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Andree Layton Roaf, Judge.
Mary Ann Daley’s brother, Robert Decker, and her daughter, Laurie Martin, both sought to be appointed guardian of her person and estate. The trial court found Daley to be incompetent and determined it was in her best interest to have Decker appointed as guardian of her person, with a financial institution to be appointed guardian of her estate. Martin appeals, asserting that the trial court committed clear error because, in guardianship cases, the pertinent statutes manifest an intent for children to have preference over siblings. We affirm.
Mary Ann Daley, who suffered a stroke in September 2001 resided in the Beverly Nursing Home facility in El Dorado, Arkansas; she was wheelchair-bound and was diagnosed with dementia of Alzheimer’s type and serious memory and reasoning problems. Daley also possessed substantial financial resources. Daley’s daughter, Collette Weth, obtained a power of attorney in January 2002, to take care of Daley’s financial obligations and to make sure that the nursing home provided proper care and treatment. Weth died in May of 2003. At that time, Weth’s sister, Laurie Martin, a resident of California who had been estranged from Daley for some years, took over handling Daley’s personal and financial affairs pursuant to durable powers of attorney she obtained.
Daley is a one-third shareholder in Decker’s Cash Depot, a company started by her brother Robert Decker, who resides in Omaha, Nebraska. Daley received substantial payments from this investment, but in 2003, after Martin took over her affairs, Decker decreased Daley’s income from the previous years’ $103,629 to $48,936. Upon Weth’s death, Decker refused to deal with Martin, started drawing a higher salary, and had Daley removed from the board of directors. In April 2004, Decker made an offer to purchase Daley’s interest in Decker’s Cash Depot for $150,000; Martin rejected this offer on behalf of her mother. On May 13, 2004, Decker filed his petition for appointment of guardianship, claiming that Daley did not have the ability to make decisions regarding her care and finances.
Daley retained counsel, and in response to Decker’s petition, requested that Decker’s petition be dismissed, but in the alternative, that the court consider her desire and preference in appointing a guardian of her estate and guardian of her person. Martin also filed a response, requesting that she be appointed as guardian of her mother’s estate and person.
A hearing was held on the matter on April 19, 2005. Decker orally amended his petition to request that he only be appointed guardian of the person and that the court appoint a financial institute as guardian of the estate. Daley testified that she currently lived in Little Rock and that she never was a resident of the Beverly Nursing Home, but just knew people there. She stated that she did not really want to have a guardian because she believed that she could handle her own affairs, but that she would take one if the court deemed that she could not handle them herself. She further stated that if the judge found a guardian to be necessary, she would prefer the court to choose “one of my people whom I’m close to and so forth. Like my daughter-in-law.” Daley also stated that she had three children, “Collette, Laurie, who is dead, and my son Michael.” She then stated that it was Collette who had died. Daley later testified that she currently paid her own bills and took care of her own finances and that she would prefer her daughter Laurie be over her person and be over paying her bills and money when it is necessary.
Decker testified that his relationship with his sister had been good over the years. He stated that he asked Daley to invest in Decker’s Cash Depot in 1995, and that she had subsequently received about $700,000 in income for her initial $63,000 investment. He testified that he paid Daley about $6,000 per month once the business started making a good cash flow and that currently, by vote of the board, he and his partner took a larger salary. He further testified that he had some concern over the years about paying Daley large sums of cash, and that he simply did not want to make payments to Laurie, noting that he had talked to her only about four or five times in twenty-five years.
Decker had worked closely with Collette in caring for Daley after her stroke in 2001, paid to have Daley taken to El Dorado where Collette lived, and together with Collette arranged for her to be placed in the Beverly Nursing Home. Decker stated that he was aware that Collette had had a drug problem, but that she was getting back on her feet. In addition, he stated that Daley and Martin had a period of estrangement from sometime around 2000 up until Collette’s death, because Martin allegedly stole $46,000 out of a lock box that Daley forgot to put her name on and then moved to California and did not invite Daley to her second wedding. In addition, Martin had apparently been cut out of Daley’s will, with the bulk of Daley’s estate to go to Collette and her children. Decker said that he believed Martin got a power of attorney over Daley’s affairs strictly for the money.
Decker went on to testify that he planned to place Daley in a private room in a nursing facility in Omaha, Nebraska, where he and Daley grew up and Daley still had some friends and extended family. He stated that when he first saw Martin at the nursing home after Collette’s death, she accused him of trying to steal his sister’s money and that he had refused to deal with Martin since. He also alleged that Martin had restricted his access to visitation with Daley and that he probably would not be allowed to visit his sister if Laurie took her back to California.
Laurie Martin testified that she had, indeed, become estranged from her mother for a period of time, but that until that time, she and her mother had been very close and she would visit for lunch almost everyday when she lived in Little Rock. She stated that she could not remember exactly what was said, but that she and her mother had a falling out and her mother said some hurtful things that she took to heart and that she chose to stop speaking with her mother. She stated that she did not invite her mother to her second wedding and that she regretted that decision very much. She also stated that she continued to communicate with her mother on behalf of her two children and that she sent gifts in the children’s names. She claimed that she began to miss her mother terribly in 2002, so she flew back to Little Rock to reconcile with Daley. Further testimony revealed that Laurie was essentially estranged from most of her family for many years. She stated that she cut her father out of her life after he admitted to having an affair and that her brother and sister had suffered from drug and alcohol problems for most of their lives; she also claimed to be frightened of her father and made rather serious allegations against him during the hearing.
Martin admitted that Daley and Decker had a very good brother and sister relationship and stated that she never restricted his visitation with Daley, but only requested that he not be allowed to take Daley off the nursing home premises because she feared he would kidnap her mother and take her to Omaha. She stated that she would take her mother back to California and place her in a good nursing home, and that Daley would be surrounded by her grandchildren. She also stated that she wished to be guardian of Daley’s estate, in addition to guardian of the person, because she would perform her services for free and she did not want her mother to have to pay for the services of a financial institution.
The court heard testimony concerning Daley’s financial assets and her stay at the Beverly Nursing Home from several other witnesses, including Daley’s ex-husband and Martin’s father, Robert Daley, who testified that he believed Decker would make a better guardian because Martin was probably more motivated by greed and spite, and that he believed Martin did not reconcile with Daley until after Weth died.
At the conclusion of the hearing, the court authorized Martin to take Daley back to California for a visit so that Daley could attend her granddaughter’s high school graduation. On July 7, 2005, the court issued its order, finding that Daley was clearly incompetent and incapable of handling her own personal and business affairs, specifically noting that Daley could not remember the name of her bank, the location of her stocks and bonds, the disposition of her jewelry and furniture, and the names and ages of her grandchildren or whether they had visited her recently. The court then found Decker to be more suitable as a guardian, stating that he had been in business with Daley for many years and “had a consistent interest in her well-being, staying in touch with her, with Collette Weth while she was alive, and traveling with her when she was healthy.” The court further noted that Decker has had a close relationship with Daley for a long time, stating that he took care of Daley after her stroke in 2001 and that, from Omaha, he had regular contact with the nursing home personnel and the doctor about Daley’s medical care and treatment.
The court’s order further noted that Martin was estranged from her mother for a period of time, that Martin did not invite her mother to her wedding, that Martin was estranged from her father to the point of not letting him see or visit with her children, and that once Martin reentered her mother’s life, she cut Decker off from visiting his sister in the nursing home and accused him of stealing from her mother in their business affairs. The court also found that Daley had lived in Omaha for many years and still had friends and family there, but that Daley had never lived in California, and that Decker would secure a private room in Omaha and, unlike Martin, would impose no restrictions on Daley’s visitation. In the end, the court felt that it would be in Daley’s best interests to have Decker appointed as guardian of her person. A reputable financial institution was to be appointed as guardian of the estate, and on October 7, 2005, Wachovia Securities was appointed to serve in this capacity.
On July 8, 2005, Martin filed a motion for reconsideration, noting that Daley had traveled with her to California and had been placed in a nursing facility where her physical condition had improved and her relationship with Martin and her children had become quite close. Attached to the motion was a physician’s letter noting the general improvement of Daley’s physical condition and suggesting that Daley be allowed to remain in California and continue to receive her care there. Martin filed a notice of appeal on August 3, 2005. After thirty days, the court still had not entered an order on the motion for reconsideration, and it was deemed denied.
On appeal, Martin asserts that the trial court clearly erred in determining that Daley’s brother was better suited to serve as guardian than her own daughter. She does not challenge the trial court’s appointment of a bank as guardian of Daley’s estate.
Probate cases are generally reviewed de novo, and this court does not reverse a trial court’s findings unless they are clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001). However, subject to statutory restrictions, the selection of a guardian is a matter largely committed to the sound discretion of the appointing court. McCartney v. Merchant’s and Planters Bank, 227 Ark. 80, 296 S.W.2d 407 (1956). This is a standard of review that accords greater deference to the trial court than the clearly-erroneous standard. The appellate courts will not reverse an equity case involving an application of guardianship in the absence of a manifest abuse of discretion. Knight v. Deavers, 259 Ark. 45, 531 S.W.2d 252 (1976). Nevertheless, without regard to the standard of review employed in this case, we cannot say that the trial court either erred or abused its discretion in the selection of Decker as guardian.
A person is qualified to be appointed guardian of the person and of the estate of an incapacitated person if he or she is a natural person who is a resident of this state and is eighteen or more years of age, of sound mind, and not a convicted and unpardoned felon. Ark. Code Ann. § 28-65-203(a) (Supp. 2005). A nonresident natural person with all of the other enumerated qualifications is qualified for appointment if he or she had appointed a resident agent to accept service of process in any action or suit with respect to the guardianship and has caused the appointment to be filed with the court. Ark. Code Ann. § 28-65-203(e). In addition, a bank or similar financial institution with trust powers is qualified to serve as guardian of the estate of an incompetent person. Ark. Code Ann. § 28-65-203(d)(2).
In guardianship cases, the court shall appoint as guardian of an incapacitated person “the one most suitable who is willing to serve.” Ark. Code Ann. § 28-65-204(b) (Supp. 2005). In making its determination, the court shall give due regard to the “relationship by blood or marriage to the person for whom guardianship is sought. Ark. Code Ann. § 28-65-204(b)(4). In addition, prior to the appointment of a guardian, the court shall consider “any request made by the incapacitated person concerning his or her preference regarding the person to be appointed guardian.” Ark. Code Ann. § 28-65-204(c).
Martin’s first sub-point is that the court erred because it did not consider Daley’s preference to have Martin appointed as guardian of her person and estate. Under the statute, preference is only one factor that the court should consider. The statute does not mandate an ironclad order of preference, but leaves the appointment of a guardian who would forward the best interests of the incompetent to the sound discretion of the court. Moore v. Dallas, 6 Ark. App. 10, 636 S.W.2d 881 (1982). In addition, there is no indication here that the court did not consider Daley’s preference, especially in light of the fact that she appeared generally confused, and especially confused as to her preference. At first she requested that her daughter-in-law be appointed guardian. Then she stated that she preferred her guardian be her sisfer-in-law, Laurie. Then she stated that her daughter Laurie had died. Later in the proceedings, she requested that Laurie be the guardian of her person and her estate. The statute only requires the court to consider preference of the incompetent, but the court does not have to be bound by that preference.
Martin next suggests that the court erred in appointing Decker as guardian of the person because of his financial conflicts with Daley. Citing a number of Illinois cases, Martin states that the guardian of a disabled person must be free from any interest which would prevent or impair the proper assertion or protection of the incompetent’s rights; specifically, evidence of bad faith in prior dealings between the proposed guardian and the incompetent should preclude his or her selection as guardian. In re Estate of Robertson, 144 Ill. App. 3d 701, 494 N.E.2d 562 (1986). However, the majority of the cases cited by Martin deal with people who have been appointed as guardian of the estate as well as of the person. See Robertson, supra; In re Estate of Lamont, 13 Ill. App. 3d 714, 300 N.E.2d 574 (1973); Proehl v. Leadley, 86 Ill. App. 2d 472, 230 N.E.2d 516 (1967). Martin cites In re Estate of Bania, 130 Ill. App. 3d 36, 473 N.E.2d 489 (1984), for the proposition that conflicting pecuniary interests should also preclude the appointment of a guardian. However, in Bania, the court refused to appoint appellant as guardian of an incompetent because she failed to testify as to her motives and freedom from self-interest and did not explain a trip to the bank where the incompetent kept $150,000 to $200,000. The court reiterated that the main concern should be the best interest and well-being of the incompetent, regardless of his or her purported preference. Id.
Martin asserts that, in retaliation for her taking over her mother’s business affairs, Decker raised his own salary and correspondingly reduced her mother’s income. In addition, she claims that he tried to cheat her mother out of her interest in the business by offering to buy her shares at a reduced rate. Decker freely admitted that once Martin obtained power of attorney, he did not want to deal with her, so he took legal steps to have Daley’s role in the business minimized. However, Decker also testified that he had had a good working relationship with Collette and that he had more money than his sister and would never attempt to steal anything from her. Unlike in Bania, Decker testified as to any apparent inconsistencies in his financial dealings with Daley and had taken proper measures to insure that Daley’s money from the business was accounted for. In addition, Decker also took appropriate steps to guard against any seeming financial impropriety when he requested that a neutral financial institution be appointed as guardian of Daley’s estate. Martin’s argument cuts both ways because testimony revealed that Martin had been cut out of Daley’s will and that Martin’s estrangement from her mother had been precipitated by Martin absconding to California with $46,000 of her mother’s money.
Martin’s next sub-point is that Arkansas law shows a clear preference for children over siblings, citing Ark. Code Ann § 28-9-214, which mandates that when a person dies intestate, children are first to inherit the estate. However, the probate statutes regarding inheritance have nothing to do with the appointment of a guardian. The basic rule of statutory construction provides that in considering the meaning and effect of a statute, words are given their ordinary and usually accepted meaning in common language, Yamaha Motor Corp. v. Richards Honda, 344 Ark. 44, 38 S.W.3d 356 (2001), and Ark. Code Ann. § 28-65-204 simply states that the court should give due regard to the blood relationship of the proposed guardian and the incompetent. As stated previously, the statute provides no mandatory order of priority.
In McCartney, supra, the question presented was whether the probate court abused its discretion in appointing a bank as the guardian of the person and estate of the incompetent. McCartney, a sister of the incompetent, had sought to be appointed as guardian; in addition, the incompetent’s adopted son had also sought to be appointed. Id. The trial court found that McCartney had shown continuous love and care for her sister, while the adopted son had let years pass by without seeing his mother or inquiring of her condition; thus, as between the two, McCartney was better qualified to serve as guardian, but selected a neutral third party in light of the dispute between McCartney and the adopted son. Id. The supreme court found that the guardianship statute did not make an ironclad order of priority, but left it up to the court to select a guardian who would best serve the interests of the incompetent. Id. Our supreme court went on to note that while it is the usual practice to appoint the next of kin or a close blood relative as guardian because of the presumption that the next of kin is more likely to treat the incompetent with patience and affection than a stranger,
the court is not necessarily bound to appoint next of kin or close relatives or the nominees of such blood relatives, for the court, keeping in mind the principle of law that the best interests of the incompetent are paramount, may, in the exercise of the discretion confided in it with respect to the appointment of guardians, appoint a stranger where to do so would be for the best interests of the incompetent in view of such factors as the adverse interests of the relatives and the incompetent, lack of business ability of the relative, and various other matters to be further noted.
Id. (citing 21 A.L.R.2d 880).
In McCartney, the court reiterated the trial court’s wide discretion in appointing a guardian, relative or not, who will best serve the interests of the incompetent. Other cases have likewise illustrated that the courts usually show no preference for one relative over another in guardianship cases. See Monroe, supra (affirming appointment of maternal grandfather as guardian of minor child over the paternal uncle); Bogan v. Ark. First Nat’l Bank of Hot Springs, 249 Ark. 840, 462 S.W.2d 203 (1971) (affirming appointment of bank as guardian of the estate of an incompetent wife over the husband, finding that the statute conferred no absolute right to appointment on the husband).
Here, the court made clear findings as to why it believed it would be in Daley’s best interest to have Decker serve as guardian of her person, namely, that Daley and Decker had a loving brother and sister bond; that they had a long history of working well in a business enterprise; that Decker had been a constant in Daley’s life, and had helped Weth in providing for Daley’s care; that Martin had a long period of estrangement from her mother; and that once Martin reentered Daley’s life, she made it difficult for others, especially Decker, to see her mother, and often made wild accusations of theft. In fact, the evidence showed that although Martin had once had very close relationships with both her mother and father, she was essentially estranged from her entire family, and had kept her children away from them. In addition, evidence revealed that Martin may have stolen $46,000 from her mother and that she failed to invite either of her parents to her second wedding.
For her final sub-point, Martin asserts that Decker is seventy-two years of age, and that, at forty-six, she is clearly more suited to handle the physical requirements of caring for her mother. This argument was not preserved at trial level, and an appellant must raise and make an argument at trial in order to preserve it on appeal. Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). Even so, Ark. Code Ann. § 28-65-203 contemplates no age limit, and only requires that the person wishing to serve as guardian be over the age of eighteen and be of sound mind. Here, there was no testimony that Mr. Decker’s age or health had ever or would interfere with the care he could provide for his sister.
Affirmed.
Gladwin, Griffen, Neal, and Vaught, JJ., agree.
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Melvin Mayfield, Judge.
Appellant, Carey Carpenter, was the primary beneficiary of the will of Monica Johnson and the beneficiary, either directly or indirectly, as trustee of The High Foundation, of seven life and accident insurance policies totaling $145,000.00. Monica Johnson died in 1977 as the result of an automobile accident. This is an appeal by Carpenter from decisions of the chancery and probate courts holding that all the documents involved were executed by Monica while under undue influence exerted by Carpenter and, therefore, that she died intestate with her sole and only heir being her son Bryan Patrick Johnson; that the designation of Carey Carpenter and/or The High Foundation as beneficiaries of the life insurance policies was void; and that any proceeds from the insurance policies, interpled into the registry of the chancery court, should be paid to the Estate of Monica Johnson. We affirm.
Monica Johnson, nee Hubbell, was the oldest of six children. She was reared in Minnesota as a Catholic, attended parochial schools, and was considered by her family to be very religious. After finishing high school, she became a registered nurse. In 1965 she married Pat Johnson who converted to Catholicism but later professed to be an atheist. Monica and Pat had one child, a son, who was born about a year after their marriage. Monica worked and put Pat through vocational school and college. In the early 1970s, they moved to Chicago where Monica began searching for “something more” in the spiritual realm. She met Carey Carpenter at a lecture early in 1973 when a nurse she worked with suggested she go hear him speak.
An immediate correspondence began between Carpenter and his wife and Monica. Carpenter professed to be a teacher, writer and counsellor. His doctrine is somewhat unclear from the record but appears to have involved delving into the metaphysical in an effort to get closer to God and included reincarnation, soul mates, and meditation. He apparently did not advocate the study of the Bible. He did advocate tithing, however, to support his work and The High Foundation, which was an organization he founded in 1966, and in her letters, Monica expressed a desire to tithe but an inability to do so because of resistance from her husband.
Carpenter’s wife, Sherry, wrote letters to Monica in which she claimed that Carpenter was able to transmigrate, did not have to eat or perform other bodily functions, could heal himself and others, and had other supernatural powers. Sherry said Carpenter usually did not perform these acts openly because it took so much of his energy and, if people became aware of his powers, they would then focus on his miracles instead of his teachings. From testimony of his other followers, it appears that Carpenter and Sherry also convinced his “disciples” that he could control their lives from afar and, if they didn’t want bad things to happen to them, they must give more and more of their money to him for his “work.”
Carpenter owned a farm near Harrison where he lived with Sherry, a girl named Renee (who became his third wife after Sherry died in an automobile accident in 1980), and various other women who came and went. Sherry and Renee kept the house and garden while the other women worked, but all the earnings were given to Carpenter.
In December 1973, Monica received a letter from Carpenter which referred to an enclosed letter from Sherry and astrological charts for Monica, Pat and Bryan which Sherry had prepared. Carpenter stated, “I think you will find her to be a very capable counselor via astrology and intuition,. . .” In her letter Sherry refers to Bryan, then 8 years old, and states, “It might truly be best for all concerned if he died young for he might well be reincarnated with a better motivation.” In astrological charts for each of them, Sherry predicted increasing marital discord through 1974 and up to July 1975, at which time one of the charts has the entry, “Favorable period for success and satisfaction with achievements, good time to begin undertaking new friendships, promotion, . . .” The chart also predicted that Bryan would suffer many disappointments and that his death would most likely be tragic — possibly suicide.
As predicted, Monica and Pat’s marriage deteriorated rapidly as Monica’s desire to give Carpenter more and more money created severe problems. Monica returned to nursing in order to have her own money to give to Carpenter; and in 1973 and 1974, she gave Carpenter increasing amounts of her earnings. As a result, Pat began withholding more and more of his income from the family budget. In late 1974 and early 1975, letters between Monica and Carpenter reflect that she and Pat were having serious marital problems and that Carpenter was encouraging Monica to get a divorce and move to Arkansas to join his “family.” In July of 1975, Monica and Pat were divorced. She gave custody of Bryan to Pat, and subsequently moved to Arkansas to live with Carpenter and his extended “family” and obtained a job at Yellville as a nurse. By this time she was giving Carpenter approximately 75% of all her earnings. In return, he provided her with a house in Harrison, utilities and a car. Monica spent her weekends at the farm helping with the children, gardening, cooking, and keeping house.
In 1976 and 1977, Monica purchased seven life and accident insurance policies, totaling $145,000.00 ($195,000.00, if the double indemnity clause were held to be effective). All except one were payable to either Carpenter individually or The High Foundation. The other policy was payable to Monica’s estate. On April 12, 1977, Monica executed, in the office of a Harrison attorney, her “Last Will and Testament” in which she named Carpenter executor and principal beneficiary of her estate and left nothing to her son, then age 11, or to any of her other relatives.
In November 1977, Monica went to Denver, Colorado, to investigate the possibilities of opening an office there from which to teach Carpenter’s philosophies and recruit more disciples for him. She also applied for a nursing position at several of the Denver hospitals. While in Denver, Monica rented a car and drove to Vail, Colorado, where she intended to spend a few days resting. She wrote Carpenter on November 30, 1977, and complained that the car seemed to need a front-end alignment, and on December 1,1977, the car was discovered about 100 feet off the roadway. Monica’s purse, with money and credit cards intact, was found in the car, but an extensive search produced no trace of her. Her body was found by hikers in April 1978 near where her car had been found. It was determined that she died of exposure.
After Monica’s death, Carpenter made demand on the insurance companies for payment of the policies as beneficiary, trustee for The High Foundation, or executor of Monica’s estate. Pat Johnson notified the insurance companies of a claim on behalf of his and Monica’s son, Bryan, and eventually seven lawsuits were filed plus a matter in probate court pertaining to the will that had been filed for probate. All suits were consolidated for trial and judgment was rendered in all the cases on September 30, 1985. The transcript consists of twenty-three volumes.
In addition to the evidence summarized above, the trial judge also heard the testimony of two psychologists who had reviewed all the letters between Monica and her parents and between Monica and the Carpenters; had reviewed the depositions of Carey Carpenter and several of his former disciples; and had also interviewed some of the witnesses and parties. Both psychologists concluded that Monica had a very dependent personality, was searching for a father figure to care for her and that Carpenter fit her needs perfectly. They pointed to letters in which Monica expressed her feeling that she was part of Carpenter’s “family” after her divorce and evidence that Carpenter treated her as such. Both testified that it was not their belief that Carpenter had actually, knowingly attempted to extort money from Monica or other women. It was their opinion that he was not intentionally a “con artist” but that his teachings had this effect on gullible women and he did nothing to dissuade their belief in him and, in fact, encouraged them to give him money for his “work” and free him from the necessity of holding a job so he could devote his entire time and energy to his teaching and writing. Both psychologists concluded that because of Carpen ter’s mental hold on Monica, the veiled threats that if she left him something terrible might happen to her, and because she believed he was Jesus Christ on earth and could will things, both good and bad, to happen to people, she was not free to fully exercise her own independence and to think for herself. Thus, they concluded that when Monica made Carpenter and/or The High Foundation the beneficiary of her will and insurance policies, she acted irrationally and under the undue influence of Carpenter.
On appeal, Carpenter first argues that the order on September 3, 1981, admitting Monica’s will to probate, was res judicata on the issue of the validity of the will and, therefore, his motion for summary judgment should have been granted on that issue. Summary judgment is proper only when there is no genuine issue as to any material fact. See AR.CP Rule 56.
An order dated September 3,1981, entitled “Agreed Order Probating Will and Appointing Personal Representative,” provides in pertinent part:
1. That there has been filed a notice of proceedings to probate the decedent’s Will by Garvin Fitton, on behalf of Bryan Patrick Johnson, a minor, and no additional petition has been filed for appointment of a personal representative herein. That the parties agree that the Petition of Carey Carpenter and the Cross-Petition on behalf of Bryan Patrick Johnson may be heard and decided forthwith.
4. That the instrument offered for probate was executed in all respects according to law and has not been revoked; that a petition contesting such Will has been filed herein in behalf of the child of Decedent.
5. That Petitioners have agreed that First Bank and Trust Co. of Mountain Home, Arkansas, an Arkansas banking corporation, insured by the FDIC, should serve as the Administrator with Will Annexed.
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the proffered instrument be, and hereby is, admitted to probate as the Last Will of Decedent; that First Bank and Trust Co. of Mountain Home, Arkansas, a banking corporation insured by the FDIC, be, and hereby is, appointed to serve as Administrator with Will Annexed herein without bond, and that Letters of Administration be issued to said administrator.
This order is signed by Boone County Probate Judge Stephen W. Luelf and is approved as to form by Thomas D. Ledbetter, attorney for Carey Carpenter, and Garvin Fitton, attorney for Bryan Patrick Johnson.
The appellant argues that the above order admits the will to probate, and that Ark. Stat. Ann. § 62-2120 (Repl. 1971) requires the probate judge to find that the testator was competent and acting without undue influence, fraud or restraint before admitting a will to probate. Thus, it is argued, these findings were made, no appeal was taken from them, and these issues were res judicata; therefore, appellant’s motion for summary judgment should have been granted. The trial judge overruled the motion, however, and held that the express language of the above order admitted the will “conditionally,” that the issues involved in the will contest were reserved, and that the conduct of the parties in continuing to participate in the probate case by filing pleadings and briefs belied the assertion that the order admitting the will to probate disposed of the probate case once and for all.
From our review of the record and order in this case, we cannot say the court’s ruling that the order admitting the will to probate did not dispose of the will contest was clearly erroneous. This is especially true in light of the provisions of Ark. Stat. Ann. § 62-2015 (Repl. 1971) which allows the court to vacate or modify its orders until the time for appeal after the final termination of the administration of an estate has elapsed. Thus, even if the court had felt the order was res judicata on the validity of the will, it could have vacated its September 3 order because the probate case was still open. It seems clear that the order recognized that the will was being contested and it was admitted to probate conditionally, while expressly reserving for a future trial on the merits the issue of who would ultimately receive the benefits of the estate. We find no error in the court’s overruling of appellant’s motion for summary judgment.
Appellant’s next argument is that the court erred in not finding that Bryan Johnson lacked privity to challenge or modify the insurance contracts. Contending Bryan was not a party to any of the contracts, appellant asserts he lacked standing to challenge the validity of the designation of beneficiary on the insurance policies. However, an agreed order dated October 29, 1982, and signed by the judge on November 24, 1982, provides:
1. That Carey Carpenter and Bryan Patrick Johnson are adversaries asserting conflicting interests in this Estate, based on allegations of the invalidity of the Will of Monica Catherine Johnson, deceased, and asserting conflicting interests in the proceeds of certain insurance policies on the life of Monica Catherine Johnson, deceased.
2. That the several positions of the adversaries, Carey Carpenter, on the one hand, and Bryan Patrick Johnson, on the other are adequately represented by counsel of their individual choosing.
3. Both the attorneys for Johnson and the attorney for Carpenter agree that First Bank & Trust Co., the personal representative herein, has at all times prior hereto acted prudently and responsibly in its capacity as personal representative. Said attorneys also agree that the attorneys for Johnson and the attorney for Carpenter could properly and efficiently represent their respective positions in the suits herein pending; and that First Bank & Trust Co. has no responsibility in the prosecution of any claim, action or demand herein pending nor for the prosecution of any claim on behalf of the estate.
4. That First Bank & Trust Co. has been appointed Administrator of the Will annexed as an accommodation to the Court and is to be a mere “stakeholder” should the litigation now pending herein, or elsewhere, result in the acquisition of any assets by the Estate.
IT IS THEREFORE THE JUDGMENT, ORDER, AND DECREE of this Court that the Administrator with the Will annexed, the said First Bank & Trust Co., shall have no personal responsibility or liability save and except the management of any assets which might ultimately come into its hands and possession by virtue of the several lawsuits now pending or which may hereinafter be brought relating, directly, or indirectly, to the death of Monica Catherine Johnson, or otherwise.
The final judgment in this case states that the content of an off-the-record conversation between the court and all attorneys was noted in the record by the court and amounted to an adoption of the pleadings of Bryan Johnson by the Estate; and that no objection was made on behalf of appellant. The final judgment also states that the parties had agreed that the issues raised were in actuality between Carpenter and Johnson and that the attorneys for those parties could adequately develop those issues and that the Personal Representative (The Bank) would be a stakeholder only and not an active participant. The judgment states that this agreement was set out in an order dated October 29, 1982, and signed November 24, 1982, therefore, Carpenter’s argument at trial that Bryan lacked standing to challenge the beneficiary designations in the insurance contracts was moot. We think the court’s judgment represents a fair reading of the above order and we cannot say the court’s decision that appellant’s argument was moot is clearly erroneous.
Finally, appellant argues that the findings of fact by the chancellor are clearly against a preponderance of the evidence. Appellant recounts much of the evidence and contends that it shows only that Monica felt great love for Carey and Sherry Carpenter and wanted to leave her bounty to Carpenter to support his work. He contends the chancellor’s findings that Monica was in a “weakened mental condition,” that she had made no provisions for her eleven-year-old son, and that the presumption of undue influence was not overcome by the evidence are clearly against the preponderance of the evidence. In summary, he contends the finding that Monica was unduly influenced to make Carpenter the beneficiary of her will and insurance policies was clearly erroneous.
Undue influence which avoids a will is not the influence which springs from natural affection or kind offices, but 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 specially directed toward the object of procuring a will in favor of particular parties. Rose v. Dunn, 284 Ark. 42, 679 S. W.2d 180 (1984). Whether a will was procured by undue influence is a question of fact for the trier of fact. The evidence, whether direct or circumstantial, should be permitted to take a very wide range. The nature of the relations and dealings between the testator and the beneficiaries, the extent of the property of the testator, his family connections, the claims of particular persons upon his bounty, the situation and mental condition of the testator, the nature and contents of the will itself and the circumstances surrounding its execution are among the numerous facts from which fraud and undue influence may be inferred or disproved. Sanger v. McDonald, 87 Ark. 148, 112 S.W. 365 (1908). Where the provisions of a will are unjust, unreasonable and unnatural, doing violence to the natural instinct of the heart, to the dictates of parental affection, to natural justice, to solemn promises, and to moral duty, such unexplained inequality is entitled to great influence in considering the question of testamentary capacity and undue influence. Brown v. Emerson, 205 Ark. 735, 170 S.W.2d 1019 (1943). Evidence of an unnatural disposition of his property by a testator is admissible to show a mind easily susceptible to undue influence. Howell v. Miller, 173 Ark. 527, 292 S.W. 1005 (1927).
Furthermore, as stated in Tobin v. Jenkins, 29 Ark. 151 (1874):
And as regards undue restraints, it may be proper to remark that it is not necessary that the mind should act under influences at the time brought to bear, or then employed, but they may be such as to have at a previous time been so fixed and impressed as to retain their controlling influence at the time the act is done. Nor is such restraint necessary to be effected by force or intimidation; for it has been held, upon authority, that if the mind acts by force of long training to submission, so that the will of another is adopted for its own, and without reflection, the party thus influenced is incompetent to contract.
29 Ark. at 157-58.
Finally, as observed by Judge McHaney in Hyatt v. Wroten, 184 Ark. 847, 43 S.W.2d 726 (1931):
Undue influence is generally difficult of direct proof. It is generally exercised in secret, not openly, and, like a snake crawling upon a rock, it leaves no track behind it, but its sinister and insidious effect must be determined from facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mold the mind of the testator to suit his or her purpose.
184 Ark. at 853.
Appellant directs us to isolated evidence in the record which, he contends, supports his arguments that Monica acted only out of natural love and affection for him, his work, and his family. He insists he never encouraged her to make a will or buy insurance naming him as beneficiary. However, without repeating the evidence in any greater detail than has already been done, suffice it to say that a consideration of the record as a whole supports a finding that appellant, whether intentionally or not, was a very skillful manipulator of emotionally immature, needy, dependent women who were looking for someone to control their every action and who had not found that need fulfilled by the husband or father in their lives. The record supports a finding that there was a systematic alienation of Monica Johnson from her husband, son, parents, and siblings, and replacement in her affections of the appellant, claiming to be Christ on earth, and that this resulted in his virtual enslavement of her through the manipulation of her mind and emotions. The record also supports a finding that the ultimate result was that Monica Johnson lacked the mental capacity to make a will or designate insurance beneficiaries as her own agent, free of the influence of appellant. We cannot say that the decision of the trial judge was clearly against the preponderance of the evidence.
Affirmed.
Cracraft and Cooper, JJ., agree.
Supplemental Opinion on Denial of Rehearing Delivered June 24, 1987
Melvin Mayfield, Judge. The appellant’s petition for rehearing quotes a sentence from our opinion and contends it shows that we have misconstrued the Probate Code. The sentence quoted states: “This is especially true in light of the provisions of Ark. Stat. Ann. § 62-2015 (Repl. 1971) which allows the court to vacate or modify its orders until the time for appeal after the final termination of the administration of the estate has elapsed.” Appellant points out that the statute contains the following limitation on the stated right to vacate or modify: “except that no such power shall exist... to set aside the probate of a will after the time allowed for contest thereof.” Appellant’s petition then states that the will in this case was admitted to probate on September 3, 1981, and that Ark. Stat. Ann. § 62-2114(b)(2) (Repl. 1971) would require a contestant of the will to file his objections within six months after the first publication of the notice of the admission of the will to probate. Since that period expired long before the judgment holding the will void was entered on September 30,1985, the appellant claims the Septem ber 3, 1981, order admitting the will to probate was final and could not be set aside on September 30, 1985.
We concede that the sentence quoted in appellant’s petition for rehearing is unclear. It was meant to point out that because a contest of the will had already been filed at the time the will was admitted to probate on September 3,1981, there was no time period in which the contest had to be filed; therefore, the court could vacate or modify its order admitting the will to probate, for good cause, at any time within the period allowed for appeal after the final termination of the administration of the estate.
However, regardless of the clarity of the sentence, the opinion held that the will contest which was filed prior to the order of September 3,1981, was not heard until many months later and was not decided until the trial court entered its judgment on September 30, 1985. Thus, there was no final order in the will contest until that date; the will contest was not decided by the September 3, 1981, order; and appellant’s motion for summary judgment contending that the 1981 order was res judicata of the will contest was properly overruled by the trial court.
Cracraft and Cooper, JJ., agree. | [
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John E. Jennings, Judge.
Gaston Lanata and his wife owned a home in Malvern, Arkansas. On March 29, 1982, the Lanatas signed an offer and acceptance agreeing to sell the property to Tommy Stafford and his wife, Demetria. The contract provided that the Lanatas would receive the Staffords’ home in trade, valued at $70,000.00, and the Staffords would assume Lanata’s existing mortgage at First Federal of Malvern in the amount of $40,000.00. On April 16, 1982, the Lanatas and the Staffords entered into a printed form “Purchaser’s Agreement.” This agreement was in the form of a contract for deed. It provided for a total purchase price of $110,000.00, and Lanata acknowledged the receipt of $70,000.00 cash. On the back of the “Purchaser’s Agreement” there was a promissory note from the Staffords to the Lanatas for $40,000.00, payable at $368.30 per month. This was precisely the amount of the monthly payment on Lanata’s mortgage. Although the contract did not so provide, the deed was executed and placed in escrow.
The Staffords never paid the Lanatas on the note; instead, they made the payments on Lanata’s mortgage at First Federal. It appears that the reason the mortgage was not assumed was that it contained a due on sale clause. It is clear that First Federal subsequently learned of the sale by Lanata and declined to enforce the due on sale clause.
On April 22, 1983, appellant, Echo, Inc., obtained a judgment of $530,000.00 against Gaston Lanata. The judgment was registered in Hot Spring County, Arkansas on September 1, 1983.
Demetria Stafford and her husband divorced and she received a quitclaim deed to the property. On January 19, 1985, Echo sued Demetria Stafford, seeking to foreclose its judgment lien. The house on the property burned to the ground on March 22, 1985.
The “Purchaser’s Agreement” contained a printed provision requiring the buyer to maintain $80,000.00 in fire insurance with the proceeds payable to the seller, Lanata. The Staffords had insured the property for $81,000.00, but the policy named the mortgagee, First Federal, as the loss payee. After the house burned, First Federal’s mortgage, then $38,000.00, was satisfied from the insurance proceeds and the balance of $43,000.00 was tendered by the insurance company into the registry of the court. On January 14, 1986, Echo amended its complaint seeking the entire $80,000.00 in insurance proceeds, or in the alternative, to require Demetria Stafford to pay the $40,000.00 note executed to the Lanatas, to it.
The chancellor held that Echo had no interest in the land and no interest in the insurance proceeds, and that Demetria Stafford owed nothing to Lanata. On appeal, Echo raises a number of issues. We affirm the chancellor’s decision.
At trial the court permitted the title insurance agent who closed the transaction between the Lanatas and the Staffords to testify that after closing the Lanatas had no other monies coming to them; permitted Mrs. Stafford to testify that after closing she owed the Lanatas nothing; and admitted the offer and acceptance into evidence. Appellant claims that the parol evidence rule was thereby violated. However, the parol evidence rule does not apply in a dispute between a party to the contract and a stranger. Worcester Felt Pad Corporation v. Tucson Airport Authority, 233 F.2d 44 (9th Cir. 1956); Kassianov v. Raissis, 200 Cal. App. 2d 573, 19 Cal. Rptr. 614 (1962).
Echo argues that Demetria Stafford’s statement was a “legal conclusion.” We believe that the testimony was admissible under A.R.E. Rule 701, as it was rationally based on the perception of the witness and was helpful to the determination of a fact in issue.
Appellant argues that, because the purchaser’s agreement required the Staffords to maintain $80,000.00 in insurance payable to the Lanatas, it is entitled to judgment against Mrs. Stafford of $80,000.00. We disagree. A judgment lien is subject to all other existing liens which are valid as to the landowner, because the judgment lien does not attach to the land but only to the judgment debtor’s interest therein. Alston v. Bitely, 252 Ark. 79, 477 S.W.2d 446 (1972). Judgment creditors are not innocent purchasers and the judgment lien is subject to every equity which exists against the land at the time it comes into existence. First National Bank v. Meriwether Sand & Gravel Co., Inc., 188 Ark. 642, 67 S.W.2d 599 (1934). The existing equities need not be of record and lack of notice to the judgment creditor is immaterial. See Snow Brothers Hardware Co. v. Ellis, 180 Ark. 238, 21 S.W.2d 162 (1929). Before Echo obtained its judgment against Lanata, Lanata had sold the property in question to the Staffords. The fact that the contract was unrecorded is immaterial. As Lanata retained no interest in the land, there was nothing to which Echo’s judgment lien might attach.
Even if Echo were correct that it had some sort of lien against the property, it would not follow that it had a lien against the insurance proceeds. The amount collected on a fire insurance policy by an insured does not, in any sense, constitute proceeds of the property, and the coverage is personal to the insured and is for his benefit only. Page v. Scott, 263 Ark. 684, 567 S.W.2d 101 (1978). The result here is not changed by the clause in the purchaser’s agreement by which the Staffords agreed to take out $80,000.00 in fire insurance payable to Lanata. The true agreement was shown to be that Lanata had no further interest in the property and that the insurance policy was to name First Federal as a loss payee. This is what was done. In effect, Echo seeks to enforce a contractual provision which its own judgment debtor could not have enforced. This it may not do.
Appellant next argues that it is entitled to an $80,000.00 judgment against Mrs. Stafford because of the “doctrine of appropriation in advance,” citing Fireman’s Fund Insurance Company v. Rogers, 18 Ark. App. 142, 712 S.W.2d 311 (1986). This “doctrine” simply means that when a mortgagee is named as loss payee in its mortgagor’s insurance policy, and a loss occurs, the mortgagee is entitled to enough of the proceeds to satisfy the mortgage indebtedness. The concept is inapplicable to the facts of this case.
Appellant also argues, in the alternative, that the court should have awarded it judgment against Mrs. Stafford on the $40,000.00 note to Lanata. It was clearly shown at trial, however, that the parties never intended that the note be paid; the note was merely to evidence the Staffords’ assumption of Lanata’s mortgage to First Federal. It is a familiar equitable principle that the form of a transaction will never preclude inquiry into its real nature and that the intention of the parties must govern, irrespective of the form. Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968). If Lanata cannot enforce the note, certainly his judgment creditor cannot.
Finally, appellant argues that Demetria Stafford has “unclean hands” because she attempted to avoid the due on sale clause in Lanata’s mortgage to First Federal, and that therefore it is entitled to an $80,000.00judgment against her. The doctrine of unclean hands is an equitable defense. It may constitute a basis, in equity, for a denial of relief. It is not a tort; it will not form the basis of a cause of action.
The trial court was correct in dismissing the appellant’s complaint.
Affirmed.
Mayfield and Coulson, JJ., agree. | [
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George K. Cracraft, Judge.
Tommy Basford appeals from an order of the Arkansas Workers’ Compensation Commission holding that his previously adjudged current-total disability had ceased, awarding him benefits for permanent-partial disability, and allowing the appellee, Weyerhaeuser Company, to credit all payments made for current-total disability against the present award of permanent-partial disability. We find error only in allowing the appellee to credit previous payments against the present award.
In July of 1979, the appellant sustained a compensable injury while in the employ of the appellee. On February 25,1983, the Arkansas Workers’ Compensation Commission entered an award upon finding that appellant had sustained an anatomical disability rating of fifteen percent to the body as a whole and that he was currently totally disabled, but reserved the determination of permanent disability until after the attempts at rehabilitation had been concluded. No appeal was taken from that order and it became final.
In May of 1985, the Commission found that appellant’s current-total disability had ended and, after considering his anatomical disability along with other permissible work-loss factors, determined that he had sustained a permanent-partial disability of twenty-five percent to the body as a whole.
The appellant contends that the Commission erred in denying him further current-total disability benefits and that its findings in that regard are not supported by substantial evidence. Although appellant offered evidence to the contrary, the Commission found that further attempts at rehabilitation would be fruitless because he appeared to have no inclination to do anything other than work as an automobile mechanic, and, by his own admission, he was already an automobile mechanic. It further found that he knew how to repair small engines and there was work available for him in that field. The Commission specifically found that his testimony that he was unable to perform any work lacked credibility.
On appellate review of workers’ compensation cases, we view the evidence in the light most favorable to the Commission and aifirm if those findings are supported by substantial evidence. Bankston v. Prime West Corp., 271 Ark. 727, 610 S. W.2d 586 (Ark. App. 1981). Questions concerning the credibility of and weight to be given the evidence are exclusively within the province of the Commission. Central Maloney, Inc. v. York, 10 Ark. App. 254, 633 S.W.2d 196 (1984). From our review of the record, we conclude that there was substantial evidence to support the Commission’s findings that the appellant’s current total disability had ended and his disability, although permanent, was not total.
The Commission granted the appellee’s motion that it be allowed to credit all current-total disability benefits paid from 1983 to the date of the 1985 hearing against any permanent-partial disability benefits awarded him. The Commission allowed that petition in the following language:
[W]e find the respondent is entitled to such credit because since payment of current total disability benefits is certainly not payment of temporary (total) disability benefits, we think such payments must be construed as payment of permanent disability benefits.
We agree that the Commission erred in this ruling. At least since 1980, the Arkansas Workers’ Compensation Commission and this court have recognized the Commission’s authority to make awards for current-total disability to be followed by periods of permanent-partial disability. See Sunbeam Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 101 (Ark. App. 1980). The Court of Appeals reaffirmed this concept in Guffey v. Arkansas Secretary of State, 18 Ark. App. 54, 710 S.W.2d 836 (1986). However, on April 13,1987, the supreme court reversed our decision in Guffey and all prior decisions on that issue, declaring that our law does not authorize or recognize current-total disability benefits after the end of the healing period. Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987).
In 1983, when the Commission ordered current-total disability benefits in this case, both the Commission and this court recognized the validity of such orders. The order was not appealed from and it became final and its terms binding on all parties. In 1985, when that period of current-total disability was terminated, the Commission should have applied the rules then in effect and judicially sanctioned. We conclude that the Commission under its own order was without authority to retroactively remit payments made for current-total disability or direct that they be treated as payments toward a future award of permanent-total disability. This cause is remanded for the entry of an order not inconsistent with this opinion.
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Beth Gladden Coulson, Judge.
Appellant, Sydney Anne Tolhurst, appeals a decision of the Garland County Circuit Court in her bastardy action against appellee, Tommy Reynolds. On appeal, appellant asserts that the circuit judge abused his discretion in refusing to admit certain evidence of blood tests and that the trial court erred in finding that appellant failed to meet her burden of proof. We find no error and affirm.
On August 29, 1984, appellant filed this action against appellee alleging that he is the father of a male child born to her out of wedlock on October 27, 1981. The parties submitted to blood tests, and the Garland County Court found appellee to be the father of the minor child. Appellee then appealed for a de novo trial before the Garland County Circuit Court.
At the trial before the circuit court, appellant sought to introduce the blood tests to which the parties had submitted. The blood samples were drawn by a laboratory in Hot Springs and were forwarded to Roche Biomedical Laboratories, Inc., in Burlington, North Carolina. At trial, Ronald C. Barwick, an associate director at Roche who supervised the medical technologists performing the tests, testified concerning the tests. Appellee objected to the introduction of these test results as hearsay. The circuit court declined to admit the tests and held that appellant had failed to meet her burden of proof. On appeal, appellant asserts that the tests were admissible under Ark. Stat. Ann. Section 34-705.2 (Supp. 1985).
A trial judge’s determination as to the admissibility of evidence will not be reversed on appeal in the absence of abuse of that discretion. J. B. Smith v. Chicot-Lipe Insurance Agency, 11 Ark. App. 49, 665 S.W.2d 907 (1984). See also Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark. App. 169, 705 S.W.2d 897 (1986).
Ark. Stat. Ann. Section 34-705.2(A) provides as follows:
A written report of the test results by the duly qualified expert performing the test certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in evidence in illegitimacy actions without calling such expert as a witness. If either party shall desire to question the expert in the case where he has performed the blood tests, the party shall have him subpoenaed within a reasonable time prior to trial.
Here, Barwick testified that he did not actually perform or verify the tests, or make the conclusions thereon. Barwick testified that the actual testing of the blood was done by technicians under his direction using methods that he had established. Scott Foster, another associate director at Roche, verified the results, although he did not personally perform the tests.
Appellee asserts that the blood test results were not admissible under Section 34-705.2 because Barwick and Foster did not personally perform the blood tests. We agree that the statute requires that the person performing the test make the verification thereon. The first rule to be applied in statutory construction is to give the words in the statute their usual and ordinary meaning. When a statute is plain and unambiguous, we must give effect as it reads. Chandler v. Perry-Casa Public Schools District Number 2, 286 Ark. 170, 690 S.W.2d 349 (1985); Mourot v. Arkansas Board of Dispensing Opticians, 285 Ark. 128, 685 S.W.2d 502 (1985). In the instant case, appellant cannot rely upon Section 34-705.2 for admission of the blood tests into evidence through Foster, the person who verified the test results, because he did not perform them.
The test results were also not admissible through the testimony of Barwick, because he did not perform the tests. We agree with the trial court that, without admission into evidence of the blood tests, appellant failed to satisfy her burden of proof. In bastardy actions, the mother’s burden of proof is a preponderance of the evidence. McFadden v. Griffith, 278 Ark. 460, 647 S.W.2d 432 (1983).
As noted above, the child was born on October 27, 1981. Appellant testified that she had sexual intercourse with appellee in the first part of February, 1981. She stated at trial that she believes appellee is the father of her son because she did not have sex with anyone other than appellee and Jerry Montgomery between December 15, 1980, and March 1,1981. Appellant also testified that blood tests had excluded Jerry Montgomery as a possible father of the child. Appellant admitted, however, that she told Jerry Montgomery in January of 1981 that she thought she was pregnant by a man named Lonnie Davis. Appellee denied ever having had sexual intercourse with appellant and testified that appellant had informed him that she was pregnant by a man in Little Rock named Lonnie. Jerry Montgomery testified that he had sexual intercourse with appellant in the early part of February, 1981, and that appellant had told him that she was pregnant by someone from Little Rock.
In light of the above, we cannot say that the trial judge abused his discretion in refusing to admit the blood tests into evidence or in holding that appellant failed to sustain her burden of proof.
Affirmed.
Corbin, C.J., and Mayfield, J., agree. | [
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Donald L. Corbin, Chief Judge.
Appellees, Howard A. and Shirley Harris Evans, brought a foreclosure action against El Dorado Armature Works, Inc. They also sought judgment jointly and severally against four guarantors in accordance with a Guaranty Agreement to the extent the foreclosure sale failed to satisfy the judgment. Appellant, James A. Wroten, was one of the four guarantors. The other three guarantors are not parties to this appeal. Appellees subsequently obtained a judgment against El Dorado Armature Works, Inc., in the amount of $207,490.48, attorney’s fees and costs. The judgment was not paid and the property was sold by a commissioner appointed by the court for $35,000. Appellees then sought judgment jointly and severally against the guarantors for $150,000. Appellant appeals from the award of judgment against him and raises one point for reversal. We affirm.
Appellant and three others executed a Guaranty Agreement on April 1,1980, which provided that they jointly and severally guaranteed the payment of all sums due under the terms of a promissory note made and executed by El Dorado Armature Works, Inc. It guaranteed payment to the extent the note remained unpaid after the sale of certain property described within a mortgage. The agreement further provided that in no event would the guarantors be liable either jointly or severally for a sum in excess of $150,000.
Appellant filed an amended answer and cross-claim wherein he contended that any judgment awarded appellees against the guarantors should be rendered separately and that it should not be in excess of each guarantor’s pro rata share. Appellant sought exoneration by the other guarantors so that each guarantor should be required to pay a proportionate share of the judgment before appellees would be permitted to enforce payment by appellant of any amount in excess of his proportionate share. In his cross-claim, appellant asked for judgments against the other guarantors in the event appellant paid in excess of his proportionate share.
Following a hearing on appellant’s amended answer and cross-claim, the trial court denied the relief sought by appellant in a letter opinion. Citing Cooper v. Rush, 138 Ark. 602, 212 S.W. 94 (1919), Hazel v. Sharum, 182 Ark. 557, 32 S.W.2d 315 (1930), and Halford v. Southern Capital Corp., 279 Ark. 261, 650 S. W.2d 580 (1983), the trial court determined appellees were entitled to judgment, jointly and severally, against each of the four guarantors for $150,000. The court below further determined that in the event appellant satisfied more than his proportionate part, appellant would have an action for contribution against the other guarantors for any amount appellant paid above his proportionate share. The record reflects appellee Howard A. Evans testified at the hearing that based upon his information and belief, appellant was the person most likely to be in a financial position to satisfy the guaranty obligation.
Appellant argues on appeal that the chancellor erred in denying his claim for exoneration. He contends the effect of the denial of his claim for exoneration is to cause unnecessary litigation on his part to enforce his claim for contribution. Appellant points out the four guarantors were parties to the action instituted by appellees, and asks why he should be required to institute separate actions for contribution against the other guarantors when the trial court had all the necessary parties before it. He asks this court to reverse and remand with directions to the trial court to decree specific performance requiring each guarantor to pay his proportionate share. This would be conditioned upon payment by appellant of his proportionate share. In the event a guarantor fails or refuses to pay his share, appellant suggests the chancellor should enter an order permitting appel-lees to proceed against appellant and the remaining guarantors for the proportionate share of the nonpaying guarantor. If appellant is required to make an additional payment, appellant contends the chancellor should enter judgment in his favor for contribution against the nonpaying guarantor.
Both parties to this appeal concede the equitable doctrine of exoneration has not been recognized by the appellate courts of Arkansas. This doctrine gives a surety in certain situations the right to call upon his co-sureties for exoneration before any payment is made. See D’Ippolito v. Castoro, 51 N.J. 584, 242 A.2d 617 (1968); Annot., 38 A.L.R. 3rd 680 (1971). The doctrine of exoneration appears to be an expansion of the equitable doctrine of contribution.
The trial court in the case at bar was correct in denying appellant’s claim for exoneration. The right of contribution among co-sureties and co-guarantors is well settled in this State. In Hazel v. Sharum, 182 Ark. 557, 32 S.W.2d 315 (1930), the supreme court held that an obligation created by the obligors jointly liable on a promissory note, one of whom subsequently paid the entire obligation, entitled the payor to contribution by the others on an implied obligation. In reviewing the law on the subject of contribution, the court stated:
Here the appellees, having paid the whole amount of the debt for which all were jointly liable, were entitled to maintain an action for contribution against the other joint makers of the note, not on the note, but on the contract which the law implies, an obligation worked out by courts of equity in order to do exact justice between the parties.
Id. at 559. In Cooper v. Rush, 138 Ark. 602, 212 S.W. 94 (1919), the Arkansas Supreme Court said:
The right of action for contribution accrues when one surety pays more than his share of the common liability. In most of the cases it is said that the contract for contribution between sureties is one which the law implies for their mutual protection and indemnity. Nearly all the cases agree, however, that no cause of action arises until payment by one of their common debt.... [cites omitted].
Id. at 605.
In the instant case appellant and his three co-guarantors jointly and severally guaranteed the payment of the amount due appellees under the terms of a promissory note not to exceed $150,000. In order to grant the relief requested by appellant, we would have to ignore the clear language of the Guaranty Agreement which we cannot do. Appellant has a contractual obligation pursuant to that agreement, and contribution is appellant’s remedy against his co-guarantors. This remedy is not available to appellant until he satisfies more than his pro rata share of the judgment, $37,500. Accordingly, we cannot say the trial court erred in denying appellant’s claim for exoneration, and its decision is affirmed.
Affirmed.
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Per Curiam.
The appellee has moved to dismiss this appeal from a judgment of the Garland County Circuit Court, rendered after the appellee had answered and been notified of the trial date and after the trial court’s order setting aside the judgment.
The appellee correctly states that an order setting aside a default judgment is not a final order from which an appeal will lie. See Schueck Steel, Inc. v. McCarthey Brothers Co., 289 Ark. 436, 711 S.W.2d 820 (1986). However, a judgment rendered after the defendant has answered and after a trial at which he failed to appear is not a default judgment under ARCP Rule 55. Dawson v. Picken, 1 Ark. App. 168, 613 S.W.2d 846 (1981). Since the judgment set aside by the trial court was not a default judgment, but rather a judgment entered after trial, we treat the trial court’s order as one granting a new trial. Because this is a final and appealable order, the appellee’s motion to dismiss the appeal is denied. Day v. Day, 20 Ark. App. 48, 723 S.W.2d 378 (1987); Ark. R. App. P. 2(a)(3).
Motion denied. | [
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James R. Cooper, Judge.
The appellee in this workers’ compensation case, Byron Sartor, was employed as a patrolman' by the City of El Dorado Police Department. On December 6, 1985, the appellee went off duty at 9:00 p.m. He and his wife then went to the Heritage Club, an El Dorado nightclub. While at the club, the appellee, who was not in uniform, drank two ten-ounce mugs of beer. As he was standing outside the club’s entrance at approximately 12:00 p.m. on December 6, the appellee was struck, threatened, and cursed by Mark Davis, against whom the appellee had recently testified in El Dorado Municipal Court. One of Davis’s friends pulled him away from the appellee. However, Davis continued to shout obscenities at the appellee from across the street, and the appellee asked the nightclub manager to call the police. The appellee then crossed the street and asked Davis to apologize to him. When Davis refused to do so, the appellee placed him under arrest. Davis resisted, and, in the resulting altercation, the appellee suffered a fractured and dislocated elbow.
The appellee filed a workers’ compensation claim for benefits arising from his injuries. In an opinion dated May 5,1986, the administrative law judge found that the appellee’s injury had been an accidental one, arising out of and in the course of his employment as a police officer. The opinion of the administrative law judge was approved and adopted by the full Commission in an opinion dated September 16, 1986. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in finding that the appellee’s injuries arose out of and in the course of his employment. We find no error, and we affirm.
The term “arising out of the employment” relates to the causal connection between the claimant’s injury and his employment, while our cases define “course of employment” as relating to the time, place, and circumstances under which the injury occurred. See American Red Cross v. Wilson, 257 Ark. 647, 519 S. W.2d 60 (1975); Owens v. National Health Laboratories, Inc., 8 Ark. App. 92, 648 S.W.2d 829 (1983). An injury arises out of one’s employment when a causal connection between work conditions and the injury is apparent to the rational mind; moreover, the employment need not be the sole or proximate cause; all that is required is that “there be a substantially contributory causal connection between the injury and the business in which the employer employs the claimant.” American Red Cross v. Wilson, 257 Ark. at 649. With respect to course of employment, the test advanced by Professor Larson requires that the injury occur within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose, or advancing the employer’s interests directly or indirectly. 1 A. Larson, Workmen's Compensation Law §§ 14.00, 20.00 (1985).
In attacking the Commission’s finding that the appellee’s injury arose out of and in the course of his employment, the appellant argues that, when the appellee was injured, he was acting as a private citizen and had not been called into duty; that the appellee’s actions were of no benefit to the City of El Dorado; and that the legality of the appellee’s arrest of Davis is not dispositive of the issue of whether the appellee’s injuries occurred in the course of his employment. All of these arguments constitute challenges to the sufficiency of the evidence to sustain the finding of the Workers’ Compensation Commission. In determining the sufficiency of the evidence to sustain the Commission’s factual findings, We review the evidence in the light most favorable to those findings, and we must affirm if there is any substantial evidence to support them. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). We may reverse the Commission’s findings only when we are convinced that fair-minded people, with the same facts before them, could not have arrived at the conclusion reached by the Commission. Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 (1985).
In the case at bar, there was evidence that the appellee was not merely acting as a private citizen avenging a personal wrong. Indeed, the record reflects that the appellee showed restraint; rather than arresting Davis as soon as he was attacked, the appellee allowed Davis to be led away across the street. It was only when Davis continued to shout threats and profanities that the appellee determined to arrest him. Even then, the appellee told Davis that he would not arrest him if he would apologize. While the appellant sees this as evidence that the appellee’s actions were of a purely personal nature, we think that the Commission was entitled to interpret the request for an apology as an attempt by the appellee to defuse a potentially dangerous situation by calming his assailant.
Moreover, El Dorado Police Regulations state that “[ojfficers off duty shall perform necessary police service in the City of El Dorado whenever they are aware of a serious criminal offense or a present threat to life.” As we noted in City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982), it is the nature of police work that an officer might at any time be called into duty, either by his superiors or by what he observes. In addition, we noted in Lowe that the existence of a benefit to the employer was an important element in the analysis to determine whether an injury occurred in the course of the claimant’s employment. Id.
Under the circumstances of the case at bar, we hold that the evidence was sufficient to support the Commission’s finding that the appellee’s injury arose out of and in the course of his employment as a police officer. Viewed in the light most favorable to that finding, the Commission could reasonably conclude that the appellee was motivated by the public interest, and that the attack upon his person, and the subsequent disturbance of the peace under the circumstances then present, constituted a serious criminal offense or threat to life requiring the appellee to act in his official capacity as a police officer. Moreover, we think that the City of El Dorado obtained a benefit from the appellee’s actions in that a potentially serious breach of the peace was quelled without injury to nightclub patrons or other bystand ers. Finally, while we agree with the appellant that the legality of Davis’s arrest is not entirely dispositive of the issue of whether the appellee’s injury occurred within the course of his employment, we do not agree that this fact is irrelevant, for it tends to substantiate the appellee’s assertion that a crime was committed in his presence, and that his injury occurred while he was exercising lawful authority.
Affirmed.
Corbin, C.J. and Cracraft, J., agree. | [
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John E. Jennings, Judge.
This appeal results from a determination by the Arkansas Public Service Commission that customer-owned coinless-operated telephones are not in the public interest and therefore should not be authorized for use by the Commission. Because we find the Commission’s actions were arbitrary and capricious and its findings not supported by the evidence, we reverse and remand.
In 1990, Southwestern Bell instituted a tariff filing with the Arkansas Public Service Commission pertaining to the intercon nection of customer-owned coinless telephones to the public switch network. After reviewing the pleadings, the Commission determined that the issue of customer-owned coinless telephone service should be considered on a generic basis. The Commission stayed Southwestern Bell’s request until after the completion of its generic docket, the purpose of which was stated in Order No. 1:
The purpose of this Docket is to consider whether or not customer-owned, coinless telephones (telephone instruments for use by the public not requiring coins for operation but using credit cards or other methods of payment or charge to complete a call) are in the public interest and should be authorized for use in the State of Arkansas. This docket is also for the purpose of considering what type of regulation should apply to such telephones if authorized and whether there should be any restriction or limitations on such telephone service if authorized.
In response to Order No. 1, comments were filed by Southwestern Bell, AT&T Communications of the Southwest, Inc. (AT&T), Intellicall, Inc., American Dial 0 Service (American), and the staff of the Commission. After a hearing, in which witnesses for these parties testified, the administrative law judge entered Order No. 4, finding that it is not in the public interest to authorize customer-owned coinless telephones, that there is adequate service, and that competition in the area will not yield benefits to the end user. Order No. 4, however, also found that AT&T should be allowed to maintain the coinless sets it currently has in Arkansas. AT&T petitioned for rehearing, and after thirty days passed, the petition was deemed denied.
The Arkansas Public Service Commission has broad discretion in exercising its regulatory authority, Associated-Natural Gas Co. v. Arkansas Pub. Serv. Comm’n, 25 Ark. App. 115, 118, 752 S.W.2d 766, 767 (1988), and courts may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. Russellville Water Co. v. Arkansas Pub. Serv. Comm’n, 270 Ark. 584, 588, 606 S.W.2d 552, 554 (1980). It has often been said that, if an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then this court must affirm the Commission’s actions. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 76, 813 S.W.2d 263, 279 (1991). Nevertheless, it is for the courts to say whether there has been an arbitrary or unwarranted abuse of discretion, even though considerable judicial restraint should be observed in finding such an abuse. Russellville Water Co. v. Arkansas Pub. Serv. Comm’n, 270 Ark. at 588, 606 S.W.2d at 554. Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis, and something more than mere error is necessary to meet the test. Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 97, 594 S.W.2d 13, 15 (1980). To set aside the Commission’s action as arbitrary and capricious, the appellant must prove that the action was a willful and unreasoning action, made without consideration and with a disregard of the facts or circumstances of the case. Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 353, 609 S.W.2d 23, 25 (1980). See also Beverly Enters.-Ark., Inc. v. Arkansas Health Servs. Comm’n, 308 Ark. 221, 230, 824 S.W.2d 363, 367 (1992).
The Commission in Order No. 4 described customer-owned coinless telephones as:
Coinless pay telephones are telephone instruments located in public or semi-public locations accessible to the general public, business patrons, employees or visitors, and the end user pays for local or toll calls from the instrument on a per call basis. Payment for calls on a coinless pay telephone may be collect, third-party billed or charged to a credit card, either a commercial credit card or a telephone company issued card. Customer-owned coinless pay telephones are those instruments owned and operated by any person or entity other than the local exchange company (LEC) authorized to serve the area where the telephone is located.
Order No. 4 also addressed the factors the Commission must consider in determining whether to authorize customer-owned coinless telephones:
[ T]he Commission must consider whether the services and/or providers comply with Arkansas law and whether the provision of such service is in the public interest. Public interest considerations include the determination of the potential benefits or detriments of the service to the public in general, the potential impacts on existing services and the need for the services. Benefits come in the form of increased services or lower rates and detriments may be increased rates or loss of services to certain areas or ratepayers.
Order No. 4 went on to state that the “ultimate issue in this proceeding. . .is whether or not competition in the pay telephone market is beneficial to the public, regardless of the method of payment.” The Commission concluded that competition in the customer-owned coinless telephone market would not yield benefits to the customer and therefore should not be authorized.
AT&T contends on appeal that the substantial evidence supported a finding that customer-owned coinless telephones are in the public interest and that Order No. 4 of the Commission is arbitrary and capricious. The question on review of an administrative board’s decision, however, is not whether the evidence would have supported a contrary finding but whether it supports the finding that was made. Fontana v. Gunter, 11 Ark. App. 214, 216, 669 S.W.2d 487, 488 (1984). Judicial inquiry terminates if the action of the Commission is supported by substantial evidence and its action is not unjust, unreasonable, unlawful, or discriminatory. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 24 Ark. App. 142, 144, 751 S. W.2d 8, 9 (1988). In order to establish an absence of substantial evidence, the aggrieved party must show that the proof before the Commission was so nearly undisputed that fair-minded persons could not reach its conclusion. Beverly Enters.-Ark., Inc. v. Arkansas Health Servs. Comm’n, 308 Ark. 221, 226, 824 S.W.2d 363 (1992). The court must not look at whether the conclusions of the Commission are supported by substantial evidence, but whether its findings of fact are so supported. Arkansas Pub. Serv. Comm’n v. Continental Tel. Co., 262 Ark. 821, 829, 561 S.W.2d 645, 649 (1978).
In concluding that competition in the customer-owned coinless telephone market would not yield benefits to the consumer^ the Commission found that customer-owned coinless telephones do not offer any benefits to the public that cannot be offered by the local exchange carriers and that adequate service is available; that customer-owners would not comply with the regulations of the Commission; that competition in the customer-owned coinless telephone market would increase rates to the consumer; and that customer-owned coinless telephone service would not be reliable. Although we acknowledge that this Court must give due regard to the expertise of the Commission, we cannot say the findings of the Commission are supported by substantial evidence or that its decision not to authorize customer-owned coinless telephones is supportable on any rational basis.
The Commission first found that customer-owned coinless telephones do not offer any benefits to the public that cannot be offered by the local exchange carrier and that adequate service is available. In Order No. 4, however, the Commission stated that benefits come in the form of lower rates or increased services. Although there was' no evidence that competition in the coinless telephone market causes decreased rates to the end users, considerable evidence was introduced regarding the features of customer-owned coinless telephones which increase services to consumers.
AT&T’s witness, Dennis Corrigan, testified that many of AT&T’s customer-owned coinless telephones offer assistance to both visually-impaired and senior citizens through the use of display screens which show services and usage instructions in larger characters and loud buttons, some adding up to twenty decibels of amplification. He also testified that many of AT&T’s customer-owned coinless telephones provide foreign language instruction in an effort to assist non-English-speaking telephone users. Other features AT&T offers which are beneficial to the general public include speakerphone capability, desk-mounted telephones, and dataports for accessing portable computers.
Intellicall stated in its comments that the technological innovations contained in coinless pay telephones make it possible to provide service tailored to the circumstances or conditions of a particular location and to provide new service options to the end users. Intellicall’s witnesses states that, besides processing calling-card and collect calls automatically, these telephones offer callers the option of recording a message to be played back if subsequent automatic attempts to reach the call number fail because the number is busy or not answered. The option of leaving a recorded message, they said, is particularly appropriate for hotels, motels, airport, and other locations where the predominant use of pay telephones is by travelers placing long-distance calls. In addition, they testified these telephones can also be programmed to permit only collect-calling, to block calls to specific numbers, and to limit call duration, features that are particularly needed by prisons and other confinement facilities.-
American’s testimony and comments centered on how its customer-owned coinless telephones would benefit correctional institutions. Larry Norris, who supervises telephone systems in nine correctional facilities in Arkansas, testified that American’s telephone system would benefit the prison system by cutting down on security risks and freeing guards who. presently must escort prisoners to make telephone calls for other duties.
Although most of the testimony regarding the benefits of customer-owned coinless telephones concerned the benefits of a provider’s specific telephone, no party disputed that these telephones offer benefits to the public. The Commission staff agreed that customer-owned coinless telephones are in the public interest, stating:
[ S] tafif has had the opportunity to experience demonstrations of customer-owned coinless public telephones, as well as to review and study the various comments filed earlier in this docket. Staff has been convinced by the demonstrations and filed initial comments of the other participants that the customer-owned coinless public telephones do provide a public service and, therefore, are in the public interest.
Clearly, customer-owned coinless telephones offer features which increase services to the public; however, except in the area of specific telephone features needed by confinement facilities, there was no evidence that Southwestern Bell’s coinless telephones or the coinless telephones of any other local exchange carrier offer these features. Nor was there any evidence before the Commission from which it could have found that adequate service is available. The Commissions’ finding that local exchange carriers offer the same benefits as those of customer- owned coinless telephones and that adequate service is available is not supported by substantial evidence.
We also find that there is no rational basis for the Commission’s conclusion that customer-owned coinless telephone providers would be unwilling to comply with Arkansas law. In Order No. 4, the Commission emphasized testimony by American’s and IntellicaH’s witnesses to the effect that, in providing customer-owned coinless telephone service, they would also want to provide local exchange service. The Commission noted that it is contrary to current law for anyone other than the local exchange carrier to provide local and intralata service and responded to this testimony in Order No. 4, stating:
Even though the Commission did not include reconsideration of its prior decisions on local and intralata traffic in this Docket, American and Intellicall said that unless customer-owned coinless pay telephones are allowed in these markets, private ownership of these telephones is not feasible. Mr. Stenson did not know whether American’s telephones were capable of sending local and intralata traffic to the appropriate LEC because American does not •operate in any jurisdiction where it could not handle this traffic. After consideration of the benefits and detriments of competition in those areas, the Commission adopted its present policies on local and intralata service on the basis that they were in compliance with Arkansas law, in the public interest, and promoted universal telephone service in the state. If customer-owned coinless pay telephones cannot be operated pursuant to these policies and endanger universal service, then the service is not in the public interest.
After reviewing the testimony of these witnesses, we do not find it demonstrates that customer-owned coinless telephone providers would be unwilling to comply with the existing laws and regulations in this area. In fact, the Commission recognized in Order No. 4 that AT&T has been providing customer-owned coinless telephones in compliance with the law and Commission policy:
The AT&T coinless pay telephones have been in operation for a number of years, providing interlata and interstate service, and routing intralata and local traffic to the appropriate LEC. Therefore, AT&T’s coinless pay telephones do not divert revenues from the LECs. Further, AT&T is an experienced certificated interexchange carrier with a proven record of providing service at tariffed rates and in compliance with the laws and policies governing public utilities in this state.
We also find that the Commission’s concern that competition in the customer-owned coinless telephone market would cause increased rates to the consumer is based upon speculation and not upon the evidence. The Commission stated that competition in the customer-owned coinless telephone market would create bidding wars for telephone locations, with the ultimate victim being the captive consumer, who would be forced to pay increased rates in order to cover the commissions. The Commission relied on testimony by American’s and Intellicall’s witnesses that coinless telephone owners could pay a commission to location owners for installing their telephones. From this testimony, the Commission concluded that providers might attempt to recoup the commissions they pay by increasing their rates to consumers.
We acknowledge that any rate could be charged by a provider of a coinless telephone in the absence of regulation by the Commission; however, only Intellicall proposed that customer-owned coinless telephones should not be regulated. In determining whether customer-owned coinless telephones are in the public’s interest, the Commission must view them in the context of the appropriate regulatory treatment. Indeed, one of the stated purposes of the generic proceeding was to consider what types of regulations should apply to customer-owned coinless telephones. To consider the merits of customer-owned coinless telephones only in the context of no regulation is arbitrary.
The Commission also quoted from an order of the Florida Public Service Commission which found that competition in the coinless telephone market had not resulted in lower rates to the end user. We note, however, there was no finding that competition had increased rates, nor did the Florida commission question its earlier finding that customer-owned coinless telephones were in the public interest. For the Commission here to conclude that customer-owned coinless telephones do not offer any benefits to the public merely because there is no evidence that competition in another state has reduced rates to the end user is to ignore the Commission’s own statement that “benefits come in the form of increased services or lower rates.” (Emphasis added.)
In justifying its refusal not to authorize customer-owned coinless telephones, counsel for the Commission, in its brief and in oral argument before this Court, argued that the supervision of customer-owned coinless telephones would create a regulatory nightmare. We cannot consider this argument on appeal, however, because it was not given by the Commission as justification for its decision not to authorize customer-owned coinless telephones, and there is no evidence in the record to support such a finding. Although the Commission may take official notice of facts within its specialized expertise, the notice the Commission takes of such facts must be based on evidence already in the record. See Colorado Mun. League v. Mountain States Tel. and Tel. Co., 759 P.2d 40, 45 (1988). Courts may not accept appellate counsel’s post hoc rationalizations for agency action; an agency’s action must be upheld on a basis articulated by the agency itself. Motor Vehicle Mfr. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983).
The Commission in Order No. 4 also implied that customer-owned coinless telephone service would not be reliable. Again this finding by the Commission is based upon speculation and does not provide a rational basis for not authorizing customer-owned coinless telephones. This conclusion apparently results from testimony by Intellicall’s witnesses that its telephone sets operate on AC power and, therefore, if a power outage occurs, its telephones are inoperable unless they have a battery back-up, and from testimony that Intellicall sells its coinless sets to customers who then become responsible for any repairs to the telephones they purchase. Nevertheless, there is no evidence in the record describing the number of break-downs customer-owned coinless telephones experience or that customer-owned coinless telephones are subject to more breakdowns than the telephones of local exchange carriers.
Finally, AT&T argues that the Commission acted arbitrarily and capriciously by allowing it to continue to maintain over 200 customer-owned coinless telephones in Arkansas after finding that customer-owned coinless telephones are not beneficial to the public. Although we do not find this action on the part of the Commission to be arbitrary and capricious, we do find it demonstrates that customer-owned coinless telephones can be operated in compliance with Commission regulation and in a manner not detrimental to the public.
In summary, we hold that the findings on which the Commission relied for holding that it was not in the public interest to authorize customer-owned coinless telephones are not supported by substantial evidence.
Reversed and remanded.
Cracraft, C.J., and Mayfield, J., dissent. | [
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Melvin Mayfield, Judge.
Lester Brooks was a passenger in an automobile stopped by Little Rock police after a tip that the occupants of the car were “doing dope.” A search of the car produced rock cocaine, drug paraphernalia, and a pistol. As a result appellant was charged with possession of a controlled substance, possession of a firearm, possession of drug paraphernalia, and being a habitual criminal. Appellant was convicted in a bench trial only of possession of drug paraphernalia, and he was sentenced as a habitual offender to ten years in the Arkansas Department of Correction with four years suspended. Appellant filed a pretrial motion to suppress all the physical evidence seized from the car alleging that the officers did not have “reasonable suspicion” to stop it. The motion was denied.
Little Rock police officer Sammy Gately testified that on May 29, 1991, at approximately 8:30 p.m., he was flagged down by a citizen and informed of criminal drug activity associated with a car. Specifically, the citizen told the officer that there were three people in the car and that all of them were smoking crack cocaine. The citizen gave a description of the people in the car, and while this was being told to the officer, the vehicle drove by. The officer followed it to Roosevelt and Wolfe where a “uniform police car” stopped the vehicle. According to Officer Gately, when the driver got out, a small rock that appeared to be crack cocaine was lying on the driver’s seat, and a plastic baggie containing a white powder residue believed to be cocaine was visible on the floorboard. As appellant exited the vehicle on the passenger’s side, Officer Gately said he observed the grip of a pistol and a clear “crack smoking pipe” partially under the passenger seat. The officer said he retrieved both items and that the gun had five live rounds in it. He also related that a female passenger in the back seat had her feet on a “metal crack smoking pipe” and that a check of the serial number of the gun showed it to be stolen.
The following dialogue then took place:
Q. So, you stopped and you talked to this citizen. Did you get a name of this citizen?
A. No, ma’am.
Q. Had you ever talked with the citizen before?
A. No.
Q. Did you know whether the citizen was a reliable informant?
A. No.
Q. Okay. And you didn’t know the citizen from anybody else?
A. Unh un. .
Q. Okay. When you pulled this vehicle over - You said you followed it and you pulled it over at Roosevelt and Wolfe Street. You pulled it over based on that information. Is that correct?
A. Yes, ma’am.
Q. You didn’t pull it over based on anything that you saw in that vehicle?
A. No.
Q. So, at the time that you pulled that vehicle over you had not seen any kind of suspicious activity going on in the vehicle. Had not seen any criminal activity.
A. No, ma’am.
Q. Nothing to make you believe or cause you reasonable suspicion to believe that there was any criminal activity going on in that vehicle?
A. I did not witness any criminal activity in the vehicle.
Q. Is that citizen here today to testify in this case?
A. Not to my knowledge.
Based on the citizen’s information and on his observation that the vehicle was driving back through a neighborhood it had just left, Officer Gately said he radioed a patrol car to pull the vehicle over. Officer Gately elaborated on redirect:
A. The citizen described the vehicle, gave us a license number off the vehicle, described the occupants of the vehicle. When the vehicle came back through, he said, “There is the vehicle.” When I saw the vehicle, there was three occupants just like he described. The license number was the same as he gave us.
Q. Okay. So, he actually pointed it out?
A. Yes, ma’am.
In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court held that the police can briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity “may be afoot.” This policy has been adopted in this state as Arkansas Criminal Procedure Rule 3.1 which provides in pertinent part as follows:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person he reasonably suspects is committing, has committed, or is about to commit (1) a felony or (2) a misdemeanor involving danger or forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or determine the lawfulness of his conduct.
Rule 2.1 of the Arkansas Rules of Criminal Procedure defines “reasonable suspicion” as follows:
“Reasonable suspicion” means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
We think the trial court was correct in refusing to suppress the evidence seized from the car in which the appellant was riding. Criminal Procedure Rule 3.1 permits an officer to stop and detain a person the officer “reasonably suspects” may be engaged in criminal conduct, and we think under “a consideration of the total circumstances” there were “particularized, specific reasons for a belief’ that appellant might be engaged in criminal activity. See Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991).
Appellant argues that the physical evidence should have been suppressed based on Lambert v. State, 34 Ark. App. 227, 808 S.W.2d 788 (1991), which he interprets as holding that “an anonymous tip in and of itself was not sufficient reasonable suspicion” to warrant the stop. In Lambert the Arkansas State Police received a tip on July 27,1989, on their “Drug Hot Line” that at approximately 3:00 p.m. a vehicle would be leaving Hot Springs headed for Little Rock, carrying about ten pounds of marijuana. The vehicle was described by the tipster as being a truck with a black tractor with “Woodline Motor Freight” in orange letters on the side carrying a short-bed trailer and would be driven by a man named Jerry. Surveillance was set up, and at 3:50 p.m. a truck identical to the description was spotted and was pulled over by a state trooper. The driver’s name was Jerry Lambert. Appellant was asked if there was marijuana in the truck. He replied that there was and got a large bag of marijuana out of the truck and gave it to the officer.
This court held:
[ W] e cannot hold that the facts corroborating the tip in the case at bar are sufficient in quality or quantity, under the totality of the circumstances test, to give rise to reasonable suspicion.
34 Ark. App. at 230.
We do not consider Lambert to be controlling in the instant case. Here a citizen was speaking face to face with the officer, relating criminal activity that he had observed. He supplied the officer with the description of the vehicle, its occupants and its license number. Furthermore, as they were speaking the car passed and the citizen pointed it out to the officer. Under these circumstances we think there was “reasonable suspicion” for the officer to stop the car. We think the “indicia of reliability” to justify the investigatory stop in this case was as great as that approved in Alabama v. White, 496 U.S. 325 (1990).
Affirmed.
Jennings, C.J., and Pittman, J., agree. | [
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Melvin Mayfield, Judge.
The sole issue involved in this appeal is whether the Arkansas Public Service Commission erred in dismissing appellant Ivy Lincoln’s complaint after it found that it was without jurisdiction to grant Lincoln the relief he is seeking. Appellant Ivy Lincoln and appellant Arkansas Power & Light Company (AP&L) separately petitioned for rehearing, contending that Lincoln’s petition was within the Commission’s jurisdiction. Both petitions were denied, and their separate appeals from those denials have been consolidated in this appeal.
On July 3, 1991, Ivy Lincoln filed a complaint with the Arkansas Public Service Commission, naming as defendants AP&L and “all other public utilities and electric cooperative corporations furnishing electric service in the state of Arkansas.” Lincoln requested that the Commission order AP&L and the other defendants to cease their maintenance of exclusive service territories by offering service without regard to any electric service territory boundaries. Lincoln acknowledged that maintenance of exclusive service territories was required by Ark. Code Ann. § 23-18-101 (1987), which provides:
Notwithstanding any provisions of law or the terms of any certificate of convenience and necessity, franchise, permit, license, or other authority granted to a public utility or electric cooperative corporation by the state or a municipality, no public utility or electric cooperative corporation shall furnish, or offer to furnish, electric service at retail and not for resale in any area allocated by the Arkansas Public Service Commission to another electric cooperative corporation or public utility.
Lincoln argued, however, that this statute should be declared unconstitutional because it creates monopolies, which are disallowed by the Arkansas Constitution.
Lincoln asserted that he has a public right to freedom from state-imposed restrictions on electric service offerings pursuant to Ark. Code Ann. § 23-3-114(a)(1) (1987), which provides that “ [a] s to rates or services, no public utility shall make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage.” The defendants’ refusal to offer electric service to prospective customers outside their allocated territories, Lincoln argued, creates an unreasonable disadvantage and unfair prejudice to the consumer. Lincoln’s complaint requested:
(1) that the APSC convene a hearing and hear oral argument within 60 days after the filing of this complaint;
(2) that the APSC find A.C.A. Sec. 23-18-101 unconstitutional under ARK. CONST, art. II, Secs. 19 and 29;
(3) that the APSC enter an order which abolishes exclusive electric service territories and which frees AP&L, et al, to offer electric service without regard to whether a potential customer is located within the service territory previously allocated to AP&L, et al; and
(4) all other appropriate relief.
Because Lincoln’s complaint questioned the constitutionality of a state statute, defendant and appellee Ozarks Electrical Cooperative Corporation (“OECC”) denied that the Commis sion had jurisdiction of Lincoln’s cause of action. OECC and the other defendants also denied that Lincoln’s complaint stated a cause of action and prayed that his complaint be dismissed.
An extensive answer was filed by appellant AP&L, which denied all of the allegations of law and fact upon which Lincoln’s complaint was based. AP&L asserted that Lincoln had misinterpreted the word “monopoly” as it is used in the Arkansas Constitution and that the Commission’s policies do not result in a “monopoly” within the meaning of the Constitution.
In October 1991, the Commission entered Order No. 1, which dismissed Lincoln’s complaint for lack of jurisdiction. The Commission determined that Lincoln’s complaint sought an order declaring § 23-18-101 void and unconstitutional, which exceeds the Commission’s authority. The Commission stated:
Complainant asserts that the exclusive service territories created pursuant to this provision are “monopolies” prohibited by the Constitution of the State of Arkansas and that such service territories should be eliminated immediately. It is alleged in the Complaint that if these service territories were eliminated, that Complainant would have available competitive electric utility service at competitive rates. Complainant asserts that pursuant to the Commission’s quasi-judicial authority under Ark. Code Ann. § 23-3-119, the Commission “is required, as well as empowered, to decide the constitutionality of utility and co-op practices in light of Complainant’s asserted right to a competitive market for electric service.
Complainant invokes the Commission’s jurisdiction as primary pursuant to Ark. Code Ann.§ 23-3-119(d) which provides:
(d) The commission shall then have the authority, upon timely notice, to conduct investigations and public hearings, to mandate monetary refunds and billing credits, or to order appropriate prospective relief as authorized or required by law, rule, regulation, or order. The jurisdiction of the commission in such disputes is primary and shall be exhausted before a court of law or equity may assume jurisdiction. However, the commission shall not have the authority to order payment of damages or to adjudicate disputes in which the right asserted is a private right found in the common law of contracts, torts, or property.
It is the specific intent of this section to authorize the Commission to adjudicate individual disputes between consumers and the public utilities serving those consumers. In addition to the Commission’s quasi-legislative authority, the General Assembly extended the Commission’s quasi-judicial authority to adjudicate complaints arising from the public utility statutes, rules and regulations and orders of the Commission. Ark. Code Ann. § 23-3-119(f).
Were the relief requested of a different nature, the Commission might agree that our jurisdiction over this Complaint is primary. However, the relief which Complainant seeks is to have the Commission declare a statute invalid and this relief exceeds the Commission’s authority. The Public Service Commission is a creature of the legislature which acts within the powers conferred upon it by legislative act. Southwestern Bell Telephone Company v. Arkansas Public Service Commission, 267 Ark. 550, 593 SW2d 434 (1980). As a “creature of the legislature”, the Commission’s power and authority is confined to that which the legislature confers upon it. The Commission is empowered, in some instances, to interpret the public utility statutes of the state but the General Assembly has not conferred upon the Commission the authority to overrule the General Assembly and act as a super legislature of three. It is not within the jurisdiction of this Commission to declare a properly enacted statute to be invalid and to declare that the Commission will hereinafter ignore the provisions of that statute.
The relief which Complainant seeks can only be obtained through legislative action repealing or amending Ark. Code Ann. § 23-18-101 or through a court with the authority to declare the statute unconstitutional. Therefore, the Commission finds that the Complaint filed in this Docket on July 3,1991, should be and hereby is dismissed for lack of jurisdiction.
In response to Order No. 1, Lincoln and AP&L separately petitioned for rehearing. Lincoln contended Ark. Code Ann. § 23-2-423 (c)(4) (1991) requires that the Commission first determine whether an order or decision of the Commission violates any laws of the Arkansas Constitution or the Constitution of the United States and, after that determination is made, the Commission’s decision is then appealable to the courts.
Although it urged that Lincoln’s request for rehearing be denied, AP&L also requested rehearing of Commission Order No. 1. AP&L contended that the Commission’s order erroneously focused on the constitutionality of § 23-18-101 in finding it did not have jurisdiction to hear Lincoln’s complaint. AP&L argued that, because the major thrust of Lincoln’s complaint is an attack on the allocation of electric service areas, which is exclusively within the Commission’s jurisdiction, the Commission should have rendered a decision on this issue and then addressed the issue of the constitutionality of § 23-18-101 as incidental to its basic regulatory jurisdiction.
The Commission in Order No. 2 held that neither Lincoln’s nor AP&L’s arguments were persuasive and denied their petitions. Both parties now appeal the Commission’s denial of jurisdiction. We find no error and affirm.
It is well established that courts, and not administrative agencies, are the final arbiters of agency authority. West Helena Sav. & Loan Ass’n v. Federal Home Loan Bank Bd., 417 F. Supp. 220, 223 (E.D. Ark. 1976), aff'd, 553 F.2d 1175 (8th Cir. 1977). The courts have recognized that administrative agencies, because of their specialization, experience, and greater flexibility of procedure, are better equipped than courts to analyze legal issues dealing with their agencies, and this accounts for the limited scope of review of administrative action and the reluctance of a court to substitute its judgment for that of the agency. Clinton v. Bonds, 306 Ark. 554, 557, 816 S.W.2d 169, 171 (1991).
In denying Lincoln’s rehearing petition, the Commission stated that, although the General Assembly has given the Commission broad authority to carry out its rules and regulations, it must conform its policies to that legislation and the Commission has no authority to invalidate an act of the General Assembly. While the Commission acknowledged that it has the authority to rule on the constitutionality of a statute if it is germane and incidental to an ultimate legislative act, it concluded that the relief requested by Lincoln’s complaint was purely judicial and not incidental to the Commission’s legislative authority.
For his appeal, Lincoln contends that the Commission has the statutory authority to adjudicate his complaint and order electric utilities and cooperatives to stop their practice of offering service only to those customers who are located within their territorial boundaries. Lincoln acknowledges that past Commission policy and the utilities’ refusals to compete arise from Ark. Code Ann. § 23-18-101 (1987), which the Commission is charged by law to administer, but argues that the Commission erred in concluding that it did not have the judicial authority to hold this statute unconstitutional. In support of his argument, Lincoln relies on Ark. Code Ann. § 23-3-119(a)(2) and (d) (1987), which provides:
(2) Any consumer or prospective consumer of any utility service may complain to the commission with respect to the service, furnishing of service, or any discrimination with respect to any service or rates.
(d) . . . .The jurisdiction of the commission in such disputes is primary and shall be exhausted before a court of law or equity may assume jurisdiction. However, the commission shall not have the authority to order payment of damages or to adjudicate disputes in which the right asserted is a private right found in the common law of contracts, torts, or property.
Lincoln also relies on Ark. Code Ann. § 23-2-304(a), which enumerates certain powers of the Commission that include:
(1) Find and fix just, reasonable, and sufficient rates. . .;
(2) Determine the reasonable, safe, adequate, sufficient service to be observed, furnished, enforced, or employed by any public utility and to fix this service by its order, rule, or regulation;
(3) Ascertain and fix adequate and reasonable standards, classifications, regulations, practices, and services to be furnished . . .
Lincoln asserts that § 23-3-119 gives the Commission subject matter jurisdiction over all consumer complaints. He argues that the Commission’s conclusion that determination of his complaint would be an unconstitutional violation of the separation of powers is contrary to the intent of the General Assembly as expressed in § 23-3-119(f)(1) through (3):
(f)(1) It is the specific intent of the General Assembly in enacting the 1985 amendment to this section to vest in the Arkansas Public Service Commission the authority to adjudicate individual disputes between consumers and the public utilities which serve them when those disputes involve public rights which the commission is charged by law to administer.
(2) Public rights which the commission may adjudicate are those arising from the public utility statutes enacted by the General Assembly and the lawful rules, regulations, and orders entered by the commission in the execution of the statutes. The commission’s jurisdiction to adjudicate public rights does not and cannot, however, extend to disputes in which the right asserted is a private right found in the common law of contracts, torts, or property.
(3) The commission’s quasi-judicial jurisdiction to adjudicate public rights and claims in individual cases is in addition to the commission’s traditional legislative authority to act generally and prospectively in the interest of the public. The quasi-judicial commission authority recognized in this action is a legitimate function and does not, in the judgment of the General Assembly, constitute an unlawful delegation of judicial authority under either the Arkansas Constitution or the United States Constitution.
We disagree with Lincoln’s argument that § 23-3-119 gives the Commission jurisdiction to adjudicate all consumer complaints involving a “public right.” The public rights that § 23-3-119(f) charges the Commission to administer are those rights “arising from the public utility statutes enacted by the General Assembly and the lawful rules, regulations, and orders entered by the commission in the execution of the statutes.” The “public right” Lincoln is seeking to have enforced in the case at bar is competitive electric service. Assuming without deciding that he is entitled to such a right, it is not one that arises from either the “utility statutes enacted by the General Assembly” or the “lawful rules,” “regulations,” or “orders entered by the Commission.” The Commission correctly found that Lincoln’s complaint was outside the scope of § 23-3-119.
Nor do we agree with Lincoln’s argument that the supreme court’s holding in Ozarks Electric Cooperative Corporation v. Harrelson, 301 Ark. 123, 782 S.W.2d 570 (1990), expands the Commission’s jurisdiction under § 23-3-119. In that case, the appellant discovered the appellees’ electric meter was defective and billed them for reconstructive charges pursuant to Commission General Service Rule 10C(3)(a). After the appellees refused to pay the charges, the appellant disconnected their service. The appellees filed an action in circuit court seeking to have their service restored. The appellees’ action was later transferred to chancery court, which retained jurisdiction on the basis of equitable principles that the appellees owed for estimated usage only. On appeal, the supreme court held that jurisdiction of the appellees’ complaint was properly with the Arkansas Public Service Commission. The supreme court noted that § 23-3-119(d) gives the Commission the authority to conduct investigations and public hearings and to mandate monetary refunds, billing credits, or order appropriate prospective relief as authorized or required by law and that jurisdiction of the Commission in such disputes is primary and shall be exhausted before a court of law or equity may assume jurisdiction. The supreme court then noted that the powers of the Commission include the authority to:
Ascertain and fix adequate and reasonable standards for the measurement of quantity, quality, pressure, initial voltage, or other conditions pertaining to the supply of all products, commodities, or services furnished or rendered by any and all public utilities; prescribe reasonable regulations for the examination and testing of such production, commodity, or service, and for the measurement thereof, establish or approve reasonable rules, regulations, specification, and standards to secure the accuracy of all meters or appliances for measurement; and provide for the examination and testing of any and all appliances used for the measurement of any product, commodity, or service of any public utility. [Ark. Code Ann. § 23-2-304(a)(3) (1987).]
301 Ark. at 126, 782 S.W.2d at 572. The supreme court concluded that the issue of whether the appellant properly billed the appellees for reconstructive service involved a specific regulation of the Commission and, therefore, fell within the primary jurisdiction of the Commission.
The rights at issue in Ozark Electric Cooperative Corporation v. Harrelson, supra, dealt with a specific regulation of the Commission. We agree with the Commission’s conclusion that the supreme court’s holding there cannot be expanded under the fact situation here to give the Commission jurisdiction to declare a statute enacted by the General Assembly unconstitutional. Although the Commission has been given quasi-judicial jurisdiction to adjudicate public rights and claims in individual cases in addition to its traditional legislative authority, that jurisdiction is not so broad as to allow the Commission to make a purely judicial determination and invalidate a statute which the Commission is charged to enforce. The Commission is a creature of the legislature and its duties are primarily legislative and administrative; it is not a judicial body. Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 536, 518 S.W.2d 485, 487 (1975). When the final act in a given case before the Commission is legislative, the Commission is empowered to determine legal questions which are incidental and necessary to the final legislative act. Id. at 536-37, 518 S.W.2d at 487. Here, however, the relief Lincoln seeks is the abolishment of exclusive service territories which are mandated by § 23-18-101. Lincoln can obtain this relief only by having the General Assembly repeal § 23-18-101 or by having the statute declared invalid, which calls for a judicial determination.
AP&L agrees with the Commission’s holding that § 23-3-119 does not extend the Commission’s jurisdiction to allow it to declare § 23-18-101 unconstitutional. Nevertheless, AP&L maintains that the primary focus of Lincoln’s complaint is not about the constitutionality of § 23-18-101, but instead his request that the Commission reverse its more than fifty-year-old regulatory policy of area allocation and abolish exclusive service territories. AP&L argues that, although § 23-18-101 now requires exclusive service territories for electric service providers, these territories existed prior to its enactment. Therefore, even if § 23-18-101 is found unconstitutional, Lincoln would not necessarily be entitled to competing electric service, because the Commission could still find the exclusive service areas are in the public’s best interest. AP&L argues that the issue of whether § 23-18-101 is constitutional need not even be addressed if the Commission finds that its area allocation policies do not violate the Constitution. AP&L concludes that the only sensible course for the Commission to follow in resolving appellant’s complaint is to first determine whether the Commission’s area allocation policies are prohibited by the Constitution; then, if it concludes that its policies are not constitutional, it should determine the incidental issue of whether § 23-18-101 is constitutional.
The Commission has authority to address constitutional questions which are germane and incidental to a final act over which the Commission’s jurisdiction is primary. See General Tel. Co. v. Lowe, 263 Ark. 727, 730, 569 S.W.2d 71, 73 (1978). Orderly procedure and administrative efficiency demand that the regulatory body be vested with authority to make preliminary determination of legal questions which are incidental and necessary to the ultimate legislative act. Southwestern Gas & Elec. Co. v. City of Hatfield, 219 Ark. 515, 522, 243 S.W.2d 378, 382 (1951).
We agree with the Commission’s finding that the constitutionality of § 23-18-101 is not incidental to Lincoln’s complaint. It is undisputed that, in order for appellant Lincoln to obtain abolishment of exclusive service territories, § 23-18-101, which now mandates such territories, must be declared unconstitutional. While the Commission may have found prior to the enactment of § 23-18-101 that exclusive service territories were in the public’s best interest, that determination is no longer relevant because, under § 23-18-101, these exclusive service territories are required. When the General Assembly enacts a statute affecting the powers, duties, or jurisdiction of the Commission, the Commission must conform its policies and regulations to that legislation. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. 550, 557, 593 S.W.2d 434, 440 (1980).
In the present case, the challenge is not to a specific area allocation order of the Commission but to a statute enacted by the General Assembly which requires such allocation. Notwithstanding the fact that exclusive service areas existed prior to the enactment of this statute, they exist now pursuant to this statute, and Lincoln cannot obtain the relief he is seeking without this statute being repealed or declared unconstitutional. Lincoln challenges the statute on the ground that it violates the anti-monopoly provision of the Arkansas Constitution. Whether this argument contains any merit remains to be decided; however, this question clearly should be decided by the courts, and the Commission correctly denied jurisdiction to decide this issue.
Where an administrative proceeding might leave no remnant of the constitutional question, the administrative remedy should be pursued; however, where the only question is whether it is constitutional to fasten the administrative procedure onto the litigant, the administrative agency may be defied and judicial relief sought as the only effective way of protecting the asserted constitutional right. Public Utils. Comm’n of Calif, v. United States, 355 U.S. 534, 539-40 (1957).
In general, administrative officers and agencies may not determine constitutional questions. Accordingly, they have no power or authority to consider or question the constitutionality of an act of the legislature, such as their own enabling legislation, and may not declare unconstitutional the statutes which they are empowered to administer or enforce.
73 C.J.S. Public Administrative Law & Procedure, § 65 (1983).
For his second issue, Lincoln argues that the Commission, in denying it had the authority to adjudicate his complaint, violated his right to a certain and complete remedy in the laws. Lincoln asserts that “[a] prospective complainant should be able to read the statutes and determine whether the PSC has jurisdiction.” He cites no authority for this proposition but concludes that, because the Commission arbitrarily and capriciously dismissed his complaint, he has been denied a remedy. We disagree. If Lincoln believes that he is being unjustly denied competing electric service because of the existence of § 23-18-101, he can challenge the constitutionality of this statute in a declaratory judgment action.
Affirmed.
Cooper and Rogers, JJ., concur.
The Commission also held in Order No. 1 that, in Southwestern Elec. Power Co. v. Carroll Elec. Coop. Corp., 261 Ark. 919, 554 S.W.2d 308 (1977), and Great Lakes Carbon Corp. v. Arkansas Pub. Serv. Comm’n., 31 Ark. App. 54, 788 S.W.2d 243 (1990), the validity of § 23-18-101 had been upheld by the Arkansas courts. We note, however, that these cases dealt with the interpretation and application of § 23-18-101 and that the constitutionality of § 23-18-101 was not challenged. Therefore, we do not find them dispositive of Lincoln’s complaint. | [
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Elizabeth W. Danielson, Judge.
The City of Fort Smith . appeals from a decision of the Workers’ Compensation Commission finding that appellee Robert Brooks was entitled to benefits for his psychological condition. Appellant contends on appeal that the Commission’s decision is not supported by substantial evidence and that in the alternative, if the claim is compensable, appellee is not entitled to benefits prior to September 20, 1990. We affirm.
Appellee was employed with the Fort Smith Police Department for sixteen years. During this time, he worked in patrol duty, criminal investigation, and internal affairs. The Commission found that he had an excellent police record and that, prior to the injury in question, he had never demonstrated any signs of psychological illness. The Commission further found that until the May 17,1990, incident, appellee was healthy and stable; that he had no financial or marital problems; and that he appeared to have the perfect disposition to be a supervising officer. In 1978, appellee was forced to kill man in the line of duty. At that time, psychological counseling was offered but was not mandatory. Appellee declined counseling after the shooting incident. He testified that following the shooting he experienced a range of emotions and reactions, including depression, but felt that he could handle the matter and eventually “try to block it out” of his mind, which he felt he was able to do.
In May of 1988, appellee was promoted to captain, and in November of 1989, he was transferred to the Internal Affairs Division. He as the only employee in that division and, as the captain in charge, was responsible for the investigation of complaints against and allegations of misconduct by police officers; the investigation of minor complaints against police officers; assisting in the hiring process, i.e., conducting interviews, examinations, testing, and background investigations; and the serving of subpoenas. Since appellee left this position in May of 1990, three of these job responsibilities have been removed from the Internal Affairs Division and assigned to other departments, leaving only the job of investigating complaints and allegations of misconduct. Appellee testified that when he first started working for internal affairs, he was successful in having investigations resolved within a 30 day period, but during the period of time he was in that position the volume of complaints doubled and it began taking anywhere from 60 to 90 days to get a determination on a complaint.
Chief Ralph Hampton, Chief Don Taylor, Captain Larry Hammonds, and appellee all described the internal affairs job as being stressful. The internal affairs officer was described as a “headhunter” and the officer being investigated as the “victim.” When questioned about the job-related stress in internal affairs, Chief Hampton testified that there was a certain amount of self-imposed isolation since the officer would have to guard against any type of associations that might be interpreted as partiality.
In November of 1989, appellee had to investigate a shooting in the line of duty by a fellow police officer. During the course of the investigation, appellee was called upon at a press conference to relate his own experience of shooting a suspect in the line of duty. Appellee testified that the investigation and press conference incident brought back memories of the shooting, which he described as “a horrible experience, one that very few police officers have to face in their career.”
Appellee continued to function as the internal affairs officer until May 17,1990. Ón that date, while making a presentation at a retirement party, he began experiencing trouble breathing, dizziness, shaking, and nervousness. He testified he felt like everything was closing in on him. He returned to his office, hoping the symptoms would go away, but they became worse instead. Appellee left work then and was seen by a psychiatrist the next day. He has been under regular treatment since then. He attempted to return to work for three days in July of 1990 but was unable to continue.
Reports from three different physicians indicated that ap-pellee’s psychological condition was work related. Dr. Joe Dorzab diagnosed appellee as having major depression and described his personality as that of a workaholic. Dr. Dorzab concluded that appellee was “suffering from a disabling disorder that is at least in part work related and may be mostly job related.” The Commission found that appellee’s psychological injury arose out of and occurred during the course of his employment and awarded temporary total disability benefits from June 6,1990, to a date yet to be determined.
Appellant’s first argument is that the Commission’s decision . is not supported by a preponderance of the evidence because the record does not show that appellee was subjected to greater job stress than other internal affairs officers. We disagree.
In McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1990), we stated that when determining the compensability of nontraumatically induced mental illness that is alleged to have resulted from the claimant’s work, the claimant must show more than the ordinary day-to-day stress to which all workers are subjected, and that this rule implies that the comparison be made between similarly situated employees. 29 Ark. App. 218 at 220, 224. We also stated that while comparisons to fellow employees may be of some evidentiary value, the ultimate test in determining compensability is whether the stress constitutes an abnormal working condition for that type of employment. 29 Ark. App. at 224. Whether the stress was more than ordinary and whether the psychological injury was causally connected to it or aggravated by it are questions of fact for the Commission to determine. Barrett v. Arkansas Rehabilitation Servs., 10 Ark. App. 102, 661 S.W.2d 439 (1983).
When the Commission’s findings of fact are challenged on appeal, we affirm if they are supported by substantial evidence. Patrick v. Arkansas Oak Flooring Co., 39 Ark. App. 34, 833 S.W.2d 790 (1992). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). We do not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992).
Appellee’s position was described by himself and another witness as that of a “headhunter.” Those being investigated were considered “victims.” The testimony of the other officers who had at some point served as internal affairs officers established that while they would characterize the job as “stressful,” the conditions under which they served were much less strenuous than that encountered by appellee. During appellee’s time as internal affairs officer, the number of complaints doubled. Two employees had to be discharged as a result of complaints and the subsequent investigations. Appellee was handling four different categories of duties, three of which have since been reassigned to other departments. In addition to the stress due to the nature of the office and the increased workload, appellee was put in the position of having to recall the shooting death he was involved in, which caused many of the emotions and problems associated with that event to resurface. All of this constitutes substantial evidence to support the finding that appellee was subjected to abnormal working conditions for an internal affairs officer, and that he was under greater stress than others similarly situated.
Appellant also argues that the Commission’s decision was not supported by substantial evidence because the record did not show that appellee’s condition was caused by work-related stress as opposed to other stress factors in his life. To the contrary, all the work-related factors just discussed support the Commission’s finding of causation. Additionally, the Commission found that prior to the May 1990 psychological incident, appellee was healthy and stable, and had no marital or financial problems. In describing appellee, Chief Hampton said, “I would have to describe Mike generally, in order to give you a true picture of him. I don’t think I ever saw Mike Brooks lose his cool. Mike . . . represented a very, very controlled person, a self-controlled person.”
Considering the absence of any history of psychological problems, appellee’s excellent work history as a police officer for sixteen years, the evidence of greater than ordinary work-related stress factors, the clear history of a psychological injury occurring at work, and the medical evidence supporting causation, we hold there was substantial evidence to support the Commission’s decision.
Appellant also argues in the alternative that if the claim is compensable, appellee is not entitled to benefits prior to September 20,1990. The Commission notes that there was some confusion as to when appellant received a report of appellee’s injury as required by Ark. Code Ann. § 11-19-701 (a)(1) (1987), but finds that this question was settled by the testimony of Chief Hampton. When asked when he first learned that appellee was relating his illness to his employment, Chief Hampton said “I believe it was while he was at Harbor View [hospital] . . . but that would have been probably two weeks or so after Mike had taken off.” This testimony provides substantial evidence to support the Commission’s decision that appellee was entitled to benefits beginning June 6, 1990.
Affirmed.
Jennings and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
Ted DeWeese appeals from the decision of the Circuit Court of Polk County which affirmed the agency finding of some credible evidence that the appellant engaged in sexual contact with S.J. on April 10,1987, and which denied appellant’s request to remove his name from the Arkansas Child Abuse and Neglect Central Registry.
On April 25, 1987, Elizabeth Thomas, a Field Service Specialist with the Arkansas Department of Human Services (DHS), received a complaint regarding alleged sexual activity involving appellant and S.J., a four-year-old child. Ms. Thomas turned the investigation over to the Arkansas State Police in accordance with DHS policy in cases where the alleged perpetrator is not responsible for the welfare of the child or related to the child and on April 28,1987, appellant was charged with the crime of rape.
Appellant filed a request for expunction of the Arkansas Child Abuse and Neglect Central Registry records on the case and on July 6,1987, Ms. Pat Page, Assistant Deputy Director for Field Operations, notified appellant that DHS had determined there is “some credible evidence” of abuse/neglect and that his request for expunction was therefore denied.
On November 19, 1987, a trial was held on the criminal charges which resulted in a “hung” jury. The jury voted 11 to 1 to acquit. Subsequently, on February 9, 1988, the trial court granted the motion of the State of Arkansas to nolle prosequi the case.
On December 9, 1987, S.J. and her family filed a civil suit against appellant and the guidance center at which appellant worked alleging appellant had engaged in deviate sexual activity with S.J. On May 10, 1989, the judge in that case granted a motion for summary judgment filed by appellant and the other defendants, and the complaint was dismissed with prejudice.
On July 21, 1989, an administrative hearing was held concerning appellant’s request for expunction. In a final order dated August 18, 1989, the department determined there was “some credible evidence” to support the finding that appellant engaged in sexual contact with S.J. during speech therapy sessions, specifically during the session held April 10, 1987. Appellant’s application for amendment and correction to the records of the Arkansas Child Abuse and Neglect Central Registry was denied.
On appeal to circuit court, the trial judge stated the standard of review as “whether there is substantial evidence to support the agency decision that there was some credible evidence” and, based on that standard, denied appellant’s request for reversal.
Appellant argues on appeal to this court that: (1) hearsay was erroneously admitted into evidence at the administrative hearing; (2) the hearing officer’s denial of appellant’s application was not supported by substantial evidence; and (3) appellant was denied his constitutional rights in that he was required to prove his entitlement to relief three times. Because the trial judge used the wrong standard of review, we are unable to reach the merits of appellant’s arguments.
Judicial review of administrative adjudication is established by the Arkansas Administrative Procedure Act. Arkansas Code Annotated § 25-15-212 (Repl. 1992) provides for review of administrative action by circuit court. Subsection (h) provides:
The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6)Arbitrary, capricious, or characterized by abuse of discretion.
In Arkansas State Bank Commissioner v. Bank of Marvell, 304 Ark. 602, 804 S.W.2d 692 (1991), our supreme court stated:
The applicable standard of review has been often stated. The rules governing judicial review of decisions of administrative agencies are the same for both the circuit and appellate courts. This review is limited in scope and such decisions will be upheld if supported by substantial evidence and not arbitrary, capricious or characterized by an abuse of discretion. Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis. It has been said that the appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency.
304 Ark. at 604 (citations omitted).
However, the substantial evidence standard contained within the Administrative Procedure Act was apparently superseded by our code provisions concerning child abuse reporting. In Crawford/Sebastian County SCAN v. Kelly, 300 Ark. 206, 778 S.W.2d 219 (1989), the trial court, after reviewing the record of the administrative hearing, found that the decision of the Department was not supported by substantial evidence. Our supreme court held that under Ark. Code Ann. § 12-12-516 (1987) the question was whether there was some credible evidence of the alleged abuse to support the maintenance of an accused’s name on the registry, and the case was reversed and remanded for an appropriate determination by the trial court.
Because the trial judge in the instant case also applied the substantial evidence standard rather than the some credible evidence standard, we reverse and remand to the trial court for an appropriate determination.
We note, however, that although the some credible evidence standard supersedes the substantial evidence standard established by Ark. Code Ann. § 25-15-212(h), the remaining portions of that subsection remain in effect.
Reversed and remanded.
Cracraft, C.J., and Rogers, J., agree. | [
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Melvin Mayfield, Chief Judge.
This case is an appeal from a decision of the Workers’ Compensation Commission denying and dismissing appellant’s claim based on injuries he sustained in a one-vehicle accident that occurred when he was returning from Greers Ferry Lake to his home in North Little Rock.
Appellant, president and majority stockholder of appellee Rank in Construction Co. (a partner with appellee RDR Enterprises, Inc., in a joint venture), had planned a trip with his family to spend the weekend in a summer lake house. Before leaving North Little Rock, he had contacted Meyers, a subcontractor on the joint venture, and arranged to meet with him to discuss that and another project. On the way back from the lake, appellant, without detouring, stopped at Meyers’ house near Higden. The accident happened after appellant left Meyers’ house and was on the return route to North Little Rock.
Appellant claims on appeal that the Commission’s decision is contrary to the law and the facts. He first contends that the Commission erred in basing its decision on the case of Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S.W.2d 845 (1957). That case embraced the “dual purpose” trip doctrine as set forth by Judge Cardozo in Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929). The doctrine is described succinctly in 1 Larson, Workmen’s Compensation Law § 18.00 (1982), as follows:
Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey.
Larson’s lengthy development of the subject uses Cardozo’s opinion as its point of reference. That opinion states:
What concerns us here is whether the risks of travel are also risks of the employment. In that view, the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils.
. . .We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. . . . The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own.... If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.
167 N.E. at 182-183.
The Arkansas Supreme Court adopted the Marks’ v. Gray test in Martin v. Lavender Radio & Supply, supra, and later approved it in Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967); Willis v. City of Dumas, 250 Ark. 496, 466 S.W.2d 268 (1971); and Wright v. Ben M. Hogan Co., 250 Ark. 960, 468 S.W.2d 233 (1971).
In the instant case, an examination of the record reveals that appellant had been thinking about the trip to the lake house for some time, and, after making those plans, he arranged his meeting with Meyers only a couple of days before leaving for Greers Ferry. Moreover, the Commission found that the trip to the lake would not have been made except for the personal family outing. In his testimony, appellant admitted that if Meyers hadn’t been available for a meeting on the weekend in question, he could and would have met with him at another time and place for the same purpose; and the Commission adopted the law judge’s finding that there was no evidence that appellant would have been required to go to Meyers’ home for that meeting as there were a number of other places they could have met, including appellant’s office. Thus, we think there was substantial evidence from which the Commission, applying Cardozo’s test, could find that the meeting with Meyers was not a “concurrent cause” of appellant’s ill-fated journey.
Appellant strongly contends that there are factors here that make this case different from the Marks’ and Martin cases. Specifically, he points to the fact that he was traveling in a vehicle owned and furnished by his employer; says he was “virtually on duty at all times and subject to call”; and contends he had completed the pleasure part of his dual purpose trip and was back on business when the accident occurred. The case of Ark. Power & Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958), is cited as supportive of his contention that he is entitled to compensation under these circumstances.
In that case, Cox was furnished a car equipped with a two-way radio and was expected to keep himself and the car available on a 24-hour basis in case of emergencies. On the day involved, he was killed in a wreck while driving the company car from his office to his home. Pointing out that injuries sustained by employees while going to and from their regular place of employment are not, as a general rule, deemed to arise out of the employment, the court said there is an exception to the rule when the employee is traveling in a vehicle owned or supplied by the employer. That exception, however, is of no help to the appellant in this case since he was not on his way to or from his regular place of employment. Cf. Wright v. Ben M. Hogan Co., 250 Ark. 960, 468 S.W.2d 233 (1971).
Appellant argues that Martin v. Lavender Radio & Supply, supra, says that Martin’s injury would have been covered had he stopped by the post office, while on the way to work, to get his employer’s mail. The point is made that here the appellant did stop to discuss business with Meyers. We agree that both Martin and Cardozo’s opinion relied upon in Martin, clearly indicate that an injury to appellant while he was stopped at Meyers’ house would have been covered; but the inj ury to appellant occurred after appellant left Meyers and was on his way home from the weekend vacation. Furthermore, if Martin had stopped at the post office, he would have come under the dual purpose rule set forth in Cardozo’s opinion, because in Martin it was necessary that someone go to the post office sometime to get the employer’s mail. See Larson, supra, § 18.IB. Here, however, the Commission found it would not have been necessary for appellant to go to Meyers’ house at some other time.
Appellant also contends this case is like Ark. Power & Light v. Cox because he, like Cox, was “virtually on duty and subject to call at all times.” The ultimate question to be answered in this case is whether appellant’s injuries arose out of and in the course of his employment. Ark. Stat. Ann. § 81-1302(d) (Repl. 1976). The key to that question is the connection, or nexus, between the travel and the employment. See Chicot Memorial Hospital v. Veazey, 9 Ark. App. 18, 21, 652 S.W.2d 631 (1983). That was also the key to the question in the Ark. Power if Light v. Cox case. The employee was allowed recovery in that case because there was “substantial evidence to the effect that it was his duty to take the specially equipped automobile of his employer with him to the lake home for the mutual benefit of himself and his employer.” 229 Ark. at 24. The employee was not allowed recovery in this case because the Commission found that his trip was not “sufficiently connected to his employment so as to be said to be reason enough for the trip to have been undertaken . . . absent the purely personal and private purpose.”
On appeal we must accept the view of the facts most favorable to the findings of the Commission and affirm if there is substantial evidence to support its decision. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). We find there is substantial evidence to support the Commission’s finding that appellant has failed to establish that his injuries arose out of and in the course of his employment.
Affirmed.
Cloninger, J., agrees.
Glaze, J., concurs. | [
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Tom Glaze, Judge.
This appeal results from the chancellor’s denial of partition in an action the appellant brought against the seven appellees. The facts are undisputed. In 1972, the appellee Diana Rivers purchased a 520-acre tract in Newton County on which she established a community called Sassafras. The residents of Sassafras had a “back to the land’’ philosophy. In an attempt to return to a simpler life, the group eschewed chemical fertilizers and pesticides in their gardening, conducted their business by a “consensus democracy,” and held an antipathy toward private ownership of property. In 1978, by a consensus of women residents, Sassafras became a community of women only. When the men were requested to leave, appellee Rivers deeded forty acres to a married couple who had been residents and active participants in the community since its inception.
At about the same time the men left, on June 6, 1978, Rivers, who had sole title to the property, made a deed to the remaining 480 acres, naming herself and the six other appellees as joint tenants with rights of survivorship. Appellant was away from Sassafras at the time the deed was made. When she returned, she complained to the appellees that she had not been named on the deed, despite the fact that she had been a resident for two years, had participated actively in the community, and had halfway completed a dwelling on the property. As a consequence, in September, 1978, Rivers made a new deed naming appellant and the seven appellees as joint tenants with rights of survivorship.
In 1979, the residents of Sassafras became embroiled in a dispute over permitting a group of women they called gypsies to come into the community to live. The appellant left the community and the state as a result of the controversy. In March of 1980, apparently when appellant was gone, the appellees — described as Anglo-Saxon — deeded a 120-acre tract to two minority women, leaving the 360 acres that are the subject matter of this dispute. In 1981, she commenced the partition action that is the subject of this appeal. She contended below that she was entitled to a one-eighth interest in the 360-acre tract by virtue of the warranty deed naming her as an owner. She also contended the land is not divisible in kind and asked the chancery court to order the lands sold and the proceeds divided. The chancellor heard testimony from the appellant, appellee Rivers, two other appellees, and five women who were residents of Sassafras at the time of the action below.
The intentions of the parties, the living arrangements, and the agreements they had with each other with respect to the land were undisputed. Although appellee Rivers provided all of the $40,000 purchase money for the land, she testified that she did not consider it her private property, but rather community property, purchased because, “I had money and there [were] a lot of people interested in living on land in the country, growing gardens and doing all that stuff.” The arrangement, according to all the testimony, was that Rivers and the others intended to create a “land trust,” but when they were unable to do that legally, they created the joint tenancy as an interim means of sharing power and responsibility. Their goals were to create a community for women of like ideals and to treat the land with respect. They disclaimed any notion of private ownership but contended the women named on the deed were “caretakers” of the land and representatives of the community of women who lived and worked on the land. Even the appellant, in her effort to have the land partitioned, testified that she had never considered herelf an owner of the land. Her contention was that in permitting the gypsies to come onto the land, to “trash” the land, and to ignore the principles on which Sassafras was founded, the others had abdicated their responsibility to protect the land. She now feels she is entitled to something for the time and the efforts she expended for the five years she lived in the community.
The testimony indicated that actual residence at Sassafras was not a prerequisite to one’s being named on the deed. In fact, neither the appellant nor any of the appellees lived on the land at the time of the hearing. Diana Rivers testified that she maintained a cabin there but that her primary residence was in Fayetteville.
The chancellor made lengthy findings of fact. He determined that in making the joint tenancy deed, the parties intended to protect the land and to prevent its sale. He impressed a constructive trust upon the property and found that appellant held the property in trust for the grantor, the other grantees, and the community of women who lived on the land. He ordered the appellant to convey her record interest to the appellees as joint tenants. He ordered that appellant be permitted to remove personal property from the land and to remove or to sell the dwelling she had constructed. The appellant contends on appeal that the chancellor erred in two respects: (1) in imposing a constructive trust and enforcing a parol agreement not to partition, and (2) in failing to grant appellant reimbursement for her improvements to the property.
The chancellor imposed a constructive trust after he found that the appellant was in a confidential relationship with the appellee Rivers, the other appellees, and the other members of the community. The chancellor found:
It is clear that [appellant] had gained the confidence of all these individuals and in accepting placement on such deeds purported that she would act in their best interest to preserve the community and its goals. . . . Despite the occasional problems within the community, all member[s] were committed to the goal of preserving the land and deeply trusted each other in that regard. Besides the family nature of their living arrangement fostered by the small size of the group, the members of the community were kindred spirits with a special trust between themselves regarding the basic goals of the community, especially preservation and nonconveyance of the land. . . . To allow [appellant] 1/8 of the sale proceeds of the property would constitute unjust enrichment.
On appeal, we affirm the chancellor’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). Also, we affirm if the chancellor reached the right result, even if he gave the wrong reason for his decision. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979); Williams v. Cotten, 9 Ark. App. 304, 658 S.W.2d 421 (1983).
In the case at bar, the chancellor heard extensive testimony regarding what the parties intended when appellee Rivers made a deed naming herself, the appellant and the other appellees as owners. None of the evidence reflects the parties intended by their deed to create an express trust regarding the land in question. Rather, the chancellor utilized an equitable tool — the constructive trust — in order to prevent unjust enrichment to appellant who admittedly never considered herself an owner of the property, not even at the time of the hearing wherein she was seeking partition. All of the parties who testified with knowledge of the creation of the deed, including the appellant, testified that none of them owned the land, but that all were volunteers who assumed the responsibility of having their names on the deed and of being “caretakers” of the land.
Constructive trusts are said to arise and be imposed in favor of persons entitled to a beneficial interest against one who secures legal title either by an intentional false oral promise to hold title for a specified purpose, and having thus obtained title, claims the property as his or her own, or one who violates a confidential or fiduciary duty or is guilty of any other unconscionable conduct which amounts to constructive fraud. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); see also Henry v. Goodwin, 266 Ark. 95, 583 S. W.2d 29 (1979). A constructive trust is an implied trust that arises whenever it appears from the accompanying facts and circumstances that the beneficial interest should not go with the legal title. Andres v. Andres, supra. Proof of fraud is not essential to the establishment of a constructive trust. Davidson v. Sanders, 235 Ark. 161, 357 S.W.2d 510 (1962). The chancellor below did not find that the appellant had committed fraud, but that the parties were in a confidential relationship.
A confidential relation exists between two persons when one has . gained the confidence of the other and purports to act or advise with the other’s interest in mind. Henry v. Goodman, supra. There is no set formula by which the existence of a confidential relationship may be determined, for each case is factually different and involves different individuals. Donaldson v. Johnson, 235 Ark. 348, 359 S.W.2d 810 (1962). The cases for the application of the doctrine cannot be scheduled. They pervade all social and domestic life. Id. Whether or not a confidential relationship exists depends upon the actual relationship between the parties. Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980). A kinship is not necessary for a confidential relationship. Id.
The facts at bar present a classic case for imposition of a constructive trust. The parties agreed orally to hold the property for the grantor, appellee Rivers, to share her responsibility for the care of the land, and for the community of women who would inhabit Sassafras, including, but not limited to, the appellant and the appellees. When one takes property under a deed, absolute on its face, but has orally agreed to hold the property for the benefit of the grantor or a third person, a constructive trust may be imposed to prevent unjust enrichment to the constructive trustee. See, e.g., Henry v. Goodwin, supra; Kingrey v. Wilson, 227 Ark. 690, 301 S.W.2d 23 (1957); Grissom v. Bunch, 227 Ark. 696, 301 S.W.2d 462 (1957); Andres v. Andres, supra. The chancellor’s extensive findings of fact and conclusions of law indicate that he thoughtfully studied the evidence presented to him and the applicable law. We believe the chancellor’s finding that the parties enjoyed a confidential relationship with one another is not clearly erroneous. And we agree with the chancellor’s decision to impose a constructive trust in favor of the appellees in an attempt to prevent unjust enrichment to appellant. However, we are unable to uphold that part of the chancellor’s decree that imposes a constructive trust in favor of “the community.”
Diana Rivers testified that Sassafras was being held for the women who lived there and for those who would live there in the future. All of the other women who testified spoke in terms of a “community” that could not be defined by naming names. By imposing a constructive trust to benefit “the community,” the chancellor stretched the concept of constructive trust beyond its limits. Instead of employing a constructive trust to prevent unjust enrichment to the appellant, the chancellor effectuated the parties’ intent to hold the land in trust for “the community.” In short, the chancellor made for the parties the express trust they failed to make themselves. The court erred in doing so in this action because an express trust cannot be established by oral evidence. Jones v. Gachot, 217 Ark. 462, 230 S.W.2d 937 (1950); Patton v. Randolph, 197 Ark. 653, 124 S. W.2d 823 (1939). Thus, the court correctly imposed the constructive trust for the benefit of the appellees, the grantor and grantees named in the deed, but erred in extending it in favor of “the community.”
Appellant’s second point for reversal is that the chancellor erred in failing to grant her reimbursement for her improvements to the property that she claims enhanced the value of the property by $5,000. On this point, the chancellor ordered she was entitled to remove a dwelling she built on the land or to sell it to someone acceptable to the appellees. Appellant relies upon Dodds v. Dodds, 246 Ark. 313, 438 S.W.2d 54 (1969), for the proposition that upon partition, a cotenant is to be reimbursed for improvements based upon enhancement in value to the property. The simple answer, of course, is that partition was denied, the appellant was found not to be a cotenant, so the Dodds case, which involved tenants in common, does not apply. Appellant also relies upon Walker v. Eller, 178 Ark. 183, 10 S.W.2d 14 (1928). Walker, however, deals with appellants who made valuable improvements to a farm “under the honest belief that they had acquired title thereto.. . .” By appellant’s own testimony, she was not operating under color of title. At no time prior to or during construction of her dwelling did she believe that she had acquired title to the property, but only the right to its use. Therefore, the Walker case is inapposite.
We affirm that part of the decree impressing a constructive trust for the benefit of the grantor, appellee Rivers, and the grantees, the other six named appellees. We modify the decree to delete any reference that the property is constructively held for the community.
Affirmed as modified.
Mayfield, C.J., and Corbin, J., agree.
Appellant testified that she was on the land when the decision to deed the land to the minority women was made and when the deed was drawn, but not when the deed was filed. However, the deed does not reflect appellant’s name as one of the grantors.
Appellees do not challenge this on appeal. | [
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Lawson Cloninger, Judge.
This appeal arises from a decision of the Arkansas Workers’ Compensation Commission awarding benefits to appellee for injuries she received in a fall while at work in appellant’s cleaning plant. Appellee testified that she slipped in a puddle of water on the floor; appellant presented five witnesses who said that appellee had made statements immediately after the mishap to the effect that her knee had given way. The Commission endorsed the holding of an Administrative Law Judge that appellee’s injury arose out of and in the course of her employment with appellant and was compensable. Appellant contends that the award is contrary to the law and the facts of the case. We agree, and we reverse and remand the case to the Commission for reconsideration in the light of the holdings in this opinion.
Appellee injured her knee as a teenager and has a history of knee slippage and collapse. In her testimony she revealed that her knee had failed her between fifteen to twenty times since 1977. She alone testified to having slipped in the water at the cleaners. The Commission found by a preponderance of the evidence that appellee’s fall was idiopathic in origin. Despite this finding, they determined that “whether or not claimant’s preexisting left knee condition played a role in her fall, her injuries were compensable because she was performing her assigned duties when the accident occurred.”
It appears that in arriving at its decision the Commission fused the distinct categories of “unexplained” and “idiopathic” falls. Further, the Commission dismissed as irrelevant any consideration of the difference between the two.
In Country Pride v. Holly, 3 Ark. App. 216, 219, 624 S.W.2d 443 (1981) we stated the general rule on the compensability of idiopathic falls, quoting Larson, Workmen’s Compensation Law, §§ 12.11, 12.14 (1978):
[T]he effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. . . .
Inevitably there arrive the cases in which the employee suffers an idiopathic fall while standing on a level surface, and in the course of his fall, hits no machinery, bookcases, or tables. At this point there is an obvious temptation to say that there is no way of distinguishing between a fall onto a table and a fall onto a floor, since in either case the hazard encountered in the fall was not conspicuously different from what it might have been at home. A distinct majority of jurisdictions, however, have resisted this temptation and have denied compensation in level-fall cases. The reason is that the basic cause of the harm is personal, and that the employment does not significantly add to the risk. (Emphasis added.)
We decided Country Pride on different grounds, but we here adopt both the rationale and the rule pertaining to idiopathic falls as set forth in that case.
We briefly addressed the issue of an “unexplained” fall apparently unconnected to a claimant’s work in Fairview Kennels v. Bailey, 271 Ark. 712, 610 S.W.2d 270 (Ark. App. 1981). There we observed that Larson, at Workmen’s Compensation Law, § 10.51 (1978), had noted that most courts awarded compensation in cases involving unexplained falls. We held that the claimant’s explanation that she “fell and couldn’t get up” was sufficient for a finding by the Commission that she fell while performing work required by her j ob and thus received an inj ury arising out of her employment.
In Roc-Arc Water Co. v. Moore, 10 Ark. App. 349, 664 S.W.2d 500 (1984), we considered a situation that the employer contended was “somewhere between an ‘unexplained fall’ and an ‘idiopathic fall’.” Although we found that there was evidence from which the Commission might have found that the employee’s fall was idiopathic in nature, we held that there was sufficient evidence for the Commission to rule, as it did, that the fall was unexplained and arose in the course of the claimant’s employment. The fact that we implicitly acknowledged a distinction in kind and consequence between idiopathic and unexplained falls in Roc-Arc should not pass unnoticed.
The present case goes further than any of the earlier ones in the unexplained/idiopathic line. The Workers’ Compensation Commission relied upon Fairview Kennels, supra, and its own decision in Moore v. Roc-Arc Water Co., WCC Claim No. D113610 (June 6, 1983), in holding that when a fall is attributable to either an unexplained or an idiopathic condition it is nonetheless compensable if the injury occurs while the claimant is doing required work. This ruling of the Commission extends the “unexplained” fall theory to the general rule stated by this Court in Country Pride v. Holly, supra. If we were to endorse the Commission’s position in the instant case, any distinction between unexplained and idiopathic falls would become blurred and irrelevant.
We reverse the decision of the Commission and remand the case to the Commission for reconsideration in light of this opinion.
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Tom Glaze, Judge.
On the night of October 10, 1983, appellant broke into the home of Bill Payno in Fort Smith and was arrested shortly after entering the house. At trial, appellant submitted that he purposely entered Mr. Payno’s house, looking for a place to sleep. Appellant was convicted in a non-jury trial of burglary, a violation of Ark. Stat. Ann. § 41-2002 (Repl. 1977). The trial court sentenced appellant to five years’ imprisonment, with three and one-half years suspended. Appellant presents one issue on appeal: Was there sufficient evidence from which the trial court could find that appellant entered Mr. Payno’s house with “the purpose of committing therein any offense punishable by imprisonment,” as required by statute?
At trial, the State offered the testimonies of Mr. Payno, the homeowner, and the police officer who arrested appellant, to prove the requisite element of intent. The arresting officer testified that on the evening of October 10, he was called to investigate a possible break-in at the Payno home. Upon his arrival, the officer found a window in the back door of the house that had been broken. After entering the house, the officer found appellant sitting in a corner of what appeared to be the living room. Mr. Payno testified that after hearing of the break-in into his home, he went there to determine if anything was missing. Because he had moved out of the house one week earlier, the house was almost empty. However, Mr. Payno did find that some dishes, glasses and silverware had been wrapped in towels and placed in a large pail. He also discovered that someone had torn some curtains off the living room wall and had used them to wrap up a staple gun and some other items, as if to carry them away. Mr. Payno stated that none of these items were as he had left them in the house that afternoon. Mr. Payno conceded that his sister had been assisting him daily to clean and pick up items in the house; however, he stated that he was aware of everything she did and he did not believe it was possible she might have wrapped up these dishes.
To rebut the State’s circumstantial evidence of his intent, appellant testified that, previous to his arrest, he had been living with a friend, Louis Martinez, in Martinez’ apartment. Because appellant never paid rent to Martinez, he evicted appellant late on the evening of October 10. After being turned out into the street by his friend, appellant broke into the Payno home, which was across the street from Martinez’ apartment. Appellant stated that he broke into the house only to find a place to sleep that night and that he knew the house was vacant because he had seen Payno move out. About the dishes and the torn curtains, appellant said that he knew nothing. He denied having any intention to steal anything from inside of the Payno home. According to appellant, he was asleep when the police entered the home.
On appeal, we must affirm appellant’s conviction if there is substantial evidence to support the trial court’s finding of fact. Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984). Substantial evidence is evidence that is of sufficient force and character that it will compel a reasonable mind to reach a conclusion one way or the other, but it must force the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In evaluating the substantiality of the evidence, we must view it in the light most favorable to the State. Profit v. State, 6 Ark. App. 51, 637 S.W.2d 620 (1982). Appellant does not argue on appeal that the Payno house was not an occupiable structure or that he lawfully entered the home. His sole contention is that the State did not present substantial evidence that he entered the home with the requisite intent.
Appellant’s argument rests primarily upon Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980), and its progeny. In Norton, the State proved that the appellant there illegally entered an office building; there was no proof that Norton had taken, or even touched, any property inside the building. In reversing Norton’s conviction, the Supreme Court held:
We hold a specific criminal intent, which is an essential element of the crime of burglary, cannot be presumed from a mere showing of illegal entry of an occupiable structure. The prosecution must prove each and every element of the offense of burglary beyond a reasonable doubt and cannot shift to the defendant the burden of explaining his illegal entry by merely establishing it.
Id. at 454, 609 S.W.2d at S.
We followed Norton in the subsequent case of Wortham v. State, 5 Ark. App. 161, 634 S.W.2d 141 (1982). In this case, the State proved. that appellant entered a house and confronted two teen-aged girls with whom he was acquainted and that he fled after one of the girls saw him. There was no proof that appellant was armed, that he made an improper approach toward the girls, or that any property was missing from the home or had even been touched by Wortham. In that decision, we reversed Wortham’s conviction because the State did not produce any evidence to show appellant’s purpose for being in the home. Without such proof, the jury in that case was forced to guess regarding Wortham’s intent in entering the house.
Both Norton and Wortham are distinguishable from the case at bar. In both of these cases, the State proved only that appellant was “merely present;” in this case, the State proved “presence” plus other facts and circumstances from which the trial court could infer that appellant had the requisite intent. These facts and circumstances are, of course, the items that had been gathered up, as if to be carried off, and the homeowner’s testimony that neither he nor his sister had moved these things. The fact that the State’s evidence bearing on appellant’s intent is circumstantial does not render it insubstantial, as the law makes no distinction between direct evidence of a fact and circumstances from which it may be inferred. Johnson v. State, 7 Ark. App. 172, 646 S.W.2d 22 (1983).
Affirmed.
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Donald L. Corbin, Judge.
This case was submitted to the trial court on a charge of criminal conspiracy to possess a controlled substance. The trial court found appellant, Robert Lee Jackson, guilty but reduced the charge to a misdemeanor. He was sentenced to ninety days in the Pulaski County Jail. A prior suspended sentence was revoked and appellant was sentenced to one year in the Arkansas Department of Correction, with both sentences to run concurrently. We affirm.
Appellant’s first assignment of error involves the question of whether the trial court erred in allowing taped and transcribed telephone conversations into evidence wrhen positive identification of the party could not be made. Appellant relies principally upon the fact that undercover Officer Houser stated candidly that he could not positively identify appellant Jackson as the person who called him. The evidence reveals that Officer Houser received several telephone calls from a person who “sounded like Jackson”, concerning a deal in which Officer Houser was to sell ten pounds of marijuana for $5,000.00. The evidence clearly established that appellant Jackson showed up at the time and place in furtherance of the proposed purchase pursuant to the prearranged telephone instructions. Appellant contends that Rule 803 of the Uniform Rules of Evidence prohibits the admission of the telephone conversations without proper and positive identification of the speakers. A similar issue was addressed in United States v. Biondo, 483 F.2d 635 (8th Cir. 1973), cert. denied, 415 U.S. 947 (1974). In a prosecution for conspiracy to extort money, the victim, Wozniak, on direct examination, testified about two phone calls allegedly received from Biondo, in which Biondo threatened him and arranged for a meeting for a payoff. The defendants claimed that no sufficient foundation was laid for the introduction of the evidence. The Court noted that Biondo’s presence on May 20 at the meeting place and at the time arranged by the caller would certainly constitute circumstantial evidence as to the identity of the caller. Since neither party in the case at bar has provided us with any Arkansas law to the contrary and our research has not revealed any, we adopt as precedent'the holding of Biondo, supra. It is well settled that a telephone conversation is admissible provided the identity of the speaker is satisfactorily established. New York Life Ins. Co. v. Silverstein, 53 F.2d 986 (8th Cir. 1931). Voice,identification is an issue of fact which may be established by both direct and circumstantial evidence. United States v. Turner, 528 F.2d 143 (9th Cir. 1975). We belive an applicatidn of these rules to the facts of this case requires us to affirm bn this point as there was hoth direct and circumstantial evidence presented which created an issue of fact for the trier of fact to resolve. Accordingly, we cannot say that the trial judge’s ruling on the issue of the admissibility of the tapes and transcriptions was an abuse of discretion.
Appellant’s second point for reversal is that the trial court erred in admitting evidence of a prior conviction in the State’s case in chief when appellee’s stated purpose of offering the judgment of conviction was to prove appellant’s predisposition in response to the asserted defense of entrapment. It should be noted that the record reveals that appellee offered this evidence for the stated purpose of absence of mistake, knowledge and intent.
This issue arose out of a prolonged discussion between the trial court and counsel at the end of the State’s case. Defense counsel had previously moved to suppress evidence concerning the search and seizure of a suitcase of marijuana and the discussion of this motion occurred following cross-examination of Officer Wayne Chaney. Appellant’s counsel then interj ected a motion for a directed verdict on the basis of entrapment. At this point the prosecutor proffered evidence of a prior conviction stating that it had not planned to introduce it at that time but in view of appellant’s raising of the entrapment defense, it was necessary to do so. The trial court allowed the admission of the evidence.
In Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978), appellant contended that the trial court erred in permitting the State to present the testimony of Jess Baker, Jr., to the effect that he had purchased controlled substances from appellant on three different occasions. This testimony was offered as a part of the State’s case in chief. The Court found no evidence of entrapment in the State’s evidence and found that under the entrapment statute, this testimony was not proper at that stage of the proceedings. The Court went on to state that the testimony would have been proper in rebuttal to appellant’s testimony relating to entrapment, as it would be relevant to the question of whether the conduct of the undercover officer, and more particularly, his informant, did more than afford appellant an opportunity to make a sale of controlled substances.
Rule 404(b), Uniform Rules of Evidence, provides that evidence of other acts or crimes is not admissible to prove the character of a person or that he is a bad man. They may be admissible, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity or acts absent of mistake or accident. Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982). Furthermore, such evidence is usually admissible in rebuttal to the defense of entrapment. When reviewing the facts of the instant case, it is clear that defense counsel had laid the groundwork for his defense of entrapment through his cross-examination of the State’s witnesses. By his trial tactic of moving for a directed verdict on the basis of entrapment, appellant’s counsel invited the State to proffer the evidence of the prior conviction as evidence of absence of mistake, knowledge and intent on appellant Jackson’s part in this occurrence. In other words, appellant placed it in issue through his motion for a directed verdict. The implication in Spears, supra, is that if evidence of entrapment is produced in the State’s evidence, then evidence of a prior bad act can be properly introduced in rebuttal, regardless of whether the State has rested. We find no error in this ruling of the court.
Appellant’s third point for reversal alleges that the trial court erred in not suppressing evidence based upon an illegal search. The record reflects that following the purchase of marijuana from Officer Houser, appellant Jackson placed the marijuana in a suitcase he had brought with him. He went to his automobile and put the suitcase in the backseat. Before he could sit down in the driver’s seat, he was arrested. The suitcase was removed from the automobile and opened on the spot. Appellant argues that the officers should have first obtained a search warrant before searching the suitcase. We believe this contention is answered by New York v. Belton, 453 U.S. 454 (1981); Chimel v. California, 395 U.S. 752 (1969); United States v. Singer, 687 F.2d 1135 (8th Cir. 1982).
In Belton, supra, an automobile in which appellee Belton was one of the occupants was stopped by a New York State policeman for traveling at an excessive rate of speed. In the process of discovering that none of the occupants owned the car or was related to the owner, the policeman smelled burnt marijuana and saw on the floor of the car an envelope suspected of containing marijuana. He then directed the occupants to get out of the car and arrested them for unlawful possession of marijuana. After searching each, of the occupants, he searched the passenger compartment of the car, found a jacket belonging to appellee Belton, unzipped one of the pockets, and discovered cocaine. Appellee Belton was subsequently indicted for criminal possession of a controlled substance.
The. substance of the Court’s holding was that the search of appellee Belton’s jacket was a search incident to a lawful custodial arrest, and hence did not violate the Fourth and Fourteenth Amendments. The jacket, being located inside the passenger compartment of the car, was within the arrestee’s immediate control within the meaning of Chimel, supra, wherein it was held that a lawful custodial arrest creates a situation j ustifying the contemporaneous warrant-less search of the arrestee and of the immediately surrounding area. The United States Supreme Court held that not only may the police search the passenger compartment of the car in such circumstances, but they may also examine the contents of any containers found in the passenger compartment. Such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. Clearly, Belton is controlling when the facts of this case are considered and we find no merit to this contention.
Finally, appellant argues that the trial court erred in refusing to acquit appellant on grounds of entrapment. The record reflects that at some point in time, Wayne McDonald, a confidential informant working with Officer Houser, informed appellant that Officer Houser, identified by his undercover identity of Ronnie, was selling large quantities of marijuana and would sell appellant some of it. Officer Houser then received two telephone calls from appellant through the telephone used by the narcotics section for undercover operations. The subject brought up by appellant and discussed in each telephone conversation was the purchase of marij uana.
Officer Houser followed those telephone calls with two others he made to appellant concerning the purchase. Officer Houser arrived on time at the agreed rendezvous, a motel room, with some marijuana to “sell” appellant. Appellant arrived with a suitcase and triple beam scale with which to weigh the marijuana. He weighed the marijuana, paid Officer Houser for it, left the room and placed the suitcase in his automobile,
Appellant testified that he would never have participated in these activities but for the urging of Wayne McDonald, the confidential informant working with Officer Houser. Appellant stated that McDonald persuaded him that he, “. . .could get the marijuana and he (McDonald) would get rid of it for me.” During the taped conversations between appellant and Officer Houser, appellant negotiated for a reduced price for the ten pounds of marijuana. Appellant also inquired of Officer Houser if the marijuana was “good brown.” Appellant said further, “Hey man, its exactly how I make my living and I’m always looking for a good connect man. See, you’ll be a good connect Ron” (Officer Houser). Officer Houser testified that after the purchase in the motel room , appellant asked if he could get in touch if he needed more marijuana.
Entrapment is an affirmative defense which must be proved by the defendant by a preponderance of the evidence. Spears, supra. Entrapment occurs when a law enforcement officer or any person acting in cooperation with him, induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Furthermore, conduct merely affording someone an opportunity to commit an offense does not constitute entrapment. Ark. Stat. Ann. § 41-209 (Repl. 1977). Entrapment does not occur when government agents merely afford one the opportunity to do that which he already has a predisposition to do. See, Sherman v. United States, 356 U.S. 369 (1958); Harper, supra; Rhoades and Emmerling v. State, 270 Ark. 962, 607 S.W.2d 76 (Ark. App. 1980), cert. denied, 452 U.S. 915 (1981).
Accordingly, we hold that the trial court’s determination that appellant had failed to meet his burden of proof in establishing entrapment by a preponderance of the evidence was not in error.
Affirmed.
Cooper and Mayfield, JJ., concur, | [
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Donald L. Corbin, Judge.
This is a workers’ compensation case involving a claim for benefits arising out of an apparent unprovoked attack by an unknown assailant upon appellee, Dorothy L. Huntley, who was on an overnight business trip. The Arkansas Workers’ Compensation Commission allowed benefits and appellant, Arkansas Department of Health, appeals that decision. We affirm.
Appellee was employed by appellant as an emergency medical services specialist. Pursuant to the requirements of her employment, appellee left Little Rock on Monday, October 18, 1983, en route to Harrison, Arkansas, to inspect ambulances belonging to the Boone County Hospital. She completed her inspection around 4:30 or 5:00 p.m. and checked into the Holiday Inn in Harrison. Her travel itinerary called for her to be in Yellville, Arkansas, the following day which necessitated her spending the night away from home. Appellee testified that she went to her room, watched television for an hour, and went to sleep for two or three hours. At approximately 8:30 or 9:00 p.m., appellee left her room and went to the bar located in the Holiday Inn for the purpose of seeing and talking to a friend of hers who previously had run the restaurant and bar. Upon learning that her friend no longer worked there, appellee sat down at the bar and had a drink, played a few games of Pac Man', and then accepted an invitation to have a drink with a couple of traveling salesmen. Appellee testified that she was in the bar for approximately an hour.
After declining an invitation to have dinner with the two traveling salesmen, appellee left the bar to go back to her room at approximately 9:30 p.m., some five hours after she had completed her work for appellant for that day. Appellee testified that while she was en route to her room, a drunk came up behind her and grabbed her and a scuffle ensued during the course of which she fell to the ground and injured her lip and mouth. She stated that she went on to her room, passed out in the bathroom, and when she came to and saw how bad her lip was, went to the emergency room at Boone County Hospital at approximately 2:00 to 2:15 a.m. After receiving treatment at the hospital, she went back to her room, got her things and returned to Little Rock.
A claim was filed with appellant which was controverted. On January 25, 1983, a hearing was held at which appellee contended her injuries arose out of and in the course of her employment in that she claimed to have been on business for appellant at the time she was assaulted leaving the bar. Appellee contended that the assault and her injuries would not have happened but for her employment requiring her to travel to Harrison. Appellants flatly rejected this contention and contended on the other hand that appellee’s injury simply did not arise out of and in the course of her employment. Appellant very candidly admits the necessity of overnight accommodation because of the trip, employment, the assault and the injuries but does dispute appellee’s contention that “but for” her employment she would not have been assaulted and sustained injuries. On the other hand, appellee candidly admitted that her excursion to the hotel’s bar was personal to her and for the purpose of personal recreation and pleasure.
The Administrative Law Judge held that appellee’s injuries arose out of her employment and awarded benefits. In a two-to-one decision, the Commission affirmed the ALJ and adopted her decision as the decision of the Commission.
The ALJ found two overlapping bases for recovery consisting of the traveling employee and the positional risk doctrines. In so finding, the ALJ relied upon a prior Commission decision which was not appealed to this Court. This decision apparently adopted the traveling employee doctrine which is found in 1A Larson, The Law of Workmen’s Compensation, § 25.00 (1982). The ALJ quoted extensively from 1 Larson, The Law of Workmen’s Compensation, § 10.00 (1984). This section provides that positional risks may also be compensable. In affirming the decision of the ALJ, the Commission stated as follows: “From our de novo review of the record on appeal, deferring to the Administrative Law Judge’s assessment of the claimant’s credibility, we think the decision of the Administrative Law Judge is supported by a preponderance of the evidence, correctly applies the law and should be affirmed.” We believe there is substantial evidence to affirm this case on the basis of the traveling employee doctrine without considering the positional risk doctrine.
In his treatise regarding traveling employees in the course of employment, Professor Larson states as follows:
Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdiction to be within the course of their employment continuously during the trip, except when a distinct department [sic] on a personal errand is shown. Thus, inj uries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.
1A Larson, The Law of Workmen’s Compensation, § 25.00 (1982). Professor Larson further states that personal acts performed while away from home, including eating meals in restaurants, are generally compensable unless a “personal social motive was the occasion for an excursion which would otherwise be in the course of employment.” Id. § 25.21.
Arkansas has adopted the traveling salesman doctrine as evidenced by the following cases: Wilson v. United Auto Workers, 246 Ark. 1158, 441 S.W.2d 475 (1969); Fine Nest Trailer Colony v. Reep., 235 Ark. 411, 360 S.W.2d 189 (1962); Johnson Auto Co. v. Kelley, 228 Ark. 364, 307 S.W.2d 867 (1957); Frank Lyon Company v. Oates, 225 Ark. 682, 284 S.W.2d 637 (1955). These cases dealt with the ultimate issue of whether the injury arose out of and in the course of the employment.
We believe the controlling law in determining whether or not appellee’s injury arose out of and in the course of her employment is found in J & G Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ark. App. 1980). That case involved an injury which occurred during the claimant’s lunch hour and the issue on appeal was whether his injury could properly be found to have arisen out of and in the course of the employment. In affirming the Commission’s award of benefits, this Court stated as follows:
Activities of a personal nature, not forbidden but reasonably to be expected, may be a material incident of the employment and injuries suffered in the course of such activities are compensable. The fact that the injury is suffered during a lunch break, when the employee is not required to be on the premises, does not alter this principle. The controlling issue is whether the activity is reasonably expectable so as to be an incident of the employment, and thus in essence a part of it. Maheaux v. Cove-Craft, Inc., 103 N.H. 71, 164 A.2d 574 (1960).
A claimant before the Workers’ Compensation Commission must prove that the injury sustained was the result of an accident arising out of and in the course of employment. The phrase ‘arising out of the employment’ refers to the origin or cause of the accident and the phrase ‘in the course of the employment’ refers to the time, place, and circumstances under which the inj ury occurred. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570. In order for an inj ury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks.
The Court in J & G Cabinets, supra, found substantial evidence to support the Commission’s finding that the employee’s injury arose out of his employment since the injury resulted from a risk to which the employee’s employment exposed him. It also determined that the injury occurred in the course of the employee’s employment. We believe this case accurately states the law in regard to whether an employee’s injury arises out of and in the course of the employment. Recent decisions of this Court relying upon J ir G Cabinets, supra, include: Adkins v. Teledyne Exploration Co., 8 Ark. App. 342, 652 S.W.2d 55 (1983); Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841 (1983); Owens v. Nat’l Health Laboratories, Inc., 8 Ark. App. 92, 648 S.W.2d 829 (1983).
The record reflects that appellee was on a trip for her employer and this business trip required her to secure overnight lodging at a motel. She had performed her work activities during normal working hours and had checked into the motel as a prelude to her continuation of employment activities the following day. We believe áppellee’s utilization of the facilities offered by the motel to all of its patrons was a natural and probable consequence or incident of her stay in the motel. As noted by the Administrative Law Judge, appellee was assaulted by an unknown person in a passageway during her return to her motel room and she had clearly regained her traveling employee status at this point. Therefore, appellee’s activities, when examined within the context oiJ&G Cabinets, supra, were a natural and probable consequence or incident of her employment and we agree with the Commission’s determination that her injury arose out of and in the course of her employment.
Affirmed.
Cloninger, J., agrees.
Mayfield, J., concurs. | [
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Donald L. Corbin, Judge.
This action was brought, by appellee, James L. Fudge, against appellant, Arkansas Blue Cross and Blue Shield, Inc., for the cost of a tonsillectomy performed on appellee. Appellant refused payment on the premise that the hospitalization and surgery were caused by a condition which preexisted the effective date of coverage to appellee under a group health insurance policy issued by appellant. The trial court sitting as a fact finder awarded judgment to appellee against appellant for the sum of $766.04. We reverse and dismiss.
On July 1, 1981, James Fudge obtained coverage under a Farm Bureau group insurance contract underwritten by appellant Arkansas Blue Cross and Blue Shield, Inc. The policy contained the following exclusionary langugae:
Article VI. Benefits and Services Not Included:
A. Treatment of conditions or diseases existing prior to the effective date of the subscriber’s contract until such contract has been continuously in effect for a period of at least twelve (12) consecutive months. This exclusion includes, but is not limited to, all conditions or diseases which may become aggravated or acute after the effective date of this contract or endorsement.
B. A “condition or disease” which existed prior to the effective date of the subscriber’s contract is one which caused symptoms or other manifestations prior to such effective date in such a manner as would cause an ordinarily prudent person to seek diagnosis, care or treatment.
On February 24, 1982, appellee was admitted to Baxter General Hospital where he- underwent a tonsillectomy. Appellee’s treating physician was Dr. Maxwell Cheney and his history and physical report stated in part:
This is a 29-year-old white male with known chronic hypertrophic tonsillitis for many years, known upper respiratory allergy with severe nasal suction and difficulty for several years. He has had increasing complaints of recurrent sore throat and inability to feel well or gain weight and generally feel energetic. He has finally decided to have his chronically enlarged tonsils removed, largely because of choking and recurrent sore throat.
Dr. Cheney’s discharge summary stated as follows:
This patient is a known severe allergy patient and has had chronic tonsillitis three or four times per year, most of his life. The patient has been told in the past that tonsillectomy was contradicted [contraindicated] in an allergic patient, however, this was many years ago. The patient has taken Ampicillin at least two weeks out of every month for the past year.
Appellant contends for reversal that the trial court’s ruling that appellant had not sufficiently established the existence of a preexisting condition is against the preponderance of the evidence and clearly erroneous. It is well settled that findings of fact by a trial judge will not be set aside by this Court unless clearly erroneous (clearly against the preponderance of the evidence). A.R.C.P. Rule 52(a); Henson v. Money, 1 Ark. App. 97, 613 S.W.2d 123 (1981).
We believe the decision of the Arkansas Supreme Court in Lincoln Income Life v. Milton, 242 Ark. 124, 412 S.W.2d 291 (1967), is dispositive of this case. There, the plaintiff-insured was hospitalized in November, 1965, after issuance of a policy in July, 1965. Her complaint was that she felt bad. Her physician testified that her last menstrual period was September, 1964, and tests performed during her hospitalization revealed that her thyroid gland was underactive, producing insufficient hormones to regulate bodily functions, including menstruation. The trial judge entered judgment for the plaintiff-insured, finding that she did not know the cause of her physical disorder when she applied for the policy. The Supreme Court reversed, stating:
We can find no reasonable basis for declaring that the appellee’s hospital expense was attributable to a sickness or disease which, in the language of the policy, first commenced or became evident after the effective date of the policy. . . . There is no evidence that the condition had worsened or had for the first time become subject to diagnosis. It is true, as the trial judge observed, that the insured did not know when she applied for the policy that her trouble was attributable to an underactive thyroid gland. It is clear, however, that such an underactivity did exist and that it led to the hospital expenses now in issue. That Mrs. Milton did not know the medical explanation for her condition when she applied for the policy is not a reason for holding that the condition first commenced or became evident after the effective date of the contract.
Milton, supra, is in accord with State National Life Ins. Co. v. Stamper, 228 Ark. 1128, 312 S.W.2d 441 (1985), wherein the Supreme Court stated that:
. . . [T]he weight of authority is that the sickness should be deemed to have had its inception at the time it first manifested itself or became active, or when sufficient symptoms existed to allow a reasonably accurate diagnosis of the case . . .
The date of diagnosis of the condition is not dispositive. As Justice Fogleman observed in his concurring opinion in Old Equity Life Ins. Co. v. Crumby, 241 Ark. 982, 411 S.W.2d 292 (1967):
Our decisions have turned on the active manifestation of the condition and not on the ability to diagnose.
. Based upon the admitting and discharge reports of Dr. Cheney and the testimony at trial of Dr. Cheney and appellee, it is clear that appellee sought and received treatment for a condition which had long preexisted his insurance coverage. Taking the evidence as a whole, appellee clearly had not only a condition which manifested symptoms prior to the effective date of his insurance contract, but he also sought and received treatment for an extended period of time for this condition prior to the effective contract date of the contract. The fact that the condition was not allegedly diagnosed as requiring surgery until appellee was admitted to the hospital by his doctor for surgery on February 24, 1982, is immaterial. Dr. Cheney testified that appellee had experienced chronic tonsillitis for many years prior to his hospitalization. He also stated that his examination established that the condition had “absolutely” existed for some time. The term “chronic” is defined as “of long duration; denoting a disease of slow progress and long continuance.” Stedman’s Medical Dictionary 278 (23d ed. 1976). The record reflects that appellee received treatment in the form of antibiotics prescribed over the telephone by Dr. Cheney for at least one year before his surgery. Appellee was not seen by Dr. Cheney in his office until the week preceding his surgery. In view of appellee’s history of recurring sore throats, we believe a reasonable and prudent person, as defined in Article VI (B) of the contract of insurance, would have sought a direct medical examination of his condition. This was not done in the instant case. Accordingly, we hold that appellee’s condition preexisted the effective date of coverage and the trial court was clearly erroneous in awarding judgment to appellee.
Reversed and dismissed.
Mayfield, C.J., and Cooper, J., dissent. | [
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Per Curiam.
On May 20, 1981, we delivered a per curiam opinion denying the appellant’s motion for a rule on the clerk and cited LaRue v.LaRue, 268 Ark. 86, 593 S.W. 2d 185 (1980). The motion was denied because we thought the motion assumed that Rule 4 of the Rules of Appellate Procedure applied and that the notice of appeal was tendered one day late.
A petition for rehearing has been filed saying that this is an appeal from the Workers’ Compensation Commission and that Acts 252 and 253 of 1979 provide that appeals may be taken from the Commission by filing a notice of appeal “within thirty (30) days from the date of the receipt of the order or award of the Commission.”
The petition for rehearing states that the opinion of the Commission was filed in this case on February 23, 1981, and mailed to claimant’s attorney, who at that time was a resident of Warren, Arkansas. No response has been filed to the petition for rehearing and we have examined the record tendered and these allegations appeared to be correct. Assuming that the decision was mailed on February 23, 1981, it could not have been received before February 24, and under Rule 6 (a) of the Rules of Civil Procedure we start counting with the next day, February 25, and the thirtieth day is March 26, 1981, which is the day the notice of appeal was filed.
The petition for rehearing is, therefore, granted and the clerk is ordered to file and docket the record tendered. | [
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Donald. L. Corbin, Judge.
Claimant, Graham Dobbins, appeals the decision of the Board of Review of the Employment Security Division denying him unemployment benefits. The Board of Review found that Mr. Dobbins was given the option of voluntarily resigning or being discharged. The Board of Review affirmed the agency determination which denied the claimant benefits under provisions of Section 5(a) of the Arkansas Employment Security Law, finding claimant voluntarily quit his last work for personal reasons.
The issue before this Court is whether there is substantial evidence to support the Board’s finding that claimant voluntarily, and without good cause connected with the work, left his last work. We find no substantial evidence to support the determination of the Board of Review and reverse.
Claimant was employed as an Assistant Vice President and Loan Officer for First National Bank of Little Rock for a period of ten years ending August 27, 1980.
On May 12, 1980, claimant was transferred from the loan department to First National Mortgage Company, a subsidiary of First National Bank. He was assigned to a project that was to last approximately 90 days. It was the claimant’s understanding that he would be transferred back to the loan department after the 90 days.
On August 26, claimant was informed by a Senior Vice President for First National Bank that he was being terminated because of a work slow-down in the loan department. At that time, claimant inquired about other positions and he was told there were none. At this meeting on August 26, claimant was also shown two memos written by the President of First National Mortgage Company which indicated that he had had some problems with claimant’s work during the 90-day project. Claimant described this as a misunderstanding and a “personality clash.”
The Personnel Manager of First National Bank testified at the hearing that managers at First National Bank are usually given the opportunity to resign rather than be terminated. At the August 26 meeting, claimant chose to resign. He submitted his resignation letter which became effective on August 27th. At the hearing, the Personnel Manager testified that she could not say whether or not the claimant would have been terminated because of a work slow-down or because of his “personality clash” but she did testify that he would have been terminated.
As is the usual practice with First National Bank, claimant was given severance pay for one month which totaled $ 1,550. He was also paid for two weeks vacation time which he had accumulated. The claimant’s total compensation was $2,417.33.
We quote with approval from the case of In the Matter of Werner, 44 N.C. App. 723, 263 S.E. 2d 4 (1980):
Perceiving that well-intentioned employers may prefer to allow the unsuitable employee the dignity of resignation, we believe that there are strong public policy reasons for not discouraging employers from exercising this option. Employees who resign under such circumstances become unemployed “through no fault of their own.” We therefore hold that such employees who quit or resign employment because they are asked by their employer to leave do not leave “voluntarily” within the meaning of G.S. 96-14(1). In this case, the employer’s recommendation to resign, coupled with the clear implication that the employee would be discharged if she failed to offer her resignation, constituted an involuntary separation.
See also, Anchor Motor Freight, Inc. v. Appeal Board, 325 A. 2d 374 (Super. Ct. Del. 1974).
In the instant case, the claimant took the less severe, embarrassing and traumatic option of resignation rather than discharge. The resignation was induced under the pressure of the employer and was tantamount to a discharge and was not one that was voluntarily made within the disqualifying language of Section 5(a) of the Employment Security Act.
We reverse and remand to the Employment Security Division for the awarding of benefits less any offset pursuant to Section 5(f)(1).
Reversed and remanded.
Cooper, J., not participating. | [
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Tom Glaze, Judge.
This appeal is the result of a feud between next door neighbors. Appellants and appellee filed actions against one another in the Conway County Chancery Court, each alleging the maintenance of a nuisance and requesting injunctive relief. The trial court dismissed appellants’ claim but granted relief to appellee, enjoining appellants from harassing appellee by calling the Morrilton City Police Department. Appellants contend on appeal the evidence was sufficient to support their request to enjoin certain acts committed by the appellee, and they also argue the chancellor erred in restraining the personal conduct of appellants.
Arkansas case law adopts the general rule that before a court of equity will enjoin either a public or private nuisance there must be some actual or threatened interference to property or rights of a pecuniary nature as distinguished from personal rights. Smith v. Hamm, 207 Ark. 507, 181 S.W. 2d 475 (1944). The court in Smith held further that although equity will not intervene by injunction to restrain acts that are merely criminal, this does not preclude injunctive relief against the commission of criminal acts which cause irreparable injury to the complainant’s property or pecuniary rights.
In the instant case, the parties’ allegations and evidence largely center on the other’s personal conduct, which they contend amounts to a nuisance. However, neither appellants nor appellee alleged or showed that the conduct and acts of which they complained affected their respective property or pecuniary rights.
In Webber v. Gray, 228 Ark. 289, 307 S.W. 2d 80 (1957), our Supreme Court took a more relaxed view of the rule noted in Smith v. Hamm, supra, that equity has no jurisdiction to protect personal rights where no property rights are involved. In doing so, the court in Webber adopted the Massachusetts rule announced in Kenyon v. City of Chicopee, 320 Mass. 528, 70 N.E. 2d 241 (1946), and stated as follows:
“We believe the true rule to be that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction. In general, these conditions are, that unless relief is granted a substantial right of the plaintiff will be impaired to a material degree; that the remedy at law is inadequate; and that the injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute.” [Emphasis supplied.]
In applying the foregoing rule, the court determined that Gray had no remedy at law because the actions directed by Webber against Gray were not criminal even though Gray had been subject to almost incessant harassment by Webber over a period of years. Under these extraordinary circumstances, the court upheld an order enjoining Webber from committing certain acts of molestation against Gray.
When we apply the rule enunciated in Webber to the facts presented in the record before us, we have no problem in deciding that neither the appellants nor appellee were entitled to injunctive relief. As noted earlier, the parties failed to show that the conduct of which they complained in any way affected property or pecuniary rights. Moreover, the conduct and acts complained of by both appellants and appellee involve violations of criminal statutes, and they do have a remedy at law.
We first consider the action» brought by appellants. The trial court correctly dismissed appellants’ action not only because they have an adequate remedy at law, but they also failed to prove the allegations contained in their complaint. It was the burden of appellants to show through clear evidence that the conduct which took place on appellee’s property was a nuisance. See Green v. Smith, 231 Ark. 94, 328 S.W. 2d 357 (1959). Appellants offered testimony to the effect that loud noises, drinking, fighting and obscenitites had occurred on appellee’s property at all hours of the day and night. This testimony was contradicted by appellee and by testimony given by witnesses for appellee, including two neighbors who depicted her as a good neighbor. These neighbors denied that appellee had done any of the acts attributed to her by appellants. The chancellor dismissed appellants’ action after considering testimony which was in great conflict. We must give due regard to the opportunity of the trial court to judge the credibility of the witnesses, and the findings of the chancellor will not be reversed unless clearly against a preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure and Andres v. Andres, 1 Ark. App. 75, 613 S.W. 2d 404 (1981).
Next, the appellee brought her action alleging that appellants harassed her by using loud and profane language, using obscene gestures, causing a fight, parading in front of their windows without adequate clothes and making frivolous calls to the police. On conflicting testimony, the trial court granted appellee a limited order which enjoined appellants from harassing the appellee by calling the police to her residence. We have little doubt that the chancellor was correct in his analysis that some of the calls made to law enforcement officials by appellants were intended to harass and seriously annoy the appellee. We are also convinced that appellee is afforded a remedy at law since this type conduct is covered by our Arkