence of alcohol at all, was his testimony that he had no idea how Carolyn obtained possession of his knife when he says that she gave it to him and ordered him to cut the seat covers from the automobile.
In Newsome v. State, 214 Ark. 48, 214 S. W. 2d 778, the appellant was tried for first degree murder and convicted of murder in the second degree. The court instructed the jury on first degree murder, second degree and voluntary manslaughter. The appellant assigned as error the court’s refusal to instruct on involuntary manslaughter on the theory of intoxication. In that case this court said:
“In Weakley v. State, 168 Ark. 1087, 273 S. W. 374, Mr. Justice Wood, speaking for this court, quoted Bishop on Criminal Law: ‘The intention to drink may fully supply the place of malice aforethought so that,- if one voluntarily becomes -too drunk to know what he is about and then with a deadly weapon kills another, he does murder the same as if he were sober. In other words, the mere fact of drunke-nness will not reduce to manslaughter a homicide which would otherwise be murder.’ Bishop’s New Criminal Law, p. 296, § 401. See, also, Ballentine v. State, 198 Ark. 1037, 132 S. W. 2d 384, and other cases cited in West’s Arkansas Digest, ‘Homicide,’ § 28.
* * *
Furthermore, the verdict of guilty of murder in the second degree shows that the jury viewed the homicide as more than voluntary manslaughter. Any supposed error for failure to charge as to involuntary manslaughter was rendered harmless by the fact that the jury convicted Newsome of second degree murder. See Farris v. State, 54 Ark. 4, 14 S. W. 924; Nash v. State, 73 Ark. 399, 84 S. W. 497; Jones v. State, 102 Ark. 195, 143 S. W. 907; and Outler v. State, 154 Ark. 598, 243 S. W. 851.”
We- have no authority to determine whether Williams was guilty or innocent or to delve into possible reasons or motives for such heinous crimes. That was the duty of the jury who heard the evidence and observed the witnesses, including the appellant, as they testified. As much as we might wish we could do so, the trial judge and jury, as well as this court, are powerless to convert the stark reality of a senseless double homicide into merely a child’s bad dream. The suffi ciency of the evidence to sustain the conviction is beyond question in this case, and we find no error, assigned or otherwise, that would legally require, logically permit, or morally justify us in reversing the judgment of the trial court.
The judgment is affirmed.
Byrd, J., concurs. | [
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Carleton Harris, Chief Justice.
Harvey Ray Johnson, appellant herein, was convicted of the crime of assault with intent to kill and, in accordance with the verdict of the jury, sentenced to ten years imprisonment. From such judgment, Johnson brings this appeal. Only one point is relied upon for reversal, viz, “The trial court erred in overruling the defendant’s motion to require the prosecution to furnish him copies of the statements of the witnesses (the alleged victim of the assault).” Johnson was charged on July 9, 1970, and on July 16, entered a plea of not guilty. The case was set for trial on September 11. On September 10, counsel for appellant filed an affidavit and motion for production of statements of state witnesses. The affidavit set out that counsel had asked the prosecuting attorney for the names and statements of the witnesses, but had been advised that up until September 9 there were no such statements; that when they were acquired, copies would be furnished appellant’s counsel. The affidavit further set forth that the prosecuting attorney had statements from Kermit Smith, the person who was allegedly assaulted, and other witnesses whose names were unknown to appellant or his attorney, and the motion prayed that the prosecuting attorney be directed to make available to appellant and his counsel any statements taken or to permit the making of photostatic copies. The motion was denied, but appellant admits that on that same date, his attorney was furnished with copies of the statements of all witnesses except Kermit Smith, the victim of the shooting.
We do not agree that error was committed. In the first place, there is nothing in the record to indicate that Smith ever made a statement of any nature to the prosecuting attorney or investigating officers. Smith testified at the trial when the prosecuting attorney presented the state’s case, and of course there was opportunity for defense counsel, on cross-examination, to interrogate Smith relative to whether any pre-trial statement had been made by him; this was not done, nor was it contended in the motion for new trial that appellant had discovered subsequent to the trial that Smith had made a statement.
In Smith v. Urban, 245 Ark. 781, 434 S. W. 2d 283, we held that whether or not a prosecuting attorney in a criminal case must disclose evidence in his possession favorable to the accused depends on many factors and a case by case judgment must be made. Under the circumstances of Smith v. Urban supra, we held that certain evidence should have been made available to Smith’s counsel. However, the evidence referred to was very favorable to the accused, probably the most important evidence that could have been offered in his behalf. In the case before us, the testimony of Smith at the trial is abstracted, and we fail to see where any part of his evidence could be said to be favorable to Johnson. In fact, we would classify it as extremely unfavorable, and there is absolutely no showing that Smith had made any statement, either orally or in writing, contrary to the testimony given on the witness stand. In Murchison v. State, 249 Ark. 861, 462 S. W. 2d 853, we held that where a motion for a new trial is made on the basis that evidence was suppressed, the primary focus of the inquiry is to determine whether the defendant has been deprived of a fair trial by the unavailability to him of the particular testimony. Here, we do not know what alleged fact or facts supposedly favorable to the accused appellant was deprived of presenting to the jury, and from the record and briefs, it does not appear that he has any particular circumstances in mind.
We find no reversible error.
Affirmed. | [
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Conley Byrd, Justice.
Appellants Paul H. Miller, Raymond Rowell and Charles A. Barron along with James E. Cox were found guilty of obtaining property by false pretence. For reversal appellants raise the issues hereinafter discussed.
Lena F. Martin, about 85 years old, was the widow of a Cross County bank officer at Wynne, Arkansas. When the bank’s management observed some excessive checks on her account, the bank personnel were instructed to require identification of anyone presenting her checks and to ask the bearer what the check was for. Between November 21, 1968 and December 30, 1968, over $4,000 was withdrawn by checks made payable to appellants or Cox. In each instance the check was submitted for payment on the day it was dated, the bearer identified himself by driver’s license or social security number and stated that the check was for roofing repairs to Mrs. Martin’s home. The State’s evidence shows that less than $100 worth of repairs were made to the home during that time.
POINT No. 1. The record shows that the trial date was set six months earlier and two days before the trial date, the parties announced ready for trial. On trial date appellants made motions to quash the information which the trial court denied. We can find no abuse of discretion by the trial court. See Ark. Stat. Ann. § 43-1206 (Repl. 1964), Thurman v. State, 211 Ark. 819, 204 S. W. 2d 155 (1947), and Beckwith v. State, 238 Ark. 196, 379 S. W. 2d 19 (1964).
POINT No. 2. The trial court did not abuse its discretion in refusing appellants’ motions for a severance. See Ballew v. State, 246 Ark. (June 2, 1969), 441 S. W. 2d 453. Furthermore, since the trial court struck all portions of the confessions of Cox and Barron referring to the other defendants, no problem of confrontation arose contrary to the holding in Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). See Mosby v. State, 246 Ark. 963, 440 S. W. 2d 230.
POINT No. 3. We find no error in the admission of the testimony of lay witnesses as to the mental capacity or competency of Mrs. Martin. See Hill v. State, 249 Ark. 42, 458 S. W. 2d 45. As we read the record each witness stated the facts upon which his observations and conclusions of Mrs. Martin’s mental condition were made.
POINT No. 4. After Robert A. Smith, a builder with 15 years experience, testified that if any repairs had been made to Mrs. Martin’s home during November and December 1968, they would have been discernible at the time he inspected the building, his testimony was competent to show the amount of repairs made. Appellants’ argument that it would be impossible for any witness fifteen months after the repairs to give an opinion of the value of the repair work done, goes to the credibility of the testimony and not its admissibility.
POINT No. 5. Relying upon Bruton v. United States, supra, appellants contend that the trial court erred in admitting the confession of codefendant Cox into evidence. We disagree. The trial court deleted all portions of the confession having reference to appellants. This we understand to be permissible. See Mosby v. State, supra.
POINT No. 6. The information alleged that on the 26th day of November, $886.50 in money was obtained under false pretenses. At the trial it developed that the prosecuting attorney in drawing the information had transposed the figures and that the exact amount of the check was $686.50. The trial court did not err in amending the information because there was no material variance and no prejudice shown. See Ark. Stat. Ann. § 43-1012 (Repl. 1964).
POINT No. 7. Here appellants argue that the trial court erred in refusing their motion and request to instruct the jury that there was, as a matter of law, no conspiracy between appellants. The motion of appellants appears at page 279 of the record and is as follows:
“Mr. Skillman: Your honor, let me make it clear. By the term as used in the Information, the State is attempting to show that there was a collective action by these defendants on all of the sub-paragraphs thereto, with exception of sub-paragraph 4. Now, sub-paragraph 4 dealt with, or does deal with, as to Holmes, which is not involved in this particular instance today. I understand him not to be included. But that leaves 1, 2, 3, 5, 6 paragraphs of the Information wherein the State is alleging that the four defendants today jointly conspired by a common scheme and method and design. There is no evidence showing there was any common scheme, design, and plan. We say that each should be treated separate, distinct, and apart for this reason: if it is not, then Mr. Pearson can allege and claim that these four all got together and they did go at separate times to get these amounts of money, as they say, by false pretense. We say to that, there is no showing that they all benefitted in the fruits of this, or there was in fact a false pretense, and if the Court does find that there was no joint common scheme or plan, we are entitled to an instruction that the defendants, the charges against them, are to be treated as separate and distinct, even though they may be tried together, and it would prohibit the State from referring to such a common scheme, plan or design.”
After listening to argument by appellants’ counsel and counsel for the State, the trial court ruled:
“I am going to sustain the motion as to the conspiracy question, and neither defense nor the State can get involved, when it comes time to argue the case, in this particular aspect before the jury. The defendants are jointly charged here with obtaining money or property by false pretense from this lady. That means one verdict form as to each defendant will be submitted to the jury, and the jury will have to determine whether each defendant did or did not obtain money by false pretense. I am saying there will be one verdict form as to each defendant on charge of obtaining money by false pretense, whether contained in Count 1 or Count 6.”
After this ruling, we find no further request on the issue either by oral motion or request for an instruction to the jury. Consequently we hold that appellants are not in a position to complain of the trial court’s failure to so instruct the jury. See Stockton v. State, 259 Ark. 228, 388 S. W. 2d 382 (1965).
POINT No. 8. The trial court allowed the introduction into evidence of bail bonds and other judicial processes signed by appellants as handwriting samples to be used in identifying each appellant as one of the persons who endorsed and cashed the checks. This was not error. See Lewis v. United States, 382 Fed. 2d 817 (D. C. Cir. 1967).
POINT No. 9. Appellants requested the trial court to instruct the .jury that the State’s failure to call Mrs. Lena Martin would justify the inference that her testimoney would be contrary to the contentions of the State. Assuming that such an instruction would be proper in a cáse such as this, still the trial court did not err here. The record shows that Mrs. Martin, because of her age, had become so forgetful and senile that her relatives had moved her to their home in California to take care of her.
POINT No. 10. The trial court properly admitted the checks executed by Mrs. Martin to appellants into evidence. The identification of each appellant was made by a handwriting expert through comparison of the check endorsement signatures with the bail bonds and waivers of extradition signed by appellants.
POINT No. 11. On occasions the trial court examined the witnesses. Such examinations usually occurred after an objection was made and on those occasions the trial court would question the witnesses to clarify their testimony before ruling on the objections. On one occasion, the trial court asked an out of state officer to identify one of the accused—apparently for the purpose of excusing the officer to return to his home. Under the circumstances we can find no abuse of discretion or prejudice to the appellants. See Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816 (1959).
POINT No. 12. We can find nothing in the Prosecuting Attorney’s reference to appellants as “con artists” that would call for a mistrial. The comment, while not recommended as good practice, was at most argumentative. Appellants asked for no other relief.
POINT No. 13. Appellants here contend that the trial court should have granted a mistrial when the Prosecuting Attorney, in his closing argument, referred to the confession of James E. Cox in reference to the appellants. Since we find nothing in the record to support this contention, we must hold it to be without merit.
Affirmed.
Fogeeman, J., not participating. | [
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Conley Byrd, Justice.
After a jury returned a verdict for appellant Margaret Kane against appellee Francis R. Erich in the amount of $4,500.00 and a verdict in favor of Spa Transit, the court dismissed appellant’s action against appellee Spa Transit Co., Inc. Appellant filed a motion for new trial. For reversal of the trial court’s action overruling the motion for new trial, appellant relies upon the following points:
“1. The court erred in refusing to grant the plaintiff a new trial because of the failure of two jurors to be truthful in answering questions on voir dire.
“2. The court erred in refusing to allow plaintiff to put on oral testimony at the hearing on the motion for new trial, and further erred in refusing to recognize in substance the offer of proof as to what the two jurors would have testified to had plaintiff’s counsel been allowed to subpoena them and interrogate them.”
Appellees Francis R. Erich and Spa Transit Co., Inc., contend that the trial court did not err in overruling the motion for new trial because appellant as the complaining party failed to show diligence in ascertaining the disqualification, if any, of the jurors. We agree with appellees.
The record shows that one of appellant’s attorneys made an affidavit, filed with the motion for new trial, that Evelyn Ford untruthfully stated that she was not acquainted with appellant, whereas in fact Mrs. Ford and her husband had had business transactions with appellant and her husband, that certain disagreements arose and appellant found it necessary to secure the sheriff’s services to effect return of an abstract.
With respect to juror Dean Matthews, the affidavit attached to the motion stated that Matthews was asked whether he was acquainted with respective counsel or whether they represented him in any capacity and that Matthews did not indicate that he was personally acquainted with appellees’ counsel. It was also asserted that Matthews was asked whether he was connected with any casualty insurance company, either as agent or salesman, and he did not indicate to counsel or the court that he had any connection whatsoever with casualty insurance, when in fact he was manager of the insurance department of the Arkansas First National Bank. After appellees’ response and affidavits of jurors Ford, Matthews and Cox were filed, appellant’s counsel on August 24th, made the following affidavit:
. .that at the trial of this cause the first 18 prospective jurors called were asked certain questions by the court and in addition thereto were interrogated as to whether or not they had any connections with any casualty insurance companies as an agent, salesman, stockholder, or any other capacity. One juror answered this question in the affirmative, and there was some discussion as to whether or not that fact would influence him in any way in arriving at a decision in the present case, and the juror was finally excused.
“Mr. Dean Matthews was present in the courtroom at the time these questions were being asked on voir dire to the prospective jurors, and he was also present in the courtroom at the time that the court itself asked the prospective jurors as a group if they were personally acquainted with the attorneys or litigants. When Mr. Dean Matthews was finally called as a prospective juror and entered the jury box, the court asked Mr. Matthews if he had been present in the courtroom at all times that the prospective jurors that were waiting in the jury box were being questioned by the court and respective counsel, and Mr. Matthews indicated that he had been, and he was then asked by the court if he had heard the questions propounded by the court and counsel to the other prospective jurors and whether or not his answers to the questions would be any different than were the answers of the other prospective jurors. Mr. Matthews did not say “yes” or “no” or indicate either way by nodding his head, but maintained a strict silence.
“I do further state that neither myself nor my co-counsel was personally acquainted with Mr. Matthews, nor did any of the said parties have any knowledge of the fact that he was Manager of the Insurance Department of Arkansas National Company.”
Juror Ford’s affidavit denies that she was acquainted with appellant. It also denies the business disagreements asserted in appellant’s affidavit. The affidavit of juror Matthews denies that he is employed by the Arkansas First National Bank but admits he is manager of the Insurance Department of the Arkansas National Company. This affidavit denies thats Matthews was questioned as to whether he was acquainted with the attorneys and also denies that he was interrogated about any connection with casualty insurance companies. The affidavit of Freda Cox also denies that the last selected jurors were asked about their connection with any casualty insurance companies.
Ark. Stat. Ann. § 39-106 (Supp. 1969), provides:
“No verdict or indictment shall be void or voidable because any juror shall fail to possess any of the qualifications required in this Act [§§ 39-101—39-108, 39-201—39-220] unless a juror shall knowingly answer falsely any question on voir dire relating to his qualifications propounded by the court or counsel in any cause. A juror who shall knowingly fail to respond audibly or otherwise as is required by the circumstances to make his position known to the court or counsel in response to any question propounded by the court or counsel, the answer to which would reveal a disqualification on the part of such juror, shall be deemed to have answered falsely.”
In Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 349 S. W. 2d 133 (1961), we pointed out that under our statutes, as well as the practice in this state, it is too late after rendition of a verdict to raise the ineligibility of a juror to serve, unless it can be shown by the complaining party that diligence was used to ascertain the juror’s disqualification and to prevent his selection. We find this principle of law to be controlling as to juror Ford. Obviously appellant knew as much about her difficulties with juror Ford as juror Ford would have known and under the circumstances appellant owed an obligation to the trial court, the witnesses and the other jurors to call the matter to the court’s attention at the earliest possible moment.
The issue with respect to juror Matthews is somewhat closer. However, as we read the August 24th affidavit of appellant’s counsel, juror Matthews was asked if he had heard the questions propounded by the court and counsel to the other prospective jurors and whether or not his answers to the questions would be any different than those of the other prospective jurors. Since some of the prospective jurors had remained silent and others had answered and appellant’s counsel observed that Matthews neither answered nor responded in any way to make his position known, we hold that appellant has failed to show due diligence with respect to juror Matthews also. Had the question asked, been-one in which the silence amounted to an answer, then Ark. Stat. Ann. § 39-106, supra, would apply. However, as we read appellant’s affidavits, juror Matthew’s silence could not have been taken as an answer to the question as propounded.
Appellant also contends that the trial court erred in not hearing testimony on her motion. We find no merit in this contention because the trial court has no obligation to make a determination of whether or not a juror knowingly failed to respond audibly or otherwise as is required under the circumstances until such time as the movant has made a prima facie showing of diligence.
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Frank Holt, Justice.
Appellant instituted this action against the appellee, owner of the S & H Green Stamp Center, for false imprisonment and detention. The trial court granted a motion for summary judgment against appellant and he appeals. For reversal appellant contends that the trial court erred because there were genuine issues of fact to be resolved by a jury.
Appellant entered the S & H Green Stamp Center to visit one of the employees who happened to be absent. An employee of appellee, Mrs. Lou Coil, thought she saw the handle of a pistol protruding from appellant’s pocket while appellant was in the store, acting in a manner that aroused her suspicion. The appellant was a stranger to Mrs. Coil. Mrs. Coil left the store and called the police. Two officers were directed to the Center where they were met outside the building by Mrs. Coil who accompanied them into the store and identified appellant.
There is a conflict of testimony as to the events which occurred after the police arrived. According to the evidence adduced by appellee, the officers approached appellant and asked if he had a gun. Appellant denied possession by saying: “I do not, search me,” and he put both hands up. The officer then “patted” the outside of appellant’s clothing and determined that appellant was not armed. Appellant was not further detained nor was an additional search conducted. According to appellant’s evidence, the police entered the store and approached him after Mrs. Coil had identified him as the man with a gun. After appellant had denied having a gun in his possession, the police asked him what he had in his hand, whereupon he showed them a car key in a leather case and told them he was a longtime local resident. The officers then stated: “Well, we have orders to arrest you and search you, put up your hands.” Appellant replied: “Okay, if you find anything why give me half of it please.” He stated the occurrence “kind of shocked me.” As to the police officers’ conduct during the investigation, appellant testified as follows: “I held my hands up and they went all over me. I wouldn’t say whether they ran their hands in my pockets or out.” Afterwards he left the store.
The only issue presented here is whether the trial judge acted properly in holding, as a matter of law, that appellee’s employee’s actions were insufficient to constitute false imprisonment.
Ark. Stat. Ann. § 29-211 (Repl. 1962) provides that a summary judgment shall be rendered if the pleading and proof on file show “that there is no genuine issue to any material fact and that the moving party is entitled to judgment as a matter of law.” Under the provisions of this statute, any evidence submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963). In support of his contention that a genuine issue of material fact did exist as to whether appellee’s employee did falsely arrest and detain him, appellant cites Ark. Stat. Ann. § 41-1601 (Repl. 1964) which defines false imprisonment as “the unlawful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal authority.” It appears that appellee’s employee’s activities were confined to notifying the police and identification of appellant. The principle of law announced by this court in McIntosh v. Bullard, Earnheart & Magness, 95 Ark. 227, 129 S. W. 85 (1910) is: “Where a person does no more than to give information by affidavit to an officer relative to a matter over which he has jurisdiction, such person is not liable for a trespass for false imprisonment for the acts done under a warrant which the officer issues on said charge.” The above mentioned rule was made in conjunction with an action for illegal arrest and false imprisonment, a fortiori, we think it controls in the case at bar.
This rule is in accord with the general rule laid down in 22 Am. Jur., False Imprisonment, § 30, p. 371, which reads as follows: “To be liable in an action for false imprisonment, one must have personally and actively participated therein directly or by indirect procurement.” 32 Am. Jur. 2d, False Im prisonment, § 35, p. 99, sets out what constitutes direction or investigation as follows: “In short, the arrest by the officer must be so induced or instigated by the defendant that the act of arrest is made by the officer, not of his own volition, but to carry out the request of the defendant. Merely summoning an officer for protection or to keep the peace, or to deal with a person accused of crime, is not sufficient participation to impose liability, as a general rule.” To the same effect, see Restatement, Second, Torts, § 45A. Even though Mrs. Coil was mistaken in her belief that appellant was carrying a gun, her actions of calling the police and identifying appellant are insufficient acts, in the circumstances, to constitute direct or indiréct procurement of the alleged detention. 21 ALR 2d 643—717 [ALR 2d Later Case Service 3, §§ 23, 27]. As we view this record, there is no genuine issue of a material fact. When the evidence is considered most favorably to appellant, it merely shows that appellant was detained only by the police for a period of time sufficient to conduct a limited investigation by them.
Affirmed.
Byrd, J., concurs. | [
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Lyle Brown, Justice.
For the purpose of erecting an electrical substation and distribution line appellant, by eminent domain proceeding, took slightly less than two acres out of a comer of appellees’ farm. The jury fixed just compensation at $4,500. Appellant contends there was no competent and substantial evidence to support the verdict.
The only witness for the landowners who placed a monetary value on the lands taken was John Gunnell. He has been circuit clerk since 1938 and as such is the ex-officio recorder of deeds and mortgages. He said he had a general knowledge of land sales throughout the county by virtue of the deeds coming through his office. As ex-officio commissioner in chancery he said he had sold considerable real estate at public sale and “I have bought and sold a little myself.” Then in 1967 Gunnell became a licensed realtor. Operating under that license he has since sold a few parcels of property.
Gunnell fell short of being qualified to testify as a value witness in this case because of his unfamiliarity with the land taken. He had never been on the subject lands. He had not made a study to determine the highest and best use of the property taken. He was not aware that appellant power company had in years past purchased a right-of-way across the two-acre tract under consideration. That easement was one hundred feet in width and extended the entire length of the tract. A high voltage transmission line running into DeWitt is erected thereon. When that fact was revealed to the witness he had this to say about value:
Q. Mr. Gunnell, you are saying it is worth thirty six hundred dollars with nothing on it?
A. Yes, sir.
Q. Now I am asking what would it be worth with something on it.
A. With what on it.
Q. Arkansas Power and Light Company’s right-of-way a hundred feet wide across it?
A. I don’t know.
Following the recited testimony the witness was again taken on direct examination and he changed his approach to market value. He said he would deduct from his previously stated just compensation the cost of the right-of-way, which was $1,500. He insisted that “some type of industry” could be placed on the lands taken and the right-of-way could be used as a parking lot.
For the reason discussed—witness’s unfamiliarity with the land—we agree with appellant that his value testimony was insubstantial. Whether his evidence was substantial was not a question of fact but one of law. Arkansas State Highway Comm’n. v. Byers, 221 Ark. 845, 256 S. W. 2d 758 (1955). Gunnell testified to a conclusion based on a cursory look at the property in driving by it. See Arkansas State Highway Comm’n. v. Ptak, 256 Ark. 105, 564 S. W. 2d 794 (1965).
Appellant says the only competent testimony on just compensation was that of their witness, William A. Payne. We are asked to adopt his figure of $1,200 and enter judgment accordingly. That we cannot do. Payne used the before and after value which involved the Furlong tract of 240 acres. Since no damages to the remainder were claimed the “value of the part taken” rule was the appropriate rule to follow. Arkansas Louisiana Gas Co. v. Burkley, 242 Ark. 662, 416 S. W. 2d 265 (1967); Lazenby v. Arkansas State Highway Comm’n., 231 Ark. 601, 331 S. W. 2d 705 (1960).
Reversed and remanded for new trial. | [
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Carleton Harris, Chief Justice.
Joy D. Rochester, appellant herein, was convicted of Negligent Homicide and the jury imposed a fine of $1,000 as punishment. From the judgment entered in accordance with the jury verdict, appellant brings this appeal. The proof on the part of the state reflects that Officers Brown and Com-stock of the Marked Tree City Police Department, observed appellant on the evening of October 10, 1969, driving a blue Cadillac automobile, the car hitting a divider, and then running a stop sign. The officers followed appellant, who was traveling west, and turned on the emergency light. The car was clocked at 95 miles per hour and, as it went into a curve “went off the highway and seemed to have went into the air; flipped over”. Upon arriving at the scene, appellant was found lying on the back seat unconscious and Vickie Jones, 18 years of age, who was riding in the front seat with appellant and Ray Dean Atchley, was found under the automobile. She was unconscious, but not dead, and an ambulance was called. This testimony was given by Officer Brown and it was stipulated that Officer Com-stock, if called to testify, would testify substantially the same as Brown.
Ray Dean Atchley, 18 years of age, testified that he was with appellant and Vickie Jones at the Riverside Tavern prior to the wreck, for about twenty minutes, and that appellant was intoxicated. He observed the blue light on the police car behind the Rochester automobile and told appellant that she had better stop the car. But she replied that “she was going to outrun them”. He also testified that the automobile was traveling at 95 miles per hour just prior to the accident. Atchley received a cut on his leg. He further stated that he attended the funeral for Vickie.
Dorothy Jones, mother of Vickie, testified that she last saw her daughter alive on October 10, 1969, at about 6 p.m. “The first time I saw her after the accident, after she was dead, she was already dressed and ready. You couldn’t tell how badly hurt she was.”
Lowell Lewis, Trooper with the Arkansas State Police, testified that he received a call concerning the accident and went to the scene, observed Vickie Jones on a stretcher, stating that she was still alive, but was removed a short time after his arrival. The state rested and appellant moved for a directed verdict for the reason that the state had failed to prove the corpus delicti, i. e., it had not been established that death resulted from injuries sustained in the accident. The court denied the motion and stated that it would reopen the case for the purpose of going into that particular matter further, if the state" desired. After objections and exceptions by appellant, Mrs. Jones was recalled, at which time she reiterated her testimony about last seeing her daughter alive at 6 p.m. o’clock on October 10, 1969, and added that the daughter was in good health and was not injured in any manner. Officer Comstock then testified that, upon arriving at the scene, he found Vickie Jones under the car; that part of her body from the chest down was extending out beyond the car. He, Brown, and Atchley, then removed her from under the automobile and Comstock, when questioned as to her condition, replied "Well, all I could see, a lot of blood coming out of her mouth. She was just laying there and this blood running out of her mouth”. He said that it was fresh blood, and that there was a “gurgling” sound from her mouth. Comstock stated that the ambulance took her away. The state then again rested, and the appellant again moved for a directed verdict for the same reason as mentioned originally, said motion being denied. No evidence at all was offered by appellant.
It is asserted that the court erred in permitting the state to reopen its case after the state had rested. We do not agree. In the first place Ark. Stat. Ann. § 43-2114 (Repl. 1964) provides that the court for good reason, in furtherance of justice, may permit the parties (after having rested) to offer evidence upon the original case. We have likewise so held numerous times, stating that it is within the trial court’s sound discretion and furtherance of justice, to permit the state to present witnesses after resting, where the circumstances are such as not to prejudice defendant through surprise or otherwise when the disadvantage cannot be overcome. Wimberly v. State, 240 Ark. 345, 399 S. W. 2d 274, and Shepherd v. State, 221 Ark. 191, 252 S. W. 2d 621. Certainly, there was here no surprise that could have resulted in prejudice.
It is next asserted that the motion for directed verdict following the additional testimony should have been granted because the state still had not proved the corpus delicti. Again, we disagree. In Edmonds v. State, 34 Ark. 720 (1879), the requisites for proving corpus delicti in a homicide case were set out by Chief Justice English. To establish same, the fact of death must first be shown, second, the identification of the body, or remains, as those of the person said to have been killed, and finally, the criminal agency of another, as the cause of the death. As to the last, the opinion states:
“A dead body, or its remains, having been discovered and identified as that of the person charged to have been slain and the basis, of a corpus delicti being thus fully established, the next step in the process, and the one which serves to complete the proof of that indispensable preliminary fact is, to show that the death has been occasioned by the criminal act or agency of another person. This may always be done by circumstantial evidence, including that of the presumptive kind; and for this purpose a much wider range of inquiry is allowed than in regard to the fundamental fact of death, and all the circumstances of the case, including facts of conduct on the part of the accused, may be taken into consideration.”
In Outler v. State, 154 Ark. 598, 243 S. W. 851, Buck Outler was convicted of the crime of Murder in the First Degree, it being charged that he had murdered Will Blackburn by striking Blackburn with a gun. The proof reflected that Outler struck Blackburn a violent blow across the head with a- gun, knocking the latter down. A number of people witnessed what happened thereafter, the opinion reflecting the following:
“Blackburn walked into the room with blood streaming down from his head and face, and was engaged in wiping his face with a cloth. The testimony tends to show that it was not thought, either by Blackburn himself or those present, that Blackburn was seriously hurt, at least there is no testimony directly on this subject, some of the witnesses merely stating that Blackburn was wiping blood from his face and seemed to be conscious. Nor),e of the witnesses detailed the circumstances under which Blackburn left the house, or what occurred after that time, but it was proved that Blackburn went home and died early the next morning.”
We then stated:
“It is earnestly contended that the evidence is insufficient to warrant the conviction, for the reason that it was not proved that death resulted from the blow delivered by appellant. There is nothing, however, in the record to show that there was any other cause for the death which resulted so soon after the infliction of the blow, and- the jury were authorized, we think, in drawing the inference, even in the absence of direct proof on the subject, that death resulted from the blow.”
It is at once apparent that there is a good deal more evidence to establish the corpus delicti in the present case than in Outler. Here, Miss Jones was observed pinned under a Cadillac automobile which had been traveling at 95 miles per hour at the time of the crash; she was unconscious; blood was coming from her mouth, together with “gurgling” sounds. The ambulance came and took her away, (rather than her leaving the scene of her own volition, as did Blackburn). Here was a woman, who from appearances, was evidently, at least, critically injured (unlike Outler, where it was not thought by those present that Blackburn was seriously hurt). The language used by this court in rejecting Outler’s contention is entirely apropos here, viz, “There is nothing, however, in the record to show that there was any other cause for the death which resulted so soon after the infliction of the blow [injury] and the jury were authorized, we think, in drawing the inference, even in the absence of direct proof on the subject, that death resulted from the blow [injury]”. It will be remembered that Mrs. Jones testified that her daughter was in good health and had no injuries just a short time prior to her death.
Appellant asserts that error was committed in permitting Officer Comstock- to testify since it had already been stipulated that Comstock, if called, would testify substantially the same as Officer Brown, but that when called, Comstock did not testify the same. We find no merit in this argument. A stipulation that the testimony would be substantially the same certainly does not mean word for word; such a stipulation really means that there will be no conflict in the testimony between those who have testified and those whose testimony is stipulated to be the same. Here, there was no conflict. The evidence complained of was simply additional facts not covered in the examination of Officer Brown. Appellant says that this could have meant to the jury that Officer Brown would have testified to these facts, and appellant had no opportunity to again cross-examine Brown. We do not agree with the basis of the objection since it is certainly reasonable to assume that after both witnesses testified, the jury would consider their testimony separately, and as to having no further opportunity to cross-examine Brown, there is nothing in the record to indicate that any effort was made to get Officer' Brown back on the stand, or that he would have been unavailable for further examination. More noticeable than that is the fact that counsel did not cross-examine either Comstock or Brown when they were on the stand.
It is also asserted that it was error for the court to permit Mrs. Jones, the mother of the deceased, to take the stand the second time for the reason that the rule had been asked and the witness advised the court, prior to testifying, that she had been present in court and had heard the testimony of other witnesses, “The appellant had no way of knowing how much of the testimony this witness had heard and was therefore unable to effectively cross-examine her”. We are unable to see how permitting Mrs. Jones to take the stand the second time resulted in prejudice to the defendant. Actually, her testimony was almost identical to that given the first time; she only added that her daughter was in good health and not suffering from any injury when she left home on the evening of the accident. Of course, this last was not information which Mrs. Jones would have acquired from witnesses who had already testified.
No prejudicial error being shown, and it appearing that appellant received a fair trial, the judgment is affirmed.
It is so ordered.
Byrd, J., dissents.
Fogleman, J., not participating.__
Defense counsel did not cross-examine Mrs. Jones at all on either occasion when she was on the witness stand. | [
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G-eorge Hose Smith, J.
This is an election contest. In the 1962 general election the appellant, the Democratic nominee for the office of Sheriff of Marion County, was opposed by the appellee, a write-in candidate. The appellee was certified to have been the winner by a vote of 969 to 961. This is an appeal from a judgment upholding that certification. We are presented with only two questions, both involving the use of printed stickers in behalf of the write-in candidate.
All the facts were stipulated. Before the election the appellee arranged for the printing and distribution throughout the county of stickers bearing his name, for use by the electors. The appellee received 969 votes to the appellant’s 961, but 539 of the appellee’s votes were cast by the pasting of stickers to the ballots. On 100 or more of these votes the S-mark, indicating the elector’s choice, had been placed on the sticker by someone other than the elector and at some time before the elector entered the polling place and affixed the sticker to his ballot.
It is first contended that no vote cast by means of a sticker should be counted, for the reason that the statute refers only to “write-in votes,” and a printed sticker does not satisfy the requirement that the name be written. Ark. Stat. Ann. § 3-826 (Repl. 1956). This identical contention was rejected in Bennett v. Miller, 186 Ark. 413, 53 S. W. 2d 853, under a statute permitting the elector to £ ‘ write the name of any person for whom he may wish to vote. ’ ’ In holding that the law permitted the use of stickers we said:
“We do not think the word ‘write’ is there used in a technical sense, but that such name might be placed on the ballot in any convenient way, such as the use of a rubber stamp or a sticker as was done in this case. As said by this court in Ashby v. Patrick, 181 Ark. 859, 28 S. W. 2d 55: ‘If the ballot voted on was such as not to mislead the electors but to give them an opportunity to express their will, it was sufficient.’ So here the ballot did not have the names of any persons who were candidates for directors. It was left to the electors to vote for whom they pleased by ‘writing’ their names on the ballots. If they chose to nse stickers with the names of the persons they desired to vote for printed thereon we can see no valid objection thereto, and there is no provision of statute violated.”
Bennett v. Miller was decided in 1932, more than thirty years ago. If we misconceived the intent of the statute the lawmakers have had many opportunities in the intervening years to set the matter right. No such action has been taken. To the contrary, when the present statute was enacted in 1949 the legislature contented itself with a reference to “write-in votes.” We are unwilling in effect to modify the statute by overruling the Bennett case. The contestant’s broad objection to the use of stickers cannot be sustained.
The appellant’s other argument is directed against the one hundred or more write-in votes involving stickers already marked with an X when the voter entered the polling place. Counsel rely on Edwards v. Williams, 234 Ark. 1113, 356 S. W. 2d 629, where it was held that an election judge could not be allowed to take a ballot out to be marked by a disabled voter in her car, because the statute provides that no person shall be permitted to carry a ballot outside the polling place. Ark. Stat. Ann. § 3-834 (Repl. 1956).
All the stickers in the ease at bar were marked with an X; so we are not confronted with an attempt to east a write-in vote without the use of an X. The only question is whether the X may be placed on the sticker before the voter enters the polling place. We hold that it may be. The use of printed stickers is permissible, as we have seen. This means that the write-in candidate’s name may be printed on the sticker before the voter reaches the polls. This being true, there is no good reason for saying that the X-mark, if one is actually necessary, cannot also be put on the sticker in advance. What the statute requires is that the voter mark his ballot inside the polling place. Here the marking of the ballots was accomplished by the affixation of stickers. As long as that substantive step was taken inside the polling place it made no difference, under either the letter or the spirit of the statute, when or where the making of the X-mark took place.
The appellant has moved to strike a portion of the appellee’s brief, which attributes seriously wrongful conduct to the appellant’s counsel and to the special county judge who heard the case in the first instance. These accusations appear in the appellee’s brief as assertions of fact, but they are wholly unsupported by any proof in the record. Their inclusion in the brief is a clear-cut violation of Rule 6 of this court and an inexcusable breach of the obligation of professional courtesy that we expect on the part of members of the bar. All copies of this brief will be stricken in their entirety from the files of the court.
Affirmed.
Harris, C. J., concurs. Johnson, J., dissents. Holt, J., not participating. | [
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Jim Johnson, Associate Justice.
This is a suit by the assignee of eight promissory notes against the obligor for the payment of thrpe of the notes, after the obligor had asked the assignee for the total of all she owed and had paid to the assignee its quoted “pay-off” amount by check marked “payment in full of all indebtedness”, which amount was in fact the total amount owed on only five of the eight notes.
In 1956 and 1957, one Gr. L. Chapman farmed lands owned by appellant, Ophelia Baker. He had purchased farm equipment from Missco Implement Co. in Blythe-ville in 1955 and 1957, and gave three title-retaining promissory notes, which were assigned to appellee, The John Deere Company of St. Louis, and held at Memphis for collection. Chapman had also purchased equipment from Chicot Implement Co. in Lake Village during 1956 and 1957, and gave five notes therefor, which were also assigned to appellee and held at Little Rock for collection. In the latter part of 1957, Chapman abandoned his crop and absconded to Oklahoma, leaving appellant with a mortgage on Chapman’s crops and equipment, and in order to salvage a part of the debt, appellant accepted a bill of sale to this security, including the equipment covered by the notes.
In November 1957, there was about $33,000.00 due on all the notes. In January 1958, appellant paid appellee $11,562.03 and assumed the balance by endorsement of the notes. In December 1958, appellant asked Chicot Implement Co. for the total pay-off amount, who in turn requested this information from appellee’s Little Rock office, who advised Chicot Implement Co. that the net amount due was $16,796.59. Appellant paid this amount by check marked “Payment in full of all indebtedness of Ophelia Baker or Gr. L. Chapman”. About a month later, appellee advised her that it had made a mistake in the pay-off figure by omitting the three notes held in Memphis and requested payment of $3,117.38. After appellant refused to pay this additional amount, appellee filed suit in Chicot Chancery Court, praying that appellant’s account be reopened, corrected and reformed to include the amount of the three omitted notes. The trial court found that there was an account stated between the parties, that the account should be reopened, surcharged and restated because of mutual mistake, and granted judg ment to appellee for the amount sued for. From the judgment comes this appeal. ■
For reversal appellant argues primarily that there was an accord and satisfaction. The trial court found that' there are two elements necessary to constitute an accord and satisfaction, which are: (1)' a ' disputed amount involved, and (2) there is a consent to accept less than the claimed amount in settlement of the whole. McMillan v. Palmer, 198 Ark 805, 131 S. W. 2d 943. After a detailed review of the testimony, the trial court found that while a dispute as to the amount may have existed prior to December 1958, concerning certain credits, these credits were forgiven by appellant and that no dispute existed between the parties when appellant gave appellee her check for $16,796.59. The court then found that since there was no dispute between the parties, the second issue, i.e. consent to accept less than the claimed amount in settlement of the whole, was therefore moot. The trial court further found that a mutual mistake existed between the parties, stating that appellee “never agreed to accept or take less than was due it, nor did defendant [appellant] contend, in the final analysis that she owed the plaintiff less than the full amount of the notes.”
Appellant testified, “I wasn’t expecting them to make a mistake and companies like that are not supposed to make mistakes and I took them at their word — I was honest in my part and figured they was too.”
In the landmark case of Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S. W. 2d 881, this court approved the following definition of a mutual mistake, where each party thought it was receiving everything due it on the contract and that neither consented to take less than what was actually due, but the net result was different, there arose a mutual mistake.
From what has been said relative to the principal points and after a careful review of the complicated record (most of which consisted of depositions) relative to other arguments for reversal, we are unable to say that the Chancellor’s findings are against a clear preponderance of the evidence.
Stricklen v. Mitchell, 234 Ark. 31, 350 S. W. 2d 319.
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Sam Robinson, Associate Justice.
Appellants, C. R. Daley, Johnny Loveday, and R. Loveday, have appealed from a conviction of the crime of false pretense. They were charged with defrauding Jessie A. Mason, an elderly man 82 years of age, out of about $650.00 by representing that they were qualified termite exterminators. The case was tried before the Court sitting ás a jury. The Court found all three defendants guilty and they have appealed, contending that the evidence is not sufficient to sustain the verdicts.
It is firmly established that, when sitting as a jury, the Court’s finding carries the same weight as a jury verdict, and if there is substantial evidence of guilt it is sufficient to sustain the trial court.
The evidence is overwhelming to the effect that the appellants defrauded Mr. Mason out of about $650.00 in connection with work they did on his house and premises in exterminating termites and other pests. The great weight of the evidence proves that they collected over $900.00 for doing about $230.00 worth of work.
The only question is whether appellants’ acts amounted to false pretense within the meaning of Ark. Stats. 41-1901, which provides: “Every person, firm or corporation who with intent to defraud, cheat or avoid payment therefor, shall designedly by color of any false token or writing, or by any other written or oral false pretense, obtain a signature to any written instrument, or obtain any money, personal property, right of action, service, information or other valuable thing or effects whatever, upon conviction thereof, shall be deemed guilty of larceny, and punished accordingly. ’ ’
The information charges that the defendants obtained the money from Mr. Mason by falsely representing to him that they were qualified termite exterminators. The evidence is sufficient to show that all three appellants made such representation, and we think the evidence shows that in representing to Mr. Mason that they were qualified, they used that term in the sense that they were licensed. One of the definitions of the word ‘ ‘ qualified” as given by Webster is: “Having complied with the specific requirements or precedent conditions for an . . . employment”. The appellants had no license.
Ark. Stats. 77-131 provides: “Any person, firm or corporation who shall, for compensation, give advice, or engage in work for the control of insect pests, or plant diseases, including structural insect pests, and/or rodents, or shall engage in the business of treating seed for the control of such pests or diseases, or who shall solicit such work in any manner, shall be deemed guilty of a misdemeanor unless said person, firm or corporation is in possession of a valid'license issued for that purpose by the State Plant Board,... ”.
.Ark. Stats. 77-132 provides: “When application is made for such license, the State Plant Board shall prescribe in advance an examination in writing which shall be given by some person designated by the State Plant Board who is not interested financially or otherwise in pest control work in Arkansas, and such representative shall examine the applicant by a written examination as above prescribed and graded by said examiner and said examination passed shall be certified to the State Plant Board for approval. . . . ” .
Ark. Stats. 77-133.1 provides for an inspection by the State Plant Board.
Ark. Stats. 77-136.1 authorizes the Board to require monthly reports from licensed operators giving the description and location of properties treated, and such other information relative thereto as the Plant Board shall deem advisable.
If appellants had been licensed exterminators they could have been required to make reports and the State Plant Board could have investigated their work. In these circumstances it would have been more difficult for them to perpetrate a fraud.
There is substantial evidence to sustain a finding that appellants falsely represented themselves as qualified termite exterminators for the purpose of fraudulently obtaining a considerable amount of money.
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(xeorge Rose Smith, J.
This is a dispute between two' factions in the Landmark Missionary Baptist Church of Traskwood, Arkansas. The appellants, the minority group, brought suit to enjoin the pastor, Elder A. Z. Dovers, and the majority group from using the church property for the preaching and teaching of doctrines fundamentally contrary to the Landmark Missionary Baptist faith. The chancellor refused to grant the relief sought, finding that the deviations which had occurred were not of sufficient consequence to call for the intervention of eauitv.
This church was organized in 1902 and had existed for almost sixty years when the present controversy, centering upon the pastor’s theological views, reached a crisis in 1961. At a church meeting in August of that year the majority, by a vote of 54 to 47, defeated a motion to dismiss the pastor. An ensuing attempt to censure the minority failed, but a week later the majority directed the church clerk to notify the minority members that they would have no voting privileges in the church until they had apologized for their conduct. The minority reacted to that letter by filing this suit a few days later.
Before turning to the proof we may note that the controlling principles of law are not open to serious dispute. The civil courts are not concerned with mere schisms stemming from disputations over matters of religious doctrine, not only because such questions are essentially ecclesiastical rather than judicial but also because of the separation between the church and the state. And even when property rights are involved the rival factions may be remitted to their remedy within the denomination if its form of government is such as to permit an appeal to higher ecclesiastical authority.
The situation is different, however, in the case of self-governing congregational churches, such as the Landmark Missionary Baptists. Here the courts do not hesitate to assume jurisdiction when a schism affects property rights, for in this form of church government each local congregation is independent and autonomous. There is no recourse within the denomination. See Elston v. Wilborn, 208 Ark. 377, 186 S. W. 2d 662, 158 A. L. R. 179.
Although congregational churches are governed by a majority vote of the membership, the church property must be devoted to church purposes. We mentioned this matter in Hatchett v. Mt. Pleasant Baptist Church, 46 Ark. 291, saying: “In a congregational church, the majority, if they adhere to the organization and to the doctrines, represent the church.” In a later case we added that the majority controls unless there has been “such an abrupt departure from congregational principles ” as to discredit the ruling group. Ables v. Garner, 220 Ark. 211, 246 S. W. 2d 732.
It is firmly settled that the controlling faction will not he permitted to divert the church property to another denomination or to the support of doctrines, usages, and practices basically opposed to those characteristic of the particular church. Davis v. Scher, 356 Mich. 291, 97 N. W. 2d 137, reviewing many cases; Reid v. Johnston, 241 N. C. 201, 85 S. E. 2d 114. As the court said in Dix v. Pruitt, 194 N. C. 64, 138 S. E. 412: “In other words, a majority in a Baptist Church is supreme, or a ‘law unto itself’ so long as it remains a Baptist church or true to the fundamental usages, customs, doctrine, practice, and organization of Baptists. For instance, if a majority of a Baptist Church should attempt to combine with a Methodist or Presbyterian Church, or in any manner depart from the fundamental faiths, usages, and customs which are distinctively Baptist and which mark out that denomination as a separate entity from all others, then, in such case, the majority could not take the church property with them, for the reason that they would not be acting in accordance with distinctively Baptist principles. Or suppose a majority of a Baptist Church should determine to abandon immersion and receive members without either an individual profession of faith or baptism, such majority could not take possession of the church property and exclude the minority who remained true to the fundamental faith and practice. ’ ’ In harmony with these views equitable relief was granted in Franke v. Mann, 106 Wis. 118, 81 N. W. 1014, 48 L. R. A. 856, where, as in the case at bar, the controlling group engaged a minister whose beliefs were contrary to those of the sect in question.
The extensive record before us consists mainly of testimony explaining the Landmark Missionary Baptist articles of faith. Among the plaintiffs’ many witnesses were nine leading clergymen of this particular sect, whose total ministerial experience exceeded 230 years. These men were in complete agreement about a number of basic doctrines of the church, such as the view that a person who has been saved cannot later become lost, the belief that the un pardonable sin (the rejection of Christ) can be committed only by the unsaved, and several other religious tenets that we need not enumerate.
Elder Dovers was the only witness for the defendants. He was thirty-five years old at the time of the trial. His background of experience included an eighth-grade education, seven years work in a filling station, a half year of study in a Missionary Baptist seminary, and seven years in the ministry. Elder Dovers testified at great length and was entirely candid in conceding that he believed and preached doctrines contrary to the Landmark faith as understood by the plaintiffs’ witnesses. This pastor derived many of his beliefs from his own study of the Bible. He taught his flock that a person who has been saved can later be lost, that the saved can be guilty of the unpardonable sin, and that he interpreted a number of other articles of faith in a way that differed from the orthodox Landmark Missionary Baptist thinking.
It being substantially undisputed that Elder Dovers’ beliefs Avere contrary to the accepted doctrines and usages of the church, the only remaining question is whether the differences are so important as to justify the intervention of a court of equity. As we have indicated, the variance must be fundamental; relief Avill not be granted where the division is based upon doctrinal distinctions that are not vital or substantial. Guin v. Johnson, 230 Ala. 427, 161 So. 810; Beard v. Francis, Tenn. App. 309 S. W. 2d 788.
Whether particular articles of belief are so fundamental as to be of the very essence of a given creed is evidently a question to be decided by the church itself; the civil courts cannot assume independent authority to arbitrate the niceties of ecclesiastical disputations. Hence avo must be guided solely by the evidence in the case, as it sheds light upon the position traditionally taken by the Landmark Missionary Baptist Church.
We find the decided Aveight of the testimony to be against the chancellor’s conclusion that the doctrinal differences disclosed by the eAÚdence are unimportant. Witness after Avitness testified that these are cardinal beliefs in this church, that anyone Avho rejects them is not a Land mark Baptist, and that the teachings of Elder Dovers are heresy. Several of the minority group felt so strongly about the matter that they had withdrawn from the Traskwood church before the trial. The situation is rather like that described in Parker v. Harper, 295 Ky. 686, 175 S. W. 2d 361: ‘ ‘ The evidence in the ease at bar is that both local groups do regard the grounds upon which they have divided as very vital and substantial. Other than their declarations, the sorry fact is that they have proven to be important and potent enough to break up the struggling little church . . . We are of the opinion there was such departure from the faith of the founders of the church at Martin as calls for the protection of their property rights by the courts.”
In reaching our conclusion we stress the fact that we have no concern whatever with the merits of the theological differences between these parties. The majority members of this church or of any church are of course at liberty to adopt any religious belief they choose, whether it be a liberal Baptist theology, Presbyterianism, Greek Catholicism, or Mohammedanism. Morever, the majority members have a similar right to engage a pastor who will preach the doctrines of their choice. But the vital point is that the majority are not entitled to devote the property of the Landmark Missionary Baptist Church at Traskwood to a faith contrary to that for which it was dedicated. We are aware of no case holding that the majority members of a church have the absolute power to use its property for any purpose they select; certainly no such case has been cited. If the courts are not to afford any protection for property rights in such a situation then there is literally no limit to the purposes to which the majority might divert the church property.
The decree must be reversed, but it seems unnecessary for the appellants to be granted the sweeping relief sought by their complaint, by which all the majority members would be enjoined from taking part in the control of the church property. We think it to be sufficient for Elder Dovers, whose ministry has been the central point of controversy, to be restrained from acting as pastor of the church. This limitation upon the court’s decree may aid the congregation in regaining its original unity.
[Supplemental opinion on rehearing delivered April 15, 1963, p. 460.]
Reversed.
MoF addin, J., dissents. | [
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Per curiam.
The appellant, Joseph Franklin Aden, was convicted of a felony in the Randolph Circuit Court and on February 6, 1963, was sentenced to four years in the penitentiary. On April 8, 1963, a partial record was filed in this Court and an appeal granted and certiorari was issued to bring up the entire record.
The appellant has filed in this Court a motion that he be allowed to proceed in forma pauperis. The motion is duly verified and appellant’s counsel certifies that he is serving without compensation. The appellant has complied with the requirements of the law so as to be allowed to proceed in forma pauperis. See Thornsberry v. State, 192 Ark. 435, 92 S. W. 2d 203; and, McCulloch v. Ballentine, 199 Ark. 654, 135 S. W. 2d 673; and see also Sec. 22-357 Ark. Stats., and Act No. 148 of 1953.
The Clerk of this Court is hereby ordered to forthwith direct a writ to the Clerk of the Randolph Circuit Court and to the Court Reporter of the Randolph Circuit Court who took down the testimony. The Reporter is directed to without delay transcribe and file the testimony with the Clerk of the Randolph Circuit Court; and the Clerk of the Randolph Circuit Court to complete without delay the entire transcript under the writ of certiorari issued to him in this case. The transcribing and filing of the testimony by the Court Reporter and the preparation of the transcript by the Clerk of the Court are to be furnished without expense; but this Court retains the right to hear resistance that may be made by any persons desiring to resist the pauper affidavit of the appellant. | [
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George Rose Smith, J.
This is an action hy the City of Rogers to recover judgment for $8,674.00 under an oral contract hy which the appellant Russell agreed to pay the city at the rate of $2.00 a foot for 4,337 feet of sewer line-to be laid hy the city in an undeveloped subdivision owned hy Russell. Russell admits that the line was laid hy the city. His defense is that he was induced hy misrepresen tation to enter into the contract. The circuit judge, considering the matter upon the pleadings and upon Russell’s testimony in a deposition offered by the city, sustained the city’s motion for a summary judgment in the full amount sued for.
Our recent summary judgment statute, Act 123 of 1961, is a re-enactment of Rule 56 of the Federal Rules of Civil Procedure. Ark. Stat. Ann. § 29-211 (Repl. 1962). It provides that a summary judgment shall be rendered if the pleadings and proof on file show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ’ ’ It has been pointed out, under the Federal Rule, that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. Moore’s Federal Practice (2d Ed.), § 56.02 (10). Hence any testimony that is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.
When Russell’s deposition is so considered we cannot say that the city was entitled to judgment as a matter of law. Russell testified that the city had planned to lay the sewer line in his subdivision whether he agreed to it or not. He was told by the city’s representatives that the cost would be $4.0,0 a foot and that the city would pay half the cost if he would agree to pay the other $2.00 a foot when the work was completed. If he did not accept that arrangement then he would be required to pay $4.00 a foot for that part of the line apportionable to each lot as the various lots were connected to the sewer mains. Russell said that he was told that all the property owners-were being offered this same choice.
Russell testified that he accepted the first alternative in order to save $2.00 a foot. Before he paid for the completed work, however, he found that he was being discriminated against in that the city was offering to permit other property owners to hook onto the sewer line at any time in the future at a charge of only $2.00 a foot. After discovering this discrimination Russell refused to make the lump-sum payment that he had agreed to make when the work was completed.
The city argues that even if the misrepresentations were made—-and at this stage of the case we must assume they were—they were not material and related only to future matters rather than to existing facts.
Neither point is well taken. A misrepresentation is considered to be material if it would be likely to influence a reasonable person in deciding whether to enter into the proposed contract. Rest., Contracts, § 470; Williston on Contracts (Rev. Ed), § 1490. Russell would undoubtedly have been influenced by the statement that all the property owners were being offered the same choice. If he had known the true facts there was no reason whatever for him to agree to make a cash payment of $8,674.00 as soon as the line was laid, for he could have obtained exactly the same benefits by paying, during a period of years, small installments that could not total more than the amount of the lump-sum charge and would in all probability have been less than that charge.
It is equally clear that the misrepresentation was not merely an expression of opinion about what might happen in the future. It amounted to a positive statement of the method by which the city intended to finance the entire project. Hence the representation pertaining to an existing state of fact upon which Russell was entitled to rely in reaching his decision about the proposed contract.
The appellant closes his brief by asking that the judgment be reversed and that a judgment be entered in his-favor. It is quite apparent, however, that there are a number of disputed issues of fact in the case. Consequently,, just as in cases where a verdict has been erroneously directed in the court below, the cause will be remanded for a. trial on the merits.
Reversed. | [
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Ed F. McFaddin, Associate Justice.
Appellant Dave Lillard was duly charged with the crime of murder in the first degree (§ 41-2205 Ark. Stats.) for the homicide of Mack King. Appellant’s trial resulted in a conviction of murder in the second degree 41-2206 Ark. Stats.), and a sentence of seven years; and from that judgment this appeal is prosecuted. The motion for new trial contains six assignments.
I. Sufficiency Of The Evidence. Assignments 1 to 4, inclusive, concern this topic. At about 9:30 P.M. on June 14, 1960, Mack King and his brother, Pete Mack, along with two other persons (William Hill and Leon Majors), were in front of the Twin City Social Club, located on State Street in Little Rock. Some of the four named persons were seated, and some were standing. Appellant Dave Lillard drove by in his car and Pete Mack said, “Hey, David, you looking for me?”; to which appellant replied, “No, I thought maybe you-all was looking for me — you been messing in my business.” With nothing further said, the appellant seized his 12-gauge shotgun, emerged from his car, and fired several shots, which resulted in the death of Mack King. No other person fired any shots. The Coroner testified that Mack King died that night as a result of multiple shotgun wounds which fractured the third and fifth ribs, punctured the left lung, and injured the spinal column, the face, and body. The homicide by appellant was established. Appellant, testifying in his own behalf, stated: that he emerged from his car and started shooting; that Pete Mack had threatened him; that Pete Mack put his hand in his pocket as though he were “reaching for a gun”; and that appellant was shooting at Pete Mack and not at Mack King, whom he shot.
We have detailed a sufficient amount of the testimony to establish that appellant’s assignments are without merit. Second degree murder — of which the defendant was convicted — requires the proof of (1) unlawful killing, and (2) malice. Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964. The killing was admitted, and no witness substantiated the appellant as to Pete Mack making any movement that might have indicated that he was “reaching in his pocket for a gun.” Malice and intent to kill may be implied from the use of a weapon, such as the shotgun used by appellant in this case. Wallin v. State, 210 Ark. 616, 197 S. W. 2d 26. The fact that appellant intended to shoot Pete Mack and by mistake shot Mack King is no defense. In Clingham v. State, 207 Ark. 686, 182 S. W. 2d 472, we said:
“Where one, in an attempt to murder, slays by mistake a person other than the intended victim, he is nevertheless guilty of murder. Ringer v. State, 74 Ark. 262, 85 S. W. 410; Brooks v. State, 141 Ark. 57, 216 S. W. 705; Daniels v. State, 182 Ark. 564, 32 S. W. 2d 169; 26 Am. Jur. 179.”
To the same effect see Gaines v. State, 208 Ark. 293, 186 S. W. 2d 154; Henley v. State, 210 Ark. 759, 197 S. W. 2d 468; and Johnson v. State, 214 Ark. 902, 218 S. W. 2d 687.
The evidence was amply sufficient to take the case to the jury and to support the verdict and judgment rendered.
II. Admission Of Photographs. The fifth assignment in the motion for new trial reads:
“The Court erred in allowing the State to offer a series of seven pictures, marked Exhibits ‘a’, ‘b’, ‘c’, ‘d’, ‘e’, £f’, and ‘h’, over the objections and exceptions of the defendant.”
Exhibits “a”, “b”, “c”, and “d” were pictures of the deceased, taken shortly after the killing, and these pictures showed that he was shot in the back, in the face, in the head, and in the neck. Exhibit “f” was a picture of the door to the Twin City Social Club, showing that at least twelve shots hit the door; and Exhibit “h” showed that at least ten shots hit the door facing. These pictures were admitted over appellant’s objections. Exhibit-“e” was a picture originally ruled out by the Court, but then later introduced without objection, and it showed the street in front of the social club. There was no error in the ruling of the Court admitting any of these pictures. It was testified that every picture was taken at the direction of and in the presence of the officers, that the pictures were accurate, and that each fairly and truthfully represented the subject matter. See Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621; and Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17.
III. The Jury Panel. The sixth assignment in the motion for new trial reads:
“The Court erred in refusing to grant the defendant’s motion to quash the jury panel because the jury had been improperly selected as set out in his motion, over the objections and exceptions of the defendant.”
Only two witnesses were offered to sustain the motion to quash. The first witness was Mr. Grip Robertson (Chief Deputy Tax Collector of Pulaski County), who introduced the current printed poll tax book of Pulaski County, and testified that in preparing the book when the copy of the poll tax receipt showed the letter “C” opposite the name of the person paying the poll tax, then the printed list likewise showed the letter “C”, which meant that the person paying was a Negro; but that if a person wrote in for a poll tax receipt and did not designate color, then there was no “c” shown by such name. That was the extent of the testimony of this witness, except the following:
‘ ‘ Q. Mr. Robertson, do you have anything to do with the selection of the commissioners or jurors?
“A. No.
“Q. Do you know whether or not the jury commissioners use the designations after the names to select the jury list?
“A. I do not.
“MR. ADKISSON: That is all.
“THE COURT: As a matter of fact, you don’t know whether or not they use this list at all, do you?
“A. No, I don’t know.’’
The only other witness called on the motion to quash was P. B. Frederick (Deputy Circuit Clerk); and he testified that five Negroes were then serving on the regular and alternate jury panel in the First Division Circuit Court in which this case was being tried. We have given the sum total of all the evidence adduced by the appellant on his motion. The Trial Court refused to quash the jury panel; and we find the evidence offered by the appellant to be entirely insufficient to reverse the ruling of the Court. No Jury Commissioner was called to state how the panel was selected; and it was not even shown that no Negroes were on the jury that was selected to try this case.
The appellant cites two cases in his behalf. One is Avery v. Georgia, 345 U. S. 559, 73 L. Ed. 1244, 73 S. Ct. 891; and the other is Bailey v. Henslee, 287 F. 2d 936. Each of these cases presented a factual situation vastly different from that in the case at bar. In the Avery case, it was shown that no Negro was selected to serve on a panel of sixty jurors. In the case at bar, it was shown that five Negroes were on the panel at the term of Court in which the appellant was tried.' There was no testimony that any discrimination was used by the Jury Commissioners in selecting the personnel for the panel.
The opinion of the Eighth Circuit Court in Bailey v. Henslee (supra) is scholarly and thorough. In that case, decided in March 1961, Judge Blackmun reviewed all of the leading cases on the matter of discrimination in selection of a jury, and listed nine factual matters present in that case, which ‘ ‘ taken in the aggregate lead us to the conclusion that a prima facie case of limitation of members of the Negro race in the selection of this defendant’s petit jury panel was established ...” The seventh of these factual matters mentioned by Judge Blackmun was the use of the letter “c” after the name of a Negro poll taxpayer. The absence in the present case of any evidence of the other eight factual matters regarded as essential in the Bailey-Henslee case, clearly demonstrates that the appellant has failed to show racial discrimination. Furthermore, the fact that there were five Negroes on the jury panel of the First Division Circuit Court at the time the appellant was tried goes far to negative any claim of discrimination. The Trial Court was correct in refusing to quash the jury panel on the evidence offered by the appellant.
Finding no error, the judgment is affirmed.
Robinson and Holt, JJ., not participating.
The homicide occurred on June 14, 1960; appellant was allowed to, and did, make bail; he obtained repeated continuances; and the trial from which comes this appeal was held on June 21,1962.
The motion to quash the jury panel was filed on June 21, 1962, and read:
“That the entire jury panel should be quashed, because the defendant is a negro, and the Commissioners of this Court could not, and did not select a fair and impartial jury to try the defendant, or. any other member of the negro, or colored, race, by designation with a capital letter (c) opposite the name of each negro or colored person, which is a violation of the defendant’s constitutional rights as provided by the Constitution of the State of Arkansas, and the constitution of the United States.
“That there is not a fair representation of negroes or colored people on the Jury Panel because the Jury Commissioners are able to exclude them because of the way the qualified electors are designated.”
At one time the jurors from the Second and Third Divisions of Pulaski Circuit Court could be used in the First Division; hut Act No. 3 of the First Extraordinary Session of 1961 provided that jurors impaneled on the regular or special panels of the Second or Third Division of the Pulaski Circuit Court could not serve in the First Division. | [
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Jim Johnson, Associate Justice.
Appellant E. E. Mitchell, Jr., filed a petition for a declaratory judgment in Conway Chancery Court, seeking to regain possession of certain farm lands being managed by appellee William M. Mitchell and to recover certain payments made to the Federal Land Bank by appellant.
The parties are two of the four sons of E. E. Mitchell who died in 1942 leaving real property in trust for ten years, then to vest in the sons for life with the remainder in the sons’ bodily heirs. (This court upheld the validity of the will in Mitchell v. Mitchell, 208 Ark. 478, 187 S. W. 2d 163.) When the trust terminated in 1952, the four brothers entered into an agreement entitled “Partition and Trust Agreement” which divided up their interest in the real property (life estate) among the four. Part of the property so partitioned was Paw Paw Bend farm. Appellee received the south half, appellant the north half. Paragraph 10 of the partition agreement attempted to provide that the entire farm was to be operated as a unit for the lifetime of appellee. Since 1952 appellee has managed the farm as a unit, collected and paid over to appellant all the rents from his lands after deducting taxes and certain mortgage payments. At the time the agreement was made there was a Federal Land Bank mortgage outstanding on the entire farm, and when appellee started managing the farm he gratuitously applied approximately $3,000 from certain insurance proceeds toward reduction of the mortgage, which took care of the land bank payments for approximately two years. Thereafter appellee either deducted one-half of the mortgage payment from appellant’s rental income before remitting to appellant, or else requested a check from appellant, for half of the annual payment. Appellant contends that he was induced to enter into a verbal operating agreement with appellee in consideration of appellee’s paying appellant 50% of the annual crop rents on the entire farm and appellee’s assuming the payments on the Federal Land Bank'loan. Appellee contends that appellant was to receive only the farm rents from appellant’s land and that after appellee’s initial $3,000 payment, the parties were to be jointly responsible for the mortgage payments.
Appellant further contends, inter alia, that paragraph 10 of the partition agreement is inconsistent with paragraph 9, which provides that each life tenant may have exclusive control of his interest in the lands to the exclusion of the others, and that paragraph 10 is there fore null- and void, and that he is entitled to possession of his land as well as reimbursement for the Federal Land Bank payments charged to him. Appellee answered, inter alia, denying that appellant was entitled to reimbursement or return of the land. Appellee filed an amended answer which wus in the nature of a counterclaim.
At trial on July 25, 1962, the chancellor found that appellant was entitled to possession of his lands, which should be delivered to him after the crop year of 1962; that appellant was not entitled to recover any sums paid or charged to appellant for Federal Land Bank payments; that appellee was not entitled to recover on his counterclaim; and that appellee was not liable to appellant for any rents or profits from either lands belonging to appellant or appellee. Appellant has appealed from this decree urging that the court erred in refusing to grant appellant judgment for all land bank payments charged to him by appellee.
Appellee has cross-appealed and argues two points for reversal: (1) the court erred in holding that paragraph 10' of the Partition and Trust Agreement did not bind appellant to the operation of the Paw Paw Bend farm as a unit for the lifetime of appellee; and (2) the court erred in holding that if appellant was entitled to rescind paragraph 10 of the Partition and Trust Agreement, he was not entitled to receive the benefits of the improvements made by appellee in reliance thereon.
We shall consider first the land bank payments. Appellee testified that he charged appellant with one-half of the payments in the years 1952, and 1955 through 1961, and that appellant had expressed no dissatisfaction with their operating agreement until a representative of Winthrop Rockefeller offered to rent appellant’s land for a good cash rental. Appellant testified that he made 50% of the land bank payment because, <£I had no choice in the matter. I’m fifty miles away from here and he’s practically on top of it and all I could do was take his figures on it.” The evidence reflected that frequently appellee deducted the land bank payment from the crop rents before remitting to appellant. At times, however, appellant mailed his check for half of the payment to appellee, as shown by two letter exhibits:
“May 3, 1956. Dear Emmett [appellant]: Received notice from the Land Bank for farm payment due the 1st of June. Yonr one-half is $300.00 and please send me a check for this amount by the first of the month . . . Come to see us when it is convenient.”
“Little Rock, Nov. 22, 1957. Dear Bill [appellee]: Thanks for the rent check and I am enclosing check in the amount of $305.80 on loan payment. Drop by when you are down here around the Marion and we will have a coffee here.”
It is clear that appellant’s action in voluntarily making the payment as reflected by his letter spoke louder than words to the chancellor, and the court’s finding that appellant was not entitled to refund of sums paid by him or charged to him for land bank payments is not against the preponderance of the evidence. See Scott v. Vuurens, 236 Ark. 731, opinion delivered May 27, 1963.
For reversal on cross-appeal, appellee contends that the trial court erred in holding that paragraph 10 of the Partition and Trust Agreement did not bind appellant to the operation-of the Paw Paw Bend farm as a unit for the lifetime of appellee.
The partition and trust agreement was entered into by the four Mitchell brothers in 1952, apparently to avoid future contention among them, and allots each brother certain real property for life. In the preamble to the agreement it is stated:
“WHEREAS, except as to said personal property and certain unreserved land, the said James C. Mitchell, Shelby H. Mitchell, William M. Mitchell and E. E. Mitchell, Jr., desire that possession of such entailed lands be partitioned among them, to the end that each life tenant may taloe exclusive possession of his interest therein, . . .” [Our emphasis.]
Paragraph 7 provides for the exchange of quitclaim deeds, to implement the partition. Paragraph 9 reads as follows:
“This agreement is executed for the sole and only-purpose as hereinabove set forth, to the end that each life tenant may have individual control of his interest in the lands of the estate, to the exclusion of the others, and anything to the contrary herein contained notwithstanding, this agreement shall not be construed as an attempt on the part of the said life tenants to sell, convey or otherwise alienate any expectancy in the estate of E. E. Mitchell, deceased, in contravention of any condition of said will.” [Our emphasis.]
The last clause, paragraph 10, without reciting additional-consideration, purports to contain an agreement between appellant and appellee to the exclusion of the other parties to the contract. In paragraph 10, despite the strong language stating the exclusive purpose of the contract, two of the four parties to the agreement attempted to agree between themselves that the terms of the partition agreement would not be applicable to them as regards their property; that as a result of such attempted agreement, their shares were to be considered as one during the lifetime of appellee.
It is familiar law that construction of a contract which entirely neutralizes one provision should not be adopted if the contract can be construed to give effect to all the provisions. Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S. W. 2d 611. Here, however, the whole purpose of the partition agreement was “to the end that each life tenant may take exclusive possession of his interest therein.” This cannot be reconciled with an attempted agreement in the same instrument to the contrary and brings into motion the rule that a subsequent clause irreconcilable with a former clause and repugnant to the general purpose and intent may be disregarded. 12 Am. Jur., Contracts, § 243. The chancellor did not err in so holding.
Appellee’s second point urged for reversal on cross-appeal is that the trial court erred in holding that if appellant was entitled to rescind paragraph. 10 of the partition and trust agreement, he was not entitled to receive the benefits of the improvements made by appellee in reliance thereon.
The specific relief sought by this point seems to be urged'here for the first time. Little Rock Ry. & Electric Co. v. North Little Rock, 76 Ark. 48, 88 S. W. 826. It is true that in appellee’s amended answer he alleged that he had expended approximately $8,000.00 since 1952 for road building, drainage, levee repair and flood control. However, appellee’s prayer, which was in the nature of a counterclaim, was as follows: “[A]nd the defendant [appellee] prays that if in the accountings it is found that said defendant has not operated said farm in good manner that he be given credit on any sums owed to the defendant for this $8,000.00 improvements.” There has been no finding that appellee has not operated the farm in a good manner. It is admitted that during the entire time of appellee’s management of the property, even though he was from time to time in possession of rent money belonging to appellant, appellee never attempted to charge appellant with any part of these alleged improvements. The proof on these improvements is rather vague and raises some question as to their value to appellant. On this point, we are unwilling on trial de novo to say that the learned chancellor’s finding that appellee was not entitled to recover on his counterclaim was against the preponderance of the evidence. See Dearien v. Lancaster, 221 Ark. 98, 252 S. W. 2d 72.
Affirmed on appeal and cross-appeal. | [
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George Rose Smith, J.
This is an action brought by the appellant, individually and as the next friend of her minor son, Billy Avery Faulkner, to recover damages for personal injuries suffered by the child. The circuit court sustained a demurrer to the complaint and dismissed the suit. The only question is whether the plaintiff’s pleading states a cause of action for negligence.
The complaint avers that the defendant, in the course of its business, maintained a large tank for the storage of tar. Despite repeated protests (presumably by the plaintiff or other neighbors), the defendant allowed the tar to spill over, so that it flowed from the defendant’s premises into an area where the plaintiff’s son and other members of the public were accustomed to walk and play.
On July 7, 1961, Billy Avery, then nine years old, walked into the tar to such a depth that Ms feet were covered up to his ankles. When the child reached his home his parents, “upon seeing the tar on his feet and recognizing the necessity that all of the same promptly be removed therefrom, did attempt to remove the same in the most prudent and careful manner possible by taking said child into the middle of their back yard to remove said tar by the use of gasoline, the only effective cleaning-substance available at the time.” While the parents were so engaged a second child ran into the yard and unexpectedly exploded a cap-pistol cap, creating a spark that ignited the gasoline fumes and resulted in serious burns to Billy Avery’s legs.
The circuit court was right in sustaining- the demurrer, for the facts do not show that the child’s injuries were proximately caused by negligence on the part of the defendant. We reach this conclusion whether we devote our attention primarily to the question of negligence or to that of proximate cause. The two things, as we observed in Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797, shade into each other. We need not now attempt to draw fine lines of distinction.
To be negligent a person must be in a position to realize that his conduct involves a hazard to others. In the Hill case we described a negligent act as “one from which an ordinary prudent person in the actor’s position —in the same or similar circumstances — would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.” Later, in Collier v. Citizens Coach Co., 231 Ark. 489, 330 S. W. 2d 74, we added: “Foreseeability is an element in the determination of whether a person is guilty of negligence and has nothing whatever to do with proximate cause.” Moreover, when the voluntary acts of human beings intervene between the defendant’s act and the plaintiff’s injury, the problem of foreseeability is still the same: Was the third person’s conduct sufficiently foreseeable to have the effect of making the defendant’s act a negligent one? Harper & James, The Law of Torts, § 20.5; Rest., Torts, § 447.
This defendant, in allowing tar to overflow into an area used as a playground, could be charged with the duty of anticipating the likelihood that a child might get pitch upon his feet. But this possibility does not involve, in the language of the Hill case, such an appreciable risk of harm as to cause an ordinarily prudent person either not to do the act or to do it in a more careful manner. It is a commonplace everyday occurrence for children to get tar or other harmless viscous substances upon their skin. Such matter may be, and ordinarily is, washed off without any danger whatever to the child. To hold that this defendant was under a duty to guard against the remote chance of what actually occurred in this case would be in effect to strike the element of foreseeability from the concept of negligence in such a situation and thus to impose an absolute liability upon persons handling tar and similar innocuous substances.
With respect to proximate cause the term is usually defined as a cause which, “in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Collier v. Citizens Coach Co., supra; Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S. W. 2d 451. Testing the case by this definition, it is apparent that proof of every fact alleged in the complaint would not present an issue for the jury, since the overflow of the tar did not lead in a natural and continuous sequence, unbroken by any efficient intervening cause, to the accidental igniting of gasoline fumes in the Hartsocks’ backyard.
A much stronger case than this one for the imposition of liability was considered in Pittsburgh Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L.R.A., N.S. 905. There the defendant carelessly discarded dangerous dynamite caps in a place where they were picked up by a child. By contrast, the present appellee created a condition that was essentially harmless. In the Horton case we held that the action of the child’s parents, in permitting.him to keep the dynamite caps for a week, exempted the defendant from liability when one of the caps later exploded and injured another child. There the parents’ intervening conduct was merely a passive failure to correct a hazardous situation. Here it was the appellant and her husband who actively introduced the highly dangerous and inflammable liquid that caused the injury. (Needless to say, the allegation that the parents acted in the most prudent and careful manner is a conclusion of law not admitted by demurrer. Seubold v. Fort Smith Spec. Sch. Hist., 218 Ark. 560, 237 S. W. 2d 884.) Upon the authority of the Horton case we must conclude that the appellee’s conduct was not the proximate cause of the accident giving rise to this suit.
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George Rose Smith, J.
The appellant was charged with first degree murder. At the first trial he pleaded guilty and was sentenced to death. We reversed that conviction for an error in the instructions to the jury. Walton v. State, 232 Ark. 86, 334 S. W. 2d 657. At the second trial, after the plea had been changed to not guilty, the appellant was again convicted and sentenced to death. We affirmed that conviction. Walton v. State, 233 Ark. 999, 350 S. W. 2d 302.
The Supreme Court of the United States, reviewing our second decision by certiorari, vacated our judgment and remanded the case for further consideration in the light of Hamilton v. Alabama, 368 U. S. 52, 7 L. Ed. 2d 114, 82 S. Ct. 157, which was decided after we had affirmed the case upon the second appeal. Walton v. Arkansas, 371 U. S. 28, 9 L. Ed. 2d 9, 83 S. Ct. 9.
In the Hamilton case the court reversed a capital conviction on the ground that the accused did not have the assistance of counsel at the arraignment. When the ease at bar was returned to us'for reconsideration the record did not completely reflect everything that occurred at Walton’s arraignment on June 22,1959. We therefore reinvested the trial court with jurisdiction, so that the deficiency might be supplied. We now have the complete record.
The homicide occurred during the night of June 19, 1959. Walton was arrested the next morning and signed a written confession on June 21. The information, charging first degree murder, was filed on June 22. On that morning Walton was brought into the courtroom at the county seat. The court reporter’s record of the proceedings recites the presence of the circuit judge, the prosecuting attorney, the circuit clerk, the accused, the sheriff, and a member of the State Police Department.
The information and the warrant of arrest were read to the accused. In reply to questions by the court Walton stated that he was not financially able to employ counsel. The court indicated that he would appoint attorneys for Walton and would not permit him to plead to the charge until he had talked with his counsel. The record then continues:
“The Court: (To Prosecuting Attorney) Do you have any questions to ask the defendant, Mr. Spencer?
“Mr. Spencer: Yes. (To defendant) Did you make a statement to the State Police at Texarkana?
“The Defendant: I made one to Mr. Thrash yesterday.
‘ ‘ Mr. Spencer: Is this your signature • — • ‘ Edward Walton, Jr.’?
“The Defendant: Yes, sir.
“Mr. Spencer: I want to ask you, did you make that statement freely and voluntarily?
“The Defendant: Yes, sir.
“Mr. Spencer: You weren’t threatened or promised anything to make the statement, were you?
“The Defendant: No, sir, they were very nice.
“Mr. Spencer: It’s your own free and voluntary statement?
“The Defendant: Yes, sir.
“Mr. Spencer: I would like to introduce it as Ex-bihit No. 1 to his arraignment.
“The Court: I will leave it in the custody of the court reporter, with your permission, and it will be a judicial confession. (To defendant) This is a statement you made to the officers yesterday?
“The Defendant: Yes.
“The Court: Is it a true confession—
“The Defendant: Yes, sir.
“The Court: —given of your own free will and accord ?
“The Defendant: Yes, sir.
“The Court: No attempt was made to influence you to make it? They didn’t beg you to make it, or promise you any reward if you would make the statement, did they?
“The Defendant: No, sir.
“The Court: It was a free and voluntary statement?
“The Defendant: Yes, sir.
“The Court: And it is a correct statement?
“The Defendant: Yes, sir.”
At the second trial, now under review, the court reporter was called as a witness for the State and was permitted to read to the jury the questions and answers that we have just quoted. Counsel for the accused objected on the ground, among others, that the testimony violated the rights of the defendant under the Fourteenth Amendment to the Constitution of the United States. The specific point now before us was not argued in the original briefs, as Hamilton v. Alabama had not yet been decided, but under our practice in capital cases a timely objection in the trial court is all that is required to preserve a point for review. Rorie v. State, 215 Ark. 282, 220 S. W. 2d 421.
We have concluded that the judgment must be reversed. In Hamilton v. Alabama the court reasoned that Hamilton was entitled to counsel at the arraignment, because under the law of Alabama substantial rights are lost if not asserted at that time. Hence the question here is whether Walton suffered the loss of a substantial right by not having an attorney at the proceeding on June 22.
This question must be answered in the affirmative. The circuit judge was careful not to permit Walton to plead to the information until he had conferred with Ms attorneys, but the admissions that were elicited by the prosecuting attorney may well have been as damaging as a plea of guilty. It cannot be doubted that Walton’s insistence to the trial jury that his written confession had been involuntary was seriously weakened by the narrative of what happened in the courtroom on the morning of June 22. If Walton had been represented by counsel, as was his right after the case reached the courts, his attorney would certainly have warned him that he was not compelled to answer any questions with reference to the voluntary character of his confession. We are fully convinced that, in the light of the decision in Hamilton v. Alabama, the court reporter’s testimony was inadmissible and prejudicial, entitling the appellant to a new trial.
Reversed.
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George Rose Smith, J.
Guy Hartsook died intestate on July 13, 1961. In November his half-brother, the appellee, filed a claim against the estate in the amount of $1,050.00, based upon a check that had purportedly been given by the decedent to the appellee on December 20, 1960. The administratrix disallowed the claim, but upon trial of the matter in the probate court the claim was allowed. This appeal is from the order of allowance.
It is first contended that the check became a nullity as a result of the appellee’s failure to cash it within six months after its date. This contention is based upon the statutes that relieve a bank of the duty of cashing checks more than six months old. Ark. Stat. Ann. § 67-534 (Repl. 1957); Ibid. § 85-4-404 (Add. 1961). These statutes were adopted for the protection of the bank and plainly do not have the effect of extinguishing a valid obligation merely because it is more than six months past due. Such a holding would create an extremely short statute of limitations where none was intended by the legislature.
The close question in the case is whether the weight of the evidence is contrary to the court’s finding that the check in question bears the genuine signature of Guy Hartsook.
Owens identified the cheek and testified at some length, but much of his testimony was objected to as being in violation of the dead man’s statute and cannot be considered. Ark. Const., Schedule, § 2. The claimant’s principal witness was his grown daughter, who testified positively that she was present when the check was prepared, signed, and delivered in her parents’ home. The check itself bears a notation that it was given for the payee’s part in certain farm machinery.
The appellant called the president of the decedent’s bank as a handwriting expert, but his testimony is hardly favorable to either side. At first, after having compared the 1960 cheek with an earlier one written in 1949 and with a still older signature card, the witness stated that, he doubted if the signature upon the check in issue was genuine. On cross-examination, however, the witness readily admitted that a person’s signature changes with age. After having been shown a postcard assertedly signed by the decedent in 1961, this witness indicated that the signature on the questioned check bore a greater resemblance to the nearly contemporaneous postcard signature than to the much older specimens of Hartsook’s handwriting. The court observed that in his opinion the signatures upon the decedent’s more recent checks would be entitled to great weight. It is not without significance that the administratrix failed to produce any such fresh evidence.
The rest of the appellant’s proof is circumstantial, tending to show that Hartsook and Owens had not farmed together since about 1952, that their purchases of farm machinery had been made separately, and that therefore the obligation recited upon the face of the instrument probably did not exist.
The case has given us much anxiety, but after studying the record we are unable to say that the trial court’s finding is against the preponderance of the testimony. The probate judge had the great advantage of seeing the witnesses as they testified. He was thus in a much better position than we are to decide whether Owens’s daughter was telling the truth and whether Owens himself was attempting to commit a deliberate fraud against his brother’s estate. The appellant’s circumstantial proof does not succeed in making it difficult for us to believe that the transaction in question, between brothers, really took place. With the conflicting evidence evenly balanced it is our duty to leave the trial court’s findings undisturbed. Brewer v. Yancey, 169 Ark. 816, 277 S. W. 11.
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Jim Johnson, Associate Justice.
This is an appeal from an order dismissing a cross-complaint against an insurance agent hy the insurer seeking indemnity from the agent for a loss.
For some years Mrs. H. A. Eoss had purchased residence insurance from appellee W. I. Walton, an agent for appellant, Pennsylvania Millers Mutual Insurance Company. In 1958, appellee wrote Mrs. Ross about a new policy on residence and contents known as the homeowner’s policy. Pursuant to the letter Mrs. Ross went to appellee’s office and discussed the new policy with appellee Mrs. Mildred Cagle, an employee of appellee Walton. On one side of a printed brochure which was enclosed in the letter to Mrs. Ross were two columns, one for listing present coverages and the other for coverages available under the homeowner’s policy. On the other side of the brochure were pictures of common hazards, including water escape damage. Mrs. Cagle filled in the two columns, showing all coverages listed as being included in the new policy recommended to Mrs. Ross, and Mrs. Ross then purchased the policy. Mrs. Ross kept the brochure and apparently did not read the policy when she received it.
When Mrs. Cagle issued the policy, the testimony indicates, she knew there were three different types of homeowner’s policies, but did not know that water escape damage was not covered by the Type A policy issued to Mrs. Ross (but was covered under Types B and C, more extensive policies), nor did appellee Walton, who checked the form of the policy before signing it, appear to know of the lack of coverage.
On March 2, 1961, Mrs. Ross’ home suffered water escape damage. In reply to a call, appellee Walton advised that the loss was covered. It is undisputed that the Type A policy does not cover water escape damage.
When appellant denied liability under the Type A policy, Mrs. Ross brought suit against the company seeking reformation of the policy on the ground of mutual mistake on her part and that of the company’s agent. Appellant answered, denying coverage, and cross-complained against appellees alleging that if appellee’s agency had been guilty of a mistake, error or omission permitting reformation, then appellant, as principal, was entitled to indemnity from the agent guilty of the error or omission. Mrs. Ross then amended her complaint to seek relief jointly and alternatively from appellant and appellees.
Following a trial on the merits, the Chancellor held that the policy should he reformed because of the mutual mistake and the omission, through error, to issue a policy covering water escape damage-; that Mrs. Boss was entitled to judgment against appellant less the difference in the premium paid on policy A and that due under policy B, and that appellees were not liable to appellant for the error or mistake of appellee Cagle.
For reversal, appellant contends that since the liability to the policy holder of appellant was, under the undisputed evidence, caused by a mistake, error or omission of appellees,-appellant’s agents, and moreover, since the trial court expressly so held, the trial court erred in denying to appellant its prayer for indemnity from its agents.
Following the reformation of the insurance contract, which decree is not appealed from, the only issue which faces us now is the liability, if any, of appellees, as agents, to appellant, as principal. This resolves the question to one of agency law generally. Appellant argues forcefully that the Chancellor found as a fact that appellees made a mistake, which appellant urges resulted in the loss sued upon here. This is a non sequitur. It does not follow, in the absence of a showing of collusion or bad faith, that appellees are liable to appellant for a loss occasioned on an insurance contract which appellees had full power and express authority to make on behalf of appellant.
Assuming, without deciding, that appellant’s conclusion is correct that the mistake by appellees was negligence per se, the relationship of that mistake to the pertinent facts must be kept in mind. What did the mistake relate to? It relates to the mistaken belief of appellees that Policy A contained the coverage of Policy B. Appellees had full power to bind appellant to Policy A, to Policy B, and Policy C, the latter having no bearing-on the case at bar. Had there been no mistake and had appellees issued Policy B in the beginning, no liability could be laid at appellees’ feet. Appellee issued Policy A and that policy, coupled with other writing, induced the Chancellor to reform Policy A into Policy B. Under this set of facts the only claim appellant could have on appellees would be for the difference in the cost of Policy A and the cost of Policy B. Had the Chancellor not correctly assessed that difference in cost to the insured, appellees would have been liable to appellant for that amount (and the insured in turn would have been liable to appellees for the difference).
In its brief, appellant states that there is an abundance of well-established precedent to support its contention and complains that it has been “whipsawed” by the trial court. Appellant fails to point to any of these precedents and we have diligently searched the case law of this state and find no case directly in point. However, the case most nearly in point appears to be Phoenix Ins. Co. v. Banks & Co., 114 Ark. 18, 169 S. W. 233, which is against appellant’s contention. Cases from other jurisdictions relating to insurance generally are of little help. While not directly in point with reference to the facts here, we think State Insurance Co. v. Richmond, 71 Iowa 519, 32 N. W. 496, presents an apt simile on the agency matter here involved.
“It is a very important consideration that the company was not drawn into a contract of insurance against a risk which it does not insure against. . .
“If a merchant’s clerk should sell goods on credit,, which he is employed to sell in that way, and to a person to whom he might properly sell, but for a price less than he was expressly required to obtain, the measure of the merchant’s recovery against the clerk in an action for damages would unquestionably not be greater than the difference between the two prices, and that, too, even if the buyer should become insolvent, and not pay anything. If, on the other hand, the clerk should sell property of his employer of a kind which he was not employed to sell at all, he probably would be held responsible for the whole value . . .
“Having, then, reached the conclusion that the risk assumed was within the appellant’s business, and that it was only a question of rates, the appellant should have shown, before it could recover more than nominal damages, that it was damaged in the matter of rates. With this view, the judgment must be affirmed. ’ ’
Affirmed. | [
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Jim Johnson, Associate Justice.
This is a suit to collect the proceeds of an accident insurance policy brought by the estate of the insured who drowned in a swollen river some distance from her stalled car.
On Saturday night, May 8, 1961, shortly before 11:00 p.m., the insured, Miss Carmelia Irene Hilliard, left the residence of Dr. Howell E. Leming to go to her home which was about five miles from Fayetteville. During that day there had been heavy storms and rainfall, and when the insured left the residence of Dr. Leming, it was very stormy with heavy rain. Earlier in the evening the insured’s automobile had stalled in water near her residence, which caused her to have the automobile removed by a wrecker. On Sunday morning, the automobile was found with the right rear wheel off the side of the road on the western approach to the White River bridge. The sheriff, upon notification, had the automobile removed to Fayetteville. The insured was missing. A search ensued, and the next day her body was found about one-eighth of a mile downstream on White River from where the automobile was found.
It is undisputed that the White River was out of its banks and that there was considerable high water across the road on the eastern approach to the bridge. Some water had crossed the road on the western approach behind the deceased’s automobile, however there was no showing that there had been any accumulated or overflow water in, under or around the parked automobile, nor was there a showing that the automobile was found to be parked or located in a position of peril..
Suit was brought by Catherine Hilliard Hawkins and Helen Hilliard Bestle, co-executrixes of the insured’s estate, appellees, against appellant, Continental Casualty Company, on its accident insurance policy issued to the ■decedent February 6,1961, which was admittedly in force at the time of her death. Appellant denied liability, contending that the death was not caused in a manner described in the schedule of accidents contained in the insurance policy. The policy provision sued on reads, “Section C. Injury sustained in consequence of (a) and while riding as a passenger or a driver in a private pleasure type (1) automobile ...”
The trial court sitting as a jury heard the evidence and personally inspected the scene where the automobile and insured’s body were found. The court concluded that the policy was in force, that decedent died of accidental drowning, that the accidental death was in consequence of and while driving a private pleasure type automobile and that the stalling of the automobile on the bridge abutment in the proximity of high flood waters of the river was the proximate cause of her drowning, and granted judgment for the amount sued for, statutory penalty and attorneys fee.
The principal question presented for our consideration is whether the accident occurred within the rule laid down in Walden v. Automobile Owners Safety Insurance Co., 228 Ark. 983, 311 S. W. 2d 780.
In the Walden case the insured, between one and four o’clock a.m., drove his automobile into a bauxite mining pit filled with water. There were no witnesses to the accident, but the next morning the insured’s automobile was found partly submerged in the water, and the insured’s body was found in 12 or 15 feet of water about 75 to 100 feet away from the automobile. The autopsy showed that the insured came to his death by drowning. The beneficiary of the insurance policy sought to recover under a clause which provided:
“Insurance Company . . . does hereby insure Dan E. Walden . . . against loss from accidental bodily injury sustained while driving or riding within any automobile, truck or bus for business or pleasure dm lug the term of this policy, provided such bodily injuries are caused solely by reason of an automobile, truck or "' us accident. ”
In commenting on the facts in that case, this court said,.“ [T]he insured accidentally drove his car into the water; that it was dark, and the insured suddenly found himself in water that came up into the seat of the car; that in an attempt to escape from his very hazardous predicament he went out the window of the car and was drowned ...” and concluded with approval , of the case of Wright v. Aetna Life Ins. Co., 10 F. 2d 281, saying, “ ‘In the present case [Wright] the real accident Avas not when Wright’s head struck the road, but when car control was lost. Such lost car control Avas the critical accident time, and the dominating factor which subjected the riding passenger to present peril and later death.’ The same is true in the case at bar [Walden]. The real accident was when Walden drove into the water in the mining pit, and that Avas the thing that subjected him to danger and brought about his death. ’ ’
In the case at bar the physical facts can lead only to the conclusion that deceased approached the bridge, and if any water over the road was evident at the time, it was a small flow which she crossed at the low end of the bridge approach; that she drove onto the bridge approach which raised her safely above the water level; that she saAV deeper water on the other side at the low end of the approach across the bridge; that she backed her car and the right rear wheel became stuck off the shoulder of the road, in a perfectly unimperiled location; that instead of remaining in the car safe and dry, she opened the door, removed herself from the car and closed the door.
Notwithstanding the trial court’s personal inspection of the scene of the tragedy,, under the virtually undisputed facts here presented we have no choice but to conclude that the insured was not impelled to escape from her predicament by thoughts of peril or emergency induced by accidental loss of control of her car in water, AAThich is the rule laid down by the Walden case.
We consider the liberal rule in the Walden case to be sound, 6 Blash. Auto. Pt. 2, § 4125, however to. broaden the rule to the extent here urged would be to in terpret the policy beyond its clear terms and would effectively result in a rewriting of the policy between the parties, a province which is not ours. State Farm Mutual Automobile Ins. Co. v. Belshe, 195 Ark. 460, 112 S. W. 2d 954; St. Paul Fire & Marine Ins. Co. v. Kell, 231 Ark. 193, 328 S. W. 2d 510.
Reversed and dismissed. | [
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Frank Holt, Associate Justice.
This is an action to quiet and confirm title to one hundred and twenty (120) acres of land. The appellees are Rachel Daniel, widow of J. W. Daniel, and their adult children, Doyle Daniel, Dorman Daniel, Guinn Daniel and Clint Daniel. The appellant is Liller Mae Shelton, widow of Robert Shelton. The appellees assert in their complaint that their ownership of this farm is based upon (1) a lost and unrecorded deed made in 1920 by Robert Shelton conveying the property to J. W. Daniel and R. W. Daniel, a partnership; (2) an order of the Saline Chancery Court on September 16, 1927; and (3) that appellant’s title claim is barred by laches and estoppel. Appellant filed her answer and denied the validity of each of appellees’ claims. Appellant contends she is the rightful owner because (1) she is the surviving widow of the record holder of the legal title, Robert Shelton, who died intestate in 1920 and (2) she ho>' % quitclaim deed dated in 1959 from her children and heirs of her deceased husband. The court vested title in appellees and therefrom comes this appeal.
Thus, the evidence on these rival claims necessarily covers a span of approximately forty (40) years. For several years before Robert Shelton died intestate in 1920 he had an open account with J. W. Daniel and R. W. Daniel who owned, as a partnership, a general mercantile store. It is undisputed that Shelton owed the store an annual balance which in 1918 amounted to $229.76. Mrs. Rachel Daniel testified that Mr. Shelton gave her husband, J. W. Daniel, an instrument in 1918 or 1919 which she understood was a deed based on their various business transactions. She claimed that the instrument or deed was entrusted to her lawyer, now deceased. No such instrument or deed is recorded or found. The partnership ledger on Shelton’s account reflects the following entry dated January 20, 1919: “By payment by place even. ’ ’ J. W. Daniel died intestate in 1926 and on September 16, 1927, the chancery court decreed a partition of the partnership property and therefrom awarded the lands in question to appellees. The appellant was not made a party to this proceeding. It is undisputed that since about 1918 J. ~W. Daniel, or his widow and heirs, the appellees, have paid the taxes on this property except in 1959 when appellant’s daughter paid them as delinquent taxes. The appellees have never lived on the property. However, in addition to the payment of taxes for approximately forty (40) years, they have exercised other acts of ownership and control such as leasing the property to numerous tenants for farming purposes, building and maintaining fences thereon, the rebuilding of a dwelling which had burned; using the lands for pasture and raising cattle; the planting of some 2,000 pine seedling trees on two different occasions; the cutting of timber and otherwise general management of the property. The testimony of other witnesses tends to corroborate appellees.
Appellant admits that her husband, Robert Shelton, had business transactions with J. W. Daniel and, according to her and her daughter’s testimony, Shelton gave Daniel a mortgage on the farm about 1919, which mort gage was transferred from his mules to the farm so he could sell the mules. There is no record evidence of such mortgage. Mrs. Shelton denied ever signing any instrument in favor of the Daniels. She testified she was never financially able to pay the mortgage she thought existed. There is no evidence that appellant or anyone else ever made any effort to determine from the appellees or elsewhere the existence, amount, or terms of such a mortgage. Her daughter testified that she had consulted several lawyers before 1949 about their legal rights and for the past 15 years she and other members of the family, living in close proximity, had frequently observed the farm with the belief appellees “were entitled to use it until the mortgage was paid.” According to the evidence appellees’ right of ownership of the land was challenged in 1959. This consisted of two acts: Appellant’s daughter paid the delinquent taxes and appellant filed a quitclaim deed to the property, which deed was executed to her by the heirs of Robert Shelton, her deceased husband.
The decree recites that the court:
“ * * * finds the lands in question * * * were owned by Robert Shelton and that J. W. Daniel purchased said lands from Robert Shelton on or about the year 1918. That a deed was never delivered to J. W. Daniel but that the heirs of Robert Shelton are now barred by laches and estopped from claiming any interest in said lands # * *
Appellant urges for reversal that the doctrine of laches does not apply against those seeking to enforce legal title. We think that the recent case of Mize v. Mize, opinion dated February 11, 1963, Law Rep. No. 3, is ample authority to reject this contention of appellant. The facts in the Mize case are similar to the case at bar. Both of these cases were tried before the same Chancellor and similar decrees were rendered in each case. In the Mize case we said:
“From the facts herein enumerated, it is established that for a period of more than forty years, though he lived within a comparatively short distance of the land, did some visiting with members of the Sheridan family, and was aware of the improvements that had been made to the premises, no action was ever taken * * * to enforce his claim to the property.”
Further, quoting from Tatum v. Arkansas Lbr. Co., 103 Ark. 251, 146 S. W. 135:
“ ‘Laches in legal significance is not mere delay, but delay that works disadvantage to another. * * * The disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but, when a court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief.’ ”
We think this most recent decision by this court is sufficient on which to rest our affirmance of the trial court’s decree.
Furthermore, in one of our earlier cases, Walker v. Norton, Exec., 199 Ark. 593, 135 S. W. 2d 315, the subject of laches was considered. The following language is pertinent to the facts in the instant case:
“* * * the rule is peculiarly applicable where the difficulty of doing entire justice arises through the death of the principal participants in the transactions complained of, or of the witness or witnesses, or by reason of the original transactions having become so obscured by time as to render the ascertainment of the exact facts impossible. * * * [Citing cases]
This court is committed to the rule that long and unreasonable delays wherein prejudice has resulted by reason of change of conditions or loss of evidence, laches may rightfully be invoked against one so neglecting his alleged rights.” [Citing cases]
We think, also, that the appellant makes a “stale demand” in this case. The question of laches and stale demand arose in the case of Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S. W. 2d 425. In that case a mineral claimant was omitted from a foreclosure suit in 1923 and asserted his claim in 1945. In determining what was a reasonable time in which this claimant had a right to redeem his interest this court said that, in the absence of circumstances supporting a plea of laches, the best guide for determining a reasonable time is the equitable rule of a stale demand. In defining this equitable doctrine Ave said that it is:
* * one that has for a long time remained unasserted; one that is first asserted after an unexplained delay of such great length ... as to create a presumption . . . that it has been abandoned ... It is an inherent doctrine of jurisprudence that nothing less than conscience, good faith, or reasonable diligence can call courts of equity into activity, and they will not grant aid to a litigant who has negligently slept on his rights and suffered his demand to become stale, where injustice Avould be done by granting the relief asked.”
Also, Ave think the facts in the case at bar support the presumption of a lost grant. In Carter v. Goodson, 114 Ark. 62, 169 S. W. 806, the plaintiff brought an action in 1914 to eject from the land the defendant who had exercised acts of ownership and possession for approximately 45 years. On the question of the existence of a lost deed the court, as authority for applying the doctrine of a lost grant, quoted Avith approval this language:
“When possession and use are long continued they create a presumption of lawful origin; that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. It may be, in point of fact, that permission to occupy and use Avas given orally, or upon a contract of sale, with promise of a future conveyance, Avhich parties have subsequently neglected to obtain, or the conveyance executed may not have been acknoAvledged, so as to be recorded, or may have been mislaid or lost. Many circumstances may prevent the execution of a deed of conveyance, to which the occupant of the land is entitled, or may lead to its loss after being executed. * # *
The general statement of the doctrine, as we have seen from the authorities cited, is that the presumption of a grant is indulged merely to quiet a long possession which might otherwise be disturbed by reason of the inability of the possessor to produce the muniments of title, which were actually given at the time of the acquisition of the property by him or those under whom he claims, but have been lost, or which he or they were entitled to have at that time, but had neglected to obtain, and of which the witnesses have passed away, or their recollection of the transaction has become dimmed and imperfect. * * * the reason for attaching such weight to a possession of this character is the notoriety it gives to the claim of the occupant; and, in countries where land is generally occupied or cultivated, it is the most effective mode of asserting ownership.”
Also, see, 2 C.J.S., Presumption of Lost Grant, §'231, p. 873.
In the case at bar the appellant has permitted her claim to rest dormant for approximately forty (40) years while living in reasonable proximity to the lands in question and being fully aware of the long and consistent dominion and control of the lands by the appellees. We think the facts in this case support the Chancellor’s decree.
The decree is affirmed.
See, also, Neal v. Stuckey, 202 Ark. 1119, 155 S. W. 2d 688; Falls v. Jackson, 208 Ark. 435, 186 S. W. 2d 787; Mitchell v. Malvern Lumber Co., 222 Ark. 266, 258 S. W. 2d 549; and 30 C. J. S. § 112, p. 520, § 113, p. 525. | [
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Jim Johnson, Associate Justice.
This is an appeal from a decree dismissing a complaint against a state police officer and another for want of jurisdiction.
In February, 1962, appellant J. D. Dean filed a taxpayer’s suit in the Crawford Chancery Court against appellees Bay Cole and T. B. Nash. The complaint alleged that Cole, individually and in his capacity as supervisor of the Alma Division of the Arkansas State Police, permitted appellee Nash to haul loads in that county in a grossly overloaded condition, without requiring Nash’s trucks to be weighed, or if weighed, without charging him for the excess weight; that he had allowed Nash to purchase “NB” licenses for his trucks when the trucks had not been properly assessed or entitled to use that type of license; and that the state and county were thereby deprived of revenue, which resulted in a violation of Article 16, § 13 of the Arkansas Constitution. Appellant prayed for a temporary and permanent injunction against appellees together with a judgment for all funds due the state and county. Appellees demurred to appellant’s complaint. On April 24, 1962, the trial court ruled that it did not have jurisdiction of appellant’s alleged cause of action and dismissed the complaint. Appellant has appealed, contending only that Crawford County is the proper venue for this action.
In Downey v. Toler, Judge, 214 Ark. 334, 216 S. W. 2d 60, this court had occasion to pass upon substantially the identical question raised in the instant case. The Downey case involved a suit which was filed in Grant County against two state police officers and another individual. This court there examined the venue statutes and stated:
. . [W]e conclude that, for the purposes of determining venue in actions against them, for acts done in their official capacity (as alleged in this case by the plaintiffs in the circuit court), the members of the Arkansas State Police are State officers within the purview of § 1397, Pope’s Digest [Ark. Stats. § 34-201], and can be sued for official acts only in the county of the official residence of the Arkansas State Police, which is Pulaski County.”
The court then ruled that the Grant Ciréuit Court was without jurisdiction to proceed in the action and granted a writ of prohibition against the Grant Circuit Judge.
In the case at bar, since the acts here complained of could only have been permitted or committed by appellee Cole in his official capacity as a member of the Arkansas State Police and not as an individual, the legal principle of Downey v. Toler, Judge, supra, is controlling. Therefore the decree of the trial court must be affirmed.
Mr. Justice Holt not participating. | [
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Paul "Ward, Associate Justice.
Barney Clemons (either as an employee or as an independent contractor) was working for the Bearden Lumber Company (hereafter called company) when he suffered a heart attack and later died. His widow and minor children filed a claim for death benefits under the Workmen’s Compensation Act. The question of whether Clemons’ death resulted from his employment was not presented to the commission and it is not an issue here. The commission (and the circuit court) disallowed the claim on the ground that Clemons was not covered by the act because he was an independent contractor and not an employee of the lumber company. This appeal challenges the substantiality of the evidence to support the findings of the commission.
The Bearden Lumber Company is a lumber manufacturing concern. In the course of providing logs from the forest to keep its mill operating, the company employs a number of persons whom it (here) calls “contractors” to cut logs and haul them to the mill. Barney Clemons was one of these “contractors” whose duty it was to haul the logs from the woods to places on the highway or road so they would be accessible to other trucks which would haul them to the mill. It is not disputed that Clemons had less than five men under his supervision. The testimony tending to show the relationship between Clemons and the company (whether employee or independent contractor) is not materially in dispute. The problem then largely becomes one of determining the legal effect of definitely determined facts. A summary of the testimony pertinent to the indicated issue is set out below.
Mrs. Clemons (the widow) understood her husband worked for the company; he got one check for labor and another for his one truck and a one-half interest of another truck; the company took deductions for social security, etc., from what he earned at $1.00 per hour. They had three children under age. Waymon Clemons, twenty-two year old son of deceased, had worked with his father six to eight months; was paid $1.00 per hour by check from the company; his father had worked for the company ten years; Charley Crawford, employee of the company, directed his father’s work in these particulars— scaling the logs, saw to it that land was cleaned up good, told where to get logs; told them when they were doing a poor job; his father told him and the two other men (I. J. and John Mays) what to do; the work hours were turned in to the company and they were paid by company cheeks. I. J. Mays worked with the deceased five years and was paid by the hour by company check—took orders directly from deceased. John Mays’ testimony was the same. Larkin Clemons, brother of deceased; they owned three trucks as partners; all men paid same as other company employees; deceased got one check for wages and another one for use of trucks; Crawford was the company supervisor over deceased; he (Crawford) came out on job nearly every day, and gave instructions in detail; when deceased did anything wrong Crawford got after him; the men (including deceased) were paid by company check, and the company held out for social security ; the company told us we had to pay men $1.00 per hour—we never paid any more than that—our working agreement was oral.
The only testimony offered by the company to sustain its contention that Clemons was not an employee but was in fact an independent contractor was that given by its manager, G-arland Anthony, Jr. He did not deny any of the testimony given by claimant’s witnesses, and none of his own testimony was refuted. This testimony is long and much of it is repetitious, but the essence may be summarized as follows: The contract with deceased was verbal—whereby he was to be paid $8.00 per thousand feet for logs “banked”; they had similar contracts with men other than the deceased; he had no control over deceased, but did direct his operation—such as choosing the banking area; deceased turned in the payroll (for himself and three men under him) after Crawford scaled the logs. According to a typical week (actually shown by company books) 27,468 thousand feet of logs were banked—$219.74 due at $8.00 per thousand feet—deceased and three men received (gross) $28 each or a total of $112—after deductions deceased got a check for $94.69 on the “contract” and $26.11 for salary (at $1.00 per hour)-—the other men received $24.36, $27.16, and $26.11 respectively.
The record further reflects that the payroll sheets kept for deceased and the three men under him were just like those for other regular company employees, and that the company had only one insurance carrier to cover its employees and the insurance deductions made from the paychecks (of the deceased and the three men) were the same as deducted from the paychecks of regular mill-workers.
In the face of the above (undisputed) testimony the full commission made the following decisive announcement:
“After a careful study of all the evidence of record, we are of the opinion that the Referee’s finding is supported by a preponderance of the evidence and should be and is herewith affirmed because the evidence clearly establishes that the deceased toas free to choose the means and methods by which the details of the ivork was to be performed and there is no evidence that would indicate that the deceased was not in full agreement with the bookkeeping system employed by the Bearden Lumber Company.” (Emphasis added.)
We fully agree that there is substantial evidence to support the commission in finding (a) Clemons had control of the details of his work and (b) he had no fault with the manner in which the company kept its books. Even so, those findings, in our opinion, fall far short of proving (by substantial evidence) that Clemons was an independent contractor.
For convenience, we first dispose of finding (b). Certainly and without doubt no employee of a large corporation would be expected to object to its “book-keeping system”. So, we say, that finding in no way proves Clemons was an independent contractor, and that it was not substantial evidence of such fact.
(a) Let us, then, examine the finding that Clemons was “free to choose the means and methods by which the details of his work was to be performed”. The only “details” connected with Clemons’ job that the company did not control were insignificant things such as would normally be left to any employee.
Most important, we think, is the fact that it is not denied the company had the right to discharge Clemons at any time. This is most persuasive that the company really had effective control over every detail of Clemons ’ activities. In the case of Irvan v. Bounds, 205 Ark. 752, 170 S. W. 2d 674, in considering this same question of control, we quote with approval this statement:
“By virtue of its power to discharge, the company could, at any moment, direct the minutest detail and method of the work. The fact, if a fact, that it did not do so is immaterial. It is the power of control, not the fact of control, that is the principal factor in distinguishing a servant from a contractor.”
Further on in the same opinion we again quoted as follows :
“ ‘ “The power to discharge has been regarded as the test by which to determine whether the relation of master and servant exists. While it is not the sole test, it is the best test upon the question of control.” ’ ”
Also, it is undisputed that the company instructed Clemons to pay his men (and himself) $1.00 per hour. Realizing this was a strong implication that Clemons (and his men) were employees, the company attempts to explain away the implication by showing it was only a matter of bookkeeping and was only a precautionary measure. The same situation arose in the cited case where Irvan was contending Bounds was an independent contractor, but we had to see to it that Bounds was paid in compliance with the Wage-Hour Law. The Court, however, said:
“A reasonable interpretation of this statement is that Irvan was complying with the Federal Wage-Hour Law as to the pay of these men, and it indicates that Irvan considered Bounds to be an employee, because, if Bounds was an independent contractor, and not an employee, it was not necessary, in order to comply with the federal law, to guarantee him any minimum wage.”
In reaching the conclusion that the record fails to contain substantial evidence to sustain a finding that Clemons was an independent contractor, we take into consideration not only what we have heretofore said, but we consider as highly significant the following facts and circumstances : (a) We find many facts, heretofore pointed out, to indicate Clemons was an employee; (b) There is really no fact or circumstance shown by the record to indicate Clemons was an independent contractor that is not also consistent with an employee relationship; and, (e) any other conclusion than the one we have reached could result in serious injustices to laboring people whom the law intended to protect. It is in the record that the company has several other “contractors” like Clemons. It is not unreasonable to expect that many of these “contractors” are judgment proof, and they cannot be forced to carry insurance. Therefore, if we permit employers like appellee to escape liability, there will be no way injured employees and (in case of death) their wives and minor children can be protected. Not only so, but, in this case, there appears another injustice or inequity. The company and the insurance carrier are each receiving part of the laborer’s pay each week which they will (apparently) be allowed to keep without any liability to anyone.
The law imposes on us the duty to interpret the Workmen’s Compensation Law liberally to the end that injured employees shall be remunerated for loss of earning power. In that spirit, and under the undisputed facts of this case, we are unwilling to say there is substantial evidence to support the finding of the commission and the circuit court.
The finding, therefore, is reversed and the cause is returned to the circuit court with instructions to remand to the commission for further proceedings consistent with this opinion.
Harris, C. J., and McFaddin, J., dissent.
George Rose Smith and Robinson, JJ., concur. | [
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Jim Johnson, Associate Justice.
This appeal arises from a suit against a highway contractor for damage to real property. Appellees Adrian Fletcher and Marie Fletcher, his wife, sued appellant Ben M. Hogan & Company in Washington Circuit Court alleging that while appellant was reconstructing Highway 16 between Fayetteville and Elkins, appellant improperly constructed a ditch so that about two acres of appellees’ land failed to drain, making it impossible to maintain fences or pasture cattle, and sought $15,000 damages. After appellant’s answer, appellees filed an amendment to their complaint alleging that appellant was estopped to deny that it was appellant’s negligence in the highway construction which caused the damage to appellees’ land. Trial was held on December 17, 1962, and at the close of appellees ’ case, appellant moved for a directed verdict, which was denied. Appellant then rested, and the case was submitted to the jury, which returned a verdict for appellees and assessed damages at $2,500.00.
From the judgment on the verdict, appellant has appealed, contending that appellees’ suit was brought in negligence, and that there was no evidence to support the finding that appellant was negligent or that any negligence of appellant proximately caused appellees’ damages.
Negligence has been frequently defined. 65 C.J.S., Negl., § 1, p. 305. In Johnson v. Coleman, 179 Ark. 1087, 20 S. W. 2d 186, this court succinctly defined it as “failure to exercise ordinary care.” Proximate cause is defined as “cause from which a person of ordinary experience and sagacity could foresee that a given result would probably ensue.” Wisconsin & Arkansas Lumber Co. v. Scott, 153 Ark. 65, 239 S. W. 391; Alaska Lumber Co. v. Spurlin, 183 Ark. 576, 37 S. W. 2d 82; 65 C.J.S., Negl., § 103, p. 648. However, “very often the question of proximate cause is confused with the preliminary question of whether there is any negligence at all.” O’Neill v. City of Port Jervis, 253 N. Y. 423, 171 N. E. 694.
A careful review of the testimony adduced on behalf of appellees (all the testimony) reveals that prior to commencement of bridge and road construction, a big ditch lay between appellees ’ property and the highway; the ditch was usually or frequently full of water; either when bridge construction started or when appellant commenced the road reconstruction, which included raising the highway three to three and one-half feet, the ditch Avas apparently filled in the process of widening the road bed; after the ditch was filled, appellees ’ pasture would not drain and water began to stand there; after complaints from appellees, the State Highway Department Resident Engineer, as a favor to appellees, asked appellant or the bridge contractor to dig a ditch in front of appellees ’ property; the bridge contractor dug about 100 feet of ditch, as far as he could reach with a small drag-line, which lowered the water some; appellant later bulldozed out the remaining 200 feet; appellees’ property has failed to drain further.
There is no question about the fact that appellees have been damaged. In our view, the damage is the standing water, not the ditch appellant dug. Appellees were damaged when the original big ditch was filled in accordance with the State Highway Department’s plans and specifications. However, the preliminary question is whether there is any negligence at all. There is no evidence that appellant was negligent in the road construction. In fact, the Resident Engineer, appellees’ witness, testified that appellant constructed the highway in accordance with the plans and specifications of the State Highway Department, that appellant did everything the contract called for him to do, and he did it like it called for him to do. There is also no evidence in the record that appellant failed to exercise ordinary care (i.e., was negligent) in his gratuitous ditch-digging at the request and direction of the Resident Engineer. In Southeast Construction Co., Inc. v. Ellis, 233 Ark. 72, 342 S. W. 2d 485, this court held that in the absence of negligence a contractor who performs in accordance with the terms of his contract with the State Highway Department, and under the direct supervision of the Resident Engineer, is not liable for damages resulting from his performance. In the case at bar, the ditch appellant dug was not a part of his contract with the State Highway Department, but it was a gratuitous undertaking, undertaken at the behest of the Resident Engineer, in an attempt to alleviate appellees’ damage. Appellees failed to produce even a scintilla of evidence tending to show negligence on the part of appellant. Accordingly, appellant’s motion for a directed verdict should have been granted as a matter of law.
Reversed and dismissed. | [
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Ed. F. McFaddin, Associate Justice.
The present case is a sequel to Selig v. Barnett, 233 Ark. 900, 350 S. W. 2d 176. We are here asked to decide whether the appellant Jones is entitled to an attorney’s fee for services rendered in that case; and, if so, how much fee should be allowed. The Trial Court allowed Mr. Jones a fee of Ten Thousand Dollars, and from that decree there is this appeal and cross appeal. A study of the opinion of this Court in Selig v. Barnett, supra, is essential to an understanding of the present litigation. Ben J. Altheimer is, and has been for many years, an incompetent; and his co-guardians are Mrs. Elsie J. Selig and Mr. R. S. Barnett. These persons have served as co-guardians for a number of years. In 1957, with the sanction of the Pro bate Court, there was a different attorney for each of the co-guardians: Mr. Barnett was represented by Mr. Frank Bridges of the Bridges firm; and Mrs. Selig was represented by Mr. Gene Bairn.
In 1957, the Trustees of the Altheimer Foundation brought suit against the Trustees of the Testamentary Trust of Ben J. Altheimer, Sr., seeking to reopen a 1948 decree and have certain property awarded to the Foundation Trustees as against the Testamentary Trustees. Mr. R. S. Barnett was one of the Foundation Trustees and acted in such capacity in the said 1957 suit, although he was also co-guardian of Ben J. Altheimer, Jr. Shortly after the said 1957 suit was filed, Mrs. Elsie J. Selig, co-guardian of the incompetent Ben J. Altheimer, Jr., received information as to some doubt about the validity of the Ben J. Altheimer Foundation, and that the Testamentary Trustees had failed to present such issue in the 1948 proceedings. It was reasoned that if the Altheimer Foundation was invalid, then all the property of the Foundation would belong to the Testamentary Trustees, and would materially increase the estate of the incompetent, Ben J. Altheimer, Jr. Accordingly, Mrs. Selig consulted with Mr. Bairn, who represented her as co-guardian, to see what steps, if any, should be taken by Mrs. Selig, as co-guardian; and Mr. Bairn advised her that Mr. John Harris Jones, appellant in the present case, was a most capable lawyer in such matters. Accordingly, Mr. Bairn and Mrs. Selig consulted Mr. Jones; and as a result, Mr. Jones and Mr. Bairn filed an intervention for Mrs. Selig, as co-guardian, in the pending 1957 suit brought by the Foundation Trustees against the Altheimer Testamentary Trustees. Mr. Bairn and Mr. Jones continued to represent Mrs. Selig as co-guardian in that litigation to and including the denying of the petition for rehearing in this Court in the ease of Selig v. Barnett, supra.
In due time after the conclusion of that litigation, Mr. Bairn and Mr. Jones each filed a claim in the guard ianship proceedings of Ben J. Altheiraer, Jr., pending in the Jefferson Probate Court, for legal services rendered to the co-guardian, Mrs. Selig, in the said case of Selig v. Barnett. Mr. Barnett, as co-guardian, resisted the allowance of any fee to either attorney. The Probate Court entered a judgment allowing Mr. Baim a fee of $4,-000.00 and Mr. Jones a fee of $10,000.00. Mr. Jones has appealed, claiming he is entitled to a fee of $55,200.00; and Mr. Barnett, as co-guardian, has cross appealed.
1. The Cross Appeal Of Barnett. As stated, Mr. Barnett, as co-guardian, has cross appealed, claiming that the Probate Court was in error in allowing any fee to Messrs. Baim and Jones for representing Mrs. Selig, as co-guardian, in the case of Selig v. Barnett. This cross appeal deserves first consideration, because a decision in favor of Mr. Barnett on this point would make unnecessary the consideration of any other matters. Mr. Barnett insists, inter alia, that:
(a) The litigation for which attorneys’ fees are requested was conducted by one co-guardian without the consent or approval of the other co-guardian and is therefore unauthorized and not a proper exercise of the guardian’s duties;
(b) The attorneys were representing Mrs. Elsie J. Selig, and not the Estate of Ben J. Altheimer; and the attorneys for Mrs. Selig should not be allowed attorneys’ fees for litigation commenced for the personal interest of the guardian.
(c) The proper method for securing payments of fees from a ward’s estate is on the petition or accounting of the guardian; and
(d) The allowance for attorneys ’ fees must be based on services which were reasonable, necessary, and conferred benefit upon the ward’s estate.
We find no merit in the cross appeal. Mrs. Selig, as co-guardian, had a duty to her ward to recover for him any property to which he was entitled. She had received information, from a source which she considered reliable, to the effect that the entire Altheimer Foundation was invalid. She could not act in conjunction with her co-guardian, Mr. Barnett, because he was one of the Trustees of the Altheimer Foundation which had filed the suit against the Altheimer Testamentary Trustees; and, of course, Barnett as guardian could not consistently oppose the claim of Barnett as Trustee of the Altheimer Foundation. So Mrs. Selig consulted Mr. Bairn, who was the attorney that had represented her for some time as co-guardian; and it was at his insistence that she consulted Mr. Jones, who agreed to, and did, assist in the intervention of Mrs. Selig as co-guardian. The intervention was not frivolous or trifling: it represented a real issue. Even though it was ultimately unsuccessful, it was nevertheless an issue that Mrs. Selig, as co-guardian, prosecuted in good faith. Messrs. Bairn and Jones rendered faithful and extensive service to Mrs. Selig, as co-guardian.
It is urged that Mrs. Selig, as one of the beneficiaries in the Altheimer Testamentary Trust, would also have benefited personally if her intervention as co-guardian had been successful; and from this fact Mr. Barnett insists that Messrs. Bairn and Jones were representing Mrs. Selig personally. But the evidence indicates most strongly that Messrs. Bairn and Jones were representing Mrs. Selig only as co-guardian in the intervention. The question of a fee to be paid by Mrs. Selig personally was never mentioned. Messrs. Bairn and Jones testified, without express contradiction, that Mrs. Selig made the statement to them that her reason for bringing the action was solely for the benefit of her ward; that it was to benefit him, her first cousin; and that she was his closest relative in Arkansas. The attorneys stated that they were never given any indication that Mrs. Selig was doing any of this for her personal good, and that they wei-e' repeatedly told by Mrs. Selig that she was doing what she did because she thought it her duty to her Avard. We are convinced, and hold, that Messrs. Bairn and Jones represented Mrs. Selig as co-guardian and not as an individual. When the attorneys filed their petition in the Probate Court for a fee for representing Mrs. Selig as co-guardian, she took the position that it was for the Probate Court to determine the issue. Called by the Court, she testified:
“I don’t see how I can be anything but neutral. I am Jack’s Guardian and I should remain neutral.
“THE COURT: You are neither approving nor disapproving the allowance of a feel
‘ ‘ I will leave it to your discretion. . . . The Court has always set the fees in this matter.”
Mr. Barnett insists that the Probate Court cannot allow a fee until the guardian requests it, and cites, inter alia; Lothrop v. Duffield (Mich.), 96 N. W. 577; In Re Garbini’s Guardianship (Calif. App.), 83 P. 2d 508; Hutton v. Gwin (Miss.), 195 So. 486; and Hunt v. Maldonado (Calif.), 27 P. 56. But, under the testimony of Mrs. Selig, a heretofore copied, and under the peculiar facts of this case, we hold that the Probate Court had the power to grant the petition of Messrs. Bairn and Jones for legal services rendered to Mrs. Selig as co-guardian. Section 57-637(b) Ark. Stats, is a part of the probate Code, and provides:
“Upon the petition of any person having a claim against the estate of a ward for services lawfully rendered to the ward or his estate . . . the court may, after notice, upon appropriate hearing, direct the guardian to pay such claim.” Also, § 57-641 Ark. Stats., a part of the Probate Code says: “. . . The guardian may employ legal counsel in connection with the discharge of his duties, and the court shall fix the attorney’s fee which shall be allowed as an item of the expense of administration. ’ ’
Of course, in the normal guardianship proceeding, the guardian should first get the authorization of the Probate Court to employ an attorney; but this is not an ordinary case. Here: Mrs. Selig, with the consent of the Probate Court, had for years employed Mr. Bairn as her attorney in such guardianship; there was an apparent conflict between the co-guardians; and Mrs. Selig’s regular attorney called in Mr. Jones to assist him in the litigation. The Probate Court knew all along that Mr. Jones was acting with Mr. Bairn as attorney for Mrs. Selig, as co-guardian, because in the course of the Selig v. Barnett litigation in the Chancery Court, and in this Court, the Jefferson Probate Court made repeated orders in the Ben J. Altheimer, Jr. guardianship case, authorizing Mrs. Selig, as co-guardian, to pay expenses incurred in the Chancery case. These included orders made in 1958 and 1959, authorizing the guardian to pay for expenses incurred in the Chancery case of Selig v. Barnett. There was also an order of June 21, 1960, made by the Probate Court, authorizing Mrs. Selig, as co-guardian, to expend from the ward’s estate, the amounts necessary for the filing in the Supreme Court of the appeal from the decree in the Chancery Court, for the cost of the record designated for such appeal, and for the cost of printing the abstract and brief on such appeal. Certainly the Probate Court was kept fully informed that these attorneys of Mrs. Selig, as co-guardian, were representing her as such co-guardian. We hold that the cross appeal of Mr. Barnett is without merit.
II. The Amount Of Attorney Fee That Mr. Jones Should Recover. Having found that Messrs. Bairn and Jones, as attorneys for Mrs. Selig, as co-guardian, were entitled to receive a fee, the next question is what the fee should be. The Probate Court allowed Mr. Bairn a fee of $4,000.00 for his services to Mrs. Selig, as co-guardian; and Mr. Bairn has not appealed, so the correctness of the fee allowed Mr. Bairn requires no further comment. The Probate Court allowed Mr. Jones a fee of $10,000.00, and he has appealed, claiming that he should be allowed a fee of $55,200.00 Mr. Barnett insists that the $10,-000.00 is more than adequate. Mr. Jones’ claim is based on the number of hours he spent in the case of Selig v. Barnett, computed at the rate of $25.00 an hour. He kept a most accurate record, and his original work sheets were introduced in evidence, showing every minute devoted to the case of Selig v. Barnett from June 25, 1957, to and including November 6, 1961. The original work sheets are before us, and they show a total of 2208 hours spent by Mr. Jones. He testified in the Probate Court, and urges here, that the Probate or Chancery Court had allowed compensation to other attorneys in the SeligBarnett case, and the earlier companion case of Selig v. Morrison, on the basis of $25.00 per hour; and that he is entitled to compensation at the same rate per hour. His brief here is an excellent treatise on the legal profession in general, and fees in particular.
Notwithstanding all of the foregoing, we find it impossible to fully agree with Mr. Jones’ conclusions. There are many factors, in addition to that of hours spent, to be considered in the problem of fixing a just and adequate fee for an attorney in any specific case In Sain v. Bogle, 122 Ark. 14, 182 S. W. 515, we said: ‘ ‘. . . in determining what is a reasonable attorney’s fee, it is competent and proper to consider the amount and character of the services rendered, the labor, time, and trouble involved, the nature and importance of the litigation or business in which the services are rendered, the amount or value of the property involved in the employment, the skill or experience called for in the performance of the services, and the professional character and standing of the attorneys.”
In many of the cases cited, the Court, in fixing the fee, has had the benefit of the testimony of other attorneys as to what such witnesses considered to be a reasonable fee for services rendered in the matter in question; but there is no such testimony in the case at bar except the testimony of Mr. Bairn and Mr. Jones; so Mr. Jones’ case rests largely on the basis of the number of hours worked, multiplied by $25.00 per hour. We are entirely unwilling to adopt such as an exclusive basis in the case at bar. It is possible that in a matter extending over several years, as did this case, the law of diminishing returns would apply to the hours consumed. Furthermore, in Whetstone v. Travis, 223 Ark. 856, 269 S. W. 2d 320, we quoted from an earlier case:
“ ‘Although this testimony (as to a reasonable fee) was not directly contradicted by appellants, the trial court, and this court on appeal, are not required to lay aside their general knowledge and ideas of values of such services, and are not entirely controlled by testimony of this nature ... In determining what would be a reasonable fee we take into consideration the amount of time and labor involved, the skill and ability of the attorneys, and the nature and extent of the litigation. ’ ’ ’
Other important factors to be always considered in a case such as this one relate to the ability of the estate to pay the fees both of Mr. Bairn and Mr. Jones. The Trial Court had access to the record in the case of Selig v. Barnett, just as we have, and the Trial Court fixed Mr. J ones ’ fee at $10,000.00. Without prolonging this opinion, it is sufficient to say that after considering the entire record and all the various factors involved in the problem of fixing a fair and reasonable attorney’s fee in this case, we reach the conclusion that Mr. Jones is entitled to a fee of $17,500.00.
Therefore, the case is affirmed on cross appeal; and is reversed on direct appeal and remanded with directions to enter a decree allowing Mr. Jones a fee of $17,-500.00. In all other respects, Probate Judgment is affirmed.
Harris, C. J., not participating.
Johnson, J., dissents in part.
The name of the firm has been changed several times. It is now Bridges, Young, and Matthews.
The Probate Court allowed expenses of $202.85, which we consider as an uncontested item; so we refer only to the fees for legal services as being contested.
Selig v. Morrison, 230 Ark. 216, 321 S. W. 2d 769.
Some of our own eases involving the problems of fixing an attorney’s fee are: Lilly v. Robinson, 106 Ark. 571, 153 S. W. 820; Sam v. Bogle, 122 Ark. 14, 182 S. W. 515; Martin v. Manning, 124 Ark. 74, 186 S. W. 302; Bayou Meto Dist. v. Chapline, 143 Ark. 446, 220 S. W. 807; Slayton v. Russ, 205 Ark. 474, 169 S. W. 2d 571; Mo. Pac. v. McDonald, 206 Ark. 270, 174 S. W. 2d 944; Turner v. Turner, 219 Ark. 259, 243 S. W. 2d 22; and Whetstone v. Travis, 223 Ark. 856, 269 S. W. 2d 320. See also opinion by Judge John E. Miller in Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797. There are also annotations in 143 A.L.R. 672, and 56 A.L.R. 2d 13, entitled, “Amount of Attorney’s compensation in absence of contract or statute fixing amount”; and these annotations show the general trend of the holdings in the various jurisdictions. See also 5 Am. Jur. 379, “Attorneys at Law” § 198. | [
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Sam: Robinson, Associate Justice.
Appellants, Mary Limberg, and ber son-in-law, Hugh. Connor, filed suit against Herman A. Lutz and Fred A. Lutz, conducting a plumbing business as a partnership under the firm name of Lutz Brothers. The Complaint alleges that the defendants negligently set appellant Limberg’s dwelling-house on fire while doing some plumbing.
Mrs. Limberg- alleged damages in the sum of $11,046.57. Hugh Connor alleged that some personal property he had in the house was damaged in the sum of $824.88. Bertha Connor, wife of Hugh, filed an Intervention in which she alleged personal property damages to the extent of $116.70. The defendants, appellees herein, filed an Answer and Motion to Dismiss the Complaint and Intervention, alleging that Mrs. Limberg and the Connors were not the real parties in interest; that they had insurance which covered the loss sustained by reason of the fire; that the insurance company had paid the loss and had been subrogated to the rights of the plaintiff.
Mrs. Limberg and the Connors filed a response to the motion, stating that they were the real parties in interest and pointing out that the insurance company had not requested that it be made a party and had not intervened. The trial court entered an order holding that the Providence-Washington Insurance Company was a necessary party and directing that the complaint be dismissed unless the insurance company was made a party plaintiff. The insurance company filed a motion to set aside the order requiring it to become a party plaintiff, and alleged that it was not a necessary party, and further, that it waived any cause of action it might have a l> a Inst, the defendant Lutz by reason of the assignment. Cíe motion was overruled. The insurance company filed a complaint and the case proceeded to trial.
During the trial it developed that Mrs. Limberg had fire insurance covering damages -to the property to the extent of $6,500.00 and that the full amount of the insurance had been paid to her. The trial resulted in a verdict for the defendants. All the plaintiffs and the intervenor in the Circuit Court have appealed.
The principal contention by appellants is that the trial court erred in forcing the insurance company to become a party plaintiff by ordering a dismissal of the ease unless the insurance company joined as a plaintiff.
The first question is whether the insurance company was a necessary party to the maintenance of the suit. Mrs. Limberg’s claim against the Lutz Brothers up to $6,500.00 had been assigned to the insurance company; therefore, of course, that company was a proper party, but was it a necessary party? Appellees cite as sustaining their position, the case of National Fire Ins. Co. v. Pettit-Galloway Co., 157 Ark. 333, 248 S. W. 262, but that case merely holds that since the cause of action was not assignable by law, the assured was the real party in inter est and a necessary party plaintiff. The question of whether the insurance company, the assignee, was a necessary party was not an issue. Appellees also rely on the case of Home Ins. Co. v. Lack, 196 Ark. 888, 120 S. W. 2d 355, There, the insurer and the assured had joined as plaintiffs in a case similar to the case at bar, and this court held that the insurance company was a proper party. There was no issue of whether it was a necessary party.
Another case relied on by appellees is Chicago R.I. & P. R. Co. v. Colls, 151 Ark. 207, 235 S. W. 995. Cobbs, the owner of property destroyed by fire, and the insurance company insuring against the loss, and assignee, filed suit against the railroad company alleging that the fire was caused by the negligence of that company. Both the insurer and the assured were parties plaintiff. The issue on the joinder of parties question was whether the insurance company was a proper party. There was no issue of whether it was a necessary party, but by way of oliter dictum the court said the insurance company was a necessary party. In Motors Insurance Corp. v. Coker, 218 Ark. 653, 238 S. W. 2d 491, we pointed out that the issue in the Cobb case was whether the insurance company was a proper party. In McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566, the court said; “Where the loss exceeds the amount of the insurance, so that payment under the insurance contract constitutes but a partial satisfaction of the damages sustained, leaving a residue to be made good by the wrongdoer, it has been held that insured may maintain in his own name the action against the tort-feasor, which may be for his own benefit-and for the benefit of the insurer. In such case insured may recover the full amount of the loss for which the tortfeasor is liable and insurer is not a necessary party.” In Dowell, Inc. v. Patton, 221 Ark. 947, 257 S. W. 2d 364, the court not only held that the insurance company was not a necessary party, but also held that evidence of its payment to the. assured was not admissible. The rule in the McGeorge and Dowell cases was approved in Summerhill v. Shannon, 235 Ark. 617, (October 29, 1962).
Our conclusion is that the insurance company was not a necessary party to the litigation. Having reached that determination, the next question is whether the plaintiffs and intervenor were prejudiced by the trial court’s action in compelling the insurance company to become a party plaintiff by ordering that the action be dismissed unless the company joined as plaintiff.
The insurance company objected to being made a party at its own risk, because it could not have maintained a separate suit against Lutz Brothers. Motors Insurance Corp. v. Coker, supra. Mrs. Limberg and the Connors did not want the insurance company in the case as a party plaintiff, and the insurance company did not want to be a party. In these circumstances, we feel it was prejudicial to the plaintiffs’ interest to have the ease confused by injecting the subject of insurance. In both the Dowell and Summerhill cases, above mentioned, we held that evidence was not admissible to show plaintiff’s loss was partially covered by insurance. In addition, a plaintiff has the right to plan his trial and course of action according to his own views so long as his procedure is valid. He should not be compelled to have another party associated with him when such other party is not necessary to the action and when neither he nor the other party desire such association.
There can be differences of opinion on the selection of the jury and other procedures, and the bringing of such a party into the case may confuse the jury. This very thing appears to have occurred in the case at bar. When the jury returned the verdict for the defendants, the foreman of the jury said to the court: “I would like to make a little comment following this verdict, if I may ... and I’d like to state on behalf of the jury that we took several ballots before making this decision and it was the feeling of the jury that although there may have been some indication of negligence, there was enough improvement, and on the basis of this they returned this unanimous verdict.” Apparently, the foreman was talking about the repairs to Mrs. Limberg’s house exceeding in value the $6,500.00 in insurance. Of course, the Connors were also in the case.
Appellants also argue that the court erred in refusing to permit counsel to examine veniremen on the doctrine of res ipsa loquitur. This was a matter of discretion with the trial court.
For the errctr in compelling the insurance company to become a party plaintiff, the judgment is reversed and the cause remanded. | [
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Carleton Harris, Chief Justice.
Jimmy Lee Golden, appellant herein, on January 18,1961, signed an employment contract with appellee, Orkin Exterminating- Co. of Ark., Inc. Provisions of the contract, which are pertinent to this litigation, are as follows:
“The Company is engaged in the pest control, exterminating, fumigating- and termite control business and has built up and established a valuable and extensive trade in said territory, which consists of the following: ’ ’
(Here several cities in this state are listed, but this litigation only involves three cities, Hot Springs, Malvern and Arkadelphia.)
“The Employee hereby expressly covenants and agrees, which covenants and agreements are of the essence of this contract, that he will not, during the term of this agreement and for a period of two (2) years immediately following the termination of this agreement, for any reason whatsoever, directly or indirectly, for himself or on behalf of, or in conjunction with, any other person, persons, company, partnership or corporation:
(a) call upon any customer or customers of the Company solicited or contacted by the Employee or whose account was serviced by the Employee, pursuant to his employment hereunder, for the purpose of soliciting or selling any pest control, exterminating, fumigating or termite control service for the eradication or control of rats, mice, roaches, bugs, vermin, termites, beetles or other insects;
(b) nor will he divert, solicit, or take away any such customer or customers of the Company or the business or patronage of any such customers of the Company for the purpose of selling a service for the eradication or control of rats, mice, roaches, bugs, vermin, termites, beetles or other insects;
(c) nor will he call upon, divert or solicit any person, persons, company, partnership or corporation for the purpose of selling any service for the eradication or control of rats, mice, roaches, bugs, vermin, termites, beetles or other insects anywhere within the territory stated in Paragraph 6(d);
(d) nor will he engage in the pest control, exterminating, fumigating or termite control business anywhere within the territory as specifically delineated and described as follows: Hot Springs, Arkadelphia, * * * Malvern, * *
Paragraph 7 provides,
“The Employee does expressly understand and agree that his responsibilities and obligations as to each and every covenant as set forth in Paragraph 6 above shall pertain and apply in every particular (in addition to the territory stated in Paragraph 6 above) to that territory of the Hot Springs, Arkansas office of the Company in which the Employee has worked for any period not less than ninety (90) days during any part of the twelve (12) month period next preceding the termination of this agreement, for any reason whatsoever.”
On May 31, 1962, Golden resigned as an employee of appellee company and on the following June 4, accepted employment with appellant, Arab Termite and Pest Control Company of Hot Springs, Inc. On July 13, 1962, Orkin filed this action, praying, inter alia, that Golden be enjoined from competing with appellee in its pest control and exterminating business in the city of Hot Springs, and that he be permanently enjoined from engaging in such business anywhere within the territory of Hot Springs, Arkadelphia, Malvern, and intermediate locations constituting the territory in reasonable proximity thereto for a period of two years from the date of the decree. On July 25, the complaint was amended to include Daniel C. Dykes, a former employee of appellee, who at the time of the filing of the complaint, was serving as manager for Arab.. Requests for Admissions were directed to Golden and Dykes, after which an answer was filed by all defendants. Prior employment by Orkin was admitted, but all other material allegations were denied. Further Requests for Admissions were served upon appellants, and thereafter the cause proceeded to trial. After hearing oral testimony, the court entered its decree, finding that Golden “is bound by the terms of his contract not to engage in termite or pest control work within the area described in said contract which is defined to be the cities of Hot Springs, Arkadelphia and Malvern, and within five (5) miles of the corporate limits of said cities,” and in accordance with this finding, enjoined Golden from engaging in the termite and pest control business in the area involved for a period of two years from May 31, 1962 (the date of the termination of his contract). From the decree so entered, appellants bring this appeal.
The only question presented on this appeal is the validity of the Chancellor’s action in including in the injunction the area five miles beyond the corporate limits of Hot Springs, Arkadelphia and Malvern. In other words, appellants contend that the contract only justifies an injunction to prohibit Golden from engaging in termite and pest control work within the corporate limits of these cities.
The limited attack upon the court’s decree is due to our holding in Orkin Exterminating Co. v. Murrell, 212 Ark. 449, 206 S. W. 2d 185, wherein we held that a certain contract between Orkin and Murrell (an employee) of the same type as the contract here involved, was valid. In that case, Murrell agreed that he would not engage in the pest control business in certain cities in this state, nor within “a 75-mile radius of each of these said cities” for a period of one year immediately following the termination of his employment. We held that the restraint imposed upon Murrell, under the circumstances, was such as would only afford a fair protection to Orkin and that the covenant was accordingly reasonable in its terms. Here, appellants point out that the 5-mile radius, included in the Chancellor’s injunction, was not embodied in the contract between the parties, and it is asserted that the Chancellor therefore erred in extending the injunction to territory beyond the city limits. We agree with appellant’s contention insofar as it relates to the cities of Malvern and Arkadelphia, but we disagree as to Hot Springs.
The proof reflects that, though appellant Golden •only worked the city limits of Arkadelphia and Malvern, he admittedly, in addition to territory within the city limits of Hot Springs, worked the Lake Hamilton and Lake Catherine areas. While there is no specific testimony that he worked these areas for a period of 90 days, Golden did testify that he had worked the Hot Springs territory for the last few months before the termination of his employment with Orkin, and it definitely appears from the actions of Golden and appellee, that as to Hot Springs, each recognized that the area for extermination solicitation and service extended beyond the city limits and included the lake area. We have held that the construction placed upon a contract between parties, as reflected by their words and acts, must be given consideration. In Hurst v. Flippin School Dist. No. 26, 228 Ark. 1151, 312 S. W. 2d 915, this court said:
“It is well settled by our decisions that, in construing a contract the meaning of which is doubtful, the construction placed thereon by the parties to it, as reflected by their words and acts, must be given consideration. See cases cited in Lutterloh v. Patterson, 211 Ark. 814, 202 S. W. 2d 767, where we approved this statement from 12 Am. Jur. 787: ‘In the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is to be considered by the court and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms.’ ”
While it is true that the words “5-mile radius” do not appear in the contract, the Chancellor evidently used this figure with the view of covering that territory wherein Golden had worked, serviced, and solicited business during his employment with Orkin. Since it is admitted that the lake areas were solicited during that period, we think the extension of the injunction to the 5-mile radius beyond the city limits (of Hot Springs) was reasonable.
In accordance with the views herein expressed, we are of the opinion that the injunction entered by the Garland Chancery Court was too broad in its terms in enjoining Appellant Golden from engaging in termite or pest control work within a 5-mile radius of the corporate limits of the cities of Malvern and Arkadelphia. As to these cities, the injunction should have been limited to that territory solely within the corporate limits. With this modification, the decree is remanded to the Garland Chancery Court with directions to enter a decree not inconsistent with this opinion.
George Rose Smith and Johnson, JJ., dissent.
Other issues raised in the complaint, including damages sought against Dykes and Arab Termite and Pest Control Co. of Hot Springs, were reserved for later determination.
No contention is made in appellant’s brief that he did not work in this area for 90 days. | [
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Jim Johnson, Associate Justice.
Appellee Arkansas State Hospital sued appellant J. N. Alcorn under the provisions of Arkansas Statutes §§ 59-230 and 59-230.1 for maintenance, medical care and treatment furnished to appellant’s unmarried daughter during four long stays at the hospital between October 31, 1950 and March 1, 1961. The cause was submitted to the trial court on appellee’s motion for judgment and on the following stipulation: (1) appellant admitted the correctness of the account and that his daughter, a member of his household when not confined in the State Hospital, received the benefit of appellee’s services; and (2) that appellant raised two issues, (a) that a judgment in this cause of action is dependent upon appellant’s ability to pay and therefore appellant should be entitled to submit proof as to his inability to pay, and (b) the. statute of limitations is pleaded in bar of all charges made prior to the date of this action. After submission of trial briefs, the court found that the services constituted necessaries and that appellant was liable for the amount sued for. Prom that judgment comes this appeal.
Por reversal appellant urges that the court erred in rendering judgment without requiring proof of ability to pay in order to make a prima facie case, and that the court erred in sustaining appellee’s motion to exclude evidence on the part of appellant with reference to his inability to pay and to maintain his daughter during the period of time involved and at all times during her confinement.
The statutes involved here are as follows:
59-230. ‘ ‘ Pay for maintenance of patients — Investigation of ability to pay. If any patient admitted to the State Hospital be found, upon examination, to possess an estate, over and above all indebtedness, more than sufficient for the support of his or her dependents, his or her natural or legally appointed guardian shall pay out of such estate into the office of the business manager of the State Hospital, in advance, an amount equal to one [1] month’s maintenance, at a rate to be fixed by the Board of Control [State Hospital Board] from time to time on the basis of maintenance costs, and in addition, shall supply the patient with sufficient and suitable clothing, and shall remove said patient when so required and notified by the Superintendent. If the patient remains in the State Hospital more than one [1] month, such payments shall be made, monthly in advance, for the whole period during which the patient remains in the State Hospital. If the patient has no such estate of his own, then his obligation shall exist against any person who is legally bound to support such patient. Inability to pay shall not, however, cause any person to be refused admission to or discharged from the State Hospital.
“The business manager, following the admission of a patient into the State Hospital, shall make an investigation to determine the extent of the estate, if any, owned by the incompetent patient, and whether he has a duly appointed and acting guardian to protect his property and his property interest. The business manager shall also make an investigation to determine whether the patient has any relative or relatives legally responsible for the payment of maintenance, and shall ascertain the financial condition of such relative or relatives to determine whether in each case such relative or relatives are in fact financially able to pay such charges. All reports in connection with such investigations, together with the findings of the business manager, shall be kept in the business office and may be inspected by interested relatives, their agents, or representatives, at any time upon application.”
59-230.1 “Monthly statement of charges — Certification of unpaid accounts for collection. — Records and Information. The business manager of the State Hospital shall periodically ascertain the per capita cost of maintenance of patients and shall render monthly statements of charges therefor to the guardian or other person whose duty it is to provide care, maintenance or support of each patient, and he shall diligently attempt to collect such charges.
‘ ‘ The business manager shall make monthly certifications to the State Hospital Board of all patient accounts which have been due and unpaid for a period of three [3] months or more. The Hospital Board shall certify such unpaid account to some reputable person or agency, previously approved by the State Hospital Board of Control for collection. The compensation of such person or agency shall be paid from moneys collected on such accounts and the amount of such compensation shall not exceed charges as recommended and approved by the American Bar Association for similar collection work.
“Permanent records shall be kept by the business manager showing to whom and on what date or dates statements of charges are rendered, the amount thereof, payments made thereon, whether such charges have been certified by the Hospital Board, the action taken thereon by the Hospital Board, whether or not any money has been realized by the collecting agent of the Board and such other information as shall be deemed appropriate by the State Hospital Board.
“The Hospital Board shall require such person or agency as it may employ to collect outstanding charges for patient maintenance to furnish the Board with information as to what action has been taken by such agency, the results thereof, what accounts are thought to be uncollectible and such other information as the Board shall deem appropriate. Such information shall he submitted to the Board over the certification of the collecting agency.
“This act shall be cumulative to existing statutes pertaining to maintenance charges against patients in the State Hospital.
59-115. “Persons liable for support. — The father and mother of poor, impotent or insane persons shall maintain them at their own charge, if of sufficient ability, and the children and grandchildren of poor, impotent or insane parents or grandparents shall maintain them at their own charge, if of sufficient ability. ’ ’
In the recent case of Arkansas State Hospital v. Kestle, 236 Ark. 5, 364 S. W. 2d 804, decided after the trial court judgment in the case at bar, this court held that in seeking recovery under Ark. Stats. § 59-230, the burden of proving that a patient confined in the State Hospital has no estate is a condition precedent to recovery for necessaries and treatment against any person who is legally bound to support such patient.
The Act carefully provides for determination of whether the patient has an estate and also whether the patient has any relative or relatives legally responsible for the payment of maintenance who are in fact financially able to pay such charges. Upon determining that the patient is without sufficient estate, as decided in Ark. State Hospital v. Kestle, supra, it is apparent that the Legislature intended that those persons who may be secondarily liable be so notified, and upon notification to them that the State Hospital Board has made such determination, the secondary liability commences as to indebtedness incurred after receipt of such notice. This is not to say, however, that such liability is absolute.. The legislature in the enactment of Ark. Stats. § 59-115, as set out in full above, carefully made such liability, by the use of the words “if of sufficient ability,” dependent upon ability to pay, thereby recognizing the humane responsibilities of society as a whole to provide for those unfortunates when the secondary obligors are unable to pay. From the entire tenor of the liability statutes it is manifest that the Legislature never contemplated that one should be charged with the support of an incompetent to such an amount as to leave other members of his family in a destitute condition, 44 C. J. S. p. 180, § 75.
In the Kestle ease, supra, this court acknowledged that under Ark. Stats. § 59-230, the legislature intended that the burden be placed on the State to show the patient’s inability to pay as a condition precedent to imposing liability on the secondary obligor. It is our view that the enactment of § 59-230 in no way repealed § 59-115. The liability imposed on the patient by § 59-230 is a positive liability, whereas the liability imposed on the secondary obligor by § 59-115 is, as we have seen, conditioned on ability to pay. This being true, the claim of inability to pay would be in the nature of an affirmative defense to an action seeking to enforce the obligation, and the burden, therefore, to plead and show inability to pay would rest upon the person seeking to invoke the defense. Faulkner v. State, 6 Ark. (1 Eng.) 150.
Accordingly, it was error for the trial court to sustain appellee’s motion to exclude appellant’s evidence of his financial inability to maintain his daughter in the State Hospital.
Appellant’s final contention for reversal is that the trial court erred in refusing to hold all that part of the bill more than three years old was barred by the Statute of Limitations.
The statutes here under consideration contain no statute of limitation. In Jensen v. Fordyce Bath House, 209 Ark. 478, 190 S. W. 2d 977, this court stated:
“In the absence of a specific provision in that regard, there is a diversity of opinion among the authorities as to the application of general statutes of limitation to the subordinate political subdivisions of a state. In a discussion of the question in 34 Am. Jur. p. 309, it is said: ‘It has been said that the maxim ‘nullum tempus occurrit regi’ is an attribute of sovereignty only, and cannot be invoked by counties or other subdivisions of the state. In many cases, probably a majority, a distinction is drawn between cases where a subordinate political subdivision or agency is seeking to enforce a right in which the public in general has an interest and those where the public has no such interest, and it is held that the statute of limitations, while applicable to the latter character of actions, cannot be interposed as a bar where the municipality is seeking to enforce the former type of action. In these decisions, the view is taken that the plaintiff, in seeking to enforce a contract right, or some right belonging to it in a proprietary sense, may be defeated by the statute of limitations; but as to rights belonging to the public ancl pertaining purely to governmental affairs, and in respect to which the political subdivision represents the public at large or the state, the exemption in favor of the sovereignty applies, and the statute of limitations does not operate as a bar. ” [Emphasis ours.]
In this regard, it has been further said, in 34 Am. Jur., p. 314, § 399, as follows:
. . . ‘ ‘ On the other hand, the weight of authority supports the view that the statute cannot be set up as a defense to an action by an incorporated state insane hospital to recover for board and medical attention furnished an inmate, where the hospital is owned and controlled by the state, is a mere governmental agency thereof, and all charges imposed for the care and maintenance of the hospital’s inmates are for the benefit of the state and when collected go to the support of the hospital.”
We are unwilling at this time to depart from our general rule that the statute limitations does not operate in matters where the public interest is concerned.
In the instant case, there is no showing that appellant’s liability has in fact commenced, that is, there is no showing that appellant ever received notice of a determination by the constituted authority of the inability of the patient (principal) to pay all or any part of her accumulated account and that appellant was determined to be secondarily liable.
For the reasons stated herein, this canse is reversed and remanded for further proceedings consistent with this opinion. | [
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Sam Robinson, Associate Justice.
The appellant, Mrs. Willie B. Williamson, filed this suit alleging that she owns lands in Section 5, Township 15 North, Range 1 East, in Lawrence County; that appellee, R. S. Rainwater, owns adjoining lands in Section 4; that Rainwater intended to dig a drainage ditch on appellant’s property and asked that he be enjoined. The Chancellor held that appellant failed to meet the burden of proving by a preponderance of the evidence that the ditch, when dug, would be on her property. The complaint was, therefore, dismissed.
In his answer, appellee alleged, among other things, that Mrs. Williamson’s husband, now deceased, an owner by the entirety, had built a fence on the line appellee maintains is the correct one, and that all parties recognized such fence as being the dividing line. The ditch is located east of the fence—on Rainwater’s side of the fence.
Appellant argues that the preponderance of the evidence shows that the true section line is about 50 feet east of the location of the fence. But even so, if the fence was recognized for a long time by the parties in interest as the dividing line between the properties, according to many decisions of this court, the fence will be recognized by the courts as the dividing line. Deidrich v. Simmons, 75 Ark. 400, 87 S. W. 649; Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18; Batson v. Harlow, 215 Ark. 476, 221 S. W. 2d 17; Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490; Weston v. Hilliard, 232 Ark. 535; 338 S. W. 2d 926; Stewart v. Bittle, Law Reporter, May 27, 1963.
Mr. Williamson built the fence about 1946. It was constructed on or only a few feet from a line, marked by blazed trees, established by appellee, Rainwater, several years previously when he purchased Section 4. There is no doubt that both Mr. Williamson and Mr. Rainwater acquiesced in the theory that the fence was on the true line. In the first place, Mr. Williamson built the fence. It is not likely that he would have left 50 feet of his land outside his fence. He may have built the fence a few feet from what he considered the section line in order to give him control of the fence, but surely he would not have intentionally left 50 feet of his land outside the fence.,. There does not appear to be any topographical reason for putting the fence at one place rather than the other.
In 1953 Mr. Rainwater started clearing his land with a bulldozer and cleared right up to the fence. Mr. Williamson was present and made no complaint. In fact, in the absence of Mr. Rainwater, he pointed out the fence as being the line to the operator of the bulldozer. Later, Mr. Williamson and Mr. Rainwater walked over the property and the only suggestion made by Mr. Williamson was that a tree that had fallen on the fence should be removed to preserve the fence. Subsequently, Mr. Williamson had some of his land cleared right up to the fence and no further.
It cannot be said that the preponderance of the evidence shows that appellant has ever at any time had possession of any of the land east of the fence. In the circumstances we think the fence was established as the dividing line by the acquiescence of the parties.
Affirmed. | [
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Jim Johnson, Associate Justice.
This is a petition for a writ of prohibition seeking, on jurisdictional grounds, to prohibit a chancery court from trying a declaratory judgment action.
On June 19,1962, the residuary legatees under the will of Ann H. T. Coley, the Phillips National Bank and Walter L. Coley, executor of the estate of Ann H. T. Coley, filed a petition for declaratory judgment naming the petitioners, C. J. Jackson and Frank Jackson Jordan, as defendants in the Phillips Chancery Court, asking for a determination of rights as to the ownership of certain shares of capital stock in the Phillips National Bank.
The complaint states that the executor in his inventory, filed in the Phillips Probate Court, listed 80 shares of capital stock of Phillips National Bank as owned by the testatrix and as an asset of the estate; that the residuary legatees filed their exception to the inventory stating that the testatrix actually owned 200 shares of such stock; that the executor responded in Probate Court stating that Phillips National Bank has in its possession 160 shares of the stock issued in the name of the testatrix, and the executor only has constructive possession of 80 shares; that the Phillips National Bank had issued 200 shares of its capital stock to Ann H. T. Coley, which are still so recorded on its corporate books, and the bank actually has in its possession 160 of the shares; that C. J. Jackson and Frank Jackson Jordan claim some interest therein, the latter claiming by an assignment from Jackson, and that either or both of them have in their possession certificates representing 40 shares, which are registered on the corporate books in the name of Ann H. T. Coley.
In response to this petition the defendants filed a motion to dismiss alleging several jurisdictional grounds. The motion to dismiss was overruled and the defendants (petitioners herein) were ordered to file their answer by December 1, 1962. This petition for a writ of prohibition followed.
The first point relied upon by petitioners is that the chancery courts of Arkansas are without jurisdiction to hear petitions for declaratory judgment. Although it is not necessary to reach this point, since the question keeps arising we feel impelled to lay it at rest.
Petitioners contend that the chancery court is without jurisdiction to entertain declaratory judgment petitions because of an express limitation in the Constitution of 1874 providing that chancery courts shall have jurisdiction in equity matters only as then exercised by courts of equity; and that the declaratory judgment is purely the creation of statute which was not known to equity jurisdiction as it existed in 1874. • Respondent contends that the declaratory judgment act did not change or increase the jurisdiction of equity, but is purely a procedural addition to our civil procedure.
The Constitution of 1874, Article 7, § 15, states:
‘ ‘ Until the General Assembly shall deem it expedient to establish courts of chancery the circuit court shall have jurisdiction in matters of equity, subject to appeal to the Supreme Court, in such manner as may be prescribed by law, ’ ’
In 1903 the legislature established separate chancery courts in every county of the state. Jurisdiction of these courts is stated in Ark. Stats. § 22-404 as follows:
‘ ‘ Chancery courts shall have original jurisdiction in all matters in equity as fully as is now exercised by the several circuit courts of this state in counties where no separate chancery courts have heretofore been established. Appeals to Supreme Court may be taken from the orders, judgments and decisions of the chancery courts in the same manner as now provided by law for appeals from the circuit courts in equity cases.”
In Young v. Young, 207 Ark. 36, 178 S. W. 2d 994, where the act establishing three year separation as a ground for divorce and abolishing recrimination as a defense thereto, was attacked as unconstitutional as diminishing equity jurisdiction, this court stated in part:
“We recognize that the jurisdiction of our courts of equity (as the jurisdiction in 1874) can neither be enlarged or restricted. But there is a distinction between (1) jurisdiction and (2) grounds for the exercise of jurisdiction.
[Quoting from Marvel v. State ex rel. Marrow, 127 Ark. 595, 193 S. W. 259, 5 A.L.R. 1458] ‘The act in question lias not conferred upon the chancery courts of this state any additional jurisdiction. It has merely prescribed a new condition upon which this ancient jurisdiction may be exercised. The act is remedial in its nature and, while the Legislature can not enlarge or restrict the jurisdiction of chancery courts, it is entirely within the province of the Legislature to prescribe the procedure for the exercise of this jurisdiction and to prescribe new conditions under which that jurisdiction may be exercised.’ ” ■
In this light, we now examine the Declaratory Judgment Act of 1953 (Ark. Stats. §§ 34-2501-34-2512). Section 1 (§ 34-2501) provides:
“Courts of record withi/n their respective jurisdictions shall have the power to declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.” [Emphasis ours.]
It is hardly necessary to examine further. By its own terms, “within their respective jurisdictions,” this act does not attempt to enlarge or alter the jurisdiction of any court. The chancery court clearly has jurisdiction to render declaratory judgments where the subject matter of the declaration is within equity jurisdiction, and we so find.
Whether the subject matter in the instant case is a matter for equity jurisdiction appears to be a question of fact. Upon its face the complaint does not seem to be wholly without the jurisdiction of equity. This is a question which could be tested by appeal. If the court is without jurisdiction, a proper remedy would be by motion to transfer, as provided by Ark. Stats. § 27-208 as follows :
“An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings and a transfer of the action to the proper docket. ’ ’
The case of Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13, is directly in point, in which it was stated:
“The writ [of prohibition] is never exercised to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. To illustrate: The circuit judge certainly had jurisdiction to pass upon the motion to transfer to equity the case pending in its court. If it erroneously transferred the case to equity, prohibition is not the remedy. It can be corrected only on appeal. ’ ’
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G-eorge Rose Smith, J.
The appellant, a manufacturer of cooking stoves, appeals from a verdict and judgment awarding the appellees $20,000 as compensation for severe burns suffered by their two-year-old daughter, Debra Dianne Rabb. The appellees’ complaint alleged that a defect in their kitchen range, which had been manufactured by the appellant, caused a container of grease to catch on fire and injure the child. The serious question in the case is whether there is any substantial evidence to support a finding that the fire was in fact caused by a defect in the above.
Mr. and Mrs. Rabb bought the stove new in 1959. It had been used in the preparation of two meals a day for about three weeks when the fire occurred on the evening of September 8. That night Mrs. Rabb, in preparing supper, fried potatoes in about two quarts of grease in the stove’s deep well. Near the end of the meal, which was eaten at a table about two feet from the stove, the door to the storage compartment in the lower righthand part of the stove fell open. Both Mr. and Mrs. Rabb testified that they could see smoke and flame in the compartment, and the grease in the deep well was on fire. Mrs. Rabb at once carried her little daughter out of the house. Mr. Rabb used a garden rake to pick up the container of burning grease and carry it outside. Just after he had backed through the door, however, Debra Dianne threw her arms around his legs and caused the hot container to fall off the rake, splashing burning grease upon the child,
Throughout the case the appellant’s theory has been that Mrs. Rabb, after cooking the French fried potatoes, forgot to turn off the burner under the deep well, so that the grease became so hot that it caught on fire. Mr. and Mrs. Rabb testified that the burner was turned off; but, if they were mistaken about this, there is an abundance of evidence showing that the failure to turn off the burner under the grease could have caused the fire. This testimony is in effect uncontradicted and need not be set out in detail.
To meet their burden of proving a defect in the stove the plaintiffs relied upon the testimony of C. B. Lampkin, a qualified appliance repairman. Lampkin examined the damaged range about a month after the fire, when, following Debra Dianne’s release from the hospital at El Dorado, the Babbs returned to their home at Magnolia. Lampkin found two loose mounting screws at a point where there was a gasket a few inches below the right front top burner on the stove. He said that gas escaping from the leaky gasket would be ignited ‘ ‘ almost instantly” by the pilot light for the right front burner. On cross examination he said that if the screws had been loose all along he did not think the stove could have been used for three weeks without a fire.
Lampkin’s testimony, viewed in its most favorable aspect, would support a finding that the loose connection had caused gas to be ignited by the pilot light at a point just below the right front top burner, which would place the fire in the upper front area of the storage compartment. It was still necessary, however, for the plaintiffs to show that flames originating in this area could in turn cause the grease in the deep well to catch on fire. Upon this vital point we can find no evidence to support the jury’s conclusion that the defective connection was the proximate cause of the fire in the deep well.
The deep well extended downward from the right rear section of the top of the stove. The well itself was a hollow metal cylinder, open at the top and the bottom. Bock wool about an inch and a half in thickness was wrapped around the outside of the well, for insulation. The well was heated by a gas burner at the bottom of the cylinder. The removable container, which at the time of the fire was filled with grease to about two-sevenths of its capacity, was placed in the metal cylinder when being used for cooking. There was a lid for the well, which Mrs. Rabb put back in place after she fried the potatoes.
The fatal weakness in the appellees’ proof is the complete absence of any evidence tending to show how a gas flame in the upper front area of the storage compartment could have ignited the grease in the deep well, in the lower rear section of that compartment. There is no proof whatever that the flame could have come in direct contact with the'grease. To the contrary, the substance of Lampkin’s testimony on this point is that the leaking gas could not have lit the grease: “You cannot ignite grease in the deep well from anything on the outside.” This statement by the witness is unquestionably a correct summation of the situation. With the lid covering the deep well the flames could not have come up through the opening around the front burner, traveled to the back of the stove, and then made their way past the lid in order to descend to the grease at the bottom of the well. Nor, since natural gas is lighter than air, could the fire have traveled downward in the storage compartment to enter the bottom of the cylinder, then up to the top of the metal container, and then down again to reach the grease. There is no possibility that leaking gas could have filled the compartment before igniting, for Lampkin himself testified that the gas would have been ignited almost instantly from the pilot light close by. Finally, there was no explosion. Neither Mr. nor Mrs. Rabb testified that an explosion occurred, and Lampkin said that gas leaking from the loose gasket would have been ignited ■by the pilot light without an explosion.
There being no proof that the flames came in direct contact with the grease, the only alternative basis for a recovery would be a showing that the flames played against the outside of the deep well and heated it to such an extent that the grease caught on fire. The record contains no evidence to support such a conclusion. Lampkin and one of the appellees’ attorneys were invited to attend, and did attend, a demonstration at which the appellant undertook a reproduction of the alleged fire. It was found that if the deep-well burner was not turned off, as the ap pellant insists to have been the ease, the grease would become overheated to the point of catching on fire in an hour and ten minutes. The effect of Mr. Babb’s testimony was that an hour and ten minutes elapsed between the time when his wife started to cook and the time of the fire. Mrs. Babb fixed the time at about forty minutes.
At this demonstration the appellant also loosened the mounting screws in question, upon a stove of the same model, and permitted the leaking gas to ignite from the pilot light and burn freely in the upper part of the storage compartment. The grease had first been used tq fry potatoes. It was found that its temperature, instead of going up, actually decreased. This is not surprising, in view of the fact that the grease not only was below the point where the heat was applied but also was insulated by the rock wool, the wall of the metal cylinder, the intervening air space, and the wall of the removable container. Moreover, it should be pointed out that the appellant’s attempted reproduction of the fire was not in the nature of sui’prise testimony produced for the first time at the trial. The appellees’ lawyer and their expert witness were both invited to view the demonstration well in advance of the trial, so that there was ample opportunity for a rebuttal.
It is fair to say that the appellees have never, in their proof, in their brief, or in their oral argument in this court, demonstrated facts upon which it could be found that the leaky gasket caused the grease in the deep well to catch on fire. In effect they bypass this problem, by contending that if Mrs. Babb turned off the burner under the deep well, as she testified, then the fire could only have come from the defect in the stove. But this argument ignores the vital issue of causation and would permit the jury to find a causal connection when no witness in the case was able to do so.
Beversed and remanded.
McFaddin, Johnson, and Holt, JJ., dissent. | [
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Frank Holt, Associate Justice.
The appellee brought this action as a foreclosure suit and, also, to have adjudicated the terms of their Guaranty Agreement. On September 1, 1960, the appellees, Herbert Collins, Trustee, Paul M. Leird, C. Hamilton Moses, John Collins and John Collins, Executor of the Estate of H. G. Galloway, deceased, hereinafter referred to as Guarantors, filed a foreclosure suit on two Deeds of Trust executed by W. D. May and Dorothy E. May, his wife, hereinafter referred to as May. These Deeds of Trust secured two notes by May and any sums for which the Guarantors might become liable on their Guaranty of May’s note of $29,662.36 to the National Bank of Eastern Arkansas, hereinafter referred to as Bank. The Guarantors made the Bank a party defendant and asked the Court to determine their liability as Guarantors, if any, to the Bank under the terms of the Guaranty Agreement. The Bank filed an answer and cross complaint seeking judgment against the Guarantors, jointly and severally, for $2,265.52 as a deficiency owed it under the terms of the Guaranty Agreement. May filed an answer admitting an original indebtedness of $29,662.36 to the Bank and alleged that said indebtedness was fully paid and satisfied of record June 29, 1960. May denied any indebtedness to Guarantors and in a cross complaint claimed damages for alleged collusion between the Guarantors and the Bank.
Upon a trial of these issues the Chancellor entered a decree in favor of the Guarantors against May and the Bank and dismissed their respective cross complaints. From this decree the Bank brings an appeal and for reversal urges that the Court erred (1) in finding that reasonableness of attorney’s fees and court costs incurred by the Bank in its foreclosure of the May debt was not before the Court and (2) the Court erred in not entering judgment for the Bank against Guarantors for the deficiency in the amount of $2,265.52 and by not requiring said amount to be paid out of the proceeds of the foreclosure of May’s Deed of Trust to Guarantors securing a contemplated deficiency under the Guaranty. We consider these points together.
On June 23, 1954, May executed a note to the Bank and a chattel mortgage to secure his loan of $29,662.36. On July 5, 1954 the Guarantors executed and delivered to the Bank a Guaranty Agreement to the effect that the Guarantors, jointly and severally, would guarantee prompt payment of the May note to the Bank. Paragraph (4) of the Guaranty reads as follows:
“PROVIDED HOWEVER, before recourse against the Guarantors, the Bank shall first have mailed to them at Little Rock not less than ten days preceding a notice of default, and, if the default be not made good, shall thereafter foreclose the said mortgage(s) and the pledge or assignment of American Radio and Television, Inc., indebtedness, and of the life insurance if any, and shall apply the net proceeds, after all reasonable costs and expenses, upon the indebtedness which is hereby guaran teed, and the Guarantors shall thereupon pay upon demand any balance remaining.”
May defaulted on his note and after protracted litigation, beginning in 1958, May was decreed liable on his note, which was upheld by this Court in the case of May v. National Bank of Eastern Arkansas, 231 Ark. 558, 331 S. W. 2d 697. On June 29, 1960, the Bank collected its judgment in full. This judgment consisted of the sum of $20,055.21 which represented the balance of the original principal indebtedness plus the accrued interest to the date of collection. The judgment also included $1,745.52, which was 10% of the judgment when first rendered plus interest thereon until the date of collection, as an attorney’s fee. The judgment and decree in that case was, accordingly, marked paid in full by the Bank on June 29, 1960.
Thereafter the attorney for the Bank rendered his statement for $4,011.04 to the Bank for his legal services in this extended and successful litigation against May. The Bank paid this fee. The Bank now contends that after applying the $1,745.52 as a credit to the $4,011.04 fee, there is left a deficiency in the payment of the indebtedness of May to the Bank in the amount of $2,265.52 and that it is entitled to recover this amount as a deficiency from its Guarantors since the Bank had recovered from May all the law would permit under the express terms of May’s note to the Bank. The Bank made demand upon the Guarantors for this sum on the basis such deficiency should be construed as reasonable costs and expenses and within the meaning of Paragraph (4). We agree with the observation of the Trial Court in its written opinion that the charges made by the attorney to his client, the Bank, was fair and reasonable. We must also agree with the Court that the balance of the attorney’s fee paid to him by the Bank in the sum of $2,262.52 is not an enforceable item of the Guaranty Agreement. We do not think the parties intended such a deficiency to be included in their agreement. We agree with the following pertinent language in the learned Trial Court’s written opinion:
“It is the opinion of the Court that the parties had in mind the deficiency that would arise by reason of the failure of the assets to bring sufficient amount at the foreclosure sale to pay the debt, interest and costs of the Bank and that the guarantors should make up such deficiency. However, the alleged deficiency in the case at bar did not arise nor was demand made upon guarantors for the payment thereof until after a judgment had been satisfied by the Bank. It does not appear in this record but in the record of the case of No. 31765 [which was appealed to this Court and affirmed in May v. National Bank of Eastern Arkansas, supra] that the Bank had a supplemental agreement with W. D. May whereby May would pay the Bank eight per cent. Both the Bank and May recognized that the guarantors would not guarantee more than six per cent. However, the Bank in that case did not ask for eight per cent on the note foreclosed but contented itself with six per cent interest. Had the Bank asserted its claim of eight per cent per annum interest for the period of five years and eleven months of its dealings with May, as it had a right to do, it would have amounted to considerably more than the $2,265.52 of excess attorney’s fees claimed here. The precedent in cause No. 31765-—-which was prepared by the Bank’s counsel and submitted to opposing counsel before being signed by the Court — specifically waived its eight per cent per annum interest and asked only for six per cent interest.”
In determining the intent of the parties we think it is significant that May’s note to the Bank, which the Guaranty Agreement secured, specifically provided for attorney’s fee as authorized by law in the event the services of an attorney became necessary to collect the note. The Bank saw fit to expressly include this provision in the note in its dealing with May. If the Bank had intended or expected to hold the Guarantors liable for an attorney’s fee or any excess attorney’s fee, other than by the terms of the note, we think the Guaranty Agreement, executed within two weeks after the note, would have so expressly provided instead of using the broad and sweeping language of Paragraph (4).
A guarantor is entitled to a strict construction of Ms undertaking and cannot be held liable beyond the strict terms of his contract. City of Helena v. Arkansas Utilities Co., 208 Ark. 442, 186 S. W. 2d 783. In this case the Court said:
“ * * * A guaranty has been defined as a collateral undertaking by one person to answer for payment of a debt of another. 38 C.J.S., Guaranty, § 1, p. 1129. A guarantor is entitled to have his undertaking strictly construed. 38 C.J.S., Guaranty, § 38, pp. 1182,1183. A guarantor cannot be held liable beyond the strict terms of his contract. ’ ’
In 24 Am. Jur., Guaranty, § 71, p. 158 (Supp. 1962) we find:
“A guarantor, like a surety, is a favorite of the law, and Ms liability is not to be extended by implication beyond the express limits or terms of the instrument, or its plain intent.”
Further, § 73, p. 922, reads as follows:
“* * * Like a surety, a guarantor is liable only in the event and to the extent that Ms principal is liable.”
The judgment on the May indebtedness to the Bank was satisfied of record by the Bank in these words: “This Judgment and decree having been paid in full it is hereby satisfied and cancelled 6-29-60.” Upon payment in full of this judgment we think the discharge of May, the principal debtor, relieved the Guarantors from any further liability in this case. In 24 Am. Jur., Guaranty, § 74, p. 923, we find this language:
“If there is no debt or principal obligation the payment of which is guaranteed, there can be no contract of guaranty; and hence, if the obligation of the debtor has been paid or otherwise satisfied, the guarantor’s obligation is terminated.”
We hold that the liability of the Guarantors in this case is co-extensive with and does not exceed that of the principal and when the principal debtor was fully re leased and discharged from his indebtedness by the Bank, thereupon, the liability of the Guarantors was extinguished also.
May contends that the Court erred in refusing to allow him credit for various insurance premiums charged to him by the Guarantors. Upon a review of the record we are of the opinion that under the terms of their agreement the Guarantors had a right to advance the insurance premiums on the mortgaged property. Therefore, we find no merit in this contention.
Finding no error, the decree is affirmed in all respects.
George Bose Smith and Johnson, JJ., dissent. | [
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Carretón Harris, Cbief Justice.
On September 26, 1961, appellant, Clarence Ransom, was struck and injured by an automobile operated by Fred F. Weisbarr, appellee herein, who, with bis wife, was enroute from Hot Springs, Arkansas, to bis borne in St. Louis, Missouri. Ransom was an employee of a highway contractor who was repairing a portion of Highway 67, between Tuckerman and Swifton. The incident occurred while appellant was in the act of crossing the highway, after delivering a check to a fellow employee. Ransom was injured, and instituted suit for damages; after the filing of an answer, the case proceeded to trial. The jury re turned a verdict in favor of Weisharr, and from the judgment entered thereon, appellant brings this appeal. For reversal, appellant lists six alleged errors, which we herewith proceed to discuss.
The first alleged error relates to the court’s action in admitting, over objection, the testimony of Captain Melvin DeLong of the Arkansas State Police. The officer was permitted, as an expert, to give his opinion of the speed of the Weisharr vehicle at the time of the mishap, such opinion being based on an experiment that DeLong had conducted on the morning of the trial prior to its commencement. It was the opinion of DeLong that Weisharr was traveling at a speed of 27% miles an hour at the time of the occurrence. The speed of the Weisharr vehicle was, of course, pertinent to the question of negligence, and had been mentioned by several witnesses for appellant. Kenneth Brown testified that Weisharr was traveling at “high speed”; Jimmy Rorex testified that the speed was between 40 and 50 miles per hour. Hugh Burris stated that the Weisharr automobile was traveling 55 or 60 miles per hour when it passed him, approximately “a half quarter” from where the injury occurred. Posted signs fixed the speed in the area where the highway was being re-surfaced at 35 miles per hour.
The captain first described the method used, and the factors involved, to determine, from the skid marks, the speed of an automobile.
“There are a number of factors involved in determining speed from skid marks. The 3 major ones that are involved in all calculations: the original speed of a vehicle, the surface over which it traveled and whether that surface is on an incline or a decline. A factor that is known as a drag factor or co-efficient friction, means the amount of drag that the surface puts on a tire that is sliding over it. It has to be calculated on each individual surface and it has to be calculated either on an incline or decline or whether it is wet or dry.
“Q. Briefly, what are the factors which you take into consideration in making such a test in order to be able to state your opinion as to the speed of a vehicle?
A. There are a number of factors on the car itself. The brakes, for instance, the tires whether they are smooth tread or a good tread, how large the volume of the car or the frontage volume as it presents to any wind resistance, the inflation of the tires, whether they are low inflated or high inflated; that is some of the major ones.”
From the record, on voir dire:
“Q. Captain DeLong, are you familiar with the degree of inflation of the tires on the Mercury that was involved in this accident?
A. No, Sir.
Q. You are not?
A. No, Sir.
Q. Do you know what kind of tires they were?
A. No, Sir.
Q. Do you know what the state of the tread was on those tires?
A. No, Sir.
Q. Have you ever examined the brakes on that automobile ?
A. No, Sir.
Q. Do you know the condition of the brakes on the automobile at that time ?
A. Yes, Sir.
Q. Not having examined those brakes ?
A. Yes, Sir.
Q. How do you know ?
A. The brakes on an automobile are designed to do one thing, to lock the wheels.
Q. You have not examined the brakes ?
A. No, Sir.
Q. Have you ever seen the automobile 1
A. No, Sir.
Q. You didn’t perform the experiment with the Mercury automobile involved in this, did you ?
A. No, Sir.”
The officer then testified (on direct continued):
‘ The tests that were made this morning were made on a surface that was described as identical to the surface at the location of the accident at the time of the accident. These tests were made to determine the drag factor or the amount of drag that the surface would exert on an automobile tire sliding over it. The drag factor on that particular surface was .62; that means that it was 62 per cent perfect for stopping an automobile. Now, the car involved slid 40 feet and 7 inches to a stop. Now taking the two known factors, the drag factor and the distance the ear slid to a stop and then the calculations that comes out the minimum speed that this car would have to be traveling to slide 41 feet and stop over this surface would be twenty-seven and a half miles an hour. ’ ’
Captain DeLong subsequently testified that he had conducted one experiment at the place where the accident occurred, but this experiment was of no value because the surface of the road was no longer the same as at the time of the mishap, i.e., it was formerly old concrete, but was now (the day of the trial) new asphalt. The experiment, upon which the captain based his opinion, was made about three-fourths of a mile south of Swifton, and on a surface that DeLong had been told was identical to the condition of the surface at the scene of the accident in September.
We are of the view that the court erred in permitting the officer’s testimony to go to the jury for the reason that there are too many unknown facts, which according to the testimony of DeLong himself, influence a result, and which should be considered by an expert in reaching his opinion. For instance, it will be observed from the officer’s testimony (heretofore quoted), that DeLong mentioned the brakes as a factor—but admittedly, he knew nothing about the brakes on the Mercury automobile operated by "Weisharr. He mentioned the condition of the tires, i.e., whether possessing a good tread or smooth—-but he did not know the condition of the tires on appellee’s car. The officer also included inflation of the tires (whether low inflated or high inflated) as being another major factor—but he knew nothing about the amount of air in the tires on the Mercury. Captain DeLong also testified that the load carried by the vehicle influences the distance it will take for the car to stop. When asked if he knew the load in the Mercury automobile, he replied, “One passenger, Sir,” and stated that his experiment was based on that assumption. The officer stated that he had been told that the car contained one passenger, but this information ivas in error. Actually, the car contained two passengers. In addition, he never did see the Weisharr automobile at all, nor did he observe the surface of the road on September 26,1961, but first viewed it on the day of the trial, eight months later.
Of course, an opinion based on an experiment is admissible, provided that such experiment is conducted under circumstances similar to those existing at the time of the occurrence which is the subject of the litigation. It is not necessary that conditions be identical to those existing at that time, but the experiments are admissible if there is a substantial similarity. Dritt v. Morris, 235 Ark. 40, 357 S. W. 2d 13. It is apparent from the preceding discussion that the factors, which DeLong himself mentioned as pertinent to a proper experiment, were undetermined at the time of the experiment, and the admission of the evidence, therefore, constituted reversible error.
This conclusion is in accord with our recent holding in Henshaw v. Henderson, 235 Ark. 130, 359 S. W. 2d 436. In that case, we reversed a judgment obtained by appellee by reason of the court’s error in permitting a State Policeman to give his opinion as to the speed of appellant at the time of a collision. This opinion was based, in part, upon an experiment that the State Policeman, Glen Minton, had conducted. Prom the opinion:
“Mr. Minton was permitted to testify, over the objection of the appellant, that he was called to the scene of the accident shortly after it occurred. He described in detail the position of the Plymouth automobile and the Chevrolet convertible; the point where the two girls were found; and the position of the appellant who was unconscious on the front seat of his car and was further permitted to testify that on the morning of the trial he had taken his car, a 1960 Chevrolet, from a dead stop and accelerated as fast as possible for two-tenths of a mile (this being the distance between the motel and the location of the Plymouth that was struck) and that he attained a speed of 75 miles per hour; that it was one of the requirements of his position to estimate the speed of vehicles involved in a collision and that viewing the distance the Chevrolet convertible was out of control and the severity of the impact, he thought the'Chevrolet convertible was traveling 80 miles per hour.
‘ ‘ The witness ’ test was made with a car other than the one involved in the accident and there is no showing that his test was made under the same conditions that prevailed at the time and at the place of the accident. The testimony of a policeman as an expert carries great weight but when it is predicated on conditions different than those under scrutiny it is inadmissible.
‘ ‘ The objection of the appellant was timely and should have been sustained. For error in overruling the objection this cause is reversed and remanded for further proceedings not inconsistent herewith. ’ ’
Actually, the circumstances in that case were much more favorable to the admission of the evidence since Min-ton did view the scene, together with the wrecked automobile; still, because his opinion was based in part upon the improper experiment, the testimony was held inadmissible. Here, DeLong knew nothing personally about the accident, the appearance of the skid marks, or any of the circumstances existing at that time.
We will make brief mention of some other alleged errors, since the same questions might again arise at a re-trial of the cause. Appellant requested an instruction relative to the respective rights of pedestrians and motorists upon public highways. It is true that both have a right to the use of the highway, but the instruction offered by appellant was erroneous, in that it told the jury that “the rights and duties of drivers of automobiles and pedestrians on the public highways are equal and reciprocal. ’ ’ This instruction is not correct since their duties are not entirely the same.
Appellant requested an instruction in the wording of the statute [Ark. Stat. Ann. § 75-661 and § 75-725 (Repl. 1957) ] which relates to the duty of the operator of a motor vehicle to give a reasonable warning of his approach, and to equip his car with a horn which can be heard, under normal conditions, for a distance of not less than 200 feet. While it is not error to instruct in the language of the statute, same is not absolutely necessary. The first part of the instruction was covered in the court’s other instructions, and there was no evidence at all relative to the type of horn on the vehicle.
Appellant asserts two errors in connection with the court’s instruction, 8(b); however, the record does not reflect that any objection was made to the instruction, and we are accordingly unable to consider these alleged errors.
Finally, appellant asserts that the court erred in refusing to admit certain photographs that appellant offered in evidence. These photographs were taken about two weeks after the accident, and do not depict the scene as it existed at the time of the mishap. We have held in several instances that the admission of photographs is a matter which rests largely within the discretion of the trial court, and we will not reverse the holding of that court unless it appears that there has been an abuse of discretion. Powers v. Long, 221 Ark. 400, 253 S. W. 2d 359, and cases cited therein. We are unable to say, in this instance, that there was such an abuse.
Because of the court’s error in admitting the testimony of Captain Melvin DeLong, the judgment is reversed and the cause remanded.
It is so ordered.
The evidence does not definitely reflect the identity of the party who gave this information to Captain DeLong.
While it is not mentioned in the briefs, it would seem logical that even the weight of the passengers would have some bearing. For instance, there should be a difference if an automobile is carrying a man weighing 275 pounds rather than a boy weighing 60 pounds.
It will also be noted in DeLong’s testimony, heretofore quoted, that the officer, in giving his opinion of the speed of the Weisharr car as 27% miles per hour, used the term “minimum speed,” which is somewhat confusing; subsequently, DeLong stated that, even considering all of the variable elements as against the driver, his speed estimate would not increase by more than two to five miles per hour. He was then asked, “What happens to those different variables that are unknown when calculating speed?” He replied, “About as many of them are pro for the driver as they are against it, they cancel each other out; but in the final calculation of the thing they all show up in the skid mark, the degree of air in the tires, the tread of tires all shows up in the skid mark; it determines how far the car will slide to a stop. You see a highly inflated tire will slide farther than a low inflated one, and the brake on an automobile is just designed to do one thing and that is lock that wheel.” The witness, in stating, “as many of them are pro for the driver as against,” was evidently referring to averages. This is, of course, somewhat speculative, and also seems inconsistent with his earlier testimony in which he described tire inflation, tread, etc., as “major” factors. While the captain stated that such elements as the degree of air in the tires and tread of the tires show up in the skid mark, the fact remains that he was unable to testify about either since he did not see the marks left by the Weisharr car.
Emphasis supplied. | [
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Carleton Harris, Chief Justice.
This is an adoption proceeding. Harold Henry Hime, a Baptist minister, was the husband of Billie Jo Walthall Hime, and Billie Jo died on September 25, 1957, eight days after the birth of the couple’s third child, Sarah Margaret Hime. AN. 0. Walthall and Lula Walthall, his wife, parents of Billie Jo, and appellants herein, took the baby home from the hospital, along with the two older minor sons. Mr. Hime also lived in the Walthall home while teaching at Bradley ; after about six weeks, he became pastor at Bradley, and moved from appellants’ home. Hime, according to the testimony, at first, returned to the Walthall home on Friday nights, and subsequently on Saturdays, at which times he would see the children and get clean clothes. In September, 1958, appellee remarried, and took the boys with him to the parsonage at Bradley. Sarah Margaret remained with her grandparents. Mr. Hime, his wife, and sons, remained in the parsonage until January, 1960. During that period the grandparents visited in his home on several occasions, at which time they took Sarah Margaret with them, and on several occasions returned the boys back to their home for a visit. Mrs. Walthall testified that appellee never did ask for Sarah to spend the night at his home, nor did he take Sarah out when visiting appellants, or ask to do so. A girl baby was born to Mr. Hime and his second wife in September, 1959. Thereafter, appellee and family left Bradley and moved to Fort Worth. Sarah Margaret remained in the home of the grandparents. According to Mrs. Walthall, the Himes, at first, came back for a visit during the summer, and the two families always had Christmas dinner together. She testified that Sarah never did visit with her father, and that no request was made for such a visit. Early in 1961, appellee commenced sending $30.00 per month to the Walthalls for the benefit of the child, the money being a portion of Social Security money (or some fund from the Government) which Hime received in behalf of the children. In May, 1962, the Walthalls received a letter from appellee to the effect that he desired to take his daughter home with him to live. Mr. Walthall directed a letter to Hime, stating that appellants intended to keep Sarah Margaret. In June, appellee filed an action in Habeas Corpus to obtain custody of the child. On the day that this matter was to be heard, appellants filed a petition in Probate Court, seeking to adopt Sarah Margaret, alleging that Hime had abandoned the child for more than six months immediately prior to the filing of their petition for adoption. A motion was also filed by them to continue the Habeas Corpus hearing until after the adoption petition was heard. The motion was granted, and subsequently the petition for adoption was heard by the Probate Court. At the conclusion of the hearing, the judge of that court entered a lengthy and studious opinion, wherein he found that the petition for adoption should be denied. In accordance with this finding, an order was entered dismissing ap pellant’s petition, and denying the adoption. From such order, comes this appeal.
Section 56-106, Ark. Stats., dealing with adoption, provides as follows:
“ (a) The adoption of a child shall not be permitted without the written consent verified by affidavit, of its parents or parent, if living, except as follows:
(b) The consent of a parent or parents may be dispensed with if the court, upon competent evidence, makes one of the following findings:
(I) The parent has abandoned the child for more than six (6) months next preceding the filing of the petition.
(II) The parent cannot be found.
(III) The parent is insane or otherwise incapacitated from giving consent.
(IY) A guardian of the child has been appointed by an order of the Probate or Juvenile Court giving the guardian authority to consent to adoption without notice to or consent of the child’s natural parents. In this case, the written verified consent of the guardian shall be sufficient.
(V) For five (5) years next preceding the filing of the petition for adoption, the child has resided in this State in the sole custody of one of its parents and the other parent has not, during that period contributed to its support, care or maintenance, then the appearance and consent of such other parent, whether or not his or her residence is known, shall not be necessary, and the court may order the adoption upon the consent of the parent who has had the custody, support, care and maintenance of the child.
(c) In case of illegitimacy, the consent of the mother shall suffice except where paternity has been established by judgment or order of a court of competent jurisdiction.
(d) The minority of a parent shall not bar or in any way vitiate his consent to an adoption. ’ ’
Appellants rely upon Provision (I), and in proceeding under this theory, endeavored to establish that appellee had “given” the child to its grandparents. Pour ladies testified that during the first Mrs. Hime’s last illness, appellee had told them that if his wife died, he would give the child to Mrs. Walthall; however, on cross-examination, one of the witnesses (Mrs. Pritch) stated that he was “letting them keep Sarah.” Two of the other ladies, who testified that Hime “gave” the child to appellants, added that he did not indicate he was abandoning Sarah Margaret, and the fourth testified that he seemed rather perturbed at the time over the critical condition of his wife. Mrs. Walthall stated that after her daughter’s death, appellee told her, “Mrs. Walthall, Sarah is yours and Mr. Walthall’s.” She testified that she didn’t want the children separated, and stated that subsequently (when Hime was preparing to take the boys to live with him in Bradley) told him, “Bozo, if you don’t take Sarah now, don’t ever come back for her.” The testimony reflected that on one occasion, Hime attended a homecoming celebration at Southern State College, but did not go by the Walthall home to visit with Sarah. Mrs. Walthall testified that Hime always sent Christmas and birthday presents to his daughter, and had, for seventeen months prior to the filing of the adoption petition, sent the $30.00 heretofore referred to. When asked if he had ever given any indication of deserting and abandoning the child, she replied, “Why, no, I don’t suppose you would call it that. He did walk away and leave her when I asked him if he didn’t take her then to not ever come back for her. That is the nearest I would call abandon. I don’t suppose he called it that and I didn’t.
Mr. Hime is a social case worker for Buckner Baptist Benevolences, connected with Buckner Baptist Children’s Home, near Port Worth. He testified that he did not recall ever telling anyone that he was renouncing all rights to Sarah, and he readily admitted that he felt a serious mistake had been made by leaving the child with the grandparents for so long a period of time. He stated that one reason for leaving Sarah Margaret was to help his mother-in-law, who was extremely npset over the death of her daughter, and he testified that he had not often visited in the Walthall home for two reasons— because of his schooling, pastorates, and work at the orphanage, and further, because he felt that such visits caused emotional disturbances in the family. Appellee stated that he felt his visits had become progressively less welcome but he had left the child with appellants because he did not want to hurt Mrs. Walthall; that finally, however, he felt that the step must be taken, and he directed the letter to appellants, expressing his desire to rear his daughter with the other members of his family. He testified that he received Social Security for the three children (around $60.00 per month for Sarah); that he had been sending $30.00 to the Walthalls, had purchased a participating life insurance policy for Sarah which would mature on her eighteenth birthday, and had established a small bank account for her.
The present Mrs. Hime testified that she wanted Sarah in the home and would do all possible to make a good mother for her.
The evidence establishes that all parties are of good moral character, and from that standpoint, entirely proper persons to rear the little girl.
In reaching our conclusion, it is not necessary to discuss the question of whether a child can be ‘ ‘ given away. ’ ’ Suffice it to say that we think the proof falls far short of establishing that appellee abandoned Sarah Margaret. This court, in Woodson v. Lee, 221 Ark. 517, 254 S. W. 2d 326, quoted a California case which approved Webster’s definition of "abandonment” as follows:
"To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.”
Certainly, the proof does not reflect that Hime deserted, forsook entirely, renounced utterly, or relinquished all connection with, or concern in, his daughter. Whether, at the beginning, he intended to relinquish any rights or interest in the person of his daughter, with the intent of never again resuming the relationship, is very much debatable under the evidence in this case, but the statute requires that he shall have “abandoned the child for more than six (6) months next preceding the filing of the petition.” As heretofore stated, money had been sent for the child’s benefit for seventeen months prior to the filing of the petition, gifts had consistently been given on commemorative days, and, in fact, Hime had already filed his petition for a Writ of Habeas Corpus with the intention of obtaining the custody and control of his daughter before appellants ever filed their petition for adoption.
Finding no abandonment of Sarah Margaret by her father, appellee herein, it follows that the order of the Probate Court should be, and hereby is, affirmed.
In Ms opinion, the trial judge stated, “It was stipulated that in the event petitioners were unsuccessful in the adoption matter, they would not further contest the action in Chancery Court.”
This was appellee’s nick-name.
Mr. Hime is working on his Master of Divinity degree.
According to his testimony, every letter written by the Walthalls to his household since the death of Billie Jo had been addressed to the two boys, and he stated that he did not recall ever receiving a personal invitation for a visit to the Walthall home unless it was to bring the children.
In re Cordy, 146 Pacific 532. | [
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Ed. F. McFaddin, Associate Justice.
The appellant insists that there was no sufficient evidence offered by appellee to take this case to the jury. In 1949 appellant, Mutual Benefit Health & Accident Association of Omaha, Nebraska (hereinafter called “Mutual”), for value received, issued to the appellee, Hendrix Rowell, then 41 years of age and a practicing attorney, two policies of insurance, the pertinent provisions of which will be subsequently discussed; and Mr. Rowell regularly paid all premiums due on the policies and was at all times well and active until June 1958. One morning when he attempted to arise from his bed his right leg and arm gave way because of numbness, which gradually disappeared in the course of the day; but the next morning the same thing occurred.
Mr. Rowell consulted several neurosurgeons, and was advised that he had hardening of the arteries and arteriosclerosis of the brain; that nothing was mentally wrong; that if he continued his work as a lawyer the stress and strain could cause paralysis or death; that he should retire from the law practice and all other business activities; that he should get plenty of sleep and rest; that he should not drive an automobile, but could take rides with a driver; and that he was to have regular monthly examinations. All of this was in June 1958; and Mr. Rowell assiduously followed the instructions and directions of his physicians. He filed claim with Mutual on the two policies herein on the basis of total permanent disability, and each month sent a doctor’s report; and Mutual made regular monthly payments of $500.00 on the two policies. These payments began on July 23, 1958, and continued regularly each month until April 23, 1961, when all payments were discontinued.
In September 1961 Mr. Rowell filed the present action for the monthly payments delinquent since April 1961. The defenses of Mutual were: (a) that Mr. Rowell’s disability was due to “mental infirmity,” which was excepted from the policy coverage; and (b) that Mr. Rowell was not “continuously confined indoors,” which was a policy requirement. Trial of the case to a jury resulted in a verdict and judgment for Mr. Rowell for past due payments, penalty, and interest; and Mutual brings this appeal, urging the points now to be discussed.
I. MENTAL INFIRMITY
Mutual insists that it was entitled to an instructed verdict because as it says—all the evidence shows that Mr. Rowell’s disability was due to “mental infirmity.” The insuring clause of each policy contained this language:
“(b) the term, such sickness, as used in this policy, shall mean sickness, the cause of which originates while this policy is in force and more than thirty days after the Policy Date . . . but shall not include . . . mental infirmity ...”
The Trial Court gave its Instruction No. 1, which is not here claimed to be erroneous, and which reads:
“It is stipulated that Hendrix Rowell, plaintiff in this case, is totally disabled to practice law. You shall find for the plaintiff, Hendrix Rowell, unless you further find, as defined by these instructions, that his dis ability is the result of mental infirmity or that he was not continuously confined, according to other instructions defining said continuous confinement, or was not regularly attended by a licensed physician, as defined by these instructions.”
Mutual insists that the hardening of the arteries of the brain was a “mental infirmity”; and to sustain its argument on this point, Mutual cites and relies on, inter alia, the following cases: Grabove v. Mutual Benefit (Ala.), 1 So. 2d 297; Moss v. Mutual Benefit (Utah), 56 P. 2d 1351; and Lyle v. Reliance Life Ins. Co., 197 Ark. 737, 124 S. W. 2d 958. We find these cases to contain factual situations entirely dissimilar from those in the case at bar, and we consider them of no application. Even though the burden of proof in this ease was on Mutual to establish, by a preponderance of the evidence, its claim of mental infirmity, nevertheless, here is some of the evidence on behalf of Mr. Rowell which we think had direct bearing on this matter of “mental infirmity.” Dr. R. E. Semmes, a recognized neurosurgeon, testified that he examined Mr. Rowell in 1958 and at subsequent times:
“There was no evidence of tumor, clots and so forth. In the absence of any pressure signs to indicate obstructive hydrocephalus, that would be called the dilution of the brain to get larger, the destruction was from degeneration, we can conclude the atrophy was on the basis of loss of circulation of the brain, a diminished circulation; that this in turn was probably due to hardening of the arteries . . . On examination there was a fine tremor of the right hand. There was no neurological deficit. There was some local vessel involvement in his right leg but no true imbalance. Cranial nerves were all intact. Examination of the eye-grounds showed arteriosclerosis of the retinal vessels but no pressure signs. There was no motor or sensory loss nor significant reflex changes . . .
' ‘ Q. Did you prescribe any type of exercise for Mr. Rowell?
A. No specific.
Q. Did you make any suggestion whether he should get outside and to visit?
A. As a general rule everyone needs exercise otherwise the joints and muscles . . . you ... it is both . . . you must get a certain amount of interest with which to keep your physiology going.
Q. Therapeutic?
A. His attitude, his vision, hearing and without all those, (interrupted)
Q. This therapeutic value of exercising and sunshine is beneficial to a person?
A. That is essential . . .
Q. By this arteriosclerosis or hardening of the arteries at any time is there a possibility of a stroke for different sides of your body, different portions of your body?
A. Lack of circulation interferes with any organ and the brain, of course, controls your mental processes and emotional system and your movements and feelings and sight and hearing and judgment and just about everything else.”
Whether by skilled cross examination Dr. Semines’ testimony was weakened was a question for the jury to decide. Furthermore, we mention that Mr. Rowell testified in the trial, both on direct and cross examination, and the jury was able to observe him. His testimony began before lunch, was interrupted by the lunch hour, and was resumed, in the afternoon; and, exclusive of exhibits, occupies 67 pages in the transcript. Thus, the jury had ample opportunity to see whether Mr. Rowell was “mentally infirm.” Certainly a jury question was made; and the jury could well have concluded—as we do—that hardening of the arteries is a physical infirmity, since some of the arteries are a part of the physical body; that when the arteries in the brain harden and a mental atrophy resulted it was the result of a physical infirmity and not a mental infirmity. We find no merit in appellant’s argument on “mental infirmity.”
II. Continuotis Confinement. Each of the policies sued on contain substantially this language as essential to the establishment of Mutual’s liability:
“. . .If the Insured, because of such sickness, shall be continuously confined within doors and regularly attended therein by a legally qualified physician . . .”
In addition to the Instruction No. 1, previously quoted, the Trial Court instructed the jury on this matter of continuous confinement in Instructions Nos. 4, 10, and 13, as follows:
“4. If you find from the testimony in this case that the plaintiff Rowell was advised by a reputable physician or physicians to take a reasonable amount of exercise and to subject himself to fresh air and sunshine, for the best interest of the treatment of plaintiff’s condition from which he suffered, and further advised him to take automobile trips; and if you further find that the plaintiff transacted a limited amount of personal business, and, in good faith relying upon the advice of his physician or physicians, did take short walks and automobile trips, and took a moderate amount of exercise, and subjected himself to fresh air and sunshine, then you are told that this is in compliance with the provisions of the policy providing that the plaintiff must be continuously confined indoors, and you may take this into consideration, along with other evidence, in arriving at your verdict. . . .
‘ ‘ 10. The Court instructs you that if you find from the evidence that the plaintiff has not been continuously confined within doors, as explained in these instructions, or if so confined has not been regularly treated at the place of confinement by a legally qualified physician, then your verdict shall be for the defendant . . .
“13. The Court further instructs you that the burden is upon the plaintiff to prove by a preponderance of the evidence that he has been continuously confined within doors and that he has been under the professional care of a physician therein at such place of confinement as explained in these instructions. If you find that the plaintiff has not met this burden of proof, your verdict shall be for the defendant.”
In March 1961 Mutual employed special investigators to trail Mr. Rowell and watch his every movement, in an effort to see if he was “continuously confined within doors”; and such investigators testified for Mutual in this case. But the testimony of Mr. Rowell and his physicians, as to their prescriptions and advice to him, were sufficient to make a jury question on this matter of continuous confinement within doors. In Occidental Life Ins. Co. v. Sammons, 224 Ark. 31, 271 S. W. 2d 922, we had before us a case in which the continuous confinement clause required the insured to be “absolutely unable to leave the house and yard situated immediately around the house . . .”; and that the insured should not leave such confines ‘ ‘ except to be transported to the office of the physician or surgeon or the hospital or sanitarium ...” In resisting Sammons’ claim, the insurance company showed that he had regularly followed the practice of leaving his house and yard for the purpose of taking rides, walking for recreation, and visiting with friends at various places, but that all such activities, were engaged in upon the advice of his physician; that, from November 11, 1950 to December 30, 1950 he worked and earned $180.00 compensation, but that the work which he did was done upon the advice of his physician. After citing many of our leading eases, we held that Sammons, had not violated the confinement clause of the policy:-
“In giving a ‘liberal’ construction to a house confinement clause in a policy, the Arkansas Court is following the majority view of the Courts in the United. States. Some states give ‘literal’ construction but the great majority of cases have expressly or impliedly rejected the ‘literal’ construction doctrine and have adopted a ‘liberal’ view similar to that of the Arkansas Court. These cases are collected in an annotated form in 29 A.L.R. 2d 1408, in which cases from twenty-seven states are cited following the ‘liberal’ construction view.”
We have previously quoted a portion of Dr. Semines’ testimony as to the fact that certain exercise was of a therapeutic value. Dr. Semines further testified as to his advice to Rowell:
“I thought he ought to keep himself active and get fresh air and a certain amount of exercise and occupy himself as far as he could without running any risks, and to follow the medical indications for hardening of the arteries. ’ ’
Dr. Ceorge Talbot was Mr. Rowell’s local physician in Pine Bluff and, along with Mr. Rowell, made monthly reports to Mutual, which original reports are in the record before- us and are quite enlightening. Mutual knew all along that Mr. Rowell was going to Dr. Talbot’s office and following his instructions. Dr. Talbot testified :
‘ ‘ Q. Did you recommend that Mr. Rowell take exercise and walk from time to time?
A. I did, to be out of his house and move around.
Q. It is therapeutically beneficial to him to get exercise and sunshine?
A. There was no reason to limit him physically, there was no reason to confine him to the house, naturally he would be better off to be out and around.
Q. As Dr. Semmes advised Mm to get exercise you would go along with that?
A. I did.
Q. If lie told him to take occasional trips in a car you would go along with that, it is on the records you sent into Mutual of Omaha, didn’t you?
A. I did.”
Without reciting all of the evidence as to Mr. Eowell’s activities, it is sufficient to say that, under our holding in Occidental Life Ins. Co. v. Sammons, supra, a question was made for the jury as to whether Mr. Eowell was “confined continuously indoors” within the policy coverage. The appellant cites, and strongly relies on our case of Michigan Life Ins. Co. v. Hayes, 231 Ark. 614, 332 S. W. 2d 593, and claims that the Hayes case in effect overrules or materially limits the Sammons case. In the Hayes case the confinement clause was practically the same as in the Sammons case; but the activities of Dr. Hayes were of such a vast and continuous nature that we held that, even on a physician’s advice and prescription, we could not say that a totally disabled person could engage in all of those activities and still claim to be within the language of the confinement clause. We said that the Sammons case went as far in the “liberal construction” as we cared to go, and that the activities in the Hayes case went beyond the pale of activities allowed by the Sammons case. Here is our language:
“To state our position, we simply say that this; Court is unwilling to further extend or further liberalize the interpretation given the confinement clause in theSammons case, i.e., that case represents the ultimate peak of liberal construction which we have approved—or will, approve in future cases. Of course, appellee asserts that this case calls for no more liberal construction than theSammons case. As stated, we disagree with this assertion; but if it be correct — then we are modifying our previous interpretation.”
In the case at bar, the activities of Mr. Eowell, under the advice and direction of his physicians, were not nearly as extensive as those sanctioned in the Sammons, case, so we hold, here, that a question was made for the jury under the Sammons case, and that the activities. here are not to the extent of those in the Hayes case. There was ample evidence to sustain the jury’s verdict.
III. Mutual’s Objections To Instruction No. 4. In Topic II, supra, we copied Instruction No. 4, and noted that Mutual objected specifically to said instruction. We now discuss the point. Mutual claimed that certain expressions in the instruction were indefinite and therefore the entire instruction should have been refused. The appellant seeks a reversal because of its specific objections; but the answer is clear: the Instruction No. 4 was not inherently erroneous; and if the appellant considered the Instruction No. 4 to be “indefinite” in the particulars mentioned, the burden was on the appellant to offer an instruction which eliminated the so-called indefinite words, or to offer instructions which defined the words or expressions which appellant considered to be indefinite. McGee v. Smitherman, 69 Ark. 632, 65 S. W. 461; Western Coal Co. v. Jones, 75 Ark. 76, 87 S. W. 440; and Queen of Ark. Co. v. Malone, 111 Ark. 229, 163 S. W. 771. Appellant offered no instructions to define the expressions claimed to be indefinite.
CONCLUSION
The judgment of the Circuit Court is in all things affirmed; and the sum of $2,000.00 is awarded the appellee as additional attorneys’ fee for services in this Court.
Harris, C. J., not participating.
In addition, the Trial Court further instructed, as regards mental infirmity, in Instructions 5 and 8, as follows:
“5. The Court further instructs you that as to the defense of mental infirmity the burden is upon the defendant to prove by a preponderance of the evidence that Hendrix Rowell was suffering from mental infirmity . . .
“8. The Court instructs the jury that the term ‘mental infirmity’ as used in the policies sued on in this case, means a mental weakness. If you find from a preponderance of the evidence in this case that the plaintiff’s disability or inability to practice his profession is due to ‘mental infirmity,’ then the Court instructs you that your verdict shall be for the defendant.”
Mutual objected specifically to this Instruction No. 4; and those objections will be discussed in Topic III, infra.
Here are Mutual’s said objections:
“To which action of the Court in giving to the jury plaintiff’s written requested Instruction No. 4, the defendant at the time objected specifically in line three the use of the words ‘reasonable amount of exercise’ are indefinite. ‘Reasonable amount of exercise’ might mean going to a gymnasium and exercising as long as he didn’t play handball or something like that. Line six directs, it says, ‘further advised him to take automobile trips’: that is indefinite, it leaves up to speculation on the part of the jury as to what kind of trip and how far he might go; he might take an automobile trip to California and back. The next line, ‘transacted a limited amount of personal business,’ I object to that on the ground that if he is totally disabled he couldn’t transact any personal business. Then on the question of ‘moderate amount of exercise’ again as used in the tenth line, I object to that on the ground that it is indefinite and doesn’t give the jury any basis upon which to determine the facts. I object to it specifically on the ground that the doctor or any doctor does not have any right to rewrite the insurance contract.” | [
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PER CURIAM.
| iPetitioner Arkansas Judicial Discipline and Disability Commission (the Commission) has filed with this court its final decision, findings, and recommendations, pursuant to Arkansas Judicial Discipline and Disability Commission Rule 12(A) (2009), in which it recommends that this court remove respondent L.T. Simes from the office of Circuit Judge of the First Judicial District, Division 1, of the State of Arkansas. The Commission found that Judge Simes violated Canons 2, 4E, and 4G of the Arkansas Code of Judicial Conduct and further found that the violations were willful and prejudicial to the administration of justice pursuant to Arkansas Code Annotated § 16-10-410(b)(4)-(5) (Supp.2001). Because the Commission failed to file the “entire record” and because the Commission’s brief is |2deficient, we remand this matter to the Commission to supplement the record, and we order rebriefing.
Rule 12(E) of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission specifically directs this court to “file a written opinion and judgment directing such disciplinary action as it finds just and proper,” “[bjased upon a review of the entire record,” Ark. Jud. Disc. & Disab. Comm’n R. 12(E) (2009) (emphasis added). However, the Commission, in this case, has filed a record, which merely contains the following: (1) its letter regarding the final report of the Commission following the disciplinary hearing; (2) the transcript of the Commission’s final hearing; (8) the Commission’s final decision, findings, and recommendations; (4) the three-member panel’s report and recommendations; (5) the transcripts of the two-day disciplinary hearings before the three-member panel; and (6) the exhibits that were introduced at the disciplinary hearing by both the Commission and Judge Simes.
The 2006 Procedures clearly set forth that there should exist in this case, at a minimum, an initial complaint, notice, a sworn complaint or statement of allegations, notice of the sworn complaint or statement of allegations, the judge’s answer or his recorded personal statement in ■ lieu thereof, any amendments to the statement of allegations, the transcript of the probable cause hearing, the findings and report of the probable cause hearing, any formal statement of charges, and any documentation relied on for probable Rcause, all of which should be included in an “entire record.” But in addition, Judge Simes raised due-process concerns before the Commission and before this court. Therefore, the “entire record” should also include any and all complaints received by the Commission, at any time, with regard to Judge Simes and his involvement in the Chandler Estate. To be clear, the Commission’s “entire record” shall include any and all pleadings, documents, or evidence required by the 2006 Procedures to be filed and/or relevant to the essential issues to be considered by this court. We, therefore, order the Commission to file the “entire record” no later than July 27, 2009, and direct the Commission to certify to this court that it has filed the “entire record.”
It is further evident to this court that the Commission’s brief is deficient. Rule 12(C) of the Procedures requires that simultaneous briefs be filed by the parties “in accordance with court rules.” Ark. Jud. Disc. & Disab. R. 12(C). In Judicial Discipline & Disability Commission v. Simes, 2009 Ark. 296, 308 S.W.3d 613 (per curiam), this court deemed the Commission the petitioner in this matter. Therefore, as the petitioner, the Commission was charged with the duty of providing this court with an abstract and an addendum in accordance with our rules.
14While the Commission did abstract the two days of the disciplinary hearing, it failed to include in its table of contents “references to the abstract listing the name of each witness with the page number at which the testimony begins.” Ark. Sup.Ct. R. 4-2(a)(l) (2009). More importantly, however, the Commission failed to provide any addendum as it was required to do. Accordingly, we order the matter rebriefed. The parties shall submit simultaneous substituted briefs no later than August 17, 2009, and simultaneous reply briefs no later than August 31, 2009. The Commission’s substituted brief should contain a complete addendum, in accordance with Ark. Sup.Ct. R. 4 — 2(a)(8), based upon the “entire record.”
Remanded to supplement the record; rebriefing ordered.
Special Justice RON SHEFFIELD joins.
DANIELSON, J., dissents.
WILLS, J., not participating.
. This list is by no means exhaustive.
. The testimony and evidence contained in the instant record make reference to the fact that the Commission may have been investigating Judge Simes's involvement in the Chandler Estate as early as 2004 and 2005. Judge Simes claims, and the instant record reflects, that the first notice he received regarding the Commission’s investigation into this matter was in 2006.
. Judge Simes did provide this court with an addendum; however, that was not his responsibility under our rules. | [
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MOTION FOR RULE ON CLERK
PER CURIAM.
| j Appellant Stephen Jackson, by and through his attorney James L. Tripcony, has filed a motion for rule on clerk to file his record and have his appeal docketed. The record was tendered by Mr. Jackson on May 29, 2009. However, he was notified by the Arkansas Supreme Court Clerk that the order granting an extension of time did not comply with the language of Arkansas Rule of Appellate Procedure— Civil 5(b)(1)(C), which provides:
(1) If any party has designated steno-graphically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing.
While we note that the appellee, Ms. Jackson, has filed a response to Mr. Jackson’s ^motion, stating that she has no objection to his request to lodge the record, we decline to grant Mr. Jackson’s request. This court has held that we expect strict compliance with the requirements of Rule 5(b) and that we do not view the granting of an extension as a mere formality. Wyre v. Wyre, 2009 Ark. 245, 307 S.W.3d 30 (per curiam). Where an order fails to comply with Rule 5(b), we may remand the matter to the circuit court for compliance with the rule. Id.
Upon a remand for compliance with Rule 5(b)(1), the circuit court shall determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. Id. The circuit court should not permit the parties the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Id. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court. Id. Because the order of extension in this case makes no reference as to whether “all parties have had the opportunity to be heard on the motion,” and because there must be strict compliance with the rule, we remand the matter to the circuit court for compliance with Rule 5(b)(1)(C).
Motion for rule on clerk remanded.
GUNTER, J., dissents. | [
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COURTNEY HUDSON HENRY, Judge.
|,A jury in Boone County found appellant Tommy Henson guilty of two counts of rape and one count of kidnapping as a class Y felony. As a consequence, the trial court imposed cumulative sentences totaling seventeen years in prison. For reversal, appellant argues that the evidence is not sufficient to support his convictions for rape, his conviction for kidnapping, or his conviction of kidnapping as a class Y offense. Substantial evidence supports appellant’s convictions. Therefore, we affirm.
The record reflects that appellant and C. Behayza, the victim, lived with one another at various times over the course of a ten-year period. During this time, Behayza gave birth |?to four children who were fathered by appellant. Behayza ended the relationship against appellant’s wishes in January 2007. Appellant and Behayza maintained contact, primarily because appellant kept the children while Behayza was at work. Sometimes, appellant, Be-hayza, and the children did things together on the weekends.
Behayza testified that she did not have consensual sexual relations with appellant after he moved out of her home. In her testimony, she described two incidents in which appellant had sexual intercourse with her following their separation. She testified that the first incident transpired at her home in April 2007. After inspecting her phone bill, appellant formed the belief that Behayza was seeing another man, and an argument ensued. Behayza said that, in the presence of the children, appellant pushed her down the hallway, picked her up, and carried her into her bedroom. With the children screaming in the hallway, appellant locked the bedroom door and removed his clothing. Behayza testified that she tried to get away but that appellant pushed her down, took off her shorts, and engaged in sexual intercourse with her. Behayza said that, the entire time appellant was on top of her, she was kicking, pushing, and telling him that he should not be doing this. At some point, the children came into the bedroom after one child picked the lock on the door. Behayza urged one of the children to go next door to call the police. However, appellant, while naked, chased the children out of the room and told them that they would get in trouble if they called for help.
|sBehayza further testified that, on July 26, 2007, appellant asked her for assistance in taking one of his vehicles to be repaired. She said that appellant became angry while they were driving in her vehicle because he thought that she had an alcoholic beverage in a cooler, which signified to him that she was dating another man. When they exited the vehicle, she locked it so appellant could not look inside the cooler, and appellant retrieved a tire iron from his truck and tried to pry open the back door of her vehicle. When that effort proved unsuccessful, appellant pulled his truck behind Behayza’s vehicle. Appellant’s anger escalated after Behayza told him to leave, and he began poking her in the chest with a hammer. Appellant then asked to go inside the house to get a drink of water. Behayza refused to let him in the house, but appellant snatched her purse and used the keys to gain entry. Once inside the home, appellant discovered that Behayza was preparing to move, and when he came back outside, he demanded the return of some furniture that he claimed belonged to him.
Behayza testified that appellant tossed her keys to her. When she moved toward her vehicle, appellant rushed at her. Be-hayza locked herself inside her vehicle and tried to leave the premises but could not do so because appellant’s car and a basketball goal blocked her path. Appellant slashed a tire on Behayza’s vehicle with his pocket knife, and he tried to break a car window with the tire iron. Behayza slightly rolled down her window, and appellant reached inside the vehicle and unlocked the door. He then grabbed her shirt and Lrousted her out of the vehicle. Behayza said that appellant dragged her by the arm through the garage and into the kitchen. Because she was crying, Behayza used the pretense of retrieving a tissue, but she instead ran out of the house. Appellant caught her on the front porch, and although Behayza was holding onto a support beam, he jerked her away and forced her back inside the house into the kitchen, down the hallway, and into the bedroom. Behayza said that she tried to hold onto the door frames as he dragged her through the house but that appellant pried her loose from them. Once inside the bedroom, appellant took off his clothes, removed Behayza’s clothes, and had sex with her. Behayza testified that she was hitting him and telling him to stop. The doorbell rang just after appellant completed the act. Behayza said that she grabbed her pants and shirt and “just took off.” She said that appellant grabbed her arm and told her not to answer the door but that she “got loose” because he could not hold onto her and get dressed at the same time.
Behayza discovered a police officer at the door, and the officer placed appellant under arrest. Charles Christopher, Be-hayza’s neighbor, had summoned the police. Christopher had heard appellant and Behayza arguing in the front yard, and he witnessed appellant trying to break the car window with a tire iron. He also saw appellant drag Behayza into the house. Christopher testified that Behayza looked frightened and was screaming for appellant to stop. During the investigation, officers found a button from Behayza’s shirt near her vehicle and another button from her shirt in the bedroom. Semen collected from a rape kit | ¡¡matched appellant’s DNA. The officers also removed a pocket knife from appellant’s person upon his arrest.
Shane Reese, a detective with the Harrison Police Department, interviewed appellant. During the interview, appellant and Reese mainly discussed the July 26 incident. Appellant related that he knew that Behayza did not want to have sex with him. He said that he “messed up” and knew that it was wrong. Appellant stated that Behayza “just laid there,” and he did not recall her telling him to stop or her hitting him. He said that he did not know why he forced her to have sex or why he did not stop, except to say that he hoped that forcing her to have sex might rekindle their relationship. Appellant further acknowledged that the day he had sexual relations with Behayza in April involved the “same stuff’ that occurred on July 26.
In this appeal, appellant challenges the sufficiency of the evidence with regard to his convictions for both rape and kidnapping. Although we will address appellant’s arguments separately, the standard of review for each is the same. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004). Substantial evidence is evidence forceful enough to reach a conclusion one way or the other beyond suspicion or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most | ^favorable to the State, and only evidence supporting the verdict will be considered. Moore, supra.
We first consider appellant’s argument concerning his convictions for rape. As pertinent here, a person commits rape if he engages in sexual intercourse with another person by forcible compulsion. Ark.Code Ann. § 5-14-103(a)(1) (Supp.2006). “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.2006). The supreme court has defined the term “physical force” as any bodily impact, restraint or confinement, or the threat thereof. Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006). The test we use to determine if there was physical force is whether the act was against the will of the party upon whom the act was committed. Goodman v. State, 2009 Ark.App. 262, 306 S.W.3d 443.
Appellant argues that the evidence is not sufficient to support his convictions for rape because the State failed to prove the element of forcible compulsion. He maintains that the evidence is insufficient because he used no threats nor employed physical force when he had sexual intercourse with Behayza. We hold that substantial evidence supports appellant’s convictions. The existence of forcible compulsion does not depend on the quantum of force that is applied, but rather on whether the act is consummated against the victim’s will. Johnson v. State, 80 Ark.App. 79, 94 S.W.3d 344 (2002). Furthermore, this 17court has continually held that a rape victim’s testimony alone constitutes substantial evidence to support a rape conviction. Ellis, supra. Here, Behayza testified that she did not consent to have sexual relations with appellant on either occasion, that she told him no, and that she hit him during both ordeals. Her testimony indicates that the acts occurred against her will. Therefore, substantial evidence exists to sustain the convictions for rape.
We next consider appellant’s argument concerning his conviction for kidnapping. A person commits this offense if, without consent, the person restrains another person so as to interfere substantial ly with the other person’s liberty for the purpose of engaging in sexual intercourse. Ark.Code Ann. § 5-ll-102(a)(5) (Repl. 2006). Kidnapping is a class Y felony. Ark.Code Ann. § 5 — 11—102(b)(1). However, it is a class B felony if the defendant shows by a preponderance of the evidence that he voluntarily released the person restrained alive and in a safe place prior to trial. Ark.Code Ann. § 5-ll-102(b)(2).
“Restraint -without consent” is defined as restraint by physical force, threat, or deception. Ark.Code Ann. § 5-11-101(3) (Supp.2007). In Arkansas, it is only when the restraint exceeds that normally incidental to the crime that the rapist should also be subject to prosecution for kidnapping. See Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988).
Appellant asserts that he did not kidnap Behayza during the July 26 incident because he used only the restraint necessary to compel her to have sexual intercourse. We are not persuaded by appellant’s argument. The record discloses that appellant disabled Behayza’s |svehicle, hoisted her out of the vehicle, and dragged her into the house. She attempted to escape by running outside, but appellant thwarted that attempt and forcibly pulled her back inside the house. While being dragged to the bedroom, Behayza tried to hang onto door frames, but appellant overcame those efforts as well. In light of these facts, substantial evidence supports the jury’s determination that the restraint employed by appellant was not merely incidental to the rape.
Appellant’s final argument is that substantial evidence does not support his guilt of kidnapping as a class Y offense. He argues that he released Behayza alive and in a safe place, and thus was guilty of kidnapping as a class B felony. We also reject this argument because the evidence does not show that appellant “voluntarily released” Behayza as contemplated by section 5-ll-102(b)(2). On the contrary, the evidence shows that Behayza effectuated her own release by escaping from appellant’s grasp. Appellant attempted to prevent Behayza from leaving the room, but he could not maintain his grip on her while simultaneously putting on his clothes. Under these circumstances, substantial evidence supports the jury’s conclusion that appellant did not release Behayza and is thus guilty of kidnapping as a class Y felony. See Wells v. State, 303 Ark. 471, 798 S.W.2d 61 (1990) (holding that a kidnapping victim who escaped was not released in a safe place).
Affirmed.
PITTMAN and MARSHALL, JJ., agree.
. The prosecuting attorney also charged appellant with another count of rape and an additional kidnapping charge, but die jury acquitted appellant of those offenses. | [
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RITA W. GRUBER, Judge.
1 Appellant Arkansas Commission on Law Enforcement Standards and Training appeals the order of the Jefferson County Circuit Court reversing the Commission’s order revoking the certification of appellee, Arlanders Davis. On appeal, the Commission contends that its decision is supported by substantial evidence and therefore that the circuit court erred in reversing it. We agree with the Commission, and therefore we reverse the circuit court’s order and reinstate the Commission’s order.
This appeal arises out of an order of the Commission dated November 14, 2006, revoking the certification of Arlanders Davis pursuant to the Commission’s Regulation 1010(3)(a)(iv), which provides that the Commission may revoke the certification of any law enforcement officer if he “resigned while he was the subject of a pending internal [investigation.” Testimony at the Commission hearing indicated that Mr. Davis began working as a state police officer on June 20, 1977. At 10:00 a.m. on February 8, 2006, Mr. Davis was ordered by his employer to submit to a random drug test. The results of the test were positive for cocaine in an amount equal to five times the federal cut-off limit for exposure by passive inhalation.
State’s Exhibit One at the Commission hearing included an investigative summary prepared by Sergeant C.A. Beall of the state police internal affairs unit. The summary indicated that on February 10, 2006, Lieutenant Mullins and Sergeant Beall conducted a tape-recorded interview of Mr. Davis. Mr. Davis said that he did not know why he tested positive for cocaine and that he had never used cocaine, but he suggested that some of the medication he was taking might have caused the positive test result. He also mentioned that he had been to a Super Bowl party recently but that he did not know of anyone at the party who was using cocaine.
The next day, February 11, 2006, Mr. Davis called Sergeant Beall at home and told him that he knew where he had been exposed to cocaine. He told Sergeant Beall that on February 7, 2006, he had been riding in his car with a friend, Percy Wilson, and that Mr. Wilson had been smoking homemade cigarettes containing crack cocaine. Mr. Davis said that, at the time he was in the car with Mr. Wilson, Mr. Davis did not know the cigarettes contained cocaine.
|3On February 13, 2006, Mr. Davis provided Sergeant Beall with results from a drug screen taken by Mr. Davis on February 9, 2006, showing a negative result for cocaine. Sergeant Beall showed the negative drug screen to the state police medical review officer, Dr. J.R. Baber, who said that the test, taken twenty-four hours after the initial random drug screen, was “a non factor because of the rapid manner in which cocaine leaves your system.” After reviewing the prescription medications being taken by Mr. Davis, Dr. Baber also concluded that none of the medications would trigger a positive test result for cocaine. Finally, Dr. Baber stated that Mr. Davis would not have reached the cutoff levels for cocaine, which Mr. Davis exceeded, by merely inhaling crack cocaine fumes or vapors second hand.
In a memo to state police headquarters’ staff dated March 6, 2006, Lieutenant Mullins recommended that Mr. Davis be terminated. On March 10, 2006, a disciplinary review board, convened at state police headquarters to review the internal affairs complaint against Mr. Davis, recommended that Mr. Davis be terminated. No action was taken.
On March 31, 2006, Mr. Davis provided two letters to Major Tim K’Nuckles of the Arkansas State Police. In the first letter, Mr. Davis stated in relevant part:
Please accept this letter as my formal notification to the Arkansas State Police of my decision to resign from and take early retirement with the Arkansas State Police, conditioned upon the agreed terms arrived at between your office and my attorney, Bryan A. Ac-horn, which are outlined by Mr. Achorn in his letter to you on today’s date. Assuming that the agreed terms are outlined correctly, it is my intention that this resignation be effective | immediately.
Mr. Davis testified that Major K’Nuckles called Mr. Achorn’s assistant and advised him that the letter was not acceptable and that it needed to state simply that Mr. Davis was retiring. Therefore, Mr. Davis stated that he sent the second letter to Major K’Nuckles, which provided as follows: “The purpose of this letter is to inform you that, effective 5:00 o’clock p.m. on the date of this letter, I am retiring from the Arkansas State Police. Incident to my retirement, I request to be awarded my service revolver.”
On October 12, 2006, the Commission held a decertification hearing for Mr. Davis. The Commission issued an order on November 14, 2006, revoking Mr. Davis’s certification pursuant to its Regulation 1010(3)(a)(iv), finding that Mr. Davis had submitted his resignation from the Arkansas State Police while an internal affairs investigation was pending.
After reviewing briefs and hearing oral arguments on appeal, the Jefferson County Circuit Court vacated the Commission’s revocation and directed the immediate reinstatement of Mr. Davis’s certification. The circuit court found that the record lacked relevant evidence that a reasonable mind might accept to support the conclusion that Mr. Davis resigned from the state police. The court found that the proof was “so nearly undisputed that fair-minded persons could not reach the conclusion that Davis resigned, as opposed to retired.” The Commission brings this appeal from the circuit court’s order.
lfiOur review in this case is directed not to the circuit court’s decision, but to the decision of the Commission. Ark. Hearing Instrument Dispenser Bd. v. Vance, 359 Ark. 325, 327, 197 S.W.3d 495, 497 (2004). Administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Ark. State Police Comm’n v. Smith, 338 Ark. 354, 357, 994 S.W.2d 456, 458 (1999). We will uphold the agency’s decision if it is supported by substantial evidence and it is not arbitrary, capricious, or characterized by an abuse of discretion. Id. We give the most probative weight to the evidence in favor of the agency’s determination and look to the entire record in making this determination. Vance, 359 Ark. at 327, 197 S.W.3d at 497. Substantial evidence means valid, legal, and persuasive evidence such that a reasonable person might accept it as adequate to support the conclusion. Id. When an agency’s determination is supported by substantial evidence, the decision cannot be arbitrary or unreasonable. Id.
The Commission contends on appeal that substantial evidence supports its decision to revoke Mr. Davis’s certification pursuant to Regulation 1010(3)(a)(iv), which provides that the Commission may revoke the certification of any law enforcement officer if he “resigned while he was the subject of a pending internal investigation.” The questions before us are whether there is substantial evidence that Mr. Davis was “the subject of a pending internal investigation” and, if so, whether he “resigned” during the investigation.
| (¡There appears to be no argument that Mr. Davis was the subject of a pending internal investigation. He submitted to a random drug test, the results of which were positive for cocaine. The internal affairs division of the state police initiated an investigation of the matter. A disciplinary review board recommended that Mr. Davis be terminated. Before any action was taken in the matter, Mr. Davis sent a letter to the state police ending his employment. We hold that substantial evidence supports a finding that, at the time Mr. Davis sent his letter, he was the subject of a pending internal investigation.
The parties dispute whether Mr. Davis resigned or retired. The Commission determined that Mr. Davis resigned within the meaning of Regulation 1010(3)(a)(iv). In reviewing the Commission’s decision, the question is not whether the evidence would have supported a contrary finding, but whether it supports the finding that was made. Ark. Bd. of Examiners in Counseling v. Carlson, 334 Ark. 614, 618, 976 S.W.2d 934, 936 (1998). Further, it is the prerogative of the Commission to believe or disbelieve any witness and to decide what weight to accord the evidence. Id. Particularly in light of an agency’s specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting its agency, we will not substitute our judgment and discretion for that of an administrative agency. See id.
Mr. Davis testified that he was asked by someone at the state police to replace his first letter, informing the state police of his decision “to resign from and take early | .¡retirement with the Arkansas State Police,” with another letter stating simply, “I am retiring from the Arkansas State Police.” First, the Commission could have found Mr. Davis’s first letter to be a more accurate and credible statement of his actions — -that is, he was resigning from the state police and taking early retirement. This clearly supports the Commission’s determination that Mr. Davis “resigned while he was the subject of a pending internal investigation.”
However, regardless of which letter the Commission ultimately determined was intended by Mr. Davis to terminate his employment, substantial evidence supports its finding that Mr. Davis resigned within the meaning of Regulation 1010(3)(a)(iv). Both letters indicated in the reference line that they were letters of resignation. “Resignation” means “a formal notification of relinquishing an office or position.” Black’s Law Dictionary 1311 (7th ed.1999). This is exactly what Mr. Davis’s letter accomplished. “Retirement” is defined as “[voluntary termination of one’s own employment or career, esp. upon reaching a certain age.” Id. at 1317. In both letters, Mr. Davis was relinquishing his position with the state police. Mr. Davis has not contended that he terminated his employment because he had reached a certain age. While he had acquired enough years of service to qualify for retirement benefits upon his resignation (as his reference line designated in both letters), he terminated his employment due to the internal-affairs investigation.
|sThe Commission interpreted its own regulation’s language as encompassing Mr. Davis’s action, whether he denominated his termination as resignation or retirement. Administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Ark. State Police Comm’n v. Smith, 338 Ark. 354, 357, 994 S.W.2d 456, 458 (1999). We hold that substantial evidence supports the Commission’s decision. Accordingly, we affirm the Commission’s decision and reverse the circuit court’s order.
Circuit Court reversed; Commission affirmed.
GLADWIN and GLOVER, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge.
11Appellant Armstrong Remodeling and Construction, LLC (ARC), appeals from a judgment on a Crawford County jury’s verdict in favor of appellee Martin Cardenas in the sum of $22,018.50. On appeal, ARC argues that the circuit court erred in (1) denying ARC’s motion for a directed verdict, (2) denying ARC’S motion in li-mine and allowing Cardenas to testify about the terms of the parties’ agreement, and (8) refusing to give any of ARC’s five proffered instructions. Eric Armstrong and Gary Armstrong, the members of ARC, were also sued individually, but were awarded summary judgment prior to trial. They appeal from the circuit court’s denial of their motion for attorney’s fees. We affirm.
Background
Cardenas’s house was damaged, if not destroyed, by fire in July 2009. He hired ARC hto rebuild his home with modifications of an extra bedroom and bathroom for $118,889.66. Cardenas moved back into the house before it was finished but after the city inspector had approved it. He then changed the locks on the house so that ARC could not enter to complete the work.
On April' 20, 2010, Cardenas filed suit against Eric Armstrong and Gary Armstrong, individually. Eric and Gary filed separate answers to the complaint, each denying the material allegations. Cardenas later amended his complaint to add ARC, contending that the cost agreed on was $5,000 for demolition and $55,000 to rebuild. Cardenas also alleged that ARC failed to complete the repairs and negligently failed to comply with the oral contract. He also alleged poor workmanship and sought $62,669 for repairs and $100,000 punitive damages. Each defendant filed a separate answer to the amended complaint, denying the material allegations.
In January 2011, the Armstrongs filed separate motions for summary judgment stating that the agreement was between Cardenas and ARC. On June 14, 2011, the circuit court granted the Armstrongs’ separate motions and dismissed them from the lawsuit.
On June 14, 2011, ARC filed a motion in limine to prevent Cardenas from testifying as to his understanding of the terms of the contract or items that Cardenas contended were defective or not finished prior to his signing a statement of completion in September 2009. |sThe circuit court denied the motion, explaining that Cardenas could testify about the negotiations.
The case proceeded to a two-day trial before a jury. ARC moved for a directed verdict at the close of Cardenas’s case on the basis that there was no evidence to support a negligence claim. The circuit court granted the motion as to the negligence claim. At the close of all of the proof, ARC moved for a directed verdict on the basis that it had substantially performed the agreement and that Cardenas had prevented it from completing its work. The court denied the motion. The court also refused all five of ARC’S requested instructions. The jury returned a verdict that awarded Cardenas damages in the amount of $22,018.50. Judgment was entered for Cardenas on June 29, 2011.
On June 27, 2011, the Armstrongs filed separate motions under Ark. Code Ann. § 16-22-808, requesting the attorney’s fees they incurred defending the suit up to the period when they were dismissed. On July 1, 2011, Cardenas filed his own motion for attorney’s fees under Ark-Code Ann. § 16-22-808. On July 6, ARC filed a motion for judgment notwithstanding the verdict or new trial. On August 2, the circuit court entered three separate orders that denied the Armstrongs’ separate motions for attorney’s fees and ARC’S motion for judgment notwithstanding the verdict or new trial. The court awarded Cardenas attorney’s fees of $9,076 on August 3. This timely appeal followed.
| ¿Sufficiency of the Evidence
ARC first challenges the sufficiency of the evidence to support the jury’s verdict. Specifically, ARC argues that, because Cardenas admitted to barring ARC from completing its work, the jury failed to follow the circuit court’s instructions that directed the jury to find for ARC if it determined that Cardenas had hindered or prevented ARC from performing its obligations under the parties’ agreement.
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Advanced Envtl. Recycling Techs. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. It is not this court’s place to try issues of fact; rather, this court simply reviews the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
According to Cardenas, he moved into the unfinished house on November 21, 2009, shortly after the final inspection by the building inspector. He said that he met with Eric Armstrong on December 16, 2009, to discuss the problems with the house. During that meeting, they discussed the fact that Cardenas had changed the locks to the house and padlocked the gate. Cardenas said that he had done so because he had some tools missing when he was at work and ARC’S crew was at the house.
lfiEric Armstrong agreed that Cardenas had moved in before the work was completed. He also said that he had tried two or three times to finish the work, but Cardenas had prevented this by changing the locks. Armstrong said that he told Cardenas during the December 16 meeting that he would send a crew out the next day to complete the work. He said that Cardenas told him not to complete the work because Cardenas would finish the work himself. Armstrong said that he only tried one more time to contact Cardenas to complete the work after that meet- mg. Armstrong stated that he went to Cardenas’s home on December 30 to ask to be allowed to complete the work; again, Cardenas told him not to do so. He added that, although he stood ready to complete the work up until the time suit was filed, he never tried to contact Cardenas again.
A former ARC employee, Elmer Smith, testified that he was the person responsible for doing the finishing detail work on the house, but that he could not do so because the gate to Cardenas’s house was locked. Smith said that he accompanied Eric Armstrong to Cardenas’s home on December 30. He said that Cardenas told them that they did not have to complete the remaining work. On rebuttal, Cardenas denied telling Eric Armstrong or Smith not to finish their work.
ARC cites this court to a quotation from the supreme court’s decision in Harris v. Holder, 217 Ark. 434, 230 S.W.2d 645 (1950):
It is elementary that there is no breach of a contract where performance is prevented, or rendered impossible, by the conduct of the other party. It is also generally recognized that a defective performance of a building contract is excused where it is due to the acts of the owner or his representative, unless the contractor has |finot offered a substantial compliance with the contract.
217 Ark. at 439, 230 S.W.2d at 648 (citations omitted). However, the key to the present case is whether ARC offered substantial compliance with the agreement. ARC’s argument ignores the fact that Harris requires it to show both that Cardenas prevented it from further work on the contract and that it had substantially performed its agreement. ARC argues only the first element: that the testimony of Cardenas and Eric Armstrong showed that Cardenas changed the locks and would not allow ARC to continue its work entitles it to a judgment in its favor as a matter of law. ARC does not address the second element of whether there was sufficient evidence that it had substantially complied. The issue of substantial performance is a question of fact. Roberts Contracting Co. v. Valentine-Wooten Rd. Pub. Facility Bd., 2009 Ark. App. 437, 320 S.W.3d 1; Cox v. Bishop, 28 Ark.App. 210, 772 S.W.2d 358 (1989).
Here, the jury was presented with ample evidence of ARC’s noncompliance. Cardenas introduced a list of items from the invoice that ARC either had not completed or had completed improperly. There was also testimony and a report from Cardenas’s expert, contractor Roger Ross, about the'things that remained to be completed. Ross testified that ARC completed only one-third of the roof repairs. He also noted that ARC used vinyl siding to replace the aluminum siding damaged in the fire, but charged for aluminum siding. Ross estimated the cost of repairs at $22,018.50. Eric Armstrong did not dispute Ross’s testimony, but instead argued that he was prevented from completing the work.
Thus, the jury was presented with evidence of ARC’s alleged noncompliance and was |7entitled to determine whether ARC had substantially complied under the contract. Moreover, ARC alleged it was prevented from completing performance, which Cardenas denied. The resolution of this conflicting testimony was for the jury. ConAgra Foods, Inc. v. Draper, 372 Ark. 361, 276 S.W.3d 244 (2008). Therefore, we cannot say that the circuit court erred in denying the motion for directed verdict.
Denial of Motion In Limine
For its next point, ARC argues that the circuit court erred in denying its motion in limine seeking to exclude parol evidence concerning the terms of the parties’ agreement.
When a motion in limine is made, the proponent of the evidence has the burden of showing that the evidence is admissible. Benson v. Shuler Drilling Co., Inc., 316 Ark. 101, 871 S.W.2d 552 (1994). On review, we will not reverse a circuit court’s ruling allowing or disallowing evidence on the basis of the parol-evidence rule absent an abuse of discretion. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). The parol-evidence rule is a rule of substantive law in which all antecedent proposals and negotiations are merged into the written contract and cannot be added to or varied by parol evidence. Hagans v. Haines, 64 Ark.App. 158, 984 S.W.2d 41 (1998). The parol-evidence rule applies only to written documents that the parties intended as a final and complete expression of their agreement. See Rainey v. Travis, 312 Ark. 460, 850 S.W.2d 839 (1993); Farmers Co-op. Ass’n, Inc. v. Garrison, 248 Ark. 948, 454 S.W.2d 644 (1970).
Here, the document at issue does not contain a merger clause — an indication that the | ^parties did not intend for the invoices to be their complete agreement. Eric Armstrong testified that his practice was not to have formal contracts, but rather to have an estimate or an invoice. He also said that Cardenas changed several items on the invoices, but that he did not get any written change orders. Armstrong admitted that he told Cardenas that it would cost $5,000 for the demolition and $55,000 for the construction of a new house. He then went on to say that that price was for an 800 square foot house, while there was a different price for a different house. This testimony indicates that there was some ambiguity as to what the parties’ agreement encompassed. Par-ol evidence is admissible if there is an ambiguity. Garrison, supra. The circuit court, therefore, did not err in denying ARC’S motion to exclude parol evidence.
Jury Instructions Issues
Under this heading, we address ARC’s arguments concerning the circuit court’s refusal to give any of its five requested jury instructions. Those instructions are as follows:
PROFFERED INSTRUCTION NO. 1
Contract Price
You are instructed that the Court finds the original contract price agreed to by the parties was $118,889.66.
PROFFERED INSTRUCTION NO. 2
Contract — Substantial Performance
The Defendant is entitled to payment upon proof of “substantial performance” of the work Defendant contracted to accomplish. It is not necessary that Defendant fully and completely perform every item specified in the plans and specifications which |9are a part of the contract. The term “substantial performance” means that degree of performance of a contract which, while not full and complete performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the Defendant the payment agreed upon, subject, of course, to the Plaintiffs right to recover whatever damages he has suffered by reason of the Defendant’s failure to render full and complete performance.
PROFFERED INSTRUCTION NO. 3
Contract — Excuse from performance
If you find that the Defendant “substantially performed” the construction portion of the work, but also find that the Plaintiff sustained damages by reason of a failure of full and complete performance by the Defendant, you will then consider the issue of whether the Defendant, as it contends, was in fact “prevented” by the Plaintiff from fully and completely performing the work.
On this issue you are instructed that, when two parties enter into a contract, each become obligated under the law to permit the other to perform his part of the bargain without interference; that is, each party must reasonably avoid any action which would effectively hinder, obstruct or prevent the other party from undertaking or completing whatever he agreed to do.
So, in this case, if you find from a preponderance of the evidence that the Defendant (including Defendant’s subcontractors) was ready, willing and able to perform its contractual obligations but the Plaintiff did something which effectively hindered, obstructed and prevented the Defendant from so doing, then the Plaintiff cannot recover damages for that failure because he, himself, became charged under the law with responsibility for it.
PROFFERED INSTRUCTION NO. 4
You are instructed that one is bound under the law to know the contents of a paper signed by him and he cannot excuse himself by saying he did not know what it contained.
PROFFERED INSTRUCTION NO. 5
|inYou are instructed to disregard pri- or or contemporaneous agreements of the parties that would vary the express terms of their agreement.
The circuit court refused each of the instructions with the statement that the instructions it intended to give properly reflected the law and were based on the evidence in the case.
A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). We will not reverse a circuit court’s failure to give an instruction unless the court abused its discretion. See Belz-Burrows, L.P. v. Cameron Constr. Co., 78 Ark.App. 84, 78 S.W.3d 126 (2002). When a model instruction is applicable in a case, it shall be used unless it does not accurately state the law. See, e.g., Taylor v. Riddell, 320 Ark. 394, 896 S.W.2d 891 (1995). Jury instructions are not to be viewed in isolation but are to be considered as a whole to determine whether the circuit court correctly instructed the jury. McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996); Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692 (1996).
ARC first argues that the circuit court erred in failing to give its Proffered Instruction No. 1. That instruction told the jury that “the Court finds the original contract price agreed to by the parties was $118,889.66.” ARC argues that the court’s failure to give this instruction was an abdication of the court’s duty to construe an unambiguous contract between the parties.
ARC argues that the circuit court abused its discretion by not giving its proffered 11 instruction but does not explain how. Instead, its argument appears to be that there was evidence to support the giving of the instruction; the court did not give the instruction; and, therefore, the court erred, requiring reversal. An abuse of discretion is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court acted improvidently, thoughtlessly, or without due consideration. As noted above in the dis cussion of ARC’s point on the parol-evi-dence rule, it was admitted that Cardenas was told that it would cost $5,000 for the demolition and $55,000 for the construction of a new house. Eric Armstrong went on to say that that price was for an 800-square-foot house, while there was a different price for a different house. We find no abuse of discretion in failing to instruct the jury as to the price of an ambiguous agreement.
The circuit court’s failure to give ARC’s Proffered Instruction No. 5, concerning the parol-evidence rule, is the subject of ARC’s next point. For the reasons discussed above in ARC’s second point, the court did not err in refusing to instruct the jury on the rule.
The third argument concerning jury instructions is that the circuit court erred in failing to give ARC’s Proffered Instruction No. 4, stating that a party to a written contract is bound to know the contents of that writing. There is no Arkansas model instruction on this point.
However, the circuit court did not err in failing to give ARC’s proffered instruction because it only states an abstract proposition of law, which should not be given. Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993). ARC argues that there is testimony to support the giving of this instruction. The testimony ARC cites is Cardenas stating that he only signed |12a draft from the insurance company and the statement of satisfaction and completion. He stated nothing about the “contract” at issue in the cited testimony. Usually, this type of instruction is given if the defendant is trying to avoid the obligations of a written document he did not read, not the plaintiff trying to enforce the obligations of a contract. See Stone v. Prescott Special Sch. Dist., 119 Ark. 553, 178 S.W. 399 (1915); Colonial & U.S. Mortg. Co. v. Jeter, 71 Ark. 185, 71 S.W. 945 (1903). Moreover, ARC does not explain how it was prejudiced by the failure to give this proffered instruction. It was required to show that the circuit court abused its discretion by failing to give the requested instruction. S. Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003); Barnes, supra. It has not done so.
ARC next argues that the circuit court erred in failing to give its Proffered Instruction No. 2 concerning substantial performance. ARC proffered an instruction based on a federal pattern instruction. ARC’s argument can be viewed in two ways.
First, if the argument is that the circuit court erred in failing to give ARC’s proffered instruction, there is no error because there is an Arkansas model jury instruction dealing with substantial performance—AMI Civ. 2428. Even where a proffered instruction accurately reflects the case law, the failure to give the instruction is not error when an AMI instruction covering the same subject matter is on point, due to our longstanding preference in favor of AMI instructions over non-AMI instructions. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). It is, therefore, not error to deny a proffered instruction if the subject is covered by the model instructions. Ferrell v. S. Farm Bureau Cas. Ins. Co., 291 Ark. 322, 724 S.W.2d 465 (1987); Wharton v. Bray, 250 Ark. 127, 464 S.W.2d 554 (1971).
On the other hand, if ARC’s argument is that the circuit court failed to give any instruction on substantial performance, the issue is waived because it failed to proffer AMI Civ. 2428 or specifically object to the failure to instruct on this issue. If the court has failed to give an instruction on an issue, Arkansas Rule of Civil Procedure 51 expressly requires both an objection and submission of a proposed instruction. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). In its reply brief, ARC argues that the issue is preserved because it proffered the federal pattern instruction. That is not sufficient because AMI Civ. 2428 is directly on point. ARC did not argue that, if the circuit court did not give ARC’S proffered instruction, the court should have given AMI Civ. 2428 as an alternative.
ARC’S last issue concerning the jury instructions is that the circuit court erred in fading to give its Proffered Instruction No. 3 concerning excuse from performance. This instruction was also based on a federal pattern instruction. Instead, the circuit court instructed the jury using AMI Civ. 2441. As with the previous point, it is not error to refuse to give a non-AMI instruction if there is an AMI instruction on point. Ferrell, supra.
Attorney’s Fees
Finally, we address the arguments Eric and Gary Armstrong make that the circuit court erred in denying their motions for attorney’s fees after they were granted summary judgment on Cardenas’ breach-of-contract claim against them.
Arkansas Code Annotated section 16-22-808 (Repl.1999) gives the circuit court | uauthority to award attorney’s fees in contract actions and provides in pertinent part:
In any civil action to recover on ... breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
The supreme court has indicated that fees under section 16-22-308 are for parties who prevail on the merits of a case. Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001). A successful defendant in a contract action may be considered a “prevailing party” for the purposes of Ark. Code Ann. § 16-22-308. See, e.g., Marcum, supra; Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999); Marsh & McLennan of Ark. v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995). However, we have construed “prevailing party” in terms of the entire case and not in terms of particular issues or actions therein. Perry v. Baptist Health, 368 Ark. 114, 243 S.W.3d 310 (2006). While the Armstrongs were granted summary judgment on the claims against them individually, Cardenas ultimately recovered a judgment against ARC. Therefore, Cardenas was the “prevailing party” in terms of the entire case, and the circuit court did not err in denying the Armstrongs’ motions for attorney’s fees. Marcum, supra.
Affirmed.
GLOVER and HOOFMAN, JJ., agree.
. The document the parties refer to as a "contract” is actually an estimate dated July 21, 2009, which was signed by Cardenas. It was prepared prior to work beginning and lists various items of work or material and the price of those items.
. Although ARC’S notice of appeal mentioned the award of attorney's fees to Cardenas, it has not argued the point on appeal. | [
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LARRY D. VAUGHT, Chief Judge.
Appellants, Farris E. Holliman, Sheila D. Holliman, Corlis D. Holliman, Altis C. Holliman and Leon Holliman, in his individual capacity and as trustee of the Zoe Holliman revocable trust, appeal the Cle-burne County Circuit Court’s order granting the motion to dismiss of appellees Linda S. Johnson, in her individual capacity and as successor trustee of the Zoe Holli-man revocable trust, James E. Johnson, Brent Johnson, and Garry W. Holliman, in his individual capacity and as trustee of the Zoe Holliman revocable trust, pursuant to Arkansas Rule of Civil Procedure 12(b)(4) and (5). Appellants argue that the trial court erred as a matter of law in finding that appellees preserved their Rule 12(b)(4) and (5) defenses by stating in their initial responsive pleading that appellants’ complaint should be dismissed “pursuant to Rule 12(b) of the Arkansas Rules of Civil Procedure.” We agree and reverse and remand.
The parties are siblings (along with their spouses and children) who disagreed on how to best care for their mother, Zoe Holliman, and her trust. However, the pertinent procedural facts are not in dispute. On July 21, 2010, appellants filed a complaint against appellees praying that the Zoe Holliman revocable trust be set aside because it was procured through undue influence and that the trustor, Zoe Holliman, lacked the requisite capacity to make it. This complaint was voluntarily dismissed on November 9, 2010.
On December 6, 2010, appellants filed a second complaint and lis pendens, realleg-ing many of the claims made in the July 21 complaint. A summons was not issued for this complaint. On or about December 8, 2010, counsel for appellees agreed via telephone to accept service of the complaint and lis pendens, and appellants’ counsel mailed a copy of both pleadings to appel-lees’ counsel. Thereafter, on December 17, 2010, appellees filed an answer to the complaint. In paragraph fifty of the answer, they affirmatively pled that appellants’ complaint failed to state facts upon which relief could be granted under Arkansas law and requested dismissal of the complaint. Paragraph fifty-one of the answer stated: “[Appellees plead] affirmatively this Complaint should be dismissed pursuant to Rule 12(b) of the Arkansas Rules of Civil Procedure.”
On April 7, 2011, appellees filed a motion to dismiss appellants’ complaint, alleging insufficiency of process pursuant to Arkansas Rule of Civil Procedure 12(b)(4) because they failed to have a summons issued arid served within 120 days of filing their lawsuit as required by Arkansas Rule of Civil Procedure 4(i) (2011). Appellees argued that this second dismissal operated as an adjudication on the merits and that appellants’ complaint should be dismissed with prejudice. Bakker v. Ralston, 326 Ark. 575, 579, 982 S.W.2d 325, 327 (1996) (citing Ark. R. Civ. P. 41(b)).
Appellants filed a motion to strike appel-lees’ motion to dismiss, alleging that appel-lees waived the defense of insufficiency of process, found in Rule 12(b)(4), because their answer did not specifically raise or preserve it. Appellants contended that merely stating in appellees’ answer that the complaint should be dismissed pursuant to Rule 12(b) was inadequate to preserve the specific defense. Appellees countered by arguing that their answer preserved all of the defenses available to them under Rule 12(b), including, but not limited to, insufficiency of process.
On June 22, 2011, the trial court, based on the pleadings filed by the parties, entered a letter opinion finding:
2. [Appellants] voluntarily non-suited a previous action on November 5, 2010 and refiled this action on December 6, 2010. No summons was ever issued in this action. [Appellees’] attorney accepted service of the complaint and lis pendens on behalf of her clients.
3. [Appellees] filed a timely response and in paragraph number 51 of that response, stated, “[appellees] pled affirmatively this Complaint be dismissed pursuant to Rule 12(b) of the Arkansas Rules of Civil Procedure.”
4. On April 6, 2011, 120 days had transpired with no issuance of a sum-, mons. [Appellees] then filed a motion to dismiss, on the basis no summons had ever been issued. [Appellees] contend that paragraph [51] of their answer was sufficient to put [appellants] on notice that [appellees] were asserting all of the applicable defenses contained in ARCP 12(b).
5. While there are no Arkansas cases directly on point, I am persuaded that [appellees’] paragraph 51 of their answer was sufficient to preserve all of the defenses contained in ARCP 12(b), including those applicable here, 12(b)(4) and 12(b)(5). Accordingly, I am going to grant [appellees’] motion to dismiss. This dismissal will be with prejudice....
An order reiterating the trial court’s findings was entered on August 18, 2011. It is from this order that appellants bring their appeal. They argue that the trial court erred in finding that as a matter of law appellees preserved the defenses found in Rules 12(b)(4) and 12(b)(5) by generally pleading that appellants’ “Complaint should be dismissed pursuant to Rule 12(b) of the Arkansas Rules of Civil Procedure.”
In cases where the appellant claims that the trial court erred in granting a motion to dismiss, appellate courts review the trial court’s ruling using a de novo standard of review. White-Phillips v. Ark. Children’s Hosp., 2011 Ark. App. 699, at 2, 2011 WL 5562807 (citing Floyd v. Koenig, 101 Ark.App. 230, 274 S.W.3d 339 (2008)). In this case, the issue presented involves the correct interpretation of an Arkansas court rule, which is a question of law that the appellate court reviews de novo. Solis v. State, 371 Ark. 590, 595, 269 S.W.3d 352, 356 (2007). On this point, our supreme court has said:
We construe rules using the same means, including canons of construction, that are used to interpret statutes. The first rule in considering the meaning and effect of a statute or rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. When the language is plain and unambiguous, there is no need to resort to rules of statutory construction.
Solis, 371 Ark. at 595, 269 S.W.3d at 356. Our court is not bound by the trial court’s interpretation of a statute or court rule, but “in the absence of a showing that the trial court erred in its interpretation ... that interpretation will be accepted as correct on appeal.” White-Phillips, 2011 Ark. App. 699, at 2, 2011 WL 5562807.
Appellants argue that the trial court erred in finding that appellees preserved the defenses of insufficient process and insufficient service of process when they did not specifically assert those defenses in their answer. Appellants further contend that appellees’ generic request that the complaint be dismissed pursuant to Rule 12(b) is not sufficient. Appellants point out that there are eight different defenses listed in Rule 12(b) and argue that they are separate and distinct legal defenses that must be specifically pled in order to be preserved. They further contend that in all of the cases where the Rule 12(b) defenses have been preserved, sufficient to support the dismissal of a complaint, the 12(b) defenses were specifically pled. Appellants’ arguments have merit.
First, we note that our rules of civil procedure require specificity in pleadings. Arkansas Rule of Civil Procedure 8(b) provides that a party shall state in ordinary and concise language his defenses to each claim asserted. Ark. R. Civ. P. 8(b) (2011). Rule 8(c) provides that matters constituting an avoidance or affirmative defense be specifically pled. Ark. R. Civ. P. 8(c) (2011). The purpose of the requirement of Rule 8(c) that a party state in ordinary and concise language his affirmative defenses to each claim for relief against him is to give fair notice of what the claim is and the ground on which it is based so that each party may know what issues are to be tried and be in a position to enter the trial with his proof in readiness. Odaware v. Robertson Aerial-AG, Inc., 13 Ark.App. 285, 289, 683 S.W.2d 624, 626 (1985).
Moreover, a reading of the plain language of Rule 12 evidences the requirement to specifically plead the 12(b) defenses. For instance, Rule 12(b) provides:
Every defense ... to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state facts upon which relief can be granted, (7) failure to join a party under Rule 19, (8) pendency of another action between the same parties arising out of the same transaction or occurrence.
Ark. R. Civ. P. 12(b) (2011) (emphasis added). The phrase “every defense” does not support appellees’ position that generally pleading the Rule 12(b) defenses will preserve them all. Additionally, the fact that the rule numbers and lists each of the defenses that may be made by motion, treating them differently than other affirmative defenses, runs counter to appel-lees’ position that generally pleading Rule 12(b) is sufficient to raise and preserve each of the eight Rule 12(b) defenses.
Likewise, the language found in Rule 12(h) establishes the individualistic nature of the Rule 12(b) defenses, further supporting our conclusion that specificity is required when pleading them. Rule 12(h) provides:
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading. Objection to venue may be made, however, if the action is dismissed or discontinued as to a defendant upon whose presence venue depends.
(2) A defense of failure to state facts upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits. The defense of lack of jurisdiction over the subject matter is never waived and may be raised at any time.
(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Upon a determination that venue is improper, the court shall dismiss the action or direct that it be transferred to a county where venue would be proper, with the plaintiff having an election if the action could be maintained in more than one county.
Ark. R. Civ. P. 12(h)(l)-(3). Rule 12(h)(1) — (3) treats the individual Rule 12(b) defenses differently. For instance, subsection (1) establishes that five of the 12(b) defenses — lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, and pendency of another action between the same parties arising out of the same transaction or occurrence — are waived if omitted from the original responsive pleading. Ark. R. Civ. P. 12(h)(1). Subsection (2) cites to two other 12(b) defenses and offers means, different than those set forth in subsection (1), for pleading them. Subsection (3) addresses two 12(b) defenses and the particular rules that apply to them. Ark. R. Civ. P. 12(h)(3). Thus, the plain and unambiguous language of Rule 12 demonstrates the separate and distinct nature of the Rule 12(b) defenses. They may be pled differently than other affirmative defenses, and they are treated differently from each other. Thus, permitting appellees to preserve all of the 12(b) defenses without having specifically pled them in their responsive pleading would render Rule 12(h) entirely meaningless.
We also note that appellees cite no language in Rule 12 that expressly states that each individual Rule 12(b) defense can be preserved by generally requesting dismissal pursuant to Rule 12(b). There is no such language. Instead, appellees argue that they should be permitted to seek dismissal by generally pleading Rule 12(b) in order to “cover all separate defenses and eliminate the accidental waiver of a consolidated defense as contemplated in Rules 12(g) and (h) of the Arkansas Rules of Civil Procedure.” This argument is not well developed and not supported by citations to authority. We do not consider arguments without convincing argument or citations to authority. Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 420, 291 S.W.3d 179, 185 (2009).
Moreover, appellees have not cited one case where a defendant’s general request for dismissal pursuant to Rule 12(b) was sufficient to preserve specific 12(b) defenses. On the contrary, Arkansas case law supports the position that the Rule 12(b) defenses require specificity when pleading. For instance, where the defendant specifically pled insufficient process or service of process in the responsive pleading, the defense was preserved and dismissal of the plaintiffs complaint was affirmed. Shotzman v. Berumen, 363 Ark. 215, 229, 213 S.W.3d 13, 20 (2005); Wallace v. Hale, 341 Ark. 898, 900, 20 S.W.3d 392, 394 (2000); Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 140-41, 865 S.W.2d 643, 645-46 (1993).
In contrast, where a party had knowledge of a pending action and did not raise the specific Rule 12(b) defenses in the responsive pleading, the defenses were waived. Posey v. St. Bernard’s Healthcare, Inc., 365 Ark. 154, 164, 226 S.W.3d 757, 764 (2006) (Defendant asserted a statute-of-limitations defense but failed to raise the defense of insufficient service of process in its responsive pleading.); Galley v. Allstate Ins. Co., 362 Ark. 568, 575, 210 S.W.3d 40, 44 (2005) (holding that the defendant waived its improper-venue defense where its responsive pleading— which asserted the defenses of failure to state facts to state a claim and failure to join a necessary party — did not assert the defense of improper venue); S. Transit Co., Inc. v. Collums, 333 Ark. 170, 176, 966 S.W.2d 906, 908 (1998) (holding that the defense of insufficient process was waived because it was not raised by the defendant in its answer but later in its response to the plaintiffs request for default judgment).
In the case at bar, the only 12(b) defense appellees specifically pled in their initial responsive pleading was the defense of failure to state facts upon which relief can be granted, but that is not the defense the trial court relied on to dismiss appellants’ complaint. The 12(b) defenses upon which the trial court granted appellees’ motion to dismiss were insufficient process and insufficient service of process. Appel-lees never specifically pled either of these defenses. Thus, under Rule 12(h)(1), ap-pellees waived these defenses. While ap-pellees’ answer generally requested dismissal of appellants’ complaint pursuant to Rule 12(b), appellees have failed to provide convincing argument and authority to persuade us that such a practice preserves the right to later assert the specific Rule 12(b)(4) and (5) defenses. Based on our reading of the plain and unambiguous language of Rule 12 and the case law cited herein, we hold that generally pleading dismissal pursuant to Rule 12(b), without further specificity, fails to preserve the Rule 12(b) defenses. Accordingly, we hold that the trial court erred in its interpretation of Rule 12 and that the trial court’s order dismissing appellants’ complaint | ^should be reversed.
Reversed and remanded.
MARTIN and BROWN, JJ, agree.
. Upon the filing of the complaint, a summons must be issued by the clerk. Ark. R. Civ. P. 4(a) (2011). The summons and a copy of the complaint must be served together. Ark. R. Civ. P. 4(d) (2011).
. Rule 4(i) states that an action shall be dismissed if service of the summons is not made within 120 days after the filing of the complaint and a motion to extend is not timely made. Ark. R. Civ. P. 4(i). In the case at bar, the appellants’ deadline for serving the summons was April 6, 2011.
. While appellees argued only that the Rule 12(b)(4) insufficient-process defense was preserved and supported dismissal of appellants’ complaint, the trial court found that both the Rule 12(b)(4) and 12(b)(5) (insufficient service of process) defenses were preserved and supported dismissal.
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ROBERT J. GLADWIN, Judge.
^Appellant Henry Pianalto appeals the November 25, 2008 order of the Washington County Circuit Court finding that cer tain percentages of the stock options granted to appellant by his employer, JB Hunt Transport, Inc. (JB Hunt), should be considered marital property and divided equally between the parties. Appellant contends that the stock options are not marital property, and appellee Patricia Pianalto cross-appeals, arguing that she should have been awarded half the stock options rather than the percentages awarded, and half the proceeds from appellant’s postdivorce sale of vested stock options. We affirm the trial court’s order.
The parties were married on August 1, 1981, and divorced by decree filed March 31, 2006. Incorporated into the parties’ divorce decree is a property-settlement agreement, which |2divides their assets, providing that the parties would each share equally in one-half of any marital property that may be discovered and that was not otherwise divided by the property-settlement agreement. Appellant, as a key employee for JB Hunt, was awarded stock options by his employer during his marriage to appellee.
The parties stipulated that appellant had been granted options on 14,000 shares of common stock between November 12, 1997, and October 21, 2004. These options were exercisable between June 1, 1998, and June 1, 2014, in accordance with each independent yearly agreement. Appellant was also awarded 1400 shares of common stock on October 27, 2005, which are exercisable between July 15, 2012, and July 15, 2015, in accordance with the restricted stock agreement. The options on both the 14,000 shares and the 1400 shares were not addressed by the parties’ property-settlement agreement.
The parties further stipulated that on July 17, 2003, and April 21, 2005, JB Hunt announced a two-for-one stock split of its common stock. As of March 31, 2006, the date of divorce, 24,000 (of 49,400) options granted to appellant were outstanding. The parties also stipulated that on July 24, 2006, appellant exercised 3800 shares of said stock options, realizing a net profit of $61,772. Therefore, as of April 17, 2007, 20,200 options remained unexercised from those options granted appellant prior to March 31, 2006.
Appellee sought a declaratory judgment setting forth the rights and obligations of the parties as it related to stock options existing on March 31, 2006. She sought a declaration that the stock options be deemed marital property and divided equally. Appellant argued that the | ¡¡stock options were not marital property because they were not vested at the time of the divorce. On November 25, 2008, the trial court found that the stock options were awarded to appellant for a twofold purpose: one, for past performance and two, for future expectations or future services. The trial court then found that the following options were exercisable and vested and should be awarded as marital property: eighty percent of the November 12, 1997 options; seventy percent of the October 8, 1998 options; one hundred percent of the October 29, 1999 options; one hundred percent of the October 12, 2000 options; forty percent of the November 2, 2001 options; thirty percent of the November 26, 2002 options; twenty percent of the October 23, 2003 options; and zero percent of the options granted on October 21, 2004, and October 27, 2005.
Appellant filed a timely notice of appeal on December 22, 2008, and appellee filed a cross-appeal on January 6, 2009. This appeal followed. The main issue before us is whether the unexercised stock options were marital property subject to division upon the parties’ divorce.
The standard of review on appeal from a bench trial is whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Helena-W. Helena Sch. Dist. v. Fluker, 371 Ark. 574, 268 S.W.3d 879 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, when considering all the evidence, is left with a definite and firm conviction that a mistake has been committed. Id.
ItAppellant contends that the trial court erred in determining that the award of stock options was for both past and future performance and in its methodology in determining the percentage of options that were marital property and subject to division. He argues that whether his stock options are marital property subject to division cannot be decided on the basis of whether the stock options are vested. He maintains that employee stock options that are based on future service and that are contingent upon the continued employment of the employee/optionee differentiates the present case from other cases regarding simply whether benefits are vested. David Mee, Senior Vice President of Tax and Risk Management for JB Hunt, testified that the four tools used by JB Hunt as part of its compensation package for a person at appellant’s level are salary, bonuses, retirement plans, and stock options. The options are awarded to keep an employee. Past performance determines eligibility for an option award, but the amount is determined by the current salary and job title, with some fluctuation available by a supervisor’s review. Appellant points to Mr. Mee’s testimony that JB Hunt must explicitly grant an award for past services and state it as such for the expense to be taken immediately on the financial statements. Appellant argues, as attested to by Mr. Mee, that all the options granted to appellant were accounted for as for future performance, not past performance.
In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), the Arkansas Supreme Court held that employment benefits are marital property to the extent that a spouse has a vested interest in them. The court determined that benefits should be considered vested, or more |sthan a mere expectancy, once they cannot be unilaterally terminated by the employer without also terminating the employment relationship. Id. Appellant asserts that the plan benefits in Day were already vested because they could not be diminished and were not dependent on the professor’s continued employment. Id. In the case at issue, appellant contends that the stock options are contingent upon his continued employment. He further contends that the one year’s work and performance for any option exercisable after marriage dissolution, which is the requirement to exercise the options when coming due, would be performed solely by him, and no contribution by appellee would go toward meeting that requirement.
In Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983), the Arkansas Supreme Court ruled that stock options constitute marital property if acquired during the marriage. Appellant points out that the supreme court noted that the Richardson options could have been exercised on the date of trial. Id. Appellant contends that the instant matter is distinguishable in that his options were not exercisable until after the dissolution of the parties’ marriage.
In McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999), the Arkansas Supreme Court found that a contingency-fee agreement is an enforceable right acquired during marriage and therefore marital property; however, it also noted that the marital share of proceeds received is limited to the portion of the fee attribut able to work done during the marriage. Appellant contends that the trial court herein was attempting to follow the division language and formula in McDermott when allocating the percentages to the options that | (¡represented marital property. He argues that the trial court erred in its application of this principle and formula.
Appellant distinguishes the instant case from Cole v. Cole, 82 Ark.App. 47, 110 S.W.3d 310 (2003), where this court held that the option to purchase real estate was marital property. Appellant claims that all that remained after the dissolution of the parties’ marriage in Cole was to close the real-estate transaction. Here, appellant must continue his employment every day through the option-exercise date after dissolution to remain eligible to exercise the stock options at issue.
Appellant cites Ruberg v. Ruberg, 858 So.2d 1147 (Fla.Dist.Ct.App.2003), where the Florida District Court of Appeals held that the dispositive issue in determining the nature of options is whether the grant was made in consideration for actions undertaken during the marriage and before the applicable cutoff date. The Florida court agreed with other jurisdictions that hold that the status of such unvested options turn on the factual issue of whether the unvested stock options and restricted shares were primarily awarded as deferred compensation for past service or as an incentive for future services. Id. Appellant argues that Mr. Mee’s testimony made it clear that the stock options awarded him were for future service and performance.
The trial court herein relied on Hall v. Hall, 88 N.C.App. 297, 363 S.E.2d 189 (1987), where the North Carolina Court of Appeals held that stock options that are not exercisable as of the date of separation and that may be lost as a result of an event occurring thereafter are |7not vested and should be treated as the separate property of the spouse for whom they may vest at some time in the future. Appellant urges that to correctly follow Hall or McDermott, the trial court should have ruled that only those options exercisable during the first year after dissolution were subject to pro rata division as marital property and separate property. We disagree.
The North Carolina court stated,
We believe that the approach most consistent with North Carolina’s equitable distribution statutes is to classify stock options granted an employee by his or her employer which are exercisable upon the date of separation or which may not be cancelled, and which may, therefore, be said to be vested as of the date of separation, as marital property. Options which are not exercisable as of the date of separation and which may be lost as a result of events occurring thereafter, and are, therefore, not vested, should be treated as the separate property of the spouse for whom they may, depending upon circumstances, vest at some time in the future. In our view, this rule more closely recognizes the purpose of stock options granted an employee which are designed so that they vest and become exercisable over a period of time; such options represent both compensation for the employee’s past services and incentives for the employee to continue in his employment in the future. Those options which have already vested are clearly rewards for past service rendered during the marriage, and, therefore, are marital property; options not yet vested are in essence, an expectation of a future right contingent upon continued service and should be considered separate property.
Hall, 363 S.E.2d at 195-96.
We cannot say that the trial court’s application of Hall was clearly erroneous. Accordingly, we also agree with appellee’s first argument, that the trial court did not err in ruling that appellant’s vested stock options were marital property subject to division between the parties. However, we disagree with appellee’s claim that she is entitled to half the ^proceeds from the sale of those options subsequent to the dissolution of the marriage. We disagree with appellee’s argument that Hall is contrary to Arkansas law in light of the cases cited herein. Accordingly, pursuant to the trial court’s ruling, appellee is entitled to half the proceeds of the percentage awarded to her in the trial court’s order, and we find no error.
Second, appellee argues that the trial court erred in awarding her less than half of appellant’s vested stock options. Pursuant to the property-settlement agreement, appellee contends that she is entitled to one-half of any marital property that may be discovered by the parties that is not divided by the property-settlement agreement. However, the trial court determined that only a percentage of those stocks was marital property. Based on our ruling above, appellee is entitled to one-half of what has been determined by the trial court to be “vested” or “marital” property, but only as to that percentage determined to be marital property as described by the trial court’s order.
Affirmed on appeal and on cross-appeal.
MARSHALL and BAKER, JJ„ agree. | [
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D.P. MARSHALL JR., Judge.
| ]Mr. and Mrs. Brackelsberg agreed to sell their house to Mr. and Mrs. Heflin for $450,000.00. The Heflins backed out. They did so because the home appraised for $420,000.00 and their bank would not loan them more than that amount on the property. The Brackelsbergs did not return the Heflins’ $5,000.00 earnest money. They eventually sold their house to someone else for $422,500.00. More than a year after their deal fell apart, the Heflins sued the Brackelsbergs for the earnest money. The Brackelsbergs counterclaimed, alleging that the Heflins were the ones in breach and seeking actual damages. The circuit 'court granted the Brackelsbergs summary [¿judgment. The court awarded the Brackelsbergs the difference between the amount the Heflins had agreed to pay and the later sales price (less the retained earnest money). The circuit court also awarded attorney’s fees and costs, but refused any pre-judgment or post-judgment interest. The Heflins appeal. The Brackelsbergs cross-appeal.
I.
The material facts were undisputed. We view them in the light most favorable to the Heflins. Sykes v. Williams, 373 Ark. 236, 239-40, 283 S.W.3d 209, 213 (2008).
The parties’ form contract had three “Purchase Price” options: new financing, loan assumption, or cash. The new-financing option, in turn, contained two possibilities, a new loan or other financing. Embedded within the new-loan route, there were several different types of loans (e.g., conventional, VA, FHA) to choose among and a condition: the contract would be “[s]ubject to the Property appraising for not less than the Purchase Price and the Buyer’s ability to obtain a loan to be secured by the Property in an amount of.... $_” on particular terms. The other financing route left more details open. Under this provision, the contract would be “[s]ubjeet to the Buyer’s ability to obtain financing in the amount of $_ from a source and being payable as follows: _”
The Heflins agreed to secure other financing. They filled in the form-contract’s blanks, making the deal subject to their ability to obtain “$445,000.00” in financing |son “Terms set forth by Bank.” The contract also required the Heflins to “make a complete application for a new loan” within five business days of the Brackelsbergs’ acceptance. To satisfy this obligation, the Heflins “agree[d] to provide lender with any requested information and pay for any credit report(s) and appraisals required to make the loan.” The contract also provided that “Buyer understands that failure to make a complete loan application as defined above may constitute a breach of this Real Estate Contract.”
•The Heflins called a loan officer at their bank within five business days of signing the contract. She told them that they first needed to get an appraisal. The Heflins ordered one, which was completed several weeks later. This appraisal valued the Brackelsbergs’ home at $420,000.00. The Brackelsbergs had their own appraisal, which came in at $440,000.00. The Hef-lins’ loan officer, however, said that the bank would not loan the Heflins more than the home’s appraised value. The Heflins told the Brackelsbergs about their inability to obtain financing and backed out. The Heflins acknowledged that they never completed a loan application.
On the undisputed facts, the Heflins were in breach of this unambiguous contract. The Heflins agreed to buy this house if a bank would loan them $445,000.00. Their obligation was not contingent on the Brackelsbergs’ home appraising for a particular amount. Their obligation, moreover, was not contingent on |4the loan being tied exclusively to this property. They did not complete a loan application, an important omission. For if the Heflins had filled out an application, then their loan officer would have learned what discovery in this case revealed: the Heflins had a $750,000.00 unsecured line of credit with the bank, a substantial yearly income, and a net worth of several million dollars. The other-financing option chosen by the Heflins was wide open: it unambiguously made the sale contingent only on them securing some kind of bank financing, not just a typical mortgage, for the purchase price. On the undisputed facts, the circuit court correctly granted the Brackelsbergs’ judgment as a matter of law on breach.
II.
The Heflins also argue that the circuit court erred by allowing the Brackelsbergs to seek actual damages. The parties’ contract gave the Brackelsbergs a choice. “If Buyer fails to fulfill his obligations under this Real Estate Contract ... the Earnest Money may, at the sole and exclusive option of the Seller, be retained by the Seller as liquidated damages. Alternatively, Seller may return the Earnest Money and assert all legal or equitable rights which may exist as a result of Buyer breaching this Real Estate Contract.” The Heflins contended that the Brackelsbergs elected liquidated damages by sitting on the $5,000.00 earnest money for more than a year. The circuit court, however, awarded actual damages — the Brackelsbergs got to keep the $5,000.00 | ¡-.earnest money and received a judgment for $22,500.00 more— plus attorney’s fees.
The parties argue this point as an election of remedies. This is, we conclude, the right idea but the wrong label. This is not the paradigm case on a land contract where the election is either damages or specific performance. E.g., Bigger v. Glass, 226 Ark. 466, 290 S.W.2d 641 (1956). Instead, the Brackelsbergs had an election within their damages remedy: liquidated or actual damages. Though we have not located any authority directly on point, we conclude that the same general principles apply to an election within a remedy as to an election between remedies.
“[I]f a party has two or more inconsistent remedies on a single cause of action, only one remedy may be ultimately pursued and only one remedy satisfied.” Howard W. BRIll, Ajikansas Law of Damages § 2:9, at 32 (5th ed.2004); see also Cater v. Cater, 311 Ark. 627, 630-31, 846 S.W.2d 173, 175 (1993). A party may— intentionally or unintentionally — elect his or her remedy out of court. Brill, supra § 2:10, at 37-38. The Brackelsbergs cite cases where the election occurred in a pleading or other court paper. E.g., Sutterfield v. Burbridge, 223 Ark. 854, 856, 268 S.W.2d 900, 901-02 (1954). But the precedent makes clear that acts outside of court will suffice. E.g., Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 610-11, 864 S.W.2d 817, 828 (1993). Moreover, “[t]he passage of time or delay in selecting available options may constitute an election.” Brill, supra § 2:10, at 38. Timeliness is a fact question. Howard W. Brill, The Election of Remedies Doctrine in Arkansas, 37 Ark. L.Rev. 385, 400 (1983); see also Herrick v. Robinson, 267 Ark. 576, 587, 595 S.W.2d 637, 644 (1980).
The Brackelsbergs first argue that the Heflins’ election argument is not preserved because the Heflins did not assert it in response to the Brackelsbergs’ counterclaim. We disagree. Election was in this case from the start. The Heflins pleaded it in their complaint and first amended complaint. The Brackelsbergs then petitioned to interplead the earnest money and counterclaimed for actual damages at the same time. The Heflins did not file a reply to the Brackelsbergs’ counterclaim, see Ark. R. Civ. P. 7(a), but instead filed a response to the Brackels-bergs’ interpleader petition. There the Heflins again alleged that the Brackels-bergs elected liquidated damages as their sole remedy. Thus the parties joined, briefed, and argued the election issue in the circuit court. And that court rejected this defense by ruling for the Brackels-bergs. We see no waiver.
When everyone signed this contract, the Heflins gave the Brackelsbergs $5,000.00 earnest money. The contract said this money should be deposited with the “Listing Agent Firm.” But there was no listing agent or real estate firm involved in this sale. The Brackelsbergs deposited the earnest money into their personal bank account. When the Heflins backed out of the deal, Mr. Heflin asked Mr. Brackels-berg about the |7earnest money, but they reached no conclusion. About five months later, the Brackelsbergs sold their house to other buyers. The earnest-money issue sat for more than a year until the Heflins sued to get the $5,000.00 back and the Brackelsbergs counterclaimed for all actual damages. At one of the depositions in the case, the Brackelsbergs tried to refund the earnest money to the Heflins. They refused to accept it. As we have noted, the Brackelsbergs also filed an interpleader petition asking to deposit the money with the clerk. The circuit court, however, denied that petition.
The facts about the earnest money were undisputed. But “[a]fter reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts.” Sykes, 373 Ark. at 240, 283 S.W.3d at 213. This is, we conclude, the situation here on damages. Reasonable minds could reach different conclusions about whether the Brackelsbergs’ handling of the earnest money — not returning it when the deal collapsed and keeping it for more than a year thereafter — established an election to keep the $5,000.00 as liquidated damages and move on. We therefore reverse and remand for a trial on damages.
The Heflins make another argument about damages. They contend that the Brackelsbergs were not entitled to any damages at all because they failed to notify the Heflins of their breach so that the Heflins would have had the opportunity to perform. |8The Heflins’ authorities, however, are eases where time was not of the essence in a land-sale contract. Valley Planing Mill Co. v. Lena Lumper Co., 168 Ark. 1133, 1141, 272 S.W. 860, 863-64 (1925); Adams v. Rhodes, 143 Ark. 172, 176-77, 220 S.W. 29, 30 (1920). In that kind of situation, a notice requirement is both fair and sound: it creates the opportunity, and the deadline, for a curing performance. Valley Planing Mill Co., 168 Ark. at 1141, 272 S.W. at 864-65; Adams, 143 Ark. at 176-77, 220 S.W. at 30. Here, the Heflins and the Brackelsbergs agreed in paragraph 27 of their contract that time was of the essence. So these older cases do not make lack of notice a nuclear defense in this dispute. Given the Heflins’ unequivocal and undisputed refusal to consummate this deal, and the parties’ clear agreement about the importance of all the contract’s undisputed deadlines, the Hef-lins were not entitled as a matter of law to some additional notice.
III.
The prevailing party in a breach of contract action may be entitled to a reasonable attorney’s fee. Ark.Code Ann. § 16-22-308 (Repl.1999). “[T]he prevailing party is determined by who comes out ‘on top’ at the end of the case.” Marcum v. Wengert, 344 Ark. 153, 162, 40 S.W.3d 230, 236 (2001). Whether the Brackels-bergs or the Heflins will come out on top is a decision for the end of this case. We therefore vacate the attorney’s-fee award. The circuit court should exercise its | informed discretion about whether to award fees, and if so, in what amount, when all is said and done in this case. 344 Ark. at 160, 40 S.W.3d at 234-35.
There are two other loose ends. First, in their cross-appeal, the Brackelsbergs challenge the circuit court’s refusal of prejudgment and post-judgment interest. Prejudgment interest depends on whether the amount of any damages is ascertainable. E.g., Sims v. Moser, 373 Ark. 491, 509, 284 S.W.3d 505, 519-20 (2008). And post-judgment interest in any contract case is a matter of statute. Ark.Code Ann. § 16-65-114(a) (Supp.2009). Our reversal and remand for a damages trial moots the interest issues for now. They are for the circuit court to revisit, if need be, after that trial.
Second, the Brackelsbergs have moved this court for $8,198.80 in costs and attorney’s fees incurred for supplementing the Heflins’ abstract and addendum. Ark. Sup.Ct. R. 4-2(b)(£). This kind of award is appropriate only when the supplemental materials are “essential to a full consideration of the issues raised by the direct appeal.” Arkota Industries, Inc. v. Naekel, 274 Ark. 173, 177, 623 S.W.2d 194, 196 (1981); see also Lackey v. Mays, 103 Ark. App. 70, 81, 286 S.W.3d 193, 200 (2008). The Heflins acknowledge that they inadvertently left the Brackelsbergs’ summary-judgment motion and related brief out of the addendum. These are essential documents. The depositions were part of the summary-judgment record. The Hef-lins should have abstracted them, and indeed we have relied on them in deciding the case. With these |inexceptions, the material in the Brackelsbergs’ supplemental abstract and supplemental addendum was either helpful or unnecessary, but not essential. For example, the more-complete abstract of the hearings was helpful. But the documents related to the Heflins’ cross-motion for summary judgment, which was denied and not appealed, were unnecessary. Arkota Industries, Inc., 274 Ark. at 177, 623 S.W.2d at 196.
Pursuant to Arkansas Supreme Court and Court of Appeals Rule 6-7(c), we assess appeal costs to address the Brackels-bergs’ motion and reflect our decision on the merits. Both the Heflins and the Brackelsbergs have prevailed in part on appeal. Each side should therefore bear its own brief costs. The clerk shall tax one-half of the cost of the record ($593.10) and one-half of the filing fee ($75.00) against the Brackelsbergs, less the $268.10 we award the Brackelsbergs on their motion for supplementing the abstract and addendum. The net costs awarded in favor of the Heflins are therefore $400.00.
Affirmed in part; reversed and remanded in part; fee award vacated; motion granted.
ROBBINS and GLOVER, JJ., agree.
SUPPLEMENTAL OPINION
|, Our opinion states that the Heflins did not file a reply to the Brackelsbergs’ counterclaim. 2010 Ark.App. 261, at 6, 374 S.W.3d 755, 758. We were mistaken. The Heflins have moved to supplement the record on appeal with a copy of their reply, which they styled as an answer. It turns out that the Heflins filed this pleading with the circuit clerk, but it was inadvertently omitted from the record on appeal. At our Clerk’s request, the Heflins have also tendered a certified copy of this pleading.
While the motion might seem like overkill, it is probably prudent in the circumstances. We reversed and remanded in part. On remand, the circuit court must follow the letter and spirit of our decision — even if that decision contains a mistake. Pro-Comp Management, Inc. v. R.K. Enterprises, LLC, 366 Ark. 463, 466, 237 S.W.3d 20, 23 (2006); Mellinger v. Mellinger, 26 Ark.App. 233, 236, 764 S.W.2d 52, 53 (1989). This law, and our uncorrected statement, set the table for some unnecessary procedural wrangling: an argument that the Heflins were, according to our opinion, in default on the Brack-elsbergs’ counterclaim. Ark. R. Civ. P. 55(a) & (d). There is no good reason for the parties or the circuit court to waste time on that issue.
We grant the motion and deem the record supplemented. We also hereby correct our original opinion. The Heflins filed a timely reply, styled as an answer, to the Brackelsbergs’ counterclaim. That pleading, however, did not assert the Brackelsbergs’ election of damage remedies. For the reasons given in our original opinion, that omission was not fatal to the Heflins’ election defense because election was joined in other pleadings, briefed, argued, and decided below.
A final word to the bar. Before briefing the case, counsel should check the appeal record carefully. Make sure that it is complete and correct. Minor defects can often be cured by stipulation between counsel. If necessary, move to correct omissions in the record, or move to remand and settle it, as soon as possible after filing the record on appeal. (One such motion was filed early in this case.) Checking, and if need be correcting, the record before the briefing will help the appellate court get the opinion right in every particular the first time around.
ROBBINS and GLOVER, JJ., agree. | [
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LARRY D. VAUGHT, Chief Judge.
Ijn an order entered on September 28, 2009, the Circuit Court of Pulaski County terminated the parental rights of fifteen-year-old K.C. to L.C., her two-year-old child. K.C. appeals from the termination order, contending that the circuit court’s findings were clearly erroneous. Specifically, she argues that there was a lack of evidence supporting the finding that termination was in L.C.’s best interests and the ground for termination. We agree and reverse and remand.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Benedict v. Ark. Dep’t of Human Servs., 96 Ark.App. 395, 397, 242 S.W.3d 305, 308 (2006). However, courts are not to enforce parental rights to the detriment |2or destruction of the health and well-being of a child. Benedict, 96 Ark.App. at 397, 242 S.W.3d at 308. A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be' proven by clear and convincing evidence. Id., 242 S.W.3d at 308. We do not reverse the circuit court’s finding of clear and convincing evidence unless that finding is clearly erroneous. Id., 242 S.W.3d at 308. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id., 242 S.W.3d at 308. This, however, does not mean that the appellate court is to act as a “super factfinder,” substituting its own judgment or second guessing the credibility determinations of the court; we only reverse in those cases where a definite mistake has occurred. Id., 242 S.W.3d at 308.
On February 26, 2008, the Department of Human Services (DHS), exercised a seventy-two-hour hold on five children of Brenda Green, one of whom was K.C. (born April 3,1994). The hold also applied to L.C. (born December 7, 2007), who was Green’s infant grandson and K.C.’s child. The children and grandchild were removed from Green and placed in DHS custody based upon a substantiated report that then thirteen-year-old K.C. had been sexually assaulted and impregnated by a twenty-three-year-old man who frequently visited the Green home. An ex parte order for emergency custody was granted by the circuit court on February 29, 2008. In a March 2008 hearing, the circuit court found that there was Aprobable cause to believe that the emergency conditions that necessitated the removal of K.C. and L.C. continued; therefore, the circuit court ordered that they remain in DHS custody (placed in foster care together). An adjudication order was entered in April 2008, finding that K.C. was dependent neglected, that L.C. was a dependent juvenile, and that Green was an unfit mother. The court continued K.C. and L.C. in DHS custody and ordered K.C. to attend counseling, parenting classes, and school; submit to random drug screens; and obtain psychiatric and medical evaluations.
At an August 19, 2008 review hearing, the circuit court continued DHS custody of K.C. and L.C., but stated that the case plan was moving toward reunification with Green. A permanency planning hearing was held in January 2009, at which time the court continued K.C. and L.C. in DHS custody. The court noted that K.C.’s psychological evaluation demonstrated that she was mentally incapacitated; had very poor social functioning; had a great deal of social inadequacy; had significant problems with depression and self-esteem; and could not “take care of [her] baby without adult supervision^] which she is receiving in foster care.” Nevertheless, the court stated that L.C.’s goal was reunification with his mother. The court asked K.C. to “step up to the plate” by attending school, being a good student, and eliminating discipline problems.
A second permanency planning hearing was held in May 2009. The circuit court returned K.C. to the custody of Green. The court stated that this was not “the greatest situation” for K.C. but was “the best option for [her] at this time.” It further stated that there appeared to be adequate support in the home for her and that given KC.’s age, she was not Llikely to be adopted. Regarding L.C., the circuit court stated that compelling reasons did not exist to continue with the goal of reunification with K.C.; as such, the court changed the goal to termination of KC.’s parental rights. Thereafter, DHS filed a termination petition. Citing Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a), DHS alleged that L.C. had been adjudicated as a dependent juvenile; had been out of KC.’s custody for twelve months; and that despite a meaningful effort by DHS to rehabilitate K.C. and correct the conditions that caused removal, those conditions had not been remedied by her.
At the termination hearing on August 18, 2009, DHS caseworker Danyetta Pride withdrew DHS’s request for termination and instead sought reunification of L.C. and K.C., with the concurrent goal of permanent custody of K.C. and L.C. with foster parent, Cynthia Bibbs. Pride testified that K.C. complied with all court orders by attending counseling, parenting classes, and school. Pride stated that K.C. was managing her medications. According to Pride, since removal from Green’s home, K.C. and L.C. had been together in Bibbs’s home. Since May 2009, when K.C. was returned to Green’s home, K.C. consistently attended supervised visitation with her son. According to Pride, the visits went well and L.C. and K.C. have a bond. Pride acknowledged that the psychological evaluation performed by Dr. Paul Deyoub in June 2008 concluded that K.C. suffered from mental deficiencies along with other disorders and that K.C. would require supervision while parenting. Pride conceded that K.C. could not care for L.C. by herself. Pride discussed KC.’s fairly recent suspension from school for fighting and her admission into two different treatment hospitals for behavioral issues. Pride also stated that K.C. had taken medications that made her “act out,” | r,but that her medications had been changed with good results. Pride asked that the court not terminate K.C.’s parental rights, but instead permit her to live with L.C. and Bibbs so that she could continue to mature and learn to parent. Pride stated that K.C. understood that she required help to care for L.C. and that she was willing to accept help. Pride also reminded the court that the only reason L.C. was in DHS custody was because K.C. was placed in DHS custody and that there had been no allegations of abuse or neglect against K.C.
Adoption specialist Kasheena Walls testified that L.C. was adoptable. She noted that L.C. had no special needs and that he was a normal, healthy boy. Specifically, she testified that twenty-five families matched L.C.’s characteristics of age, race, and sex.
Foster parent Bibbs testified that K.C. and L.C. entered her home in February 2008. She stated that she still had custody of L.C. but that K.C. returned to her mother’s home in May 2009. Bibbs said that with supervision, K.C. was a very good mother to L.C. and was able to care for him. Bibbs noted that K.C. had some behavioral problems requiring treatment at Bridgeway Hospital and Pinnacle Pointe Hospital in the spring of 2009. Bibbs testified that K.C. fought at school, was hallucinating, and was cutting herself. Bibbs also mentioned that doctors at Pinnacle Pointe changed K.C.’s medications and that K.C. had been compliant since that time. Bibbs also testified that after K.C. returned to her mother’s home, K.C. regularly attended supervised visitation with her son. Bibbs stated that L.C. was very happy to see K.C. during visitations and that they had bonded as mother and child. Bibbs said that she was willing to continue to foster K.C. and L.C. until K.C. reached the age of majority. Bibbs thought that this would be best for L.C. because he loved his mother. Bibbs stated that |fishe thought it would be “tragic” to take L.C. from his mom and that he asked for her when she was not around. However, if termination was the ultimate decision, she stated that she would be willing to adopt L.C.
K.C.’s mother, Green, testified that she wanted K.C. to keep her son if that meant that they both lived with Bibbs. She thought it would be beneficial for Bibbs to supervise K.C.’s care of her son. Green confirmed that K.C. had fairly recent behavioral problems and had juvenile-delinquency charges pending against her.
K.C., who was fifteen at the time of the hearing, testified that she wanted to live with Bibbs and L.C. so that she could raise her son. She said that she had complied with all of DHS’s requests. She also stated that if she could not have L.C., she wanted Bibbs to adopt him.
At the conclusion of the hearing, DHS reiterated its position that termination was not appropriate and that K.C. should be given three months to see if her positive behavior continued. The attorney ad litem (AAL) for L.C. pressed for termination, pointing to Dr. Deyoub’s evaluation and arguing that K.C.’s mental-health issues would always exist. He argued that L.C. was a baby who had a “chance at life,” but he would have no chance if raised by K.C. — a parent who was “inadequate and [would] always be inadequate” because there was nothing she could do to remedy her condition. The AAL then argued that grounds for termination had been established because L.C. had been in foster care for more than twelve months and that it was in the best interests of L.C. to be adopted.
From the bench, the circuit court terminated K.C.’s parental rights to L.C. The court |7found that L.C. had been in foster care for over a year. It found that everyone agreed that K.C. was not ready to parent L.C. by herself, and it could not point to any compelling reasons to give K.C. additional time to prove that she could parent alone. The court questioned whether K.C. was complying with court orders because she had been hospitalized for bad behavior and instability a few months prior. Assuming compliance, the court stated that this alone was not sufficient to avoid termination where the deficiencies had not been remedied. The court found K.C. to be an insufficient parent, and it refused to return L.C. to K.C. with the contingency that another person supervise them. After summarizing the long history it had with Green and her children, the court identified one of the main issues as whether K.C., based on her mental deficiency, would ever be a “minimally qualified parent.” The court then concluded that it could not see reunification within a reasonable time, and it believed waiting three more years until K.C. was eighteen was too long for L.C. to wait. The court noted that L.C. was an adoptable child and that it was in his best interests to be adopted.
After the formal termination order was entered, K.C. timely appealed. She argues that the circuit court clearly erred in terminating her parental rights and that the order must be reversed. DHS also argues that the circuit court’s ruling was clearly erroneous. The AAL argues that the circuit court’s decision should be affirmed.
An order terminating parental rights must be based upon a finding by clear and convincing evidence that termination of a parent’s rights is in the best interest of the children, considering the likelihood that the children will be adopted if the parent’s rights are terminated and the potential harm caused by returning the children to the custody of the |8parent. Ark.Code Ann. § 9-27-341(b)(3)(A) (Repl. 2009) (emphasis added). Here, the circuit court’s termination order found that it was “contrary to [L.C.’s] best interests, health and safety, and welfare to return him to the parental care and custody of [K.C.].” The court further stated that, “[i]t is in [L.C.’s] best interests for him to be placed into a permanent home, and he is an adoptable child. It is [in L.C.’s] best interests to terminate parental rights.” The only finding made by the court to support the best-interest element was that L.C. was adoptable. There were no findings, and there is no evidence in the record, that potential harm would be caused by returning L.C. to K.C. While the court voiced significant concern over K.C.’s mental deficiencies and her lack of maturity, there was no evidence introduced demonstrating that these concerns posed potential harm to L.C. There was no evidence that K.C. abused or neglected L.C. The evidence on this issue is to the contrary. According to Bibbs and Pride, with supervision, K.C. cared for her son as any mother would, and when K.C. left Bibbs’s home, K.C. attended all visitation, which according to all parties went very well. Based on this record, there is no evidence supporting the required consideration of potential harm.
The AAL argues that the evidence supports the best-interest finding made by the circuit court because K.C. lacks the mental capacity to parent L.C. and that additional time or services will not change that. He points to testimony from several witnesses who stated that K.C. was unable to parent her son without supervision and also to Dr. Deyoub’s report finding that K.C. is unfit “by reason of her mental retardation, immaturity, depression, low self-esteem, and lack of judgment.” Clearly, the trial court agreed with this position because |9all of its best-interests findings (except for the finding of adoptability) revolved around its belief that K.C. was unable to care for her son because of her mental deficiencies.
We agree that there are some questions in this case about K.C.’s mental capacity to care for L.C. There is also evidence that K.C. had delinquency proceedings pending against her, had gotten into a fight at school, and had acted out in other ways. However, these findings do not support the required best-interests consideration of potential harm. There is no evidence in the record that K.C. had caused potential harm to her son. In fact, the evidence was undisputed that K.C. was a good caregiver to her child and that they had a mother-child bond. As such, we hold that the circuit court clearly erred in finding that termination was in L.C.’s best interests.
Not only is evidence supporting the best-interest element lacking in this case, there is a lack of evidence supporting the ground for termination upon which the circuit court relied. The circuit court’s termination order provided:
[I]t has been proven by clear and convincing evidence that the juvenile has been adjudicated by the court to be dependent and has continued out of the custody of the parent in excess of twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
Although the court did not expressly state the precise code provisions upon which it relied in its order, the language in the order reflects that the court relied upon the ground set forth in Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a), which provides:
That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the | inconditions that caused removal, those conditions have not been remedied by the parent.
This particular ground requires that (1) the child be adjudicated dependent-neglected, (2) the child be out of the custody of the parent for twelve months, and (3) the parent failed to remedy the conditions that caused the child’s removal.
K.C. and DHS argue that all three of these elements have not been met. First, K.C. contends that the record does not establish that L.C. was adjudicated dependent neglected. While there was no finding that L.C. was dependent neglected, the circuit court did find him to be a dependent juvenile. A “dependent juvenile” is defined as “[a] child of a parent who is in the custody of the department.” Ark.Code Ann. § 9-27-303(17)(A) (Repl. 2009). L.C. meets this definition because his mother was in the custody of the department. Moreover, section 9-27-303(18)(B) (Repl.2009), specifically provides that a “ ‘[djependent-neglected juvenile’ includes dependent . juveniles.” Therefore, L.C. also falls within the definition of a dependent-neglected juvenile.
K.C. acknowledges that the definition of “dependent-neglected juvenile” includes a “dependent” child, yet she claims that is a “logical fallacy” and inconsistent with legislative intent. She also argues that our court, in Moiser v. Arkansas Department of Human Services, 95 Ark.App. 32, 233 S.W.3d 172 (2006), recognized the important distinction between the two terms. We disagree. The clear and unambiguous language of the statute expresses that a dependent-neglected juvenile includes a dependent juvenile. Further, in Moiser, we did not |nhold that the definition of a dependent-neglected child did not include a dependent child. Rather, we held that the facts in that case did not support the trial court’s conclusion of dependent neglect based on a finding that the child was dependent. Moiser, 95 Ark.App. at 36, 233 S.W.3d at 175 (reversing and remanding termination decision based on finding of dependency, where substantial evidence demonstrated that relatives were willing to care for a child, whose sole custodial par ent had been incarcerated). We therefore hold that the circuit court was not clearly erroneous in concluding that the first element of section 9-27-341(b)(3)(B)(i)(a) was satisfied.
Next, K.C. and DHS argue that L.C. was not out of K.C.’s custody for twelve months. While it is true that K.C. was only separated from L.C. three months prior to the termination hearing, the facts are undisputed that L.C. was not in K.C.’s custody during that time. Rather, L.C. was in DHS custody and continued to be in DHS custody in excess of twelve months. As such, the second element of section 9—27—341(b) (3) (B) (i) (a) is also satisfied.
Finally, both K.C. and DHS argue that the third element of section 9-27-341 (b)(3)(B)(I)(a)—that the parent has not remedied the conditions that caused removal—is not satisfied. We agree. In concluding that there was evidence to support this element, it appears the circuit court may have blurred the lines between Green’s case and KC.’s case and wrongly applied facts from Green’s case to support its termination decision in K.C.’s case. At the termination hearing when the circuit court was explaining its findings, it stated, “Now we’re talking about what to do with this baby. This baby has a chance. I don’t believe this baby would have a chance in Ms. Green’s home because she still has—I never would have |12re turned any young children to Ms. Green’s home. Let’s assume that’s our mindset.” Clearly, the court did not think that Green had remedied the problems that caused the removal of L.C. However, this was not a case where termination of Green’s rights to L.C. was being sought. This was a hearing seeking to terminate KC.’s rights to her son. In this case, it was impossible for K.C. to remedy the problems that caused removal because she was not the cause of the removal of L.C. The record is completely void of any evidence as it relates to K.C. on this required element.
The AAL fails to respond to any of the subsection (b)(3)(B)(i)(a) arguments made by K.C. and DHS. Instead, the AAL asks that this case be affirmed based upon an entirely different ground—subsection (b)(3)(B)(vii)—which provides that termination shall be based upon a finding
(a) [t]hat other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
(c) For purposes of this subdivision (b)(3)(B)(vii), the inability or incapacity to remedy or rehabilitate includes, but is not limited to, mental illness, emotional illness, or mental deficiencies....
Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a), (c) (Repl.2009).
We can affirm based upon our de novo review and ability to hold that other grounds for termination were proved even when they were not stated in the circuit court’s order. This is the request of the AAL, and he cites several cases in support of his request: Ratliff v. Ark. Dep’t of Human Servs., 104 Ark.App. 355, 292 S.W.3d 870 (2009); Smith v. Ark. Dep’t of Health & Human Servs., 100 Ark.App. 74, 264 S.W.3d 559 (2007); and Johnson v. Ark. Dep’t of Human Servs., 78 Ark.App. 112, 82 S.W.3d 183 (2002).
However, in this instance we elect not to accommodate the AAL’s request. This particular ground was not alleged in the termination petition, it was not argued at the termination hearing, and the trial court did not base its termination decision upon it. At no time did the AAL seek to amend the termination petition to add this ground. This ground is being argued for the first time on appeal. These facts are distinguishable from the facts in the cases cited by the AAL on this point. For instance, in Ratliff and Smith, the “other ground” was alleged in the termination petition. Ratliff, 104 Ark.App. at 361, 292 S.W.3d at 875; Smith, 100 Ark.App. at 77, 264 S.W.3d at 562. In Johnson, our court upheld the ground that the trial court relied upon and alternatively held that “other grounds” were also present to support the termination. Johnson, 78 Ark.App. at 121, 82 S.W.3d at 188-89. Therefore, our court did not pull a new ground out of thin air and rely upon it as the sole basis to affirm the termination of parental rights.
Moreover, affirming this case based on section § 9-27-341 (b) (3) (B) (vii)(a) would result in a violation of K.C.’s due-process rights. Our supreme court has extended to proceedings involving the termination of parental rights many of the same Fourteenth Amendment due-process safeguards as have been found to be constitutionally mandated in criminal trials. Clemmerson v. Ark. Dep’t of Human Servs., 102 Ark. App. 1, 4, 279 S.W.3d 484, 487 (2008) (citing Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164, 205 S.W.3d 778 (2005)). Due | uprocess requires, at a minimum, notice reasonably calculated to afford a natural parent the opportunity to be heard prior to terminating his or her parental rights. Kight v. Ark. Dep’t of Human Servs., 94 Ark.App. 400, 409, 231 S.W.3d 103, 109 (2006) (citation omitted).
Here, K.C. had no notice that her parental rights might be terminated based upon her mental deficiencies. As such, she had no opportunity to present testimony (lay person and/or expert) to the contrary. The only medical evidence in the record on this issue was Dr. Deyoub’s report, which was fourteen months old at the time of the termination hearing. And while there was evidence that K.C. was mentally deficient, there was also evidence of her ability to write, attend school and parenting classes, and care for her son. This ground was not alleged in the termination petition and the circuit court did not terminate KC.’s rights based on this ground. Our court — in order to affirm on this ground that was not raised below— would be forced to answer the questions: How mentally challenged is K.C., and how would that affect her abilities as a parent? Essentially, we would be weighing the evidence and making factual findings on the issue of K.C.’s mental abilities. Appellate courts do not make findings of fact but rather review findings of fact of the circuit court to determine whether they are clearly erroneous. Ward v. Williams, 354 Ark. 168, 177, 118 S.W.3d 513, 518 (2003) (citing Arkansas Rule of Civil Procedure 52(a) and stating that “it is radiantly clear that appellate courts do not make findings of fact but rather review findings of fact of the circuit court to determine whether they are clearly erroneous”); Harris v. State, 98 Ark.App. 264, 268, 254 S.W.3d 789, 792 (2007). If the AAL believed that KC.’s parental rights should have been terminated pursuant to section 9-27-341(b)(3)(B)(vii)(a), it should have been alleged and | ^developed below. We will not affirm the termination of parental rights based upon a ground that was not alleged, not relied upon by the circuit court, and lacks factual findings.
Based on the foregoing, we hold that the circuit court clearly erred in finding that termination was in L.C.’s best interests and that the ground for termination pursuant to Arkansas Code Annotated section 9 — 27—341(b)(B)(B)(i)(a) was proven by clear and convincing evidence.
Reversed and remanded.
GLOVER, J., agrees.
GRUBER, J., concurs.
. The circuit court also terminated the parental rights of L.C.’s father, Kendall Marshall. That disposition is not relevant to this appeal.
. This opinion does not include in the factual summary the disposition of Green’s other four children because it is not relevant to this appeal.
. DHS concedes that this element has been established based upon a strict construction of Arkansas Code Annotated section 9-27-303(18)(B). | [
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ROBERT J. GLADWIN, Judge.
bOn April 80, 2009, the Crittenden County Circuit Court terminated appellant Natasha Blakes’s parental rights to J.B., who was born April 7, 2006, when she was fifteen and in the custody of the Division of Youth Services (DYS) for delinquent activity. Appellant’s attorney filed a motion to withdraw pursuant to Linker-Flores v. Arkansas Department of Human Services, 859 Ark. 131, 194 S.W.3d 739 (2004), asserting that there are no issues of arguable merit to support the appeal. In accordance with Rule 6-9(i)(l) of the Arkansas Rules of the Supreme Court and Court of Appeals (2009), counsel’s motion is accompanied by an abstract, addendum, and brief listing adverse rulings made at the termination hearing and explaining why there is no meritorious ground for reversal, including a discussion of the sufficiency of the evidence to support the termination order. The clerk of this court sent a copy of counsel’s motion and brief to appellant, informing her that she had the right to file pro se |2points for reversal. See Ark. Sup.Ct. R. 6-9(i)(3). Appellant did not file any pro se points for reversal.
Appellant’s counsel initially failed to brief two adverse rulings, and on February 3, 2010, we sent the case back for rebrief-ing. See Blakes v. ADHS, 2010 Ark. App. 108, 2010 WL 374408. Because appellant has complied with the requirements established by the Arkansas Supreme Court for no-merit termination cases, and because we agree that the appeal is wholly without merit, we affirm the termination order and grant appellant’s counsel’s motion to withdraw.
This case originated when J.B. was placed into DHS custody on April 9, 2006, while appellant was incarcerated, and DHS filed a dependancy-neglect petition on April 12, 2006. The circuit court entered an order for emergency custody of J.B. that day. The court entered an order of probable cause on April 17, 2006. It held an adjudication hearing on May 22, 2006, when appellant was still incarcerated. The court approved DHS’s case plan and stated that the goal would be reunification. The court directed appellant to complete parenting classes; to submit to random drug screens; to cooperate with the department; and to obey the court’s orders. Appellant was released from DYS in May 2006 and was placed in a foster home with J.B. The court held a review hearing on June 20, 2006. The court ordered appellant not to leave her foster home with J.B. and imposed the same requirements on appellant as previously ordered.
After less than a month with J.B., appellant took him from the home without permission; left him with someone; and then called her caseworker to report him as having | sbeen kidnapped. DHS located the baby and placed him and appellant in separate foster homes. The court held a review hearing on August 29, 2006, continued the goal of reunification, and ordered appellant to attend school daily with no unexcused absences and to follow the rules in her foster home. The court held another review hearing on October 16, 2006, with a continued goal of reunification. At the review hearing held on December 12, 2006, the court entered an order directing that J.B. be placed in foster care separate from appellant. The court approved the visitation plan created for appellant and directed her to complete parenting classes and to obey the orders of the court. The goal remained reunification.
The court held a permanency-planning hearing on June 19, 2007. In the resulting order, the court continued the goal of reunification “only because the parent has been complying with the established case plan and orders of the court and has made significant measurable progress.... ” The court noted that reunification was expected to occur by September 2007. Appellant was ordered to comply with the orders of the court and the terms of the case plan; complete parenting classes; cooperate with DHS and all service providers; follow the rules in her foster home; become stable in her foster-care placement so that her infant might be placed with her; and attend school daily with no unexcused absences.
The court held a review hearing on September 18, 2007, and continued the goal of reunification. The court continued supervised visitation, directed appellant to maintain school attendance, and ordered weekly home monitoring. The next review hearing was held |4on March 13, 2008. Although the court continued the primary goal of reunification, it added a concurrent goal of termination. In the order, the court noted that appellant had again been committed to DYS on March 10, 2008. It ordered her to obey the rules of DYS and to avail herself of services, such as anger management, while there. The court held an additional permanency-planning hearing on May 8, 2008, at which time DHS was deemed to have made reasonable efforts. After the hearing, the court changed the goal to termination.
Appellant turned eighteen in August 2008. When she left foster care, she moved into her aunt’s home in West Memphis. In the November 2008 court report, DHS noted that appellant and J.B. had not been placed together since June 2006, because appellant had left him with an inappropriate babysitter and had informed the department that someone had taken her baby. The report added that (1) appellant had been unwilling or unable to control her anger, in spite of having been provided with multiple placements, counseling, several placements in acute care for behavioral problems, and medication; (2) DHS’s attempts to effect visitation between appellant and J.B. had been hampered by appellant’s verbal and physical aggression at each foster-care placement; (3) appellant had been unable to maintain foster placements or to control her behavior, and that, at the July 22, 2008 staffing, she cursed at the workers and stormed out of the room; (4) appellant remained unemployed and was financially, physically, mentally, and emotionally incapable of raising her child.
DHS filed a petition to terminate appellant’s parental rights on October 7, 2008. It alleged that the child had been adjudicated to be dependant-neglected and had continued out |sof appellant’s custody for twelve months and, despite a meaningful effort by the department to rehabilitate appellant and correct the conditions that caused removal, those conditions had not been remedied. Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl.2009). DHS also listed another ground, that other factors or issues had arisen subsequent to the filing of the original petition for dependancy-neglect that demonstrated that the return of the juvenile to the custody of appellant was contrary to his health, safety, or welfare, and that, despite the offer of appropriate family services, appellant had manifested the incapacity or indifference to remedy the subsequent issues or factors. Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Repl.2009).
The termination hearing was held on November 25, 2008, and appellant attended with her attorney. The case worker, Doreen Brown, testified that after appellant was released from DYS in May 2006, she and J.B. were placed together in a foster home in Cross County, from which they were sent to another foster home in Earle, in Crittenden County. She said that appellant and J.B. were together for less than a month; while there, appellant called her and stated that she had taken J.B. from the home and that someone, she did not know or care who it was, had taken J.B. Ms. Brown could not obtain any more information from appellant, so she and the county supervisor left immediately for Earle; before they arrived, another worker contacted her to say that she had the baby, whom appellant had left with the Mucherson family in Earle. She emphasized that appellant did not have authority to leave J.B. with anyone else. At that point, she said, appellant and J.B. were placed in separate foster | f,homes to ensure the child’s safety and well-being. Ms. Brown testified that appellant did not maintain the new foster-home placement; overall, appellant had over twenty placements in Crittenden, Mississippi, and Pulaski Counties, because of her behavior problems, and did not cooperate with DHS, follow the foster-home rules, or attend school daily without unexcused absences. Ms. Brown said that appellant assaulted a staff member at one of her placements (at Dana House in Stuttgart, where she stabbed a worker in the hand with a pencil); in Mississippi County, appellant took a knife to school, which resulted in her being suspended for one year. In an independent living program at The Centers for Youth and Families, she said, appellant disrupted her placement, and DHS moved her to Cross County; within a week, DHS moved appellant again. Ms. Brown said that the foster parent had requested immediate removal, and the police had become involved when appellant was verbally aggressive to the foster parent.
Ms. Brown testified about her extensive efforts to avoid termination of appellant’s parental rights, and said that, throughout this proceeding, appellant received counseling. Ms. Brown said that, in November 2007, DHS placed appellant in Pinnacle Pointe (an acute-care facility) after she called Ms. Brown and made terroristic threats toward DHS workers; in fact, appellant was placed at Pinnacle Pointe five times because of aggressive behavior. She said that appellant was placed in Bridge-way in December 2007 after becoming violent again at the center, stating, “She cussed them out. She threatened them. She told them that she was — if they didn’t moved [sic] out of her way, whoever her target person was, when the actual 17person that end up getting hurt, it was someone that was in the middle ended up getting injured by Natasha.” Ms. Brown said that criminal charges were brought as a result, and appellant went back to DYS in February 2008; she was released in July 2008.
Ms. Brown indicated that appellant was currently living with her relatives and two siblings in a home lacking room for J.B.; was unemployed; had no income; and had not finished her GED, although she was working on it at the local community college. She stated that appellant had not learned how to control her anger and that she was a danger to J.B.; she did not know of any services to offer appellant that would lead to J.B.’s being safely returned to her care. Ms. Brown said that it was in J.B.’s best interest that appellant’s parental rights be terminated; that his foster mother, Gina Norman, wanted to adopt him, and had completed all of the steps necessary for that to happen; and that J.B. had no special health needs. She acknowledged that appellant had improved, but did not think that her improvement was sufficient to return J.B. to her.
Gina Norman testified that J.B., who had no special needs other than mild allergies, had been in her care for three months and was doing well. She said that, if the court terminated appellant’s parental rights, she wanted to adopt him.
Appellant’s aunt, Linda Murray, testified on behalf of appellant. She said that, since appellant moved in with her and another aunt and some of their nieces, appellant had helped with household chores; had looked for work unsuccessfully; and had worked on her GED. She stated that appellant had informed her that, if J.B. were returned to her, she intended to | ¿move into her cousin’s two-bedroom apartment in West Memphis; that cousin has two children.
Appellant testified on her own behalf. She denied leaving J.B. with someone she did not know. She denied telling Ms. Brown that she did not know or care where he was, or that someone had taken him. She described the incident in Stuttgart as follows:
[A] boy hit me with a baseball bat and so I was after him and a lady got in my way and I try to stab him instead of the lady and she got in my way, she wouldn’t let me go so I stabbed her. And I don’t like to be held when I’m mad.
Appellant said that she had improved in her ability to control her behavior and that she had learned alternative ways to deal with her anger. She did not want her parental rights terminated, but admitted that she had no source of income, no job, and no housing of her own. She said that, if the court returned J.B. to her, she did not want to stay with her aunts, because her little sisters were constantly getting into trouble. She described her future housing plans with her pregnant cousin and her two children, stating that “Her mother supposed to move out in January next year and she said I could come and stay with her and when her lease up from her session there we supposed to move to Marion.”
Appellant’s attorney then stated that, although she had subpoenaed two “fairly important” witnesses, Janet Moody and Theresa Ward, to testify about appellant’s “placement and her progress and so forth,” they were not present in the courtroom; Moody had appeared, but left after 3:00 p.m. The court stated that it was already 5:30 p.m. and that they would finish the case that day, “So if they’re not here we’ll go without them.”
| <)The court terminated appellant’s parental rights on the “twelve months” and “other factors” grounds, citing post-petition issues related to housing, employment, delinquent activity, and current ability to provide for J.B. The court made the following findings:
[J.B.] was placed together with his then minor mother ... in a foster home following her release from DYS commit ment. However, the minor mother and child were only able to be placed together for approximately one month in 2006 due to her conduct and disruption of placements. The Court finds that Natasha Blakes had approximately 20 disruptions in placements while in foster care. The record herein is replete with examples of her violent and aggressive behavior, which resulted in those placement disruptions. Natasha Blakes did partially comply with parenting, watched “The Clock Is Ticking” video, and visitation. She received extensive counseling and therapy, primarily while in DYS commitment or while placed through foster care at Pinnacle Point, Bridge-way, Centers, and through outpatient therapy. She failed to avail herself of those services sufficiently to remedy her issues with aggression, violence, and anger management.
The court found clear and convincing evidence that there was a substantial likelihood that the child would be adopted and that DHS was seeking to clear the child for adoption by his current temporary legal custodian. It also stated that there was a significant risk of harm in returning J.B. to appellant because of her “ongoing instability, immaturity, and violent/aggressive behavior as described in the testimony of Doreen Brown. The mother is emotionally and mentally unstable.” The court added that, since reaching the age of eighteen, appellant had failed to obtain a job, sufficient income, housing, transportation, or her GED. The termination order was entered on April 30, 2009. Appellant filed a timely notice of appeal.
An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest. Ark.Code Ann. § 9-27-341(b)(3)(A)_li2(Repl.2009). Factors to consider in determining best interest are the likelihood of adoption and potential harm caused by returning the child to the custody of the parent. Id. Additionally, DHS must prove at least one statutory ground for termination by clear and convincing evidence. Ark.Code Ann. § 9-27 — 341(b)(3)(B) (Repl.2009). The purpose of terminating a parent’s rights to his or her child is to provide permanency in the child’s life where returning the juvenile to the family home is contrary to the child’s health, safety, or welfare, and it appears that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. Ark.Code Ann. § 9-27-341(a)(3) (Repl.2009). We do not reverse a termination order unless the trial court’s findings were clearly erroneous. Meriweather v. Arkansas Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007).
In the present case the trial court found termination of parental rights to be in the best interest of the child, considering the likelihood of adoption and potential harm of continuing contact with the parent. The trial court found that DHS met its burden of proof as to Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), as follows:
That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
The court also found that “other factors” had arisen, which appellant did not remedy. See Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a). By the time the termination order was entered, |nthe child had been in foster care for over three years. Appellant could not provide any kind of home for him when he was born, and that situation did not sufficiently improve in those three years. The “other factors” ground included appellant’s additional acts of violence; her second stay at DYS; and her false report of J.B.’s kidnapping. Although appellant partially complied with the ease plan and court orders, her child was clearly in serious danger of abuse if returned to her. The evidence in the record overwhelmingly demonstrates grounds for termination.
The adoptability factor was satisfied by the testimony of Ms. Brown, who said that the child was in a pre-adoptive foster placement, and Gina Norman, who said that she wanted to adopt J.B. Additionally, Ms. Brown’s lengthy testimony about appellant’s continuing problems controlling her anger satisfied the “potential harm” factor.
Appellant’s counsel asserts that the trial court’s findings were not clearly erroneous and that there can be no meritorious argument challenging the sufficiency of the evidence to terminate appellant’s parental rights. We agree. The evidence demonstrated that the child is likely to be adopted and that his welfare and safety would be jeopardized if returned to his mother’s custody. This case has a lengthy history without resulting in a successful reunification, and in the interest of permanency, termination is in the best interest of the child.
DHS adequately proved the statutory grounds as determined by the trial court. There was ample evidence that despite meaningful efforts by DHS, appellant failed to remedy the | ^conditions that caused removal. She has manifested the incapacity or indifference to remedy subsequent issues that arose in this case, which demonstrates that the return to her custody is contrary to the child’s welfare. Consistent with the testimony of the caseworker, there is little likelihood that continued services would result in successful reunification. For any and all of these reasons, the trial court was authorized to terminate appellant’s parental rights to promote the best interest of the child.
Aside from the ruling terminating appellant’s parental rights, counsel addresses four adverse rulings. Counsel initially discusses the circuit court’s sustaining an objection by DHS’s attorney when appellant’s counsel asked Ms. Brown on direct examination about her interpretation of statements made by the DHS attorney at the August 8, 2008 staffing. During a discussion of that staffing, appellant’s counsel asked what promises were made to appellant, and DHS objected on the ground that the discussion was in the nature of settlement negotiations and, therefore, inadmissible. The line of questioning indicated that appellant might have believed that she had been promised that she would regain custody of J.B. Ms. Brown testified that the attorney made contingent promises to appellant — if she found a job, got her GED, etc. — because appellant had just turned eighteen. In response, DHS’s attorney stated that she explained to appellant that she could not promise her anything because she had to advocate for whatever her client recommended; however, this was appellant’s last chance to demonstrate that she could change and do better. Because evidence of settlement negotiations are inadmissible under Arkansas Rule of Evidence 408 (2009), and because 11scounsel provided no indication that the evidence was being offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution, we hold that the circuit court correctly ruled on this objection.
The next adverse ruling was the circuit court’s sustaining an objection by DHS to leading questions asked by appellant’s counsel during direct examination of appellant. Appellant testified that, after being released from foster care, she had not received any counseling, although she thought that she needed more anger-management counseling. Her attorney asked, “Now do you sometimes find yourself frustrated for other reasons, I mean do you find that — do you find yourself being distrustful of people or what?” The court sustained the objection by counsel for DHS, and we hold that the circuit court did not abuse its discretion in so ruling. Moreover, the ruling was not prejudicial because appellant was permitted to give the following explanation that her attorney was attempting to elicit:
"When I’m told one thing and then someone does something different it makes me mad. I feel like I can’t trust that person. I was told that I would get J.B. back. Then I was told I wasn’t going to get him back. That made me feel bad, it made me angry.
In the event appellant’s perception was correct, and she was justifiably angry, it would not support a meritorious appeal because such promises did not prompt appellant’s previous episodes of physical violence or angry outbursts.
On cross-examination by appellant’s counsel, the DHS caseworker was asked how many cases she had managed regarding teenage mothers in foster care. The attorney ad litem 114objected as to the relevance, and the circuit court sustained the objection. Appellant’s counsel rephrased the question to specifically ask how many foster children the caseworker had supervised who had displayed aggressive behavior, at which time the attorney ad litem made the same objection. The circuit court directed appellant’s counsel to
respond as to the relevancy of the question. Counsel responded, “Well, I think it’s relevant here as to the type of handling in terms of case management that Natasha would have received as opposed to any other child in a similar situation.” The circuit court again sustained the objection, stating, “I think every case is unique and requires personal handling so I’m going to sustain the objection.” The circuit court was within its discretion to weigh the relevance of evidence presented and we will not reverse on a question of admissibility
of evidence absent an abuse of discretion. See Stedman v. Ark. Dep’t of Human Servs., 2009 Ark. App. 805, 2009 WL 4377538. The issue of how many minor mothers the DHS caseworker had managed is irrelevant to the specific, unique actions that appellant took in this particular case. Counsel also notes that no evidence was proffered on this issue. See Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999) (holding that by failing to proffer to the record the substance of social worker’s testimony in regard to any disclosures of sexual abuse of parties’ child, mother did not preserve for appellate review issue of whether trial court erred in refusing to qualify social worker as an expert witness, in modification of custody case).
Finally, appellant’s counsel discusses the circuit court’s decision to go forward with the termination-of-parental-rights hearing without appellant’s missing witnesses. Appellant’s | ^counsel informed the circuit court that she had subpoenaed witnesses, specifically Janet Moody and Theresa Ward, but that the two women left prior to being called to testify. The circuit court inquired as to the substance of their purported testimony, and counsel stated that they would testify regarding the placement and progress of appellant. Counsel stated that she thought the two witnesses were “fairly important” — at least important enough to subpoena — but she failed to either proffer additional evidence or ask the court for a continuance. Because appellant’s counsel did not ask for any relief for the failure of the witnesses to appear, the circuit court decided to proceed with the remainder of the hearing.
The circuit court also inquired as to the notification of the other parties as to the subpoenas, and counsel for appellee and the attorney ad litem appeared to have had no notice. The circuit court noted that the docket sheet did not reflect that any subpoenas had been issued or that there was proof of service. Appellant’s counsel indicated that Ms. Ward was personally served and that Ms. Moody was present in court; however, there was no documentary evidence to support counsel’s statement. Arkansas Rule of Civil Procedure 45 (2009) provides that notice of a subpoena shall be promptly given to all parties in the manner prescribed by Arkansas Rule of Civil Procedure 5(b) (2009). Rule 5(b) provides that any person subpoenaed for examination at the trial or hearing shall remain in attendance until excused by the party causing him to be subpoenaed. Additionally, Rule 5(b) provides that service upon the attorney shall be made by delivering a copy to the attorney or by sending it to the attorney by regular mail or by commercial delivery, and delivery of a copy means | tfjhanding the same to the attorney or to the party. Accordingly, the issued subpoenas in question were not properly served, and the parties were not given proper notice. Based upon the sparse evidence before us related to the missing witnesses’ proposed testimony, we can discern no basis for a meritorious appeal on this issue.
Based on our review of the record and the brief presented to this court, we conclude that there has been full compliance with Rule 6 — 9(i)(l) and that the appeal is without merit. Appellant’s counsel’s motion to be relieved is granted and the termination orders are affirmed.
Affirmed.
HENRY and BROWN, JJ., agree. | [
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BILL H. WALMSLEY, Judge.
I,Shelby County Health Care Corporation d/b/a Regional Medical Center (“the Med”) appeals from an order for default judgment entered on June 6, 2013, and the denial of its motion to set aside the default judgment. Because the trial court prematurely granted the default judgment, we reverse and remand this case for further proceedings.
On April 21, 2006, Jessica Teague, a resident of Arkansas, was involved in an automobile accident in Arkansas. She was transported to the Med in Memphis, Tennessee, where she remained hospitalized until May 3, 2006. Following Teague’s release, the Med perfected a hospital lien in the amount of $192,645.33, which represented the total cost of her care. Teague, however, was billed for only $676.92.
Teague entered into a settlement with the insurance company of the third-party tortfeasor in which she received $125,000. The Med claimed entitlement to one-third of the proceeds of the settlement pursuant to Tenn.Code Ann. § 29-22-101(a) and (b), which | ^provides that a hospital lien applies to all reasonable and necessary charges but limits the lien to no more than one-third of any settlement or judgment against a third-party tortfeasor.
On August 29, 2006, Teague filed a petition for declaratory judgment in Arkansas asking the trial court to find that the maximum lien that the Med could collect was for the amount it billed her — $676.92. On September 11, 2006, Gary McCullough, an attorney not licensed to practice law in Arkansas, filed a special appearance and motion to dismiss on behalf of the Med challenging personal jurisdiction. The trial court denied the motion to dismiss. The Med, by and through its Tennessee attorney, answered Teague’s amended petition on December 18, 2006.
Aside from a deposition taken in March 2007, there was no activity in this case for several years. On September 25, 2012, the trial court notified counsel for the parties that, unless it received a response -within thirty days, the case would be dismissed pursuant to Arkansas Rule of Civil Procedure 41(b) because it had been inactive for more than one year. Counsel for Teague requested a trial.
This matter was set for trial on December 3, 2012. At the hearing, counsel for Teague made an oral motion to declare the Med’s pleadings a nullity because they had not been signed by an attorney licensed to practice law in Arkansas. The trial court took the motion under advisement and allowed the parties to submit posttrial briefs on the issue. In Teague’s posttrial brief, she again asked the court to declare the pleadings filed by Gary McCullough a nullity, and she also requested that the trial court enter a default judgment on her behalf. The Med opposed this action in its posttrial brief.
|sOn June 6, 2013, the trial court declared the pleadings signed by Tennessee counsel a nullity and entered an order for default judgment. On June 13, 2013, local counsel for the Med filed a motion to set aside the default judgment. Thirty days passed, and the motion was deemed denied pursuant to Ark. R.App. P.-Civ. 4(b)(1). This appeal followed.
We reverse the trial court’s order for default judgment because Teague did not properly make an application for default judgment. Arkansas Rule of Civil Procedure 55(b) provides that “the party entitled to a judgment by default shall apply to the court therefor,” and further reads that, “if the party against whom judgment by default is sought has appeared in this action, he shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.” Arkansas Rule of Civil Procedure 7(b)(1) provides in pertinent part that “an application to the court for an order shall be by motion.” At the hearing on December 3, 2012, Teague merely made an oral motion to strike the Med’s answer because its attorney was not licensed to practice law in Arkansas. No motion for default judgment was ever made by Teague, as her request for an order of default judgment was made only in a posttrial brief. In addition to the lack of a motion for default judgment, the trial court should not have entertained a motion for default until the Med was given notice three days prior to a hearing on the application.
Default judgments are not favored in the law. Brooks v. Farmers Bank & Trust Co., 101 Ark.App. 359, 276 S.W.3d 727 (2008). A default judgment should only be granted when strictly authorized and when the party affected should clearly know he is subject to default if he does not act in the required manner. Id. The argument in support of default judgment | presented by Teague in her posttrial brief failed to comply with the rules regarding application for default judgment and is insufficient to qualify as an application for such judgment.
Because the trial court prematurely granted an order for default judgment, we reverse and remand this case for further appropriate proceedings. Given the resolution of this issue, we need not address the remaining issues raised on appeal.
Reversed and remanded.
HARRISON and WYNNE, JJ., agree. | [
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RITA W. GRUBER, Judge.
I,Robert Turner was convicted by a jury of two counts of aggravated robbery and one count of residential burglary. He contends on appeal that the trial court abused its discretion by admitting a portion of a 911 dispatch log into evidence over his relevancy objection. The log reflects telephone calls about a “shooting and robbery ... in house” in Gilmore, Arkansas, the night of February 8, 2011. The following information was typed into the log by a dispatcher at the Crittenden County Sheriff’s Office at the time he received the calls:
Someone shot, Darren Chance, 266 Menesha, Gilmore ..., Robert Turner, 30Y, B/M, 140, 5'06', white/Chev/Impala two door car headed toward Lepan-te.... Tyronza notified to be on lookout for the vehicle and the Robert Turner subject that he was in a white Chevrolet poss in route back to Lepante. She called back and wanted to know if the Turner subject was a Sr or Jr. He was the Jr.
We find no abuse of discretion in the trial court’s decision to allow the admission of this evidence.
Before turning to the merits of this case, we make the following observations about |gthe briefs before us. The State’s brief includes a supplemental addendum reproducing the page of the dispatch log at issue as well as a supplemental abstract of testimony by three witnesses: victim Darren Chance, a second victim, and a law-enforcement officer who conducted a photo lineup. These items are essential to our understanding of the issqes on appeal, and appellant’s abstract and addendum is deficient because it lacks them. See Ark. Sup. Ct. R. 4-2(a)(5), (8) (20Í3). Furthermore, appellant’s statement of the case is barely sufficient to assist us in understanding the nature of the case and general fact situation, and it lacks “page references to the abstract or addendüm of both.” Ark. Sup. Ct. R. 4 — 2(a)(6) (2013). The deficiencies of appellant’s brief are such that, were it not for supplementation by the State, we would have been unable to reach the merits of this appeal and would have ordered rebriefmg. See Ark. Sup.Ct. R. 4-2(b)(3) (2013).
Admission of the Dispatch Log into Evidence
Matters pertaining to the admissibility of evidence and rulings on relevancy are left to the trial court’s sound discretion. Sipe v. State, 2012 Ark. App. 261, 404 S.W.3d 164. We will not reverse a trial court’s evidentiary ruling absent an abuse of that discretion and a showing of prejudice. Id. Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the circuit court acted improvidently, thoughtlessly, or without due consideration. Id.
As a general matter, all relevant evidence is admissible. Ark. R. Evid. 402 (2013). Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it 13would be without the evidence.” Ark. R. Evid. 401 (2013). Even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, ..., or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2013). The State, however, is entitled to prove its case as conclusively as it can. Lard v. State, 2014 Ark. 1, 431 S.W.3d 249. Merely cumulative evidence is not prejudicial, and corroborating evidence may withstand Rule 403’s balancing test. See Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007) (finding no abuse of trial court’s discretion in admission of 911 calls despite Rule 403 claims that they were cumulative to other evidence); Anderson v. State, 93 Ark.App. 454, 459, 220 S.W.3d 225, 230 (2005) (finding no abuse of discretion in admission of letters that tended to corroborate the victim’s testimony).
Appellant’s objection to the dispatch log was initially sustained at trial, but the document was subsequently admitted after the State presented other evidence. The State first proffered the log during the testimony of Jeffrey Morris, the dispatcher who created it; he stated that he took the two calls and that the log was kept in the ordinary course of business at the sheriffs office. Appellant’s counsel, objecting that the log should not be admitted into evidence, asked to voir dire Morris to show that he lacked knowledge of the truth of “anything in this log” or the source of the information at issue. The following colloquy occurred:
Counsel: This case hinges on the State’s ability to identify Robert Turner. This document is going to come in on official letterhead. I think it is hearsay and prejudicial.
The State: We have had testimony that two calls were made, the information given to the Sheriffs office about who it was. And we have the dispatcher |4who received the calls.
The Court: Yes. But so far his name has not come up at all. And no one has said they knew or that they could tell who it was.
(Emphasis added.)
Counsel then conducted voir dire of Morris, who said that he received the information from the phone conversation and had no independent way to verify its accuracy. Morris testified, “I was just repeating what someone else told me. Any action I would have taken would have been the same regardless of the names I was told.” Counsel again objected:
I am asking the court to exclude this document on the basis that it is hearsay with no evidence of reliability, or alternatively to exclude a portion of the document that includes my client’s name under the argument that it is prejudicial. The nature of the offense is that Mr. Turner wasn’t there. There has been no proof that anybody even at the scene can identify Mr. Turner, and I want to avoid the jury getting a document — a Crittenden County official document that has his name on there twice with no indicia of reliability or truthfulness attached to it.
(Emphasis added.) The circuit court, expressing concern about “the highly prejudicial effect of Mr. Turner’s name being put in there at this point,” again sustained counsel’s objection. The court ruled that “right now, the prejudicial effect outweighs the probative value of only mentioning his name.”
The State withdrew its proffer at this point in its case and presented other evidence, including the testimony of Officer Allen Thomas and victims Darren Chance and Deondra Jackson. Chance testified that when the robbers were in his house and when the shorter one 15was “checking and searching” him, he began forming an opinion that the shorter one was appellant. Chance explained, “My opinion was based on his gestures. I’ve been around him for a while and know his gestures. I also remember seeing him with the same gun.” Chance testified that in a statement at the sheriffs office, he again identified appellant as the shorter robber. Chance explained that the two of them lived in the same town and that he had worked on appellant’s car. Regarding events that preceded the robbery, Chance testified:
[Appellant’s] uncle is Chester Turner. I saw him just about every day within the six months before the robbery.... I got cash that day because I got my income tax that day. I went to the post office and there was a letter in there about coming and picking up my money from the tax agency. Chester Turner was with me. We walked to the post office together. He was aware that I was picking up my income tax refund.
Chance said that just a few days before the robbery, he had seen appellant and his uncle in their car with a gun similar to the one the shorter robber subsequently used: a six-shot, brown-handled revolver in a “dark grayish ... color like a blue steel.”
Officer Allen Thomas testified that he conducted a six-photo lineup — directing Deondra Jackson to mark a photo only if he was 100% positive of his pick — and that Jackson wrote his initials on appellant’s photo. Jackson testified that when the robbers left the crime scene,
I followed the ear the robbers had gotten in.... I figured that they still had the guns in the car. When they made a right going towards Jonesboro way, I caught up with them a little more.... I actually got bumper-to-bumper trying to make them run off the road. My car is higher so my lights were actually in the •window. They were looking up and down because they took their masks off.... I could see the passenger’s gold teeth, and I knew who it was at the time. They slowed down, and I passed them. I got a good look at their face, and I got off the exit to come back home. I got behind them and was able to get close and turn on my bright lights. I could see that they had removed their masks.... The passenger was ducking up and down. He turned around and was looking up and down. His eyes were in my lights, and I could |fisee his gold teeth, and I saw his face. I recognized his face. It was Robert Turner.
Jackson testified that he had known appellant for ten years and that they were cousins through their fathers. Jackson identified appellant in the courtroom and testified with absolute certainty that appellant was the passenger in the vehicle.
The State proffered the dispatch log for the second time after the testimony of these witnesses, and counsel for appellant reiterated his earlier objection. The circuit court overruled the objection, finding that “the prejudicial nature [no longer] stands.” Counsel again objected on the basis of prejudice. The court, again overruling the objection, found that the log “is no longer prejudicial because worse facts have come in.”
Appellant argues on appeal that the circuit court abused its discretion by allowing the dispatch call log into evidence because it identified him by name with no basis for reliability, thus prejudicing the jury against him. He further argues that the prejudice was not harmless because his defense was that of “mistaken identity.” We disagree with both arguments.
We find no abuse of discretion in the circuit court’s decision that the probative value of the dispatch log substantially outweighed the danger of unfair prejudice. The log, albeit prejudicial on its own, corroborated the victims’ testimony that appellant was involved in the robbery and burglary. Moreover, the identification of appellant by name in the 911 calls undermines his theory of mistaken identity. The State was entitled to prove its case as conclusively as it could, and the fact that the evidence may have been cumulative to other evidence at trial does not demonstrate an abuse of discretion by the trial court in light of other purposes for the evidence.
|7Affirmed.
HARRISON and WOOD, JJ., agree.
. As noted earlier in our opinion, the testimony of these witnesses appears only in the State's supplemental abstract. Appellant's abstract refers to this portion of the record as "immaterial ... omitted pursuant to the Rules.” | [
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BRANDON J. HARRISON, Judge.
[T Frederick Rainey appeals from his conviction on two counts of breaking or entering and two counts of theft of property. On appeal, Rainey’s counsel argues that there are no meritorious grounds for appeal and asks to be relieved as counsel. Rainey was provided with a copy of counsel’s motion and brief and was informed of his right to submit pro se points for reversal in accordance with Rule 4-3(k)(2) of the Arkansas Rules of the Supreme Court; Rainey did not file pro se points for reversal. Because counsel has failed to comply with the requirements of Rule 4-3(k), we deny the motion to withdraw and order rebriefing.
In February 2012, Richard Scallion reported a number of items stolen from his property in Cleveland County, including a four-wheeler, two weedeaters, a chainsaw, and a number of tools. Also in February 2012, Willie Livingston reported several items stolen from his property in Cleveland County, including two lawnmowers, a ten-foot trailer, ^numerous tools, and a 1969 antique Dodge truck. Rainey was charged in connection with these thefts in May 2012; at a jury trial, held in May 2013, the State presented its evidence against Rainey, including the testimony of his cousin, Evines Rainey, Jr. Evines, who had already pled guilty to two counts of breaking or entering and two counts of theft of property, testified that he and Rainey had committed the crimes together.
In his motion for directed verdict, Rai-ney argued that Evines’s testimony was not sufficiently corroborated, but the circuit court found that there was “adequate, though very slight, corroborating evidence” such that the motion would be denied. The motion was renewed at the close of all the evidence and again denied. The jury found Rainey guilty on all counts, and he was sentenced to four years’ imprisonment on each count, to run consecutively. A timely appeal followed.
Rainey’s attorney has filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Ark. Sup.Ct. R. 4-3(k) (2013), along with a motion to be relieved as counsel, asserting that there is no issue of arguable merit for an appeal. A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief that contains a list of all rulings adverse to appellant and an expía- nation as to why each ruling is not a meritorious ground for reversal; Ark. Sup.Ct. R. 4-3(k)(l). The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation, as to why each adverse ruling is not a meritorious ground for reversal. Id.
13A conviction cannot be upheld in any felony case if the conviction is based on the testimony of an accomplice, uhless there is additional, corroborating evidence that tends to connect the defendant with the commission of the offense. See Ark.Code Ann. § 16-89-lll(e)(l)(A) (Supp.2013). The corroboration is insufficient if it merely shows that the offense was committed and the circumstances thereof. Ark.Code Ann. § 16 — 89—111(e)(1)(B).
Corroborating evidence must be substantial in nature giveri that it must be directed toward connecting the accused with the crime, and not directed toward corroborating the accomplice's testimony. See, e.g., MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006). Circumstantial evidence may be used to support accomplice testimony — but it, too, must be substantial. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id. It must, however, be independent of the accomplice’s testimony and tend (in some degree) to connect the defendant with the crime. Id. The legal litmus test for corroborating evidence is whether, if the testimony of the accomplice was totally eliminated from the case, the remaining evidence independently establishes the crime and tends to connect the accused with its commission. Id.
Here, counsel correctly asserts that the only adverse ruling below was the court’s denial of Ramey’s motion for directed verdict. But counsel does not explain why this adverse ruling is not a meritorious ground for reversal. No mention is made of the standard of review for corroborating evidence. Instead, the brief merely makes conclusory statements that “the trial [c]ourt correctly ruled that there was adequate, although slight, 1 ¿corroborating evidence which was sufficient to get the case to the jury” and “the state met its burden of proof.”
In deciding whether to allow counsel to withdraw from appellate representation, the test is not whether counsel thinks the trial court committed no reversible error, but whether the points to be raised on appeal would be wholly frivolous. Williams v. State, 2013 Ark. App. 323, 2013 WL 2112203. In this case, we conclude that counsel’s brief fails to comply with Rule 4-3(k) and order rebriefing. We express no opinion as to whether the new appeal should be on the merits or should be made pursuant to Ark. Sup.Ct. R. 4-3(k)(l). If a no-merit brief is filed, counsel’s motion and brief will be forwarded by the clerk to appellant so that, within thirty days, he may again raise any points he chooses in accordance with Ark. Sup.Ct. R. 4 — 3(k)(2).
Rebriefing ordered; motion to withdraw denied.
GRUBER and WOOD, JJ., agree. | [
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DONALD L. CORBIN, Associate Justice.
I iThis appeal is from child-custody orders entered by the Pulaski County Circuit Court on October 11, 2012, and November 13, 2012. This court granted a petition for review filed by Appellee Marcia Goodloe following a decision by the court of appeals in Goodloe v. Goodloe, 2013 Ark. App. 624, 2013 WL 5872296, wherein the court of appeals reversed the circuit court’s order leaving primary custody with Marcia but granting Appellant Graham Goodloe certain decision-making authority with regard to the parties’ two minor children, B.G. and T.G. When this court grants a petition for review of a decision by the court of appeals, we treat the appeal as if it had been originally filed in this court. Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. We remand this case to the circuit court and vacate the order of the court of appeals.
| ¡After we had granted the petition for review, Marcia sought and received per mission to file a supplemental brief with this court. After her supplemental brief had been filed, Graham filed in this court a motion to dismiss the appeal. Therein, Graham stated that the circuit court had entered an order on March 11, 2014, temporarily changing custody of the parties’ minor children to Graham, and the pending appeal was therefore moot. Marcia filed a response, asserting that the appeal was not moot because the circuit court’s order was a temporary order that could not be appealed. Moreover, Marcia asserted that it was necessary for this court to clarify what she deemed to be a conflict between this court’s decision in Singletary, 2013 Ark. 506, 431 S.W.3d 234, and the court of appeals’ decision in this case. This court denied the motion to dismiss on April 17, 2014.
Graham now asserts on appeal that the circuit court erred in refusing to award him physical custody of the children when it found a material change in circumstances justifying a change in educational decision-making authority for B.G. and T.G., and medical decisionmaking authority for T.G., from Marcia to Graham. According to Graham, the circuit court’s finding that physical custody should remain with Marcia was contrary to the preponderance of the evidence and not in the best interest of the children.
| ¡¡Although this appeal is not moot, the issues presented regarding a material change in circumstances and the best interest of the minor children have once again changed, as demonstrated by the circuit court’s order granting temporary custody to Graham. While the circuit court’s most recent order governing custody of the minor children is temporary, Graham has requested a permanent change of custody based on allegations of a material change in circumstances that occurred after entry of the order that is the subject of this appeal. Thus, any opinion offered by this court with regard to the 2012 orders granting Graham certain decision-making authority but leaving physical custody with Marcia would be purely advisory. And it is well settled that this court does not issue advisory opinions. See DIRECTV, Inc. v. Murray, 2012 Ark. 366, 423 S.W.3d 555. Accordingly, because of the unique procedural history of this case, we remand it to the circuit court for consideration of any pending matters related to the custody of the minor children, B.G. and T.G.
Remanded; court of appeals’ opinion vacated.
BAKER, GOODSON, and HART, JJ., dissent.
. The circuit court's March 11, 2014 order, which was attached as an exhibit to pleadings filed in this court, clearly states that the change of custody to Graham is temporary and "in place until further orders from the Court.” Only final orders of custody are specifically appealable under Arkansas Rule of Appellate Procedure-Civil 2(d); see also Sandlin v. Sandlin, 290 Ark. 366, 719 S.W.2d 433 (1986); Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984).
. Attached as an exhibit to Graham's motion to dismiss the appeal was his "Motion for Change of Custody and Emergency Hearing,” wherein he requested immediate temporary and permanent custody of the children. | [
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LARRY D. VAUGHT, Judge.
hOn August 15, 2013, a Mississippi County jury found appellant Robbie Ward guilty of raping a two-year-old girl (TG) and sexual indecency with a five-year-old boy (HB). Ward was sentenced to a total of thirty-six years’ imprisonment in the Arkansas Department of Correction. He now appeals arguing that there was insufficient evidence to support his convictions; that all testimony from HB should have been excluded; and that certain statements made by a social worker who testified at trial were inadmissible hearsay. The State responds that the evidence was more than sufficient to support the convictions and that both questionable evidentia-ry rulings were harmless error, if error at all. We agree and affirm the convictions.
First, in consideration of whether there was substantial evidence to support the rape and sexual-indecency convictions, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Beaver v. State, 2014 Ark. App. 188, at 1, 2014 WL 1092386. We will affirm a conviction when there is substantial evidence to support it, and substantial evidence |2is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion without resorting to speculation or conjecture. Id.
A person commits rape if he engages in deviate sexual activity with another person who is less than fourteen years of age. Ark.Code Ann. § 5-14-103(a)(3)(A) (Supp.2011). “Deviate sexual activity” includes any act of sexual gratification involving the penetration, however slight, of the mouth of a person, by the penis of another person or the labia ma-jora of a person by any body member of another person. Ark.Code Ann. § 5-14-101(1)(A), (B) (Supp.2011). A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanation of incriminating conduct. Green v. State, 2013 Ark. 497, 430 S.W.3d 729.
The evidence here shows that Mark Griffin, the father of TG, lived with his fiancee, Christie Owens, and her son, HB. Griffin testified on November 15, 2012, he and Owens went to Walmart to cash their paychecks and left their children with Owens’s uncle, Donnie Adamson. It is unclear from the record when Adamson left and Ward (apparently a family acquaintance) arrived at the home; but when Griffin and Owens returned, they could locate neither Adamson nor the children. Griffin testified that on investigation, they discovered that the door to his and Owens’s bedroom was locked but that he was able to push it open. Griffin testified that when he entered the room, he saw the children essentially naked and Ward “at the end of the bed with his [penis] in his hand.” HB testified that Ward “touched [TG’s] privates” with his hands.
|STG and HG were taken to the hospital and tested for evidence of rape. Heather Farrell, an expert in forensic serology from the Arkansas State Crime Laboratory (ASCL) testified that the test revealed the presence of semen on an oral swab taken from TG. Morgan Nixon, a DNA expert from the ASCL testified that a partial DNA profile consistent with Ward was found on a vaginal swab taken from TG.
Owens testified that she entered the room at the same time as Griffin and grabbed the kids. Owens asked HB if Ward had touched him and TG, and HB replied “yes,” adding that “[Ward] peed on us.” HB told the same story to Barbara Weaver, a case worker with the Arkansas Department of Human Services (DHS), who testified about HB’s account of events at trial. Weaver and HB had a counseling relationship that predated the criminal activity due to certain developmental delays from which HB suffered. Finally, HB testified at trial describing the same events that were presented by Owens and Weaver in their testimony.
According to Ward, he was intoxicated at the time of the incident and believed he was at home urinating in his bathroom. He further explained that it was possible that the DNA semen was found in TG’s mouth and vagina because he had engaged in sexual intercourse with an unidentified woman earlier in the day and had failed to wash his hand afterward. He suggested that the semen found inside TG resulted from him giving her a drink and changing her diaper earlier in the day. Ward also noted that Owens may have transferred the DNA from the house to the child when she picked the child up from the bed. In the end, Ward testified that Griffin and Owens were “making it up” and that Owens had once accused him of “setting her great uncle up for marijuana and some crystal meth[.]”
|4However, viewing the evidence in the light most favorable to the State, we are more than satisfied that the facts established at trial, coupled with Ward’s improbable explanation of the events relating to how his semen entered TG’s body, support the rape conviction, and we affirm.
Ward also challenges the sufficiency of the evidence to support his sexual-indecency conviction, based on the jury’s conclusion that he exposed himself to a five-year-old boy for the purpose of sexual gratification. A person commits sexual indecency with a child if, with the purpose to arouse or gratify a sexual desire of himself, the person purposely exposes his sex organs to another person who. is. less than fifteen years of age. Ark.Code Ann. § 5-14-110(a)(2)(A) (Supp.2011). Further, it is not necessary that the State provide direct proof that an act is done for sexual gratification if it can be inferred from the circumstances. Newton v. State, 2012 Ark.App. 91, at 3, 2012 WL 206967.
In this case, both Griffin and Owens testified that they saw Ward in their bedroom with HB and TG and that Ward’s penis was exposed at the time. HB testified that Ward had his pants and underwear off and that he “peed” in HB’s hand. Also, the children were undressed and his semen and partial DNA were found in oral and vaginal swabs taken from TG. There is ample evidence for the jury to reasonably infer that Ward exposed himself to the children with the purpose to arouse or gratify his sexual desire. We affirm on this point as well.
In his third point on appeal, Ward complains that the trial court erred in its assessment of HB’s competency to testify at trial. The question of competen cy of a witness is a matter within the sound discretion of the trial court. In the absence of clear abuse of discretion, we will not reverse on appeal. Warner v. State, 93 Ark.App. 283, 238, 218 S.W.3d 330, 333 (2005). Any [¡¡witness is presumed competent unless proved otherwise. Ark. R. Evid. 601 (2014). The party alleging that a witness is incompetent has the burden of persuasion. Warner, 93 Ark.App. at 238, 218 S.W.3d at 333. The issue of the competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Id., 218 S.W.3d at 333. A witness’s competency may be established by the following criteria: 1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or 2) an understanding of the consequences of false swearing; or 3) the ability to receive accurate impression and retain them to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt, or heard. Id. at 238-39, 218 S.W.3d at 333. Further, as long as the record supports a trial judge’s finding of a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, we will not hold that there has been a manifest error or abuse of discretion in allowing the testimony. Id. at 239, 218 S.W.3d at 333. Finally, in determining the competency of a child witness, the trial court will examine the child’s testimony in its entirety and will not rely solely on the preliminary questioning. Id., 218 S.W.3d at 333.
Here, the facts show that even the State admitted that it “struggled with the competency issue” and at one point stipulated that HB was not competent to testify. However, the trial court refused the stipulation, noting the absence of evidence showing that HB was not competent at that preliminary point, but reserved the issue for further consideration, as “it might come up again.” However, we agree with Ward that HB’s testimony at trial is remarkably incoherent. When asked “what is a lie” HB responded “because him think — I tell you that.” To the query “can | ¡¡you tell me what a he is” HB responded “not again.” When asked “what color is this shirt here” HB responded “white (moments later) purple.” HB was asked what happens to someone if he or she does not tell the truth, and he answered “because.” When asked “what happens to YOU if you do not tell the truth,” he replied “my mom kicked Robbie in the face.” Later, HB was more pointedly asked “what happens when you tell a He, is that a good thing or a bad one” to which HB responded “bad.” However, to the follow-up question “why is it bad” HB responded “because him there is.” After being asked “do you get in trouble when you tell the truth,” HB responded “no.” But, when he was asked “do you get in trouble when you tell a lie,” HB said, “nope go over there.” He also stated that Ward “touched Tater Bug’s privates,” but could not identify what body parts “privates” were. Additionally, he was asked where he was when the incident happened and replied “because.” Then, to the follow up “where were you,” HB said, “because, momma, you are crazy.”
While we are mindful that there are some children of HB’s age who would meet all requisites for competency as a witness, we agree with Ward that in this case it was error to allow HB to testify. However, reversal is unwarranted because all of the facts relayed by HB were also admitted into evidence through his mother’s account of events and her testimony as to how HB described the incident to her, which is not challenged on appeal. Therefore, although it was error to allow the testimony of HB, the eviden-tiary error is subject to a harmless-ebror analysis. It is commonplace that eviden-tiary error is harmless if the same or similar evidence is otherwise introduced. Elliott v. State, 2010 Ark. App. 809, at 8, 379 S.W.3d 101, 106. Here, because the 17same evidence offered by HB was also presented by Owens, we find the error in allowing the testimony to be harmless.
The final point of error raised by Ward also has merit. At the pretrial hearing, the deputy prosecutor, Curtis Walker, explained that it was the intention of the State to introduce statements made by HB to Weaver, his DHS therapist. Ward objected claiming that any statement made by HB to Weaver was hearsay. However, the State maintained that the statements were admissible under Arkansas Rules of Evidence Rule 803(4) as statements made for purposes of medical diagnosis or treatment. Although Weaver described herself as a “ihental health therapist,” based on her Master’s degree in social work and twenty-five years’ experience, she was neither a doctor nor a nurse. And, according to our established precedent, a social worker cannot testify pursuant to the medical exception because a social worker does not qualify as a medical expert, and the resulting testimony is not admissible pursuant to the medical exception as it does not possess the necessary degree of reliability. Meins v. Meins, 93 Ark.App. 292, 300-02, 218 S.W.3d 366, 370-71 (2005). This precedent is compelling in its application to Weaver’s testimony in the case at bar. Consequently, the trial court should not have allowed the testimony of Weaver under the medical-diagnosis exception to the hearsay rule. However, although the trial court erred in allowing the testimony, the error was harmless. Weaver’s testimony was cumulative to that of Owens, which whs not challenged on appeal. Owens testified that HB told her that Ward had his penis out, touched his sister, and “peed on [them].” Therefore, although the court violated our Meins directive, we hold that the error was harmless because the erroneously admitted evidence was cumulative, and we affirm both convictions.
Affirmed.
GLADWIN, C.J., and BROWN, J., agree. | [
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KENNETH S. HIXSON, Judge.
hOn June 7, 2010, appellant Verlin Sher-ril received a ten-year suspended imposition of sentence after pleading guilty to second-degree forgery. The conditions of the suspended sentence required Mr. Sherril to pay $3500 in restitution at a rate of $50 per month, and also prohibited him from violating any state law. On May 28, 2013, the State filed a petition to revoke appellant’s suspended sentence, alleging that he failed to pay restitution as ordered and committed the offense of first-degree battery. After a hearing, the trial court entered an order on July 15, 2013, revoking appellant’s suspension and sentencing him to six years in prison followed by a four-year suspended imposition of sentence. Mr. Sherril now appeals from his revocation, and we affirm.
|2Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k)(1) of the Rules of the Arkansas Supreme Court, appellant’s counsel has filed a motion to withdraw on the grounds that the appeal is wholly without merit. Mr. Sherril’s counsel’s motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal, including any objections and motions made by appellant and denied by the trial court, and a statement of the reason each point raised cannot arguably support an appeal. Mr. Sherril was provided with a copy of his counsel’s brief and notified of his right to file pro se points for reversal, and he has submitted a list of pro se points.
At the revocation hearing, the State introduced a ledger sheet showing that Mr. Sherril was significantly behind on his restitution payments. In his testimony, Mr. Sherril acknowledged that he owed restitution and that he had failed to make some of the payments.
The State also elicited testimony from Braxton Cole, who had been seriously injured by Mr. Sherril on May 16, 2013. On that day, the two men got into an argument outside of Mr. Cole’s apartment, and Mr. Sherril stabbed Mr. Cole in the neck with a box cutter. According to Mr. Cole, he did not touch Mr. Sherril prior to being stabbed. As a result of the attack, Mr. Cole spent four days in the hospital and had four surgeries.
Arkansas Code Annotated section 16-93-308(d) (Supp.2013) provides that, if a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension, the court may revoke the suspension at any time prior to the time it expires. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of a suspended sentence. Williams v. State, 2014 Ark. App. 19, 2014 WL 171829. The State |sbears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Id. On appeal, the trial court’s decision will not be reversed unless it is clearly against the preponderance of the evidence. Cohen v. State, 2013 Ark. App. 652, 2013 WL 5964527. Because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial court’s superior position. Williams, supra.
In this appeal, Mr. Sherril’s counsel accurately asserts that the only adverse ruling was the trial court’s decision to revoke appellant’s suspended sentence. Appellant’s counsel further asserts that there can be no meritorious challenge to the sufficiency of the evidence supporting revocation. The State clearly demonstrated that Mr. Sherril was significantly delinquent in paying his court-ordered restitution. Once the State introduces evidence of nonpayment, the defendant then bears the burden of going forward with some excuse for his failure to pay. Palmer v. State, 60 Ark.App. 97, 959 S.W.2d 420 (1998). Mr. Sherril offered no reasonable excuse for his failure to pay restitution. Although only one violation was necessary to revoke the suspension, the State also demonstrated that Mr. Sherril violated his conditions by committing first-degree battery, which is committed when, “[w]ith the purpose of causing serious physical injury to another person, the person causes serious physical injury to any person by means of a deadly weapon.” Ark.Code Ann. § 5 — 13—201(a)(1) (Repl.2013). For these reasons, the trial court’s decision to revoke appellant’s suspended sentence was not clearly against the preponderance of the evidence.
|4In Mr. Sherril’s pro se points for reversal, he asserts that Mr. Cole is a liar and that he stabbed Mr. Cole in self defense. However, this amounts to a credibility challenge, and determinations of credibility are left to the trial court. Moreover, Mr. Sherril does not challenge the other, independent violation supporting his revocation, which was his inexcusable failure to pay restitution. The State proved that violation, and that alone was sufficient to revoke appellant’s suspended sentence.
Mr. Sherril also claims that the police officer who took his custodial confession forged his name on the written Miranda warnings. To the contrary, the police officer testified that Mr. Sherril signed the Miranda warnings, voluntarily waived his rights, and told the officer he wanted to give a statement. Moreover, appellant made no motion to suppress his statement below.
Finally, Mr. Sherril asks this court to reduce his sentence. However, he does not assert that his sentence was illegal. Because his sentence was within the statutory range of punishment for second-degree forgery, the sentence was legal and the trial court was within its authority to impose it.
Based on our review of the record and the briefs presented, we conclude that there has been compliance with Rule 4-3(k)(l) and that this appeal is without merit. Consequently, appellant’s counsel’s motion to withdraw is granted and the judgment is affirmed.
Affirmed; motion granted.
WYNNE and BROWN, JJ., agree. | [
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DOUG MARTIN, Judge.
hA Hot Spring County jury found appellant Dewayne Boykin guilty of possession of cocaine and simultaneous possession of drugs and firearms. He was sentenced as a habitual offender to twenty years’ imprisonment on the conviction for possession of cocaine and sixty years’ imprisonment on the drugs-and-firearms conviction, with those sentences running consecutively. Boykin argues on appeal that the trial court erred in denying his directed-verdict motions and motion to suppress evidence seized during a search of his vehicle. We affirm.
At approximately 5:00 a.m., on April 7, 2011, Kenny Henson, who worked with loss prevention at Walmart, observed a vehicle on video surveillance pulling into the store’s parking lot. Boykin emerged from the driver’s seat and went inside the store. Henson continued to watch Boykin once he was inside Walmart over the course of approximately two hours. Boy-kin went to the electronics department, kneeled down in front of a case | ¡^containing iPods and iPads, and began prying open the glass doors of the ease with a screwdriver. Henson stated that Boykin worked on opening the case for a while and then went to the main aisle and appeared to be “watching for folks.” Henson contacted the Malvern Police Department.
Officers Joseph Pauli and Chris Coke with the Malvern Police Department were dispatched to Walmart. Henson gave the officers a description of Boykin and his clothing and told the officers that Boykin was in the electronics section near the iPod-iPad case. In an aisle near the electronics department, Pauli saw a screwdriver with a black-and-blue handle on the floor. There was no one at the iPod-iPad case when the officers reached the electronics department, but Pauli observed two shopping carts in the area full of miscellaneous merchandise. Pauli and Coke returned to the front of the store where they met Henson who advised that Boykin had just fled from the store. The officers saw Boykin running toward a sport utility vehicle (SUV) parked at the Murphy USA gas station located adjacent to Walmart’s parking lot.
Pauli and Coke got into their patrol cars and blocked the SUV from leaving the gas station. Boykin was standing at the rear of the SUV near the passenger’s side, holding a set of keys in his hand. The officers asked Boykin whether the SUV belonged to him, and Boykin stated that he owned the vehicle. The officers then arrested Boykin and conducted an inventory of the SUV’s contents. Pauli and Coke later testified that it was police policy, upon the arrest of a suspect, to inventory a vehicle’s contents prior to towing it.
| ¡¡Inside the SUV’s glove compartment, the officers found the registration to the SUV, confirming that Boykin was in fact the owner. Officers also found a loaded handgun in a pocket behind the passenger’s seat. Pauli later testified that the driver of the SUV could “definitely” reach the handgun. Officer Coke found a small baggie containing six or seven rocks of what appeared to be crack cocaine. At trial, Stacy Winkler, a forensic chemist at the Arkansas State Crime Lab, confirmed that the substance was 1.0684 grams of cocaine base. The baggie was located inside a spiral notebook found in a pocket below the radio on the driver’s side of the console. Coke later testified that the cocaine was level with the driver’s knee. In the SUV’s rear compartment, officers found several miscellaneous tools, including small screwdrivers, wire snips, and pliers. Pauli later testified that the screwdrivers in Boykin’s vehicle matched the one that Pauli had observed in the aisle at Walmart.
After the inventory, Pauli and Coke returned to Walmart where they viewed the surveillance video. The officers observed Boykin’s vehicle in the Walmart parking lot and saw that someone was sitting in the passenger’s seat. The officers then observed a person crawling from the back seat into the driver’s seat. That person then drove the SUV to the Murphy USA gas station. Coke recalled that, when he and Pauli arrested Boykin, there were two men standing approximately thirty to forty feet away near the gas pumps and that, at the time, he did not think the men were involved.
Photographs introduced into evidence at Boykin’s trial depicted scratches on the iPod-iPad case, which Pauli testified appeared to have been caused by prying the end of the case’s glass doors. At trial, Henson testified that, ultimately, nothing was stolen from Walmart.
|4I. Sufficiency of the Evidence
We first consider Boykin’s argument challenging the sufficiency of the evidence in order to preserve his right to freedom from double jeopardy. Malone v. State, 364 Ark. 256, 217 S.W.3d 810 (2005). In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). It is only when the evidence leaves the jury solely to speculation or conjecture that it is insufficient as a matter of law. Boston v. State, 69 Ark.App. 155, 12 S.W.3d 245 (2000). We view the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Paschal v. State, 2012 Ark. 127, 388 S.W.3d 429.
Arkansas Code Annotated section 5-64-401(c) provides that it is unlawful for any person to possess a controlled substance. Ark.Code Ann. § 5-64-401(c) (Repl.2005). It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Possession of drugs can be proved by constructive possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). In border to prove constructive possession, the State must establish beyond a reasonable doubt (1) that the defendant exercised care, control, and management over the contraband, and (2) that the defendant knew that the matter possessed was contraband. Ewings v. State, 85 Ark.App. 411, 155 S.W.3d 715 (2004).
We note that no one actually occupied Boykin’s SUV at the time of his arrest. The State maintains that the joint-occupancy analysis is inapplicable; however, even if we were to apply the joint-occupancy analysis, the result would be the same. Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Dodson, supra. There must be some other factor linking the accused to the drugs, such as (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest. Id.
Boykin argues that there was no evidence that he actually or constructively possessed the cocaine. We disagree with Boykin’s assertion and hold that, even analyzing this case as one of joint occupancy, the State proved that Boykin constructively possessed the cocaine. Boykin owned the SUV, as indicated by his own admission and the vehicle’s registration, and Boykin otherwise exercised dominion and control over the vehicle, given that he was holding the keys to the vehicle in his hand at the time of his arrest. Also, the surveillance video |6revealed that Boykin drove the SUV to Walmart. The cocaine was found at a location that was level with the driver’s knee, and therefore Boykin was in close proximity to the drugs. Further, Boykin acted suspiciously before his arrest in that he attempted to steal expensive electronics from Walmart, and, shortly after the police arrived, was seen running through the parking lot toward his vehicle. Clearly, several factors link Boykin to the cocaine.
Although Boykin points to testimony that two other people were seen inside his vehicle, suggesting that the contraband belonged to them, we do not consider evidence that does not support the verdict. Paschal, supra. The jury obviously found that the circumstantial evidence in this case excluded the possibility that the cocaine belonged solely to the other two men, and our review indicates that the jury could have made such determination without resorting to speculation or conjecture. See Flowers v. State, 373 Ark. 127, 282 S.W.3d 767 (2008). Further, in light of the foregoing evidence, the jury could reasonably conclude that Boykin had knowledge of the cocaine and exercised care, control, and management of the cocaine. Boykin’s conviction for possession of cocaine is supported by substantial evidence, and therefore we affirm on this point.
Next, Boykin challenges his conviction for simultaneous possession of drugs and firearms. Arkansas Code Annotated section 5 — 74—106(a)(1) provides that no person shall unlawfully commit a felony violation of section 5-64^01 or unlawfully attempt, solicit, or conspire to commit a felony violation of section 5-64-401 while in possession of a firearm. Ark. Code Ann. § 5-74-106(a)(l) (Repl.2005). The finder of fact need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt 17from improbable explanations of incriminating conduct. Holt v. State, 2009 Ark. 482, 348 S.W.3d 562.
Boykin asserts that “[n]othing has linked Mr. Boykin to the gun,” arguing that the State failed to collect fingerprints from the handgun or check the handgun’s registration. While Pauli testified that the handgun was sent to the lab for testing, he had no knowledge of the results. Pauli further testified that the handgun’s registration was checked and that, if the handgun had been registered to someone other than Boykin, it would have been noted in Pauli’s report. In any event, Boykin ignores the fact that the handgun was located inside his vehicle. Boykin also argues that the State did not prove that he “possessed the firearm or weapon while committing, attempting to commit, solicited the commission of or conspiring to commit possession of cocaine with intent to deliver or possession of cocaine.” Boykin overlooks the fact that the statute is divided by the word “or” and that a plain reading of the statute prohibits a person from unlawfully committing a felony in violation of section 5-64-401, which includes Boykin’s possession of cocaine, while in possession of a firearm. As established earlier, Boy-kin constructively possessed the cocaine, and he did so while in possession of a firearm. Therefore, his conviction for simultaneous possession of drugs and firearms is affirmed.
II. Suppression of the Evidence
When a trial court’s denial of a motion to suppress is challenged, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable |Rcause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
Arkansas Rule of Criminal Procedure 4.1 provides that a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a felony. Ark. R.Crim. P. 4.1(a)(i). Reasonable cause exists when “the facts and circumstances within the officers’ collective knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution the belief that an offense has been committed by the person to be arrested.” Franklin v. State, 2010 Ark.App. 792, 378 S.W.3d 296 (quoting Blockman v. State, 69 Ark.App. 192, 197-98, 11 S.W.3d 562, 566 (2000)). Reasonable cause to arrest without a warrant requires less proof than that required to sustain a conviction, and this court’s review of the existence of reasonable cause is liberal rather than strict. Id. At the time of Boykin’s arrest, theft of property was a Class C felony if the value of the property was less than $2,500 but more than $500. Ark. Code Ann. § 5-36-103(b)(2) (Repl.2006). Moreover, criminal attempt was a Class D felony if the offense attempted was a Class C felony. Ark.Code Ann. § 5-3-203(5) (Repl.2006).
Boykin argues that his motion to suppress should have been granted because there was no probable cause to arrest him in that there was “a mere suspicion” about what had occurred at Walmart and no crime was committed. Pursuant to Rule 4. 1, the officers had authority to arrest Boy-kin without a warrant because the officers reasonably believed that Boykin had committed a felony. Based on the information provided by Henson and the officers’ own |flobservation of Boykin fleeing from the scene, the officers had reasonable cause to believe that Boykin had committed theft or attempted theft, both of which are felonies. We conclude that the officers had authority to arrest Boykin without a warrant.
Arkansas Rule of Criminal Procedure 12.6(b) provides that a vehicle impounded in consequence of an arrest may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents. It is well settled that police officers may conduct a warrantless inventory search of a vehicle that is being impounded in order to “protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and to guard the police from danger.” Thompson v. State, 333 Ark. 92, 97, 966 S.W.2d 901, 904 (1998) (quoting Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987)). An inventory search, however, may not be used by the police as a guise for “general rummaging” for incriminating evidence. Id. Hence, the police may impound a vehicle and inventory its contents only if the actions are taken in good faith and in accordance with standard police procedures or policies. Id. These standard procedures do not have to be in writing, and they may be established by an officer’s testimony during a suppression hearing. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997).
Boykin does not address the fact that the search of his vehicle was an inventory search, which is supported by our rules and case law. The officers testified that it was standard police policy to inventory the contents of any vehicle before having it towed. Boykin’s vehicle was going to be towed upon Boykin’s arrest. Nevertheless, Boykin asserts that there was no necessity shown for the search of his vehicle and that the search was conducted in bad faith. | inIt was necessary for the officers to conduct an inventory search of Boykin’s vehicle for the reasons set forth in Thompson, supra, and Boykin has pointed to no evidence of bad faith on the part of the police officers. The inventory search was proper upon Boykin’s lawful arrest. We cannot say that the trial court’s denial of Boykin’s motion to suppress was clearly against the preponderance of the evidence, and thus we affirm the trial court’s decision.
Affirmed.
GRUBER and ABRAMSON, JJ., agree. | [
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PER CURIAM.
| ^Appellants, Joy Danielle Dachs, individually and as special representative of the estate of Elizabeth Anne Dachs, deceased, and Joshua Allen Dachs, individually, petitioned this court for review of a decision of the court of appeals, which affirmed the Greene County Circuit Court’s order granting summary judgment to Appellees, Barry D. Hendrix, M.D.; 2Family Practice Clinic; Hendrix Medical Services, PLLC; Paragould Physicians Management, LLC (hereinafter referred to collectively as “the physician defendants”); and Rebecca Fisher, L.P.N.; Cynthia A. Bartholomew, R.N.; Arkansas Methodist Hospital Corporation d/b/a/ Arkansas Methodist Hospital, and d/b/a Arkansas Methodist Medical Center; and Continental Casualty Company (hereinafter referred to collectively as “the hospital defendants”). Dachs v. Hendrix, 103 Ark. App. 184, 287 S.W.3d 627 (2008). When we grant a petition for review of a decision by the court of appeals, we consider the appeal as though it had originally been filed in this court. Skallerup v. City of Hot Springs, 2009 Ark. 276, 309 S.W.3d 196 (2009).
We granted review to address two issues of first impression: whether an amended complaint asserting survival and wrongful-death claims that were time-barred can relate back to a timely filed original complaint that alleged individual claims in addition to the survival and wrongful-death claims asserted by an improper party, and whether the death of a minor removes the minority-tolling provision of the Medical Malpractice Act. We are precluded from reaching these two issues, however, because Appellants failed to include in the addendum the hospital defendants’ brief in support of their first motion for summary judgment. The hospital defendants’ second motion for summary judgment states that they “incorporate the previous summary judgment motion and brief herein by reference.”
|sThis missing brief in support of the summary judgment motion is “essential to an understanding of the case” as required by Ark. Sup.Ct. R. 4-2(a)(8), because it contains argument and citations to authority advanced by the hospital defendants on the issues of Appellants’ standing or lack thereof and whether the original complaint was therefore a nullity, which is one of the very issues Appellants challenge on appeal and upon which we granted review. Moreover, we have recently stated that “an order of a circuit court cannot be reviewed for error when the addendum fails to include the documents on which the order was based.” Bryan v. City of Cotter, 2009 Ark. 172, 303 S.W.3d 64 (2009) (per curiam). The trial court’s order granting summary judgment in this case clearly states that “the motions for summary judgment by all defendants” were before the court and that the court considered “the pleadings of record, the applicable law and the arguments of counsel.”
We stated in Bryan that “[w]e have always shown a preference for a bright-line rule with an objective standard, requiring the inclusion of pleadings and motions that led to the order being appealed, over the subjective test advocated by the dissent.” Id. at 5, 303 S.W.3d at 67. It is because of this preference for a bright-line rule, as well as a preference for consistently applying our rules, that we order re-briefing in this case. See, e.g., Meyer v. CDI Contractors, LLC, 2009 Ark. 115, 313 S.W.3d 519 (2009) (per curiam) (rebriefing ordered for failure to include in record and addendum brief in support of response to motion for summary judgment); see also Meyer v. GDI Contractors, LLC, 2009 Ark. 304, 4318 S.W.3d 87 (2009) (per curiam) (affirming for failure to include in substituted addendum brief in support of response to motion for summary judgment following order to rebrief).
It is Appellants’ burden to provide us with a record, abstract, addendum, and brief that allows us to understand issues presented on appeal. Meyer, 2009 Ark. 304, 318 S.W.3d 87 (2009). Appellant’s failure to include the missing brief in support of the hospital defendants’ motion for summary judgment is a failure to comply with Ark. Sup.Ct. R. 4-2(a)(8) and precludes our review of the issues presented. Pursuant to Ark. Sup.Ct. R. 4-2(b), we order Appellants to file a substituted addendum in the case within fifteen days from the entry of this order. We encourage appellate counsel, prior to filing the substituted addendum, to review our rules and the substituted addendum to ensure that no additional deficiencies are present. Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234 (2009) (per curiam).
Rebriefing ordered.
GUNTER, J., not participating. | [
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M. MICHAEL KINARD, Judge.
This is a probate case in which 2.5 acres of real property located in Arkansas County are in dispute. Appellant, Kirby Butler, Jr., contends that he is the owner of the property at issue pursuant to a family settlement agreement and a court order closing Fairlee Butler’s estate. We affirm.
The facts underlying the case are these. Fairlee Butler was the owner of 2.5 acres of real property in the Southern District of Arkansas County, Arkansas. In her will dated October 10,1972, Fairlee Butler provided:
I give and devise to my beloved daughter, Rosebud Nicholson, my residence located on approximately 2 1/2 acres of land in Arkansas County, Arkansas. I make this devise with the limitation that she will permit Calvin Butler to live in the house if he needs it for a home and elects to actually use it for a residence. In the event the death of Rosebud Nicholson occurs prior to the death of Calvin Butler, I give and devise the residence property referred to above |2to Calvin Butler for and during the period of his lifetime and at his death to my son, Kirby Butler, for and during the period of his lifetime and at his death to my grandson, Kirby Butler, Jr.
Butler’s will also appointed Rosebud Nicholson executrix of the estate. The validity of this will is uncontested. Fairlee Butler died on January 9, 1976. Rosebud Nicholson, as executrix of the estate of Fairlee Butler, provided the probate court with an accounting, which provides, in pertinent part:
In accordance with the terms of the Last Will and Testament of Fairlee Butler and in accordance with the laws of descent of the State of Arkansas, with regard to deceased beneficiaries, assets of the estate of Fairlee Butler were delivered as follows:
A part of Lot 4 of SW1/4 Sec. 7, T5S, R1W, containing 2.5 acres, as more particularly described in a deed recorded in Book P-8, Page 376, delivered to Rosebud Nicholson for her lifetime; thence to Calvin Butler for his lifetime; thence to Kirby Butler, Jr., in fee, per terms of Item 2 of the Will of Fairlee Butler[.]
Family members, including Rosebud Nicholson and appellant, signed a “Receipt for Assets of Estate” on August 12, 1976. In this receipt, they acknowledged that they had examined the final accounting filed on behalf of the Executrix (Nicholson), acknowledged receipt of all the assets of the said estate belonging to them, waived the notice of hearing on the final settlement, and agreed that the settlement might be approved by the Court. Appellant argues that this final accounting, agreed to as shown by the signed receipt, constitutes a family settlement agreement.
| sIn an order filed December 23, 1976, the probate court approved the accounting (referred to by the court as the “final settlement”) and released Nicholson from her duties as executrix. The court wrote:
The Court finds that the executrix has filed a full and complete settlement showing all receipts and disbursements; that all disbursements were made in accordance with the claims filed, the orders of this Court, the terms of the Will, or the Statutes of the State of Arkansas; that the distributees and beneficiaries under the Will have received all the benefits to which they are entitled under the terms of the said Will or the laws of the State of Arkansas[.]
The current appeal arises in the context of the distribution of Rosebud Nicholson’s estate. Nicholson died testate on March 25, 2005. Following a will contest, the holographic will of Rosebud Nicholson dated October 18, 2004, was admitted to probate by an order entered on March 8, 2006. In her will, Nicholson left everything to Betty Dike and named Dike executrix of her estate. On March 5, 2008, appellee Betty Dike, as executrix of the Estate of Rosebud Nicholson, filed a petition seeking an order of final distribution. This petition included a request that the court authorize appellee, as executrix, to “execute and deliver to the above named heir [appellee] an Executor’s Deed, conveying to the said heir the real property contained in the estate.” Appellant objected to the distribution of the real property in question to appellee, claiming in his response to the petition that Nicholson had only a life estate in the property and that the property passed to him in fee simple absolute upon her death.
A hearing was conducted in this matter on May 14, 2008, after which the circuit court concluded that “the purported distribution of the property did not constitute a Ufamily settlement agreement which altered the terms of Fairlee Butler’s will.” The court based its decision on the language in the accounting stating that the distribution of the real property was “[in] accordance with the Last Will and Testament of Fairlee Butler.... ” Because the distribution was “clearly not in accord with the terms of the will,” the court concluded that the purported distribution set out in the accounting was the result of a mutual mistake in construing the terms of the will. Further undermining appellant’s claim was the court’s holding that the subject property never became an asset of the estate in the hands of Nicholson as personal representative of the Fairlee Butler estate. Thus, the court found that the real property in question was an asset of the estate of Rosebud Nicholson and, pursuant to Nicholson’s will, passed to appellee in fee simple absolute.
Probate cases are reviewed de novo on appeal, and the appellate court will not reverse unless the findings of the probate judge are clearly erroneous. Wells v. Estate of Wells, 325 Ark. 16, 18, 922 S.W.2d 715, 716 (1996).
Appellant argues on appeal that the 2.5 acres of real property is owned by him and was not a part of the estate of Rosebud Nicholson, as Ms. Nicholson executed a family settlement agreement taking a life estate in the property. Appellant cites to relevant case law on “family settlement agreements.” He is correct in stating that, “as favored by the law, the court strictly adheres to family settlement agreements absent fraud or mistake.” See Green v. McAuley, 59 Ark.App. 114, 953 S.W.2d 66 (1997). 5Nonetheless, we agree with the trial court’s conclusion that the purported distribution of the property did not constitute a family settlement agreement that altered the terms of Fairlee Butler’s will. The accounting contained inconsistent provisions: it purported to distribute property in accordance with the terms of Fairlee Butler’s will; yet it provided for the distribution of the 2.5 acres of real property in a manner not provided for in the will. As such, we find that there was no “meeting of the minds” or mutual assent necessary to form a family settlement agreement.
The real property in question was not governed by a family settlement agreement, and title to real property generally does not pass through the probate estate. Real property is an asset in the hands of the personal representative only when so directed by the will or when the court finds that the property is necessary to pay claims, debts, etc. Ark.Code Ann. § 28-49-101 (Repl.2004). If a will does not postpone the vesting of title, title to real property vests in the devisee immediately upon the testator’s death. Monk v. Griffin, 92 Ark.App. 820, 213 S.W.3d 651 (2005). Here, defeasible fee title vested in Rosebud Nicholson, subject to being defeated in the event she did not survive Calvin Butler. When Nicholson survived Calvin Butler, her title became indefeasible, and she owned the property in fee simple absolute.
Appellant’s second point on appeal is that a final order was issued by the court on December 23, 1976, accepting him as the property’s owner upon the expiration of the life estate of Rosebud Nicholson. As previously discussed, the real property did not pass | ¡¡through the estate; it vested immediately upon Ms. Butler’s death. Thus, we affirm on this point.
For his final argument, appellant asserts that appellee is an “improper party to question the distribution of the Property from the Estate of Fairlee Butler.” This argument has no merit. The court properly looked to the terms of the Fairlee Butler will to determine who was the owner of the property in question. We conclude that the trial court was correct in determining that the 2.5 acres of real property vested in the appellee at the death of Rosebud Nicholson.
Affirmed.
HART and GLADWIN, JJ., agree. | [
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RITA W. GRUBER, Judge.
| jThis case has returned to us after we remanded it for supplementation of the record and rebriefing. Beck v. Inter City Transp., Inc., 2012 Ark. App. 147, 2012 WL 474682. The issues now before us involve the interpretation of two Arkansas statutes: Ark.Code Ann. § 26-54-112 (Repl.2008), which governs the reinstatement of a corporate charter; and Ark. Code Ann. § 16-22-308 (Repl.1999), which authorizes an award of attorney’s fees in contract cases. Appellant, Alvin M. Beck, appeals the trial court’s denial of his motion to dismiss this case under Ark. R. Civ. P. 12(b)(8) on the basis of a similar lawsuit he filed against appellee, Inter City Transportation, Inc., in another county. Inter City cross-appeals the court’s order denying its request for attorney’s fees and granting appellant’s request for an equitable lien. We affirm on direct appeal. On cross-appeal, we affirm the court’s imposition of an equitable lien, but |2we reverse and remand its denial of attorney’s fees.
I. Direct Appeal
The relevant facts are these. The parties entered into an agreement pursuant to which Beck agreed to sell and Inter City agreed to buy two complete engines for which Inter City already had a buyer. Beck delivered the engines and Inter City paid $14,500. Shortly thereafter, Inter City discovered that one of the engines was not complete and it was unable to sell the engines to the intended overseas buyer.
On August 4, 2010, Inter City filed a complaint against Beck in Pulaski County, alleging that Beck’s actions constituted “breach of contract including among other things, but [sic] the engines were not fit for their intended purpose” and “fraud as a result of Defendant’s failure to disclose the condition of the engines.” At the time Inter City filed suit, its corporate charter had been revoked for failure to pay franchise taxes. On August 14, 2010, Beck filed a complaint for declaratory judgment on similar issues against Inter City and its principal, Gerry Issioffia, individually, in Monroe County. On August 20, 2010, Beck filed a motion to dismiss Inter City’s complaint in this case, alleging that Inter City did not have standing to bring this action because its corporate charter had been revoked. On August 30, 2010, Inter City filed a response to Beck’s motion to dismiss, attaching evidence that its corporate charter had been reinstated and that it was in good standing. On February 1, 2011, Beck filed an amended motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(8), arguing that his Monroe County action was still pending and had been filed while Inter City was nothin good standing. Thus, Beck argued, his intervening rights occurred before Inter City’s charter was reinstated and could not be defeated by Inter City’s reinstatement. The court denied Beck’s amended motion to dismiss and found for Inter City on its complaint.
Beck’s sole issue on appeal is that the court erred in finding that Ark.Code Ann. § 26-54-112’s provisions regarding retroactivity applied to defeat the rights that he acquired during the period of forfeiture. Specifically, he argues that he acquired a vested right in his Monroe County lawsuit against Inter City and Mr. Issioffia, individually, and that this right cannot be defeated by the reinstatement provisions of Ark.Code Ann. § 26-54-112.
We review a trial court’s decision involving the interpretation of a statute de novo on appeal. CNA Ins. Co. v. Ark. Children’s Hosp., 2011 Ark. App. 671, 386 S.W.3d 631. Arkansas Code Annotated section 26-54-112 provides in pertinent part:
(a)(l)(A)(i) Any corporation whose charter or permit authority to do business in the state has been declared forfeited by proclamation of the Governor or the Secretary of State may be reinstated to all its rights, powers, and property.
(ii) Reinstatement shall be retroactive to the time that the corporation’s authority to do business in the state was declared forfeited.
In a lawsuit involving facts similar to those in this case, the supreme court held that, under the plain language of Ark.Code Ann. § 26-54-112, “reinstatement of the corporate charter shall be retroactive to the date of its revocation.” Omni Holding and Dev. Corp. v. C.A.G. Invs., Inc., 370 Ark. 220, 227, 258 S.W.3d 374, 380 (2007). The court held that section 112’s restoration of the corporation’s corporate status in Omni vested it with continuous existence as though revocation of its charter had never occurred. Id. at 228, 258 S.W.3d at 380. Consequently, the court affirmed the trial court’s denial of appellant’s motion 14to dismiss for lack of standing in that case. As here, the complaint was filed at a time when the corporate charter of the plaintiff had been revoked.
Beck argues that this case is distinguishable from the facts in Omni because Beck filed a similar lawsuit — thereby obtaining vested rights — between the time Inter City filed its complaint and the time Inter City’s charter was reinstated. We fail to see a difference of legal significance. The statute, in no uncertain terms, states that reinstatement “shall be retroactive to the time that the corporation’s authority to do business in the state was declared forfeited.” Ark.Code Ann. § 26-54-112(a)(l)(A)(ii). It provides no exceptions. Moreover, Beck never explicitly provides what “vested rights” he acquired that are so important that they abrogate the effect of a very clearly defined directive of the Arkansas legislature. Further, Beck argues that retroactivity encourages a corporation to play “fast and loose” with the rules and fail to pay franchise taxes because the corporation may later take advantage of the retroactivity provisions; he contends that, if vested rights could not be defeated by the retroactive reinstatement of a corporation’s charter, a corporation would have more incentive to pay franchise taxes when due. Regardless of the merits of Beck’s policy argument, the legislature has spoken. We have no authority to legislate or to construe a statute to mean anything other than what it says. Nat’l Baptist Convention, U.S.A., Inc. v. Ark. Emp’t Sec. Div., 3 Ark.App. 189, 192, 623 S.W.2d 852, 854 (1981). Thus, we affirm the trial court’s denial of Beck’s motion to dismiss.
II. Cross-appeal
We turn now to Inter City’s cross-appeal. Its principal argument on cross- appeal is that |sthe trial court erred in denying its motion for attorney’s fees under Ark.Code Ann. § 16-22-308, which provides that the trial court may award attorney’s fees to the prevailing party in
any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action.
In order to understand the parties’ arguments, we turn to Inter City’s complaint and to the trial court’s judgment. Inter City alleged in its complaint that it had engaged in business transactions with Beck whereby Inter City would buy engines from Beck for shipment overseas. On May 3, 2010, Inter City purchased two engines from Beck for a total price of $14,650. The complaint averred that, although Inter City asked to inspect the engines at the time of purchase, Beck said that he did not have the appropriate tools at the time. When Inter City received the purchased engines and opened them, it discovered that the engines were “essentially empty,” containing no pistons or rods. Inter City alleged that these actions constituted breach of contract and fraud and prayed for recovery in the amount of $14,650 plus interest, attorney’s fees, and costs.
The court held a hearing on February 17, 2011, and entered an order on February 28, 2011, finding for Inter City “as to its causes of action in its complaint.” The trial court made the following findings of fact and rulings:
a.Plaintiff and Defendant had established a prior business relationship and course of dealing.
b. Defendant knew that Plaintiff desired to purchase two complete core engines.
c. Plaintiff agreed to purchase from Defendant what Plaintiff thought were two complete core engines, for a price of fourteen thousand five hundred dollars 1B($14,500.00), plus one hundred fifty dollars ($150.00) for shipping, for a total purchase price of fourteen thousand six hundred fifty dollars ($14,650.00).
d. Defendant knew that Plaintiff had a buyer for both engines.
e. At the time of the agreement to purchase, Plaintiff inspected the 16V71 core engine and opened the valve covers. The valve covers were not removed from the 12V149 core engines.
f. Plaintiff discovered, after the fact, that the 12V149 core engines did not have sleeves and connecting rods. As a result, Plaintiff lost its purchaser for both engines.
g. Plaintiff agreed to purchase and in fact bought what it thought was a complete engine core.
h. The engines were sold “as is” but as complete engines.
i. However, the 12V149 did not conform for its intended purpose. [Emphasis added.]
j. Plaintiff is therefore entitled to a refund from Defendant in the amount of fourteen thousand six hundred fifty dollars ($14,650.00). However, Defendant is entitled to a credit in the amount of one thousand five hundred dollars ($1,500.00), for a total amount due Plaintiff by Defendant of thirteen thousand one hundred fifty dollars ($13,150.00). [Emphasis added.]
k. Upon payment of the Judgment in full, Defendant shall be entitled to the return of both engines. It will be Defendant’s responsibility to pick up the engines at their present location.
Inter City then filed a motion for an award of attorney’s fees under Ark.Code Ann. § 16-22-308 as the prevailing party in an action based primarily, if not exclusively, in contract. At a hearing on the matter held on March 30, 2011, Beck’s counsel argued that the court’s judgment granting Inter City’s relief effectively amounted to rescission because the court gave Inter City its money back and gave Beck his engines. Accordingly, Beck’s counsel argued that, under Hudson v. Hilo, 88 Ark.App. 317, 198 S.W.3d 569 (2004), attorney’s fees were not fallowed. Beck quoted the following sentence from Hudson: “Both parties agree that Ark. Code Ann. § 16-22-308 (Repl.1999), which allows for attorney fees in cases involving various actions such as breach of contract and negotiable instruments, does not allow attorney fees in contract rescission cases.” Hudson, 88 Ark.App. at 323, 198 S.W.3d at 573. Inter City argued that rescission was not pleaded and that it had requested and received damages. Counsel for Inter City said that the reason for return of the engines was that Beck asked for return of the engines after the court’s oral ruling, and he (Inter City’s counsel) said, “Sure, I don’t care.” He added that, to his client, “[TJhey’re clumps of metal. They have no value to us.”
The trial court stated that whatever was said at the earlier hearing, it had always intended to return the engines to Beck if it “awarded the plaintiff the damages.” According to the trial court, the parties simply ended up agreeing to do what the court intended to do. “No matter how that came about, the court’s intent was to rescind the contract and put the parties back in a status quo situation.” The court then concluded, “I think I will leave the parties where they are as it relates to attorney’s fees and I will not make an award based upon the Court’s intent to rescind the contract and put the parties back in status quo. The motion for attorney’s fees will be denied.” In its written order, the court stated that it denied Inter City’s motion for attorney’s fees “on grounds that the Court’s previous judgment was in the nature of a recision of contract.”
While an award of attorney’s fees lies within the trial court’s discretion and we will not reverse the denial of a motion for fees absent an abuse of that discretion, Taylor v. George, 92 Ark.App. 264, 274-75, 212 S.W.3d 17, 25 (2005), it appears that the trial court in this case 18was misguided as to the law governing its discretion. In the only case provided to the trial court at the hearing, Hudson v. Hilo, this court affirmed an award of attorney’s fees under Ark.Code Ann. § 16-22-308 because the Hilos, defendants in that case, were the prevailing parties in a foreclosure action. 88 Ark.App. at 323, 198 S.W.3d at 573. In dicta, the court stated that the parties agreed that attorney’s fees pursuant to Ark. Code Ann. § 16-22-308 were not allowed in “contract rescission cases,” citing Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998), and Friends of Children, Inc. v. Marcus, 46 Ark.App. 57, 876 S.W.2d 603 (1994). Id. Neither Hud son nor the cases cited in Hudson stand for the blanket legal proposition that section 308 attorney’s fees are never authorized when a court grants rescission.
Rescission is a remedy: it may be used in either contract cases or tort cases. See 2 Dan B. Dobbs, Law of Remedies § 9.1 (2d ed.1993) (remedies for misrepresentation); 3 Dan B. Dobbs, Law of Remedies § 12.7(1) (2d ed.1993) (remedies for breach of contract). It is basic contract law that where there is a material breach of a contract, substantial nonperformance, and entire or substantial failure of consideration, the injured party is entitled to rescission of the contract and restitution and recovery back of money paid. Econ. Swimming Pool Co. v. Freeling, 236 Ark. 888, 891, 370 S.W.2d 438, 440 (1963). Whether an award of attorney’s fees is appropriate under Ark.Code Ann. § 16-22-308 depends not on whether the remedy of rescission was granted but on whether the case is one primarily based on breach of contract. Jiles v. Union Planters Bank, 90 Ark.App. 245, 247, 205 S.W.3d 187, 189 (2005).
In Hudson v. Hilo, the Hudsons filed a complaint in foreclosure and the Hilos counterclaimed for rescission of the real-estate contract alleging misrepresentation, a tort. No |3breach-of-contract claim was alleged. Furthermore, neither of the cases cited in Hudson-Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998), or Friends of Children, Inc. v. Marcus, 46 Ark.App. 57, 876 S.W.2d 603 (1994)—involves the remedy of rescission in a breach-of-contract ease.
Barnhart was an illegal-exaction case in which the attorney was awarded fees under Ark.Code Ann. § 26-35-902(a) (Repl. 1997), which authorizes attorney’s fees to winning litigants in illegal-exaction cases. 335 Ark. at 59, 977 S.W.2d at 226. Not satisfied with the award, Barnhart moved for additional fees under Ark.Code Ann. § 16-22-308. The trial court denied the request, finding that her contention that her action “concerned a contract” did not make it an action on a contract or a breach-of-contract case. Her lawsuit established that the contract to which she referred, and to which she was not a party, was ultra vires and void. The supreme court affirmed, holding that the complaint was not primarily based on a contract but on an illegal exaction and that she failed to raise any breach-of-contract claim or request damages in her earlier ease on appeal. The court held that she could not now recharacterize her case as a contract case.
The complaint in Friends of Children alleged fraud and sought rescission and restitution of an adoption fee. 46 Ark. App. at 59-60, 876 S.W.2d at 605. The plaintiffs alleged that the adoption agency was unjustly enriched when it twice collected a fee for placement of the same child. The trial court found that the adoption agency had been unjustly enriched and awarded judgment to plaintiffs and attorney’s fees. We held that the parties had effectively rescinded their contract by agreement and the trial court had granted restitution. The court held that linthe award was based on unjust enrichment and the concept of “quasi-contract,” which is not a contract at all but a contract implied-in-law. The court held that this was not an appropriate basis for an award of fees under Ark.Code Ann. § 16-22-308.
While not at issue in the case, the trial court awarded attorney’s fees in Jacks v. Western Secured Invs. Co., 73 Ark.App. 437, 43 S.W.3d 229 (2001), in which Western, the mortgagee in a real-estate transaction, alleged breach of contract against the Jackses, the sellers. Miller, the buyer, intervened in the lawsuit seeking rescission of the contract. The trial court found that the Jackses had breached the contract with Miller, that Miller was entitled to rescission of the contract, and that Miller was entitled to attorney’s fees. The court also awarded damages and attorney’s fees to Western, finding that the Jackses had breached the contract with Western. See also Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995) (affirming award of attorney’s fees under Ark.Code Ann. § 16-22-308 in an equitable action by lessors seeking cancellation of lease agreements due to lessees’ alleged abandonment and breach of implied-lease covenants); and Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995) (holding award of attorney’s fees under Ark.Code Ann. § 16-22-308 was not precluded in equitable action for specific performance of a contract). It is clear that an equitable remedy in a breach-of-contract case is not a bar to recovery of fees under Ark.Code Ann. § 16-22-308.
Accordingly, whether the court was authorized to award attorney’s fees in this case depends on whether the case was primarily one based in contract or in tort. Inter City’s complaint alleged “breach of contract including among other things, but [sic] the engines were |Hnot fit for their intended purpose” and “fraud as a result of Defendant’s failure to disclose the condition of the engines.” In either case, rescission could have been granted. The court’s order found in relevant part that Beck knew Inter City desired to purchase two complete core engines; that Inter City agreed to purchase from Beck what it thought were two complete core engines for a total purchase price of $14,650.00; that Beck knew Inter City had a buyer for both engines; that, because one of the engines did not have sleeves and connecting rods, Inter City lost its purchaser for both engines; that the engines were sold “as is” but as complete engines; that the 12V149 did not conform for its intended purpose; and that Inter City was therefore entitled to a refund from Beck in the amount of $14,650.00. The court then ordered that, upon payment in full, Beck was entitled to the return of both engines. The court’s finding was that the engine did not conform for its intended purpose, a breach-of-contract claim. The court made no finding that Beck knew but failed to disclose the condition of the engines. The order appears to be based primarily on Beck’s breach of contract.
At the hearing, Mr. Issioffia testified that the parties agreed for Beck to sell him two complete core engines and that one of the engines he received was not complete. He said that he filed the lawsuit because he “did not receive what [he] contracted to purchase from [Beck].” He said that he sued in contract and fraud and that the basis of his fraud claim was that he thought Beck acted intentionally when he failed to get the tools to open the defective engine. On cross-examination, he said that he wanted the money he had paid and did not want to keep the engines. He said that he was not a mechanic and that Beck could have the engines back. Beck testified that he knew Inter City wanted complete core engines and that he | ^thought the engines he sold to Inter City were complete.
In its oral ruling from the bench, the court found that the parties had an agreement for the sale of complete core engines, that one of the engines did not conform, and that Inter City therefore “suffered damages proximately caused by the defendant’s failure to provide conforming goods.” After the court granted judgment, Beck’s attorney asked, “What about the engines, Your Honor?” The court replied, “Upon payment of the judgment amount, Mr. Beck is entitled to return of both engines.” The word “rescission” was never mentioned.
After the order was entered, Inter City’s attorney filed a motion for attorney’s fees pursuant to Ark.Code Ann. § 16-22-308 as the prevailing party in an action based primarily in contract. At the hearing on the motion, Beck did not dispute the reasonableness of the fees requested but argued that the court granted the remedy of rescission and, therefore, under Hudson v. Hilo, attorney’s fees were not allowed un der section 16-22-308. Inter City’s counsel argued that Inter City sued for damages, that the court awarded damages, and that rescission was neither pleaded nor mentioned in the lawsuit. He said that his client agreed to return the engines because they had no value to him. The court said that its intention was “if I awarded the plaintiff the damages, the defendant was going to get the motors back. You all ended up talking about, doing, and agreeing to what was the Court’s intention. No matter how that came about the Court’s intent was to rescind the contract and put the parties back in a status quo situation.” The court then denied the motion for attorney’s fees based on its intent to rescind the contract.
The court’s order and its oral findings indicate that this case sounded primarily in | iacontract, rather than in tort. As discussed herein, the remedy of rescission in a contract case does not foreclose section 16-22-308’s authorization for attorney’s fees in a breaeh-of-contract case. Because dicta in Hudson v. Hilo appears to have misled the court as to the law regarding the applicability of section 16-22-308 to rescission cases, we remand for the court to consider the motion for fees in light of this opinion.
The second issue on cross-appeal also arises from the court’s order denying Inter City’s motion for attorney’s fees. In that order, the court also granted Beck’s request for an equitable lien on the two engines. Inter City argues on cross-appeal that we should reverse this award because the action was one in law rather than equity. Inter City has provided no legal support for its argument, and we have found none. Circuit courts operate as courts of law and courts of equity, maintaining jurisdiction that, before Amendment 80 to the Arkansas Constitution was adopted in 2000, existed in the chancery and circuit courts. First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 533, 203 S.W.3d 88, 92 (2005). Thus, a circuit court may fashion any reasonable remedy justified by the proof. Jones v. Ray, 54 Ark. App. 336, 338, 925 S.W.2d 805, 807 (1996). In this case, regardless of whether Inter City requested the remedy it received, the court stated that it intended to grant the remedy of rescission and to put the parties back in “status quo.” Then, continuing to do equity, the court granted an equitable lien on the engines to Beck. Both actions were within its judicial authority. Therefore, we affirm its order granting an equitable lien.
Affirmed on direct appeal; affirmed in part and reversed and remanded in part on cross-appeal.
GLADWIN and ROBBINS, JJ„ agree.
. Inter City paid a total of $14,650, which included a $150 delivery fee. | [
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JOSEPHINE LINKER HART, Judge.
1T Adrian David Minton appeals from a Montgomery County Circuit Court order admitting to probate as codicils to decedent Freddie Lynn Minton’s formal will two hand-written documents. He argues that the trial court erred in admitting the documents because (1) the handwriting and signature were not established by three credible, disinterested witnesses; (2) the alleged holographic codicil lacked testamentary intent. We affirm.
On June 22, 1999, Freddie Lynn Minton executed a formal will that bequeathed all of his real and personal property in the following manner: one half to his son, Danny Minton, one fourth to another son, David Minton, and one fourth in trust to his grandson, Adrian Minton, until Adrian reached his twenty-fifth birthday. Danny was nominated as executor. The will |2did not mention Norma Minton, whom Freddie subsequently married, nor Debbie Jiles, whom the executor acknowledged “may” be Freddie’s daughter.
On April 19, 2007, Freddie died. On April 27, 2007, Danny petitioned to have the will admitted to probate. The petition was granted on May 3, 2007, and Danny was appointed executor. Norma asserted her dower rights, and later unsuccessfully sought to have Danny removed as executor. However, Norma subsequently relinquished her interest in the estate to David and Danny on July 24, 2008, for a cash payment of $56,000. Debbie Jiles also relinquished her interest in the estate to David and Danny by agreement dated July 28,2008, for a $5000 payment.
Meanwhile, on November 5, 2007, Danny petitioned to have two hand-written three-by-five-inch sheets admitted to probate as a two-page holographic codicil. Adrian timely ^objected, and the matter was heard on March 20, 2009.
At the hearing, five witnesses testified about the handwriting on the two sheets. Glen Minton, Freddie’s nephew, testified that he was familiar with Freddie’s “signature” because he was his uncle’s insurance agent and witnessed him signing checks. On cross-examination, however, he admitted that he could not swear that the printed words in the body of the sheets were Freddie’s writing. Nonetheless, on re-direct, he stated he believed that the handwriting was Freddie’s. Nancy Kay Min-ton, Glen’s wife, similarly testified that the signature looked like Freddie’s, but she admitted that she did not know if the printing was. Nonetheless, on re-direct, she agreed that the rest of the document “appears” to be Freddie’s writing.
Brenda Minton, the widow of Freddie’s brother, testified that she was familiar with both Freddie’s signature and his printing. She opined that the writing on the two sheets was Freddie’s. However, on cross-examination, she stated that she actually saw Freddie print something twenty-one years ago, and she conceded that she could not say with any degree of [4certainty that the writing on the sheets was the same. Nonetheless, she agreed on re-direct that it was “more likely than not” Freddie’s signature and printing. Norma Minton, Freddie’s widow, testified that she was familiar with both Freddie’s signature and his writing, and she was certain that the two sheets were in his handwriting. Further, over Adrian’s hearsay objections, she testified that the sheets were consistent with discussions she had •with Freddie about his changing his will. On cross-examination, she noted that she was no longer a party to the probate proceeding, having relinquished her interest by agreement with Danny and David.
Finally, Adrian Minton was called in the estate’s case. Adrian admitted that in his deposition he conceded that he stated that the handwriting on the sheets “looks identical” to Freddie’s, but qualified his answer by stating that he “never saw him write it, I don’t know.”
The trial court found that the two sheets constituted a single codicil and that the document was in the “proper handwriting” of the decedent, as established by the testimony of at least three credible disinterested witnesses. It ordered the codicil admitted to probate. Adrian timely appealed from that order.
Before we take up Adrian’s arguments, we first note our standard of review. Probate cases are reviewed de novo; however, we will not reverse the probate judge’s findings of fact unless they are clearly erroneous. Stevens v. Heritage Bank, 104 Ark.App. 56, 289 S.W.3d 147 (2008). A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Id. In our review, we defer to the trial court’s evaluation of the credibility of the witnesses. O’Fallon v. O’Fallon ex rel. Ngar, 341 Ark. 138, 14 S.W.3d 506 (2000).
| sAdrian first argues that the trial court erred in admitting the codicil to probate because the handwriting and signature were not established by three credible, disinterested witnesses. He notes that the plain language of Arkansas Code Annotated section 28-25-104 (Repl.2004) requires that both the handwriting and the signature be established by three credible, disinterested witnesses, yet only two witnesses, Norma and Brenda, professed any knowledge about Freddie’s printing. Adrian cites Sanders v. Abernathy, 221 Ark. 407, 411, 253 S.W.2d 351, 353 (1952), for the definition of “credible person” as “one who has the capacity to testify on a given subject and is worthy of belief; and one who lacks knowledge on the subject under investigation is not a credible person to be accepted as worthy of belief in that particular inquiry.” Given this definition, he asserts that Glen and Nancy Kay are not “credible witnesses” because they admitted that they were unfamiliar with Freddie’s printing. Likewise, he contends that Brenda was not a credible witness because she could not say with certainty that the printing she saw in the purported codicil was the same as the printing she saw twenty-one years earlier. Adrian argues that even if this court were to accept that Brenda was a credible witness, her testimony made only two credible witnesses “at the most.” We disagree.
We agree that Glen’s and Nancy Kay’s candid admission that they were completely unfamiliar with Freddie’s printing made them not “credible” as defined by Sanders v. Abernathy. We, however, do not believe that the testimony of Brenda is similarly infirm. While her basis of knowledge of Freddie’s printing was somewhat dated, it was not rendered not credible as a matter of law. That leaves two witnesses who testified about Freddie’s handwriting — Norma and Adrian himself. Adrian essentially concedes that Norma qualifies as a credible witness, and |fiwe agree. Likewise, he makes no mention of his own testimony in which he, albeit reluctantly, agreed that the codicil was written in what appeared to be Freddie’s handwriting. In Sanders v. Abernathy, the supreme court seemed to give special credence to testimony regarding the authenticity of a testator’s handwriting where that testimony was against an heir’s interest. We believe that this very situation is present in this case. Accordingly, we hold that the trial court did not err in finding that the requirements of Arkansas Code Annotated section 28-25-104 had been satisfied.
Adrian next argues that the trial court’s decision to admit the two documents purported to be in the handwriting of the decedent was clearly erroneous because the alleged holographic codicil lacked testamentary intent. Citing Edmundson v. Estate of Fountain, 358 Ark. 302, 189 S.W.3d 427 (2004), he contends that the phrase in the purported codicil, “If anything happens to me before I get the will changed I want to give,” is merely precatory language. Adrian asserts that “directions” are mandatory and all that the purported codicil stated was that “he merely has a hope to change his will and if something happens before it gets accomplished there are certain things he wants to happen.” As a subpoint, Adrian argues that if extrinsic evidence is viewed in this case, the alleged holographic codicil would most certainly fail to have the required testamentary intent to be admitted to probate. In asserting this proposition, he urges us to find analogous the case of Estate of O’Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991). We find no merit to these arguments.
We first dispose of Adrian’s subpoint by noting that Estate of O’Donnell was overruled by Edmundson v. Estate of Fountain, supra. There the supreme court held that extrinsic evidence 17of intent was not admissible to supply testamentary intent if the document itself contained no such words. The issue therefore is solely whether the purported codicil contains words of direction from which a court may infer testamentary intent. We believe it does.
First, the authority that Adrian urges us to rely on, Edmundson v. Estate of Fountain, is easily distinguishable from the case-at-bar. In Edmundson, the supreme court reversed a trial court’s order admitting to probate a hand-written list titled “Last Will Jan. 1, 1997” that merely listed individuals and personal or real property under their names. Despite the caption, there was not a single word that communicated the purported testator’s intention to give any of the listed persons any of the property. Conversely, in the instant case, the purported codicil states Freddie’s intent to “give” to certain beneficiaries items of property in a way that modifies the percentages stated in the formal will. The fact that the writing references a future intention to incorporate these changes into a new formal will is not dispositive of this case. Such is the nature of codicils. In Kinnear v. Langley, 209 Ark. 878, 192 S.W.2d 978 (1946), the supreme court stated:
A codicil is not an entirely new will. A codicil is, rather, a postscript to the will showing something added by the testator to the original document. Just as a postscript to a letter may show a new idea of the writer or a change, or amendment to a thought, expressed in the letter: so a codicil may express a new bequest or a change or modification of a bequest in the will. Just as the postscript does not physically or literally erase or expunge whatever it affects in the letter; so, also, the codicil does not physically or literally erase or obliterate whatever it affects or changes in the original will. The will is probated along with the codicil; together they constitute the ‘last will and testament’ of the testator or testatrix.
Thus, we affirm the trial court’s admission of the codicil to probate.
Affirmed.
ROBBINS and HENRY, JJ„ agree.
. The trial court found that the two documents constituted a single codicil.
. The first sheet contained the following:
4-25-03 (cursive) Fred Minton (printing)
Danny + David
if anything happens to me
before I get the will changed
I want to give
Adrian $10,000 and
the land + trailer
that is fenced
off where the
trailer sits that
he lives in and the
(trailer scratched out) mobile home
and I want to give
Debbie Jiles $5000.00 (1)
The second sheet contained the following, also printed except as noted:
Danny + David
I want you'll
to work out how
to divide the
house + the farm
and all other
money + insurance money, cows + equipment.
Adrian has 3 cows
+ 2 hfrs + 3 caves
in the field
4-25-03
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ROBERT J. GLADWIN, Judge.
| Appellant Michael Feuget appeals his conviction on one of two charges of aggravated robbery, challenging the sufficiency of the evidence supporting the conviction. He also argues that the circuit court erred in denying his motion for a new trial based on inaccurate testimony by his psychiatrist. We affirm.
Appellant was charged with two counts of aggravated robbery, pursuant to Arkansas Code Annotated section 5-12-108 (Repl.2006), and theft of property, pursuant to Arkansas Code Annotated section 5-36-103 (Repl.2006), in connection with the robbery of Iberia Bank in Little Rock on January 15, 2010. At trial, appellant raised the affirmative defenses of mental disease or defect and involuntary intoxication. He was convicted and sentenced to a total of 180 months in the Arkansas Department of Correction pursuant to a judgment and commitment order entered on February 3, 2011. A denial of his February 8, 2011 motion |2for new trial was entered on March 9, 2011, and appellant filed a timely notice of appeal on March 10, 2011.
I. Sufficiency of the Evidence
A direeted-verdiet motion is a challenge to the sufficiency of the evidence. Hutcheson v. State, 92 Ark.App. 307, 213 S.W.3d 25 (2005). On appeal, this court reviews the evidence in the light most favorable to the State, considering only the evidence that supports the conviction. Spight v. State, 101 Ark.App. 400, 278 S.W.3d 599 (2008). This court will affirm a conviction if there is substantial evidence to support it, which is evidence of sufficient force and character that it will compel a conclusion with reasonable certainty. Id. Because a criminal defendant’s intent can seldom be proved by direct evidence, it must usually be inferred from the circumstances surrounding the crime. Id. Jurors are allowed to draw upon their common knowledge and experience to infer intent from the circumstances, and it is presumed that a person intends the natural and probable consequences of his or her acts. Id. Determinations of credibility are left to the jury. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Id.
Appellant was charged with two counts of aggravated robbery, one of Clint Horne, reflected in Count 1, and one of Stephen Long, reflected in Count 2. Appellant challenges lathe sufficiency of the evidence with regard to Count 2, arguing that he committed the physical act of robbing one person, bank employee Mr. Horne, and that a second employee, Mr. Long, merely saw what was going on and handed over money as well, although no threat was made to him. Appellant argues that this is insufficient to sustain a conviction for the aggravated robbery of Mr. Long.
We disagree. Robbery, under Arkansas Code Annotated section 5-12-102 (Repl. 2006), requires that, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Aggravated robbery, un der section 5-12-10S(a)(2), introduces the weapon or serious physical injury component.
Appellant maintains that the evidence indicates that he did not threaten physical force on Mr. Long, as no threat was directed to Mr. Horne and Mr. Long jointly. He cites Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983), in which the defendant was charged with four counts of aggravated robbery at a restaurant. He took items from the manager and two patrons. Two counts pertained to the manager, one involving his own property and one involving the restaurant. The supreme court set aside one of the two convictions for robbing the manager. Our supreme court explained:
[Ujnder prior law robbery consisted of the felonious taking of money or other valuable thing from the person of another by force or intimidation. That definition put the primary emphasis upon the taking of property. But the Code redefines robbery to shift the focus of the offense from the taking of property to the threat of physical harm to the victim. As the Commentary states: “One consequence of the definition is that the offense is complete when physical force is threatened; no transfer of property need take Lplace.” Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979). Ownership is not a necessary element of proof for aggravated robbery. The aggravated robbery was complete with the threat of physical harm and the intent to commit theft. Therefore, the same proof was required for each of the counts of robbery involving Matthew Helfrich, and the entry of conviction on both counts is prohibited by Ark. Stat. Ann. § 41-105(l)(a) and (2)(a) (Repl. 1977).
Id. at 113-14, 661 S.W.2d at 391-92. Here, as in Mitchell, appellant notes that the threat against Mr. Horne just happened to be viewed by Mr. Long.
In cases where the accused makes no verbal representation that he is armed, the focus is on what the victim perceived concerning a deadly weapon. See Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990). Mr. Long testified that he was the bank’s branch manager and that he was behind the teller line when appellant came into the bank. Mr. Horne and Mary Millerd were also behind the teller line. When appellant came into the bank, he handed bags to both Mr. Horne and Ms. Millerd. Testimony indicated that Ms. Millerd “froze,” and that Mr. Long got the bag from her and began putting money into it, along with the tracking device that later led the police to appellant. Mr. Long testified that he saw appellant pull up his shirt to show something to Mr. Horne. Although Mr. Long acknowledged that he did not see what appellant was showing to Mr. Horne, he said that he “felt like whatever he was showing ... probably wasn’t something we wanted to deal with.” Mr. Long said he felt threatened and believed that they should comply with whatever appellant wanted so appellant would leave as soon as possible.
Although Mr. Long admitted on cross-examination that he did not see the gun and that appellant did not verbally threaten him, those things are not required as elements of aggravated robbery. There is no requirement that the threat of physical harm be made | ¡-.directly or indirectly, only that physical force be immediately threatened, however that threat may be communicated. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994); Butler v. State, 2011 Ark. App. 708, 2011 WL 5562805. Based on Mr. Long’s testimony, the jury could infer that Mr. Long believed appellant was showing Mr. Horne some sort of weapon.
Also instructive is Wheat v. State, 297 Ark. 502, 503, 763 S.W.2d 79, 80 (1989), in which our supreme court stated:
The evidence adduced at trial showed that petitioner who was armed with a pistol entered the pharmacy and forced the two clerks to lie on the floor while the pharmacist gathered the money and narcotics into a bag. Only the property of the pharmacy was taken and there was no effort made to take any personal property belonging to the pharmacist and clerks.
In Wheat, the supreme court concluded that the robbery was a single transaction, the intention of which was to commit theft of the pharmacy property and not three separate offenses. Id. Similar to Wheat, in this ease, the only money that was taken was from the bank.
We hold, however, that this case is more similar to Robinson, supra, where the supreme court held that a threat directly made to a store clerk also included a customer who happened to be in harm’s way, justifying Robinson’s convictions for two counts of aggravated robbery. Id. at 24-25, 875 S.W.2d at 842. Even if appellant intended to show his gun only to Mr. Horne, the fact that Mr. Long was in a position to see appellant display something to Mr. Horne and to feel threatened by that action is sufficient to support appellant’s conviction for committing aggravated robbery as to Mr. Long.
Likewise in McKinzy v. State, 313 Ark. 334, 853 S.W.2d 888 (1993), the appellant attempted to rob a Harvest Foods store as two employees were closing and leaving the store Rone evening. While he did physically threaten and assault both employees, he argued that he committed only one aggravated robbery instead of two because he sought only to take the store’s money. The supreme court reiterated that robbery focuses on the threat of physical harm to the victim and that one consequence of the definition is that the offense is complete when physical force is threatened; no transfer of property need take place. Id; see also Robinson, supra, and Mitchell, supra. The supreme court also stated, as it had in Mitchell, that for aggravated robbery, ownership is not an element of proof, and the offense is complete with the threat of physical harm and the intent to commit theft. Subsequently, in McDaniel v. Norris, 38 F.3d 385 (8th Cir.1994), the Eighth Circuit Court of Appeals referenced both Wheat and McKinzy, although disposing of the appeal on procedural grounds. The court stated that “[u]nder Arkansas law, however, one commits aggravated robbery by threatening or using force to take property from another, even if the property did not belong to the victim, and even if the robbery attempt was unsuccessful.” McDaniel, 38 F.3d at 386. This is precisely the scenario that occurred in the instant case; accordingly, we affirm.
II. Denial of Motion for New Trial
The decision whether to grant or deny a motion for new trial lies within the sound discretion of the circuit court, and this court will reverse only if there is a manifest abuse of discretion. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). A circuit court’s factual determinations on a motion for a new trial will not be reversed unless clearly erroneous, and that court determines issues of credibility. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003). A claim of newly discovered evidence is one of the least favored grounds to justify a new trial. Id.
At trial, appellant raised the affirmative defense of involuntary intoxication, pursuant to Arkansas Code Annotated section 5-2-207 (Repl.2006), claiming that his actions resulted from medications he was taking at the direction of his psychiatrist. Multiple “experts” were called to testify regarding this issue, including: (1) Dr. Bob Gale, a neuropsychiatrist; (2) Dr. Lisa Doguet from the Arkansas State Hospital; (3) Dr. Kim Light, a professor of pharmacology at the UAMS pharmacy school; and (4) Dr. Joe Bradley, appellant’s previous treating psychiatrist. Dr. Bradley was called last, as a rebuttal witness by the State, and his testimony and the ensuing procedural issues are the primary focus of appellant’s argument.
Dr. Bradley testified that he had treated appellant since November 2006 for attention deficit disorder (ADD) and depression. Dr. Bradley chronicled his treatment of appellant, including changes and dosage adjustments of appellant’s medications. When Dr. Bradley saw appellant on December 2, 2009, appellant was taking 200 milligrams of Zoloft, although Dr. Bradley had prescribed only 100 milligrams. Appellant had increased the amount he was taking on his own when he felt the lesser dosage was not working. He also was taking Adderall, which he had been taking since January 2008. Finally, at the December 2009 visit, Dr. Bradley began appellant on Deplin, a folic-acid supplement that can help with the absorption of the chemicals in the other medications he was taking. Dr. Bradley gave 18appellant four sample bottles of Deplin, directing him to take one pill daily for four weeks. Dr. Bradley testified that he did not recall writing appellant a prescription for Deplin, but that he set an appointment for a month later so he could determine if the Deplin was having any effect on appellant’s symptoms.
Dr. Bradley next saw appellant on January 6, 2010, less than two weeks before the robbery. Because appellant reported no benefit from the Deplin, Dr. Bradley testified that he recommended that he stop taking it. He continued appellant on the Zoloft and Adderall. Evidence indicated that, at that visit, appellant did not report any suicidal thoughts, issues with sleep, hallucinations, or psychotic symptoms. On cross-examination, when defense counsel asked Dr. Bradley if he would dispute that appellant had had a prescription for Deplin filled on January 7, 2010, Dr. Bradley replied that he may have given appellant a prescription along with the samples so that appellant could get more in case the medication worked but that he did not recall giving appellant a written prescription for that drug. Appellant then called appellant’s wife, Mrs. Feuget, a nurse, as a surrebuttal witness to testify that, on January 7, 2010, she had filled at Walgreens a prescription for Deplin that appellant brought home from his appointment with Dr. Bradley the previous day.
The next day, after the jury began its deliberations, appellant moved for a mistrial based on Dr. Bradley’s testimony that he had not written a prescription for Dep-lin. Appellant produced a prescription dated January 6, 2010, that he obtained from Walgreens showing that Dr. Bradley had, in fact, written a prescription for Dep-lin. The State replied that appellant had had ample time prior to trial to interview Dr. Bradley and find out what he was going to [asay. Moreover, Dr. Bradley had testified two days earlier, and appellant waited until after the testimony had ended to bring this matter to the circuit court’s attention. The circuit court denied appellant’s motion for a mistrial.
Following his conviction, appellant timely filed a motion for a new trial, pursuant to Arkansas Rule of Criminal Procedure 33.8 (2011). The basis of the motion was that appellant was prejudiced by Dr. Bradley’s testimony that he did not recall writing appellant a prescription for Deplin because it gave the jury the impression that appellant was not taking Deplin pursuant to Dr. Bradley’s direction after January 6, 2010. The motion asserted that the jury would have reached a different verdict, presumptively involuntary intoxication, if the original prescription had been found in time to be shown to the jury.
At a hearing on the new-trial motion, Dr. Bradley admitted that his records did indicate that he wrote the prescription for Deplin on January 6, 2010, instructing appellant to take one tablet daily and authorizing twelve refills. Dr. Bradley noted that the seven and a half milligrams of Deplin had only a minimal effect on appellant’s depression and that, as of January 6, 2011, appellant had taken Deplin for a month without any difficulties or unusual side effects.
At the conclusion of the hearing, the circuit court denied appellant a new trial. The circuit court noted that appellant was not prejudiced because the jury was aware of his defense of involuntary intoxication and because appellant’s wife testified that the prescription was obtained from Dr. Bradley and filled on January 6, 2010. Accordingly, the circuit court found there was no basis for a new trial.
hnWe hold that the circuit court was within its discretion to deny appellant’s motion for a new trial. Appellant’s argument goes to the issue of whether his intoxication was involuntary, but there was ample evidence presented at trial for the jury to conclude that he was not intoxicated at all — either voluntarily or involuntarily. Aside from appellant’s ability to plan and carry out the robbery in great detail, the medical evidence presented was conflicting as to whether appellant acted under the influence of the drugs he was taking. The jury was not bound to accept the opinion of any expert, and it was solely the jury’s duty to resolve the conflicting expert testimony. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007).
Appellant called Dr. Gale, a neuropsy-chiatrist, who opined that appellant was involuntarily intoxicated from the medications he was taking. He described appellant’s desire to best John Dillinger’s time as “delusional.” Dr. Bradley disagreed that appellant was intoxicated. He explained that he had never heard of anyone being intoxicated from taking Zoloft, although he had heard of Adderall causing intoxication. Dr. Bradley also noted that appellant had taken both of those medications, along with Deplin, for several weeks before the robbery without exhibiting any unusual symptoms or behavior.
Dr. Doguet examined appellant at the Arkansas State Hospital following his arrest. She diagnosed him with intoxication and a mild bipolar disorder. Nonetheless, she testified that at the time of the robbery, he could appreciate the criminality of his conduct and conform his conduct to the requirements of the law. In reaching those conclusions, she pointed to the detail with which he had planned the robbery. His attempt to dispose of the tracking device | nand his attempt to conceal his identity showed that he understood that he was engaging in criminal conduct. His concealment of a gun and writing notes in his truck until customers had left the bank indicated that he could conform his conduct. Dr. Doguet said that appellant did not feel compelled to enter the bank and rob it without preparing to do so.
Dr. Light, a professor of pharmacology at the UAMS pharmacy school, testified that Deplin has no impact on the absorption of Zoloft. Dr. Light stated that he did not believe that appellant was intoxi cated from either Zoloft or Adderall. Appellant had been taking the same dosage of Adderall for months with no adverse problems and, thus, was “relatively stable” on that drug. Appellant began taking Zoloft in 1994 and had never reported any complications from it. For several weeks before the date of the bank robbery, he had been taking 200 milligrams of Zoloft and 60 milligrams of Adderall daily without any complaints, so, assuming he took those same dosages on the day of the robbery, there was no pattern to “support the idea that suddenly, on this particular day, he becomes intoxicated by these drugs.” Dr. Light further explained that, from the time of the increase of the Zoloft dosage and the addition of Deplin in December, it would take one or two weeks to see if there would be an intoxication effect and that sudden intoxication six weeks later would be “very unlikely.” Dr. Light testified that Deplin would not have any physiological or pharmacological effect on appellant unless he had had a severe folic-acid deficiency beforehand. Intoxication is a “function of dosage,” Dr. Light explained, so any side effects or intoxication would occur within days after the dosage increase rather than six weeks later.
|12The evidence showed that appellant meticulously planned and executed the robbery. Appellant explained to the jury that he had seen a television program about John Dillinger that indicated that Dillinger could complete a bank robbery without bloodshed in one minute. Appellant decided that he could “beat” Dillinger by committing a bank robbery in just thirty seconds, and he set out to do just that. He drove his truck to the bank and parked it down the street, rather than in the bank parking lot. Elizabeth Outar testified that, on the day and at the time of the bank robbery, she saw a large black pickup truck parked in front of her house near the bank. The driver, who was wearing dark clothing, a black hat, and sunglasses, got out of the truck and appeared to be stretching, causing Ms. Outar to think he was preparing to exercise at nearby War Memorial Park. When the man began walking away, Ms. Outar noticed that he had left the truck’s engine running.
Appellant testified that, as he was sitting in his truck, he practiced what he would say in the bank, to make sure it would take him no more than thirty seconds to make his demand and leave the bank. He placed in his waistband a gun that was in his truck, stating that, as a bank robber, he “had to have a gun.” Once inside the bank, appellant told employees that he had the license-plate numbers from their cars and knew where they lived. Although he claimed he never waved his gun or pointed it at anyone in the bank, Mr. Horne testified that appellant pulled up his shirt and showed him the gun.
Appellant drove home after he left the bank and walked his dogs. When he returned to his house, he began looking through the money and found a tracking device that Mr. Long had placed inside the bills at the bank. He explained that he “knew that it wasn’t good for |1sa bank robber to be standing in his house with this device,” so he got back into his truck, intending to dispose of the device somewhere; however, the police located him before he was able to do so.
As part of his planning of the robbery, appellant removed the license plate and a chrome “bullybar” from his truck in an apparent attempt to disguise it. Officers found a license plate lying on a table in the back of his house, and that tag was registered to appellant’s truck. The truck did not have a license plate on it when officers found appellant. Along with the license plate, Officer Raymond Koonce found the bullybar, which he described as a chrome piece that goes into the receiver for a trailer. Among other things, officers found in the driver’s door pocket a sunglasses case containing a green leafy substance and a smoking pipe with residue. Appellant denied that the marijuana was his, claiming that it belonged to his mother.
In light of all of this evidence, we hold that the circuit court did not abuse its discretion by finding that appellant suffered no prejudice from Dr. Bradley’s testimony that he did not recall writing appellant a prescription for Deplin. Appellant simply cannot show that the jury believed he was intoxicated, much less involuntarily so, which makes the issue of whether Dr. Bradley remembered writing a prescription for that drug immaterial. Moreover, as the circuit court noted in its ruling, the jury heard appellant’s wife testify that she had Dr. Bradley’s prescription for Deplin filled at Walgreens on January 7, 2010, and that appellant had brought the prescription home with him after seeing Dr. Bradley the previous day. The jury heard the very testimony whose alleged omission appellant now contends prejudiced him.
|14In addition, the detail with which appellant planned, executed, and attempted to cover up the robbery could provide the jury a basis for rejecting outright his claim of intoxication. Of the four medical experts who testified at trial, only Dr. Gale opined that appellant was involuntarily intoxicated due to the drugs he was taking. While Dr. Doguet diagnosed appellant as being intoxicated from Zoloft and Adderall, she also stated that his actions showed that he understood the criminality of his conduct and could have conformed his conduct to the requirements of the law. Drs. Bradley and Light completely rejected the idea that appellant was intoxicated from his medications.
Appellant’s reliance on Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991), for the proposition that a new trial should have been granted, is misplaced. There, the supreme court held that a new trial should have been granted because a witness committed perjury -with regard to a material issue. Id. Here, appellant has not shown that Dr. Bradley committed perjury by testifying that he did not recall writing a prescription for Deplin on January 6, 2010, in contrast to Bennett, where a witness deliberately lied about the nature of her relationship with the defendant.
Appellant’s trial attorney acknowledged at the hearing on the motion for a new trial that he knew for more than a month prior to the trial date that Dr. Bradley would testify as a rebuttal witness for the State and that he had received Dr. Bradley’s records concerning appellant a month before trial. Counsel did not interview Dr. Bradley before trial to determine the anticipated testimony. If he had, and Dr. Bradley had stated he did not recall writing a prescription for Deplin, appellant or his wife could have told counsel about the | ^prescription well before the trial began. It was appellant and his wife, not the prosecutor, who knew whether Dr. Bradley had written a prescription. Appellant’s lack of diligence is an additional reason to deny a new trial. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004).
In sum, appellant has not shown that the jury accepted his defense of intoxication, much less that the jury would have found he was involuntarily intoxicated or that Dr. Bradley’s testimony about the prescription had any effect on that determination. The jury heard from appellant’s wife that Dr. Bradley had written a prescription for Deplin, so he cannot show prejudice resulting from Dr. Bradley’s mistaken testimony. Moreover, appellant was not diligent with regard to the issue because he failed to interview Dr. Bradley prior to trial. Finally, but not insignificantly, the jury also heard about the financial difficulties appellant had experienced prior to the robbery, along with the detail with which appellant planned, executed, and attempted to cover up the robbery. Accordingly, we affirm with respect to this issue as well.
Affirmed.
MARTIN, J., agrees.
PITTMAN, J., concurs.
. Although appellant raises this challenge to the sufficiency of the evidence as his second point on appeal, double-jeopardy concerns require us to initially address this claim. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008).
. Appellant also asserted the affirmative defense of mental disease or defect, but the issue on appeal concerns only his separate defense of involuntary intoxication. | [
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DAVID M. GLOVER, Judge.
LBy order entered on June 22, 2009, the trial court determined that appellee, Richard Garringer, had proved that he was entitled to an implied easement over his aunt’s, appellant Nellie Garringer’s, adjacent property. For her sole point of appeal, Nellie contends that the trial court erred in finding that Richard met his burden of proof. We affirm the trial court’s decision, but we remand with instructions for the trial court to amend the order to include a specific legal description of the easement at issue in this case.
\9Standard of Review
In reviewing matters concerning easements, this court conducts a de novo review and will not reverse a finding of fact made by the trial court unless it is clearly erroneous. Orr v. Orr, 2009 Ark. App. 578, 2009 WL 2877634. A finding of fact 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. Id. This court will give due deference to the opportunity of the trial court to judge the credibility of the witnesses and the weight to be given their testimony. Id.
Easement by Implication
An easement by implication arises where, during unity of title, a landowner imposes an apparently permanent and obvious servitude on part of his property in favor of another part and where, at the time of a later severance of ownership, the servitude is in use and is reasonably necessary for the enjoyment of that part of the property favored by the servitude. Hanna v. Robinson, 86 Ark. App. 180, 167 S.W.3d 166 (2004). In order for such an easement to be established, it must appear not only that the easement was obvious and apparently permanent but also that it is reasonably necessary for the enjoyment of the property, the term “necessary” meaning that there could be no other reasonable mode of enjoying the dominant tenement without the easement. Id. An easement by implication arises at the time of the conveyance in which the common owner severs one of his parcels. Id. Thus, the necessity |sfor the easement must have existed at the time of severance. Id. Further, the apparently permanent nature of the easement must be in existence at the time of common ownership because the existence of the easement depends on the common owner’s use. Id. Whether an easement is necessary and apparent are ordinarily questions of fact. Id.; Diener v. Ratterree, 57 Ark. App. 314, 945 S.W.2d 406 (1997).
The reason for the above requirements is that an implied easement begins when a parcel of land is owned by one person. Hanna, supra. During the common ownership, the owner imposes a servitude on one part of his land in favor of another part. At that point, there is no actual easement since one person still owns all the land; rather, there is a quasi-easement. Id. When the owner conveys one of the parcels, ie., severs his estate, an implied easement is then created. Id. The nature of the easement corresponds to the benefits and burdens existing at the time of the severance. Id. Thus, the question of whether an easement is apparently permanent and necessary to the enjoyment of the dominant tenement must be determined at the time of severance, for that is when the easement comes into existence. Id.
The Property Transfers
Here, the following facts were essentially undisputed: appellee Richard’s parents, Clara and Paul Garringer, were the original owners of both parcels of land involved in this case. They are now both deceased. In 1963, Clara and Paul sold approximately one-half of their entire parcel to Paul’s brother, John (now deceased), and John’s wife, Nellie, who is the appellant in this case. In 1976, Clara and Paul subdivided their remaining parcel into eight |4lots for each of their eight children, conveying the property to their children but reserving a life estate in it. Richard received Lot 10, which is located at the far northwest corner of the property retained by his parents, and which is essentially landlocked.
Testimony
Scott Foster, a professional surveyor, testified that he performed a survey for Richard. The survey was introduced as an exhibit at the hearing. Scott pointed out the portion of the survey that represented Richard’s eight-acre parcel (Lot 10). He explained that Kinfolks Road is a county road that runs north from Highway 294 for about half a mile and then dead-ends. He testified that there is a private gravel drive located where Kinfolks Road ends, going east over Nellie’s property, toward Richard’s property. He stated that the gravel drive is used to access two houses along the gravel drive; that after the second home, an impediment had been placed between the gravel road and Richard’s property; that at one time the drive had gone “all the way through”; and that “[f]rom the point it’s blocked off, it’s like a dirt trail.” He testified that there were not any other roads that access Richard’s property, stating that if there were, they would have been on the survey. He indicated that he was not aware of a dedicated easement accessing Richard’s property along the east line of the property, also running north from Highway 294.
Richard testified that Nellie’s property bordered his property; that for his entire life, he had accessed the property, including what is now Lot 10 that was left to him by his |Bparents, traveling Kinfolks Road and crossing over his Aunt Nellie’s land. More particularly, he explained:
I received the property upon my mother’s death, which was four years ago. I believe it was deeded to us in 1976. My parents maintained the property until they passed. They had a life estate. They deeded other property to my other brothers and sisters. My property is the furthest northwest corner of the property that was deeded by my parents to their children. It is the back of the property. I was not granted any kind of easement for access to my property that I know of. The property was landlocked when I received it. There are boundary markers on my property. It outlines my land. I have heard of Kinfolks Road. This road starts at Highway 294 and runs straight north. It leads to the back of all the property and goes on to a minnow pond on Art Cole’s property. It does not go across Ms. Garringer’s property. The road does turn right onto the property of Aunt Nellie. I have used that road. I have used it as long as there has been a road there my entire life. Before there was a road, it was my parents’. There was a trail that goes across the back of the property to connect it before there was even a Kinfolks Road. They used it for access going to the minnow ponds and to the back of Mr. Cole’s property going to our property because of the circumstances. There’s a creek separating that goes across all the property. I can’t think of the name of the creek. When it rains you have to go down that road to get to the property. That’s just the way it was.
My parents gave me the property.... The same people that deeded my property to me deeded it to her [Nellie].
I stopped having access to my property off of Kinfolks Road two and a half years ago when all this started. They put up no trespassing signs and told me not to come back across there no more.... There is no other road to access my property.
Richard also testified about photographs; they were introduced as a group exhibit and showed accumulated water on the thirty-foot easement running north from Highway 294 toward Richard’s property on the east side, which he described as a utility easement. He acknowledged that the deeds from his parents with respect to tracts one, two, seven, and nine described a thirty-foot easement along the east side that eventually turned west and extended Rail the way to the west line of the original property. He explained that if he were to travel to his property along a route close to this easement when it rained, he would have to go through water. He said that he did not think he could pass through it in his vehicle. He also testified that it would cost several thousand dollars to build a road and place culverts along this thirty-foot easement to his property.
Nellie testified as part of Richard’s case. She stated that Kinfolks Road runs on her property. According to her, there is a “little driveway across the back of it, but it’s not on the line.” She explained that the road access does not reach all the way to Richard’s property but that she did not know how far it was from the end of Kinfolks Road to his property. She explained that he had used her property before to access his property but that “he had a load of hay fall on a truck that we had to pay for.” She said that she then instructed her son, Johnny, to block the drive with a fence.
At the conclusion of Richard’s case, Nellie moved for a directed verdict, which was denied by the trial court.
As part of Nellie’s case, Johnny Garringer, her son, testified that he lives on her property along the drive way that runs east off Kinfolks Road. He stated that he put a fence up by Richard’s property to put a pasture back there on the west. He testified that the lane or driveway was created when he put a house back there, in 1990 or 1991 and that prior to that there was nothing there but a fence row. According to Johnny, Richard started “going across this land to access his property about two or three years after [Johnny] moved down |7there.” He also explained that Richard’s father had prepared an access route along the east side of his property. Johnny stated that he does not know if that route would be under water but that even Kinfolks Road and the lane to his house were sometimes under water. In describing a photographic exhibit, he explained that it showed the fence between Nellie’s property and Richard’s property, and he showed “where the lane used to come in.” Johnny testified that no one uses the lane across Nellie’s property now; that it has not been used in two years, which was when Richard was told he could no longer use it.
Tim Curtis, Nellie’s son-in-law, testified that it was his understanding that an easement runs along the east side of the property belonging to Richard’s family. He described it as “kind of a field running down through there.” He identified one of the photos depicting that area as taken “last week,” and said that it “wasn’t flooded at that time.”
Nellie testified that when she and her husband purchased the property in 1963, there was not a lane running back over to what ended up being Richard’s property. And like Johnny, she said that there wasn’t any kind of lane back there until a couple of years after Johnny moved there in the early nineties. She said that “[y]ou could drive across it, but you would have to go,over plow rows where tractors had turned around.”
Discussion
Appellant contends to this court that 1) the trial court erred in finding that an access existed at the time of the unity of title and at the time of the severance of title; 2) the trial court erred in finding that the appellee met his burden of proof to establish an easement by |simplication when there was no evidence of the access used across the appellant’s property being obvious and permanent; and 3) the trial court erred in finding that the easement was necessary, i.e., that there was no other reasonable mode of enjoying the dominant tenement without the easement. We find no error.
Each of the findings challenged by Nellie involve questions of fact, and we are not left with a definite and firm conviction that a mistake was made by the trial court in concluding that appellee had satisfied his burden of proving an easement by implication. Richard testified that he had used the road turning right off of Kinfolks Road onto what is now his Aunt Nellie’s property “as long as there has been a road there my entire life”; that there was a. trail across the back of the property to connect it before there was even a Kinfolks Road; that his family had used it for “access going to the minnow ponds and to the back of Mr. Cole’s property going to our property because of the circumstances”; that a creek goes across all of the property and that “when it rains you have to go down that road to get to the property.” Matters of credibility and the weight to be given to testimony are for the fact-fínder. Orr, supra. There was also photographic evidence that the thirty-foot easement along the eastern boundary of Richard’s siblings’ property is impassable at times because of flooding.
Affirmed and remanded with instructions to amend the June 22, 2009 order to include a specific legal description of the easement at issue in this case.
GLADWIN and KINARD, JJ., agree.
. Here, a survey showing the disputed property and surrounding property had been performed and was introduced as an exhibit at trial. When nothing remains to be done, but a trial court’s decree does not describe an easement with sufficient specificity so that it can be identified solely by reference to the decree, we may remand for the trial court to amend the decree and provide the easement’s legal description. See Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998). | [
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JOHN MAUZY PITTMAN, Judge.
| jThis is a probate case in which the former in-laws of the decedent, William “Bill” Potts, are attempting to take their shares as beneficiaries of a 1989 will, which, the estate asserts, was revoked between 2002 and Bill’s death in 2006. Appellants, relatives of Bill’s deceased wife, Wanda Goza, attempted to prove that Bill lacked testamentary capacity and suffered under some insane delusions when he revoked his will. The trial court held that the will was revoked and that Bill died intestate. We affirm.
Bill married Wanda in 1945. They had no children and lived in California until she died in August 2002. Wanda’s sister, Wilda, married appellant Glenville Rhodes. Wilda and Wanda had two brothers, F.D. Goza, Jr., and appellant Paul Goza. F.D. Goza, Jr., had three children, appellants David Goza, Gary Goza, and Sharon Wheeler. In 1989, Bill signed a will leaving his estate to Wanda and named Paul, F.D. Goza, Jr., and Wilda as contingent | .¿beneficiaries. F.D. Goza, Jr., died later that year. Wilda died in 2001. Bill and Wanda often visited their relatives in Mal-vern. They bought a house there in 1991, where they stayed during their visits. Paul helped them maintain the home. In 2003, Bill moved to Malvern. Before he died in October 2006, he revoked his will. He marked “void” over each paragraph; wrote “bastard” and “get nothing” on the will; and applied Liquid Paper over the names of the beneficiaries. He later shredded the document in the presence of his insurance agents, Joe Groover and ap- pellee Rene Moreland. After he moved to Malvern, Bill became friends with Joe, Rene, and Don Rash, who operated a funeral home. After Bill’s death, Don and Rene filed a petition to be appointed personal representatives and alleged that Bill had died intestate. The court appointed them co-personal representatives. Paul filed a petition to revoke their appointments and to probate the 1989 will, of which he filed a copy. Glenville also filed a petition to probate the 1989 will. The inventory filed by the personal representatives showed the value of the estate to be over $430,000.
The case went to trial on August 19 and 20, 2008. Paul, Dinah Efird (a bank employee), Zola Brandon (a bank employee), Glenville, Freddie Crownover (the mother of Glenville’s son-in-law), Marsha Crown-over (Glenville’s daughter), Rene, Don, and Dr. Bradley Diner (a psychiatrist) testified in appellants’ case-in-chief. Joe Groover, Don, and Dr. Bruce Burton (Bill’s physician) testified for appellees. Appellants attempted to prove that, after Wanda died, Bill lacked testamentary capacity to revoke his will because he had suffered from insane delusions when he revoked it. The alleged insane delusions were that Paul had |sstolen a gold coin bracelet of Wanda’s; that Wanda had sex with Glenville in September 2001, soon after Wilda died; and that Glenville had attempted to steal from Bill’s bank account.
The trial court found that Bill had revoked the will and did not suffer from insane delusions when he revoked it; refused to admit the will; and ruled that Bill died intestate. The court stated:
4. Although not clear as to the date, the court finds that the decedent revoked his will sometime after his wife’s death in August 2002. The will was revoked when the decedent lined out the will and by writing void, marked with derogatory remarks and white out. All were sufficient to revoke the will pursuant to A.C.A. § 28-25-109. The Court directed a verdict on this issue. Petitioners introduced a copy of the will but the original was shredded at the offices of Joe Groover.
11. In the case at bar, there was disputed evidence of the facts Dr. Diner relied upon to find Mr. Potts’s action of revoking his will was from an insane delusion. Dr. Diner believed there was little evidence that sex occurred but more than one person was told by Mr. Potts that his wife told him she had a relationship with Rhodes. Disputed testimony of whether Mr. Goza’s discussion with his sister, Wanda Potts, was overheard by Mr. Potts as to the gift of the gold coin bracelet. When the decedent was confronted by Paul Goza as to the gift, Potts dropped the subject. This mistake of fact was apparently dropped by Mr. Potts. Not one person confronted Mr. Potts’ belief of infidelity of his wife and Dr. Diner himself admits if there was foundation to reach the conclusion of infidelity then no insane delusion exists.
14. Dr. Diner admits his testimony is “educated speculation.” The court finds that Dr. Diner did not take into consideration other motivational factors such as Potts’ respect for his new found friends to whom he made gifts during his lifetime (Groover, Rash, Moreland).
[415. The facts of this case are insufficient for the Court to find an insane delusion. In Huffman v. Dawkins, 273 Ark. 530 [520], 526, 622 S.W.2d 159, 162 (1981), our court has stated “if there is any basis in fact of the delusion, such a delusion will not warrant setting aside a legal document.” See also Eddleman v. Estate of Farmer, 284 [294] Ark. 8, 740 S.W.2d 141 (1987); Kelly [Kelley] v. Reed, 265 Ark. 581, 580 S.W.2d 682 (1979).
16. The test is whether there was any basis for Mr. Potts’ beliefs. It is the burden of one proposing to reinstate a will previously revoked to prove by the preponderance of the evidence an insane delusion. Here the petitioners fell short of their burden to prove insane delusions exist. The testimony of the forensic psychiatrist failed to meet the requirements of his own medical authority and assumed certain facts to find that Mr. Potts suffered from insane delusions.
Appellants then brought this appeal.
On appeal, we review probate cases de novo; however, we will not reverse the trial court’s findings unless they are clearly erroneous. In re Estate of Garrett, 81 Ark. App. 212, 100 S.W.3d 72 (2003). We give due deference to the superior position of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.
Appellants do not dispute that Bill took actions that would have been sufficient to revoke his will if he had possessed testamentary capacity. Arkansas Code Annotated section 28-25-109(a)(2) (Repl. 2004) provides that a will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator. Appellants argue that Bill lacked testamentary capacity when he revoked the will and that, even if he generally had the requisite mental capacity to do so, he revoked the will as a result of insane delusions.
| ¿Appellants produced only a copy of the will. There is a presumption that a testator destroyed a will, executed by him in his lifetime, with the intention of revoking it, if he retained custody of it or had access to it, and if it could not be found after his death. Remington v. Roberson, 81 Ark. App. 36, 98 S.W.3d 44 (2003). This presumption, however, may be overcome by proof. Id. The proponent of the will has the burden of proving by a preponderance of the evidence that the decedent did not revoke the will during his lifetime. Id.; accord Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (2006).
Appellants argue that Bill lacked testamentary capacity because he did not know the relations of those entitled to his bounty, pointing to his statements to others that he had no family. Paul testified that Bill told him that he had no family. Rene testified that Bill asked her to help him list his assets and prepare for a new will. They worked on this project for over two years, although Bill did not create a new will before he died. She said that Bill frequently told her that he had no family, which she interpreted as “no immediate family.” She stated that Bill prepared a list of distant family members, but did not know if they were still alive. Don stated that, in March 2006, Bill informed him that he had no family, but also said that Bill told him that he did not want the beneficiaries of his old will, Paul and Glenville (as Wilda’s surviving spouse), to inherit from him. Dr. Burton testified that Bill told him that his wife, mother, father, sister, and brother were dead.
Appellants bore the burden of proving that Bill lacked testamentary capacity when he revoked his will. See Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908). Testamentary | (¡capacity is the ability of the testator to retain in memory, without prompting, the extent and condition of the property to be disposed of, to comprehend to whom he is giving, and to realize the deserts and relations to him of those whom he excludes from the will. Id. It is sufficient if he has the mental capacity to understand the effect of his will as executed. Id. The same degree of mental capacity is necessary to revoke a will as to make one. Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970). Complete sanity in a medical sense is not essential to testamentary capacity, provided power to think rationally exists. Id. If one has the capacity to make a will, he may make it as unjust as revenge can dictate. Id. With respect to the ability to know the extent and condition of the property to be disposed of and to whom it is being given, and to appreciate the deserts and relations to the testator of others against whom he discriminates or excludes from participation in his estate, that he actually has this knowledge is unnecessary. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).
Thus, Bill did not need to know the actual names of each and every one of his distant relatives who might inherit from his intestate estate; he only was required to have the capacity to know them. As Rene said, Bill was aware that he probably had descendants from his deceased brother and sister. Bill accurately introduced Herman Potts as his cousin. Dr. Burton testified that Bill was aware that all of his immediate family members were dead, and that he did have testamentary capacity. Bill gave family heirlooms to Glenville’s daughters. He impressed upon Don that he did not want the beneficiaries of his old will, specifically, Paul and Glenville, to inherit his property. Bill had no children, and he knew that his wife |7and every member of his family of origin were dead. He certainly knew who was listed in his old will and was adamant that they not inherit from him. Appellants failed to prove that Bill lacked testamentary capacity-
Appellants next argue that Bill lacked testamentary capacity because of three insane delusions about Paul and Glenville. Dr. Diner testified that Bill suffered from a delusional disorder, persecutory type, that caused him to irrationally believe that Wanda had sex with Glenville in 2001; that Paul had stolen a gold coin bracelet of Wanda’s; and that Glenville had placed his name on Bill’s bank account without permission. Dr. Diner, however, said that the alleged affair with Glenville and Paul’s theft were the only delusions relevant to his opinion.
While an individual may possess the requisite testamentary capacity, he may, at the same time, be laboring under one or more insane delusions that may have the effect of making his purported will a nullity. Kirkpatrick v. Union Bank of Benton, 269 Ark. 970, 601 S.W.2d 607 (Ark.App.1980). In Taylor v. McClintock, supra, the supreme court described an insane delusion:
Where one conceives something extravagant, and believes it as a fact, when in reality it has no existence, but is purely a product of the imagination, and where such belief is so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a person is possessed by an insane delusion.
87 Ark. at 277, 112 S.W. at 413.
| sAppeIIants bore the burden of proving that Bill suffered from an insane delusion when he took action to revoke his will. See Huffman v. Dawkins, 273 Ark. 520, 526, 622 S.W.2d 159, 162 (1981), in which the supreme court explained that such a delusion must not only exist but the will (here, the revocation) must be a product of the delusion; if there is any basis in fact for the delusion, or if it is not proven that the will (the revocation) was a product of the delusion, such a delusion will not war rant setting aside a legal document. The court added that the test is whether there was any basis for the decedent’s beliefs, and that, where expert testimony is in conflict as to whether he suffered from insane delusions, it is the role of the probate court to resolve the conflicts. Accord Schweitzer v. Bean, 154 Ark. 228, 242 S.W. 68 (1922).
The evidence clearly showed that Bill was an irascible, angry, suspicious, controlling, profane, and difficult man for most of his adult life; however, we cannot say that the trial court erred in refusing to find that he labored under insane delusions. There was some factual basis for Bill’s beliefs about Paul and Glenville, even if they were wrong. In October 2001, in Bill’s presence, in her kitchen in Malvern, Wanda gave a gold coin bracelet to Paul, along with a note that stated that she was giving it to him to keep and that it would be a gift to him upon her death. Bill had “wild eyes” and a “displeased demeanor” when Wanda handed the bracelet to Paul. As appellees point out, Bill’s hearing problems may have prevented him from hearing what Wanda said when she gave the bracelet to Paul. Additionally, Paul did 19enter Bill’s house after Wanda’s death, when Bill was not there, while helping him maintain the house.
There was also some evidence on which Bill could have (probably wrongly) based his conclusion that Wanda had sex with Glenville after Wilda’s death. Glen-ville and Wanda dated before he began dating Wilda. Bill told Fred die Crown-over, Rene, and Don that Wanda had admitted the affair to him. During the alleged incident, Bill stayed in the den while Wanda and Glenville went into the bedrooms so that Wanda could choose some of Wilda’s clothes. Bill heard Wanda say things like “I love this.” Glenville called Wanda and Bill after they returned to California; when Wanda answered the phone, Glenville heard Bill making a lot of noise in the background. Glenville asked Wanda how she stood it, and urged her to leave Bill. Glenville then heard Bill state: “That God-damn son-of-a-bitch trying to steal my wife.”
Bill certainly loathed Glenville and Paul, who were aware of his temper fits. Paul tolerated him in order to remain close to Wanda. Bill made Wanda’s life difficult, and she complained about him to Paul. Bill was upset about Paul’s decision to have an autopsy performed after his wife died. It is, therefore, not surprising that Bill’s relationship with Wanda’s family was not good after she died. The long-standing acrimony between Bill and Wanda’s family was more than sufficient to justify his eagerness to revoke his old will and leave nothing to appellants; therefore, appellants did not prove that, even if Bill suffered from insane delusions, they were the motivation for the revocation.
| ^Additionally, after Wanda died, Bill managed his financial affairs with no difficulty. He enlisted Rene’s help in assembling all of the information he would need to create a new will. He purchased a prepaid funeral contract from Don after thinking about it for four years. He was well-groomed, and still exercised. He made new friends. Dr. Burton, who had treated Bill for over ten years, testified that, in 2004, Bill had asked him to evaluate his mental capacity to make a new will. Dr. Burton is also a lawyer, and has extensive experience working with elderly patients. He testified that, on the basis of that exam, as well as his interactions with Bill over the years, Bill had testamentary capacity. The trial court gave more weight to his opinion than to appellant’s expert, who had never met Bill. Given our stan dard of review, the trial court’s decision must be affirmed.
Affirmed.
HENRY and BAKER, JJ, agree. | [
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JOHN B. ROBBINS, Judge.
hln this divorce action, Jenifer Rebekah Wise appeals from the divorce decree and challenges the trial court’s award of custody of their son, Wesley, to appellee Johnny E. Wise, II. On appeal, she argues that the trial court clearly erred in basing its custody award on the gender of the father. Ms. Wise further contends that, considering all of the evidence, it was error to award custody to Mr. Wise. We affirm.
In child custody cases, we review the evidence de novo, but we do not reverse the findings of the trial court unless they are clearly erroneous. Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). We give due deference to Lthe trial court’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. The supreme court has held that there is no other case in which the superior position, ability, and opportunity of the trial court to observe the parties carries a greater weight than one involving the custody of minor children. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). The best interest of the child is the polestar in every child custody case; all other considerations are secondary. Id.
The parties in this case were married on August 7,1993. Wesley was born on October 27, 1999. Ms. Wise has a daughter, Whitley, from a previous relationship, who was born on September 12,1990.
The parties separated on March 22, 2007. Ms. Wise filed for divorce on April 22, 2007, and she sought custody of Wesley. Mr. Wise filed a response and counterclaim for divorce on September 21, 2007, and he sought custody of Wesley.
A temporary hearing was held on October 16, 2007. At that hearing it was established that since their separation the parties had shared about equal custody of Wesley. Mr. Wise remained in the marital home in Bigelow, and Ms. Wise had moved in with her parents and then to an apart ment in Morrilton. The trial court entered a temporary order on November 2, 2007, granting temporary custody to Mr. Wise, and continuing the mutually agreed upon visitation arrangement.
[¡¡The final hearing was held on September 3, 2008. On November 18, 2008, the trial court entered the divorce decree awarding custody to Mr. Wise. As for visitation, the decree provides, “During the pendency of this cause, the parties have developed a visitation schedule which allows each to spend approximately equal time with the child; the parties are directed to continue to follow that schedule to provide for [Ms. Wise’s] visitation with the child.” Because of the extraordinary visitation granted to Ms. Wise, the trial court deviated downward from the child-support chart and ordered Ms. Wise to pay $43.34 per week in child support.
Both parties testified at the temporary hearing. Ms. Wise testified that she has a salon in Damascus where she has worked since the parties’ separation. She stated that Mr. Wise’s field of employment is excavation, where he works with heavy equipment. Ms. Wise stated that the parties moved into the marital home in Bige-low when Wesley was born, and that it is the only home he has ever known. Ms. Wise testified that she primarily cared for Wesley after he was born. She acknowledged, however, that Mr. Wise was involved in raising Wesley, “changing diapers, feeding and all that stuff.”
Mr. Wise testified at the temporary hearing that he does not set his own work hours, but that he is able to modify his work schedule to accommodate his son’s schedule. Mr. Wise maintained that he has taken an active role in his son’s life since he was born. |4Mr. Wise said that he takes Wesley to school, helps him with his homework, and coaches his baseball and football teams.
Ms. Wise testified at the final hearing, and she stated that she currently lives with her parents in their house in Bigelow. It is a three-bedroom home, and when she has custody Wesley has his own room. Ms. Wise’s daughter, Whitley, has married and lives in Conway.
Ms. Wise testified that after she filed for divorce, she and Mr. Wise unsuccessfully attempted reconciliation. Their attempt to reunify ended in September 2007. According to Ms. Wise, Mr. Wise became more abusive at that point. She recounted a particular incident on September 17, 2007, when she attempted to pick up Wesley at Mr. Wise’s house. Mr. Wise refused to allow her custody of Wesley at that time, and hostile words were exchanged. According to Ms. Wise, this culminated with Mr. Wise pushing her toward the door, and then slamming her with the door and locking her out of the house. Ms. Wise went to the sheriffs office and reported an assault, although evidently no charges were filed.
Ms. Wise testified that she has been Wesley’s primary caregiver since his birth. She stated that, prior to the parties’ separation, she was the only parent who took Wesley to doctor and dentist appointments and attended parent-teacher conferences. Ms. Wise testified that although she is currently employed as a beautician, she is also a licensed nurse.
Ms. Wise testified that when she has custody of Wesley, they go to movies and go out to eat together. While at home, they watch television, play basketball, and take care of their | «¡animals. Ms. Wise also stated that Wesley helps her in the garden and with cooking. She also takes Wesley to the park.
Ms. Wise expressed concerns about Wesley being around Mr. Wise’s extended family. In particular, she stated that Mr. Wise’s mother has some mental issues. Because of that, she was concerned for her son’s safety when Mr. Wise left him in his mother’s care.
Ms. Wise also complained that Mr. Wise failed to keep her informed about Wesley’s activities. She said that Mr. Wise was not forthcoming with information about Wesley’s practice and game schedules.
Ms. Wise’s cousin, Melissa Paladino, testified that she has witnessed the parties’ interaction with Wesley since birth. She has observed Ms. Wise taking care of Wesley’s needs, including buying clothes and school supplies, having birthday parties, and buying his Christmas presents. Ms. Paladino further stated that Ms. Wise did the cooking, and said that she is “your typical mom.”
Charles Stane, a friend of Mr. Wise since childhood, testified that Mr. Wise and Wesley interact well together. He stated that he and his son have frequently gone fishing and hunting with Mr. Wise and Wesley. Mr. Stane stated that Mr. Wise is a good dad, but also stated that Ms. Wise is a good mother and has a close relationship with Wesley. He said that before their separation, both parties shared in taking care of Wesley.
|fiMr. Wise testified that he still lives in the marital home in Bigelow. He stated that Wesley is in third grade at East End Elementary in Bigelow and is a straight-A student. Mr. Wise testified that he helps Wesley with his homework, and will give him a pre-test on the evening before Wesley has a test at school. Mr. Wise also helps Wesley read books.
Mr. Wise stated that he takes Wesley hunting and fishing, and has taught him firearm safety. Wesley participates in organized football and baseball, and Mr. Wise has always been an assistant coach for Wesley’s teams. Mr. Wise denied that he had withheld any information from Ms. Wise about Wesley’s activities, and he indicated that he will continue to cooperate with Ms. Wise and will not interfere with their relationship. Mr. Wise also testified that when he has custody, he takes Wesley to church on Sunday mornings.
On school days, Mr. Wise takes Wesley to school. After school, Wesley gets off the bus at Mr. Wise’s parents’ house, which is a mile from his house. Then Mr. Wise’s mother brings Wesley to Mr. Wise’s house when he gets home from work at around five o’clock. After that Mr. Wise cooks supper, helps Wesley with his homework, and makes sure he takes a bath. According to Mr. Wise, Ms. Wise had never expressed any concern about his mother until her testimony at the final hearing.
Mr. Wise maintained that he spent a lot of time with Wesley prior to the parties’ separation, including coaching his teams, helping with school work, and cooking his 17breakfast and supper. He indicated that since the separation, he has taken Wesley to the doctor when necessary and kept him current on his shots.
Mr. Wise acknowledged an argument with Ms. Wise on September 17, 2007, and said that the argument was over who would keep Wesley. He stated that Ms. Wise was hollering and cussing at him, and that he tried to shut the door to end the confrontation when Ms. Wise put her foot in the door to stop him from shutting it. He denied slamming the door on her and maintained that he has never hit her.
Mr. Wise stated that over the past few years, Ms. Wise was frequently out of town for several days at a time attending beautician conventions, leaving him to care for Wesley. He acknowledged that Ms. Wise was the primary caregiver when Wesley was an infant, but stated that over the last four or five years he considered himself the primary caregiver. Mr. Wise agreed that Ms. Wise is a good mother.
Ms. Wise’s first argument on appeal is that the trial court erred in basing its custody award on the gender of the father. Arkansas Code Annotated section 9 — 13—101 (a)(l)(A)(i) (Repl.2008) provides, “In an action for divorce, the award of custody of a child of the marriage shall be made without regard to the sex of a parent but solely in accordance with the welfare and best interest of the child.” Ms. Wise takes issue with the trial court’s comments from the bench when it was announcing that custody would be placed with Mr. Wise. In particular, the trial court stated that Ms. Wise “had a list of activities that were |8mostly passive” such as going to movies and watching television, whereas Mr. Wise engaged in a “long list of activities in which there was a very strong participation with him in Wes’s life.” The trial court also commented that, “I think he’s been with his dad, he appears to like it pretty good,” and “it just seems to me that he’s at a time in his life that this would be a good time for him to be there with his dad, and that’s my decision.”
Ms. Wise argues that not only did the trial court err in finding that Wesley “has been with his dad,” but that it assumed facts not in evidence in finding that “he appears to like it pretty good.” Ms. Wise further takes issue with the trial court’s findings that her activities with Wesley were mostly passive, noting her testimony that they play basketball together, take care of animals, garden together, and go to the park. While Mr. Wise coaches Wesley’s sports and takes him hunting and fishing, Ms. Wise submits that these are predominantly male activities and that by putting emphasis on them the trial court engaged in gender bias. Ms. Wise further argues that the trial court’s statement, “he’s at a time in his life that this would be a good time to be there with his dad,” was not a gender-neutral statement and ran afoul of our current statute.
For her second point, Ms. Wise argues that considering all the evidence, the trial court clearly erred in awarding custody to Mr. Wise instead of her. She asserts that the only reason given by the trial court in awarding Mr. Wise temporary custody was the fact that he lived in the marital home, and that even after the temporary custody award was entered the [ nparties continued to share approximately equal custody. In challenging the permanent custody award, Ms. Wise cites Ark. Code Ann. § 9-13-101(b)(2) (Repl.2008), which provides that in making a custody order the court may consider which party is more likely to allow the child frequent and continuing contact with the noncustodial parent. Ms. Wise contends that this factor weighs against Mr. Wise given the testimony that Mr. Wise had refused to give her information about Wesley’s scheduled activities. Ms. Wise further contends that the trial court failed to adequately consider the domestic violence perpetrated by Mr. Wise, asserting that the trial court must consider the effect of domestic violence on the best interest of the child. Furthermore, Ark.Code Amn. § 9-13-101(c)(2) (Repl.2008) provides that there is a rebuttable presumption that it is not in the best interest of the child to be placed in the custody of an abusive parent where there is a finding by a preponderance of the evidence that the parent has engaged in a pattern of domestic abuse. Finally, Ms. Wise submits that she has been the primary caregiver, and she cites Thompson v. Thompson, 63 Ark.App. 89, 974 S.W.2d 494 (1998), where we held that the fact that a parent has been the child’s primary caregiver is relevant and worthy of consideration in determining which hnparent should be granted custody. When considering all of the evidence and determining the best interest of the child, Ms. Wise argues that it is obvious that the trial court made a mistake in awarding custody to Mr. Wise.
On this record, we cannot say that the trial court’s finding that it is in Wesley’s best interest to be placed in the custody of Mr. Wise was clearly erroneous. Many of the contentions raised by Ms. Wise were credibility determinations to be decided by the trial court. She argues that Mr. Wise was not forthcoming with information about Wesley’s activities, but Mr. Wise denied that allegation and testified that he would not interfere with Wesley’s relationship with his mother. Ms. Wise alleges that Mr. Wise engaged in a pattern of domestic abuse, but Mr. Wise testified that he has never physically harmed her. She further posits that she has been Wesley’s primary caregiver, which is in contradiction to Mr. Wise’s testimony that he has been the primary caregiver for the past several years.
The evidence demonstrated that both parties are good parents. There was no indication that Wesley was not a happy child. He is an excellent student in school and enjoys numerous activities, including playing sports and hunting and fishing with his father. There was evidence that Mr. Wise is quite capable of being the primary caregiver, as he has been able to handle all aspects of Wesley’s daily routine, including cooking the meals and helping -with homework. And we cannot conclude that custody was awarded based on gender. Although the trial court commented that Wesley is at a time in his life where it| nwould be a good time to be with his dad, we do not think that this evidenced a bias in favor of Mr. Wise. Rather, it demonstrated that the trial court, upon reviewing the entire evidence, found that it was in Wesley’s best interest to be placed in his father’s custody. Because that decision was not clearly erroneous, we affirm the divorce decree.
Affirmed.
GLOVER and MARSHALL, JJ., agree.
. In support of this proposition, Ms. Wise cites Cunningham v. Cunningham, CA06-179, 2006 WL 3020875, which was an unpublished opinion delivered by this court on October 25, 2006. We remind Ms. Wise of the simple mandate set out in Arkansas Supreme Court Rule 5-2 (2009), which orders that unpublished opinions dated prior to July 1, 2009, "shall not be cited, quoted, or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case).” | [
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COURTNEY HUDSON HENRY, Judge.
| Appellant Janice Nichols appeals the decision of the Arkansas Workers’ Compensation Commission denying her claim for additional medical benefits. For reversal, she challenges the Commission’s finding that she failed to sustain her burden of proving that additional medical treatment was reasonable and necessary for the treatment of her compensable injury. We affirm.
On October 1, 2004, appellant was working as an elementary school teacher for appellee, the Omaha School District, when she sustained a work-related injury to her left shoulder while moving a folding screen. Appellant saw Dr. Terry Sites for an orthopedic evaluation on October 18, 2004. His impression was “left shoulder rotator cuff strain/possible tendinopathy and chronic periscapular pain associated with fibromyalgia.” | ^Appellant underwent an MRI on October 26, 2004, and the report stated “there is at least a partial tear involving the anterior aspect of the supraspinatus tendon. A very minimal amount of fluid is present in the subacro-mial and the subdeltoid bursa regions. The presence of a small focal full thickness tear cannot be completely excluded.”
Appellant returned to Dr. Sites on October 28, 2004, and he wrote that the MRI was consistent with rotator cuff tendinopa-thy and possibly a small tear. He also opined that appellant’s longstanding fibro-myalgia confused the clinical interpretation. Dr. Sites administered a subacromial injection that provided appellant no immediate relief.
Appellant next came under the care of a shoulder specialist, Dr. Pat O’Brien. On December 30, 2004, he performed surgery on appellant’s left shoulder in the form of an open acromioplasty. Dr. O’Brien’s postoperative diagnosis was Stage II impingement of the left shoulder with anteri- or osteophyte and significant subacromial scarring. During the procedure, he found that appellant’s rotator cuff was bruised but not torn.
Appellant received follow-up treatment from Dr. O’Brien. He again assessed appellant as having impingement syndrome of the shoulder and ordered physical therapy. Dr. O’Brien issued appellant a conditional work release on March 16, 2005. In June 2005, he noted that appellant had multiple trigger points in her trapezius muscle bilaterally and tenderness over the AC joint that he attributed to fibromyal-gia. He then referred appellant to a fibro-myalgia clinic.
|sOn September 28, 2005, Dr. O’Brien reported that appellant had achieved maximum medical improvement. Appellee paid all medical expenses for the treatment of appellant’s shoulder, as well as benefits for a three-percent impairment rating.
On June 26, 2007, appellant saw Dr. Kevin Jackson, her family physician, with complaints of pain in her left shoulder, neck, and chest. Appellant returned to Dr. Jackson on November 2, 2007, and January 28, 2008, with complaints of shoulder pain. Dr. Jackson’s assessment was “joint pain shoulder.” At a visit on July 22, 2008, Dr. Jackson reported that x-rays of appellant’s left shoulder revealed no evidence of fracture or dislocation.
Thereafter, appellant filed a claim for additional benefits for the treatment of her then-existing shoulder problem. At the hearing before the administrative law judge, appellant testified that her shoulder improved following surgery but that she continued to have problems with her shoulder popping and grinding with movement. She stated that there were times when the muscles of her shoulder would tighten and go into spasm and that, on those occasions, Drs. O’Brien and Jackson recommended that she wear a sling. Appellant testified that Dr. Jackson also prescribed pain medication and muscle relaxants, and she said that she sleeps with a heating pad and uses a TENS unit and an RS Medical Unit on her shoulder. On cross-examination, appellant acknowledged that she has had fibromyalgia for twenty years.
14Appellant also testified that she did not return to Dr. O’Brien after August 2005 because he had retired. She introduced into evidence a September 5, 2007, letter that her attorney had written to appellee’s counsel requesting the name of another doctor who treated shoulders.
After reviewing the evidence, the law judge denied appellant’s claim, finding that she had failed to prove that additional medical treatment was reasonably necessary in connection with her compensable injury. The law judge noted that appellant did not seek treatment for shoulder problems from August 2005 to June 2007 or mention a shoulder problem to any physician, although she received extensive medical services for other maladies during that period of time. Based on this two-year gap without documented medical complaints regarding the shoulder, the law judge found that she would be required to speculate as to whether appellant’s current shoulder problems were causally related to her compensable injury. On appeal to the Commission, a majority of the commissioners affirmed and adopted the law judge’s opinion. This appeal followed.
For reversal, appellant argues that substantial evidence does not support the Commission’s decision. She contends that the record would support a finding that her current problems are related to her compensable injury because she had no problems with her |fishoulder before the accident and because she has continued to have problems since it occurred. She also asserts that there is no other explanation as to the cause of her pain. Further, appellant argues that it is appellee’s responsibility to provide treatment to determine the source of her pain and that she does not have the burden of proof because an employer is responsible for providing treatment for any natural consequences that flow from a compensable injury.
Arkansas Code Annotated section ll-9-508(a) (Supp.2009) requires an employer to provide an injured employee such medical services “as may be reasonably necessary in connection with the injury received by the employee.” However, the employee has the burden of proving by a preponderance of the evidence that med ical treatment is reasonable and necessary. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). What constitutes reasonable and necessary medical treatment is a question of fact to be determined by the Commission. Bohannon v. Walmart Stores, Inc., 102 ArkApp. 37, 279 S.W.3d 502 (2008).
It is also a familiar rule of law that, when the primary injury is shown to have arisen out of and in the course of employment, the employer is responsible for any natural consequence that flows from that injury. K II Constr. Co. v. Crabtree, 78 Ark.App. 222, 79 S.W.3d 414 (2002). However, for this rule to apply, the basic test is whether there is a causal connection between the injury and the consequences of such. Id. The burden is on the | (¡employee to establish the necessary causal connection. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).
In appeals involving claims for workers’ compensation, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Dorris v. Townsends of Ark, Inc., 93 Ark.App. 208, 218 S.W.3d 351 (2005). Where the Commission denies a claim because of the claimant’s failure to meet her burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Kimbell, supra.
In the present case, appellant is experiencing what her family physician has assessed as “joint pain” in her shoulder. Contrary to appellant’s assertion, she has the burden of proving that the pain in her shoulder stems from her compensable injury in order for additional treatment to be considered reasonable and necessary. See Crudup, supra; Stone, supra. In her testimony, appellant attributed her current shoulder problems to the compensable injury. However, the determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Workers’ Compensation Commission, 17and the Commission is not required to believe the testimony of the claimant or any other witness. Beliew v. Lennox Indus., 2010 Ark.App. 112, 2010 WL 374407. Otherwise, the record contains no evidence explaining the etiology of appellant’s current symptoms. While appellant’s pain might possibly be attributed to the com-pensable injury, the evidence does not compel that conclusion. It is also plausible that her pain is related to some other cause, such as appellant’s well-documented diagnosis of fibromyalgia. Because of the uncertainty in the record and the two-year gap when appellant did not seek treatment for her shoulder, the Commission found that it could only speculate that appellant’s current complaints were related to her compensable injury. Based on our review, we hold that the Commission’s decision displays a substantial basis for the denial of relief. Accordingly, we affirm.
Affirmed.
KINARD, GRUBER, GLOVER, and BROWN, JJ., agree.
HART, J., dissents.
. For reasons that are not clear, the appellee failed to assert the defense that appellant's claim was barred by the statute of limitations found in Arkansas Code Annotated section 11 — 9—702(b) (Supp.2009). | [
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-14,
93,
-48,
115,
-69,
102,
-70
] |
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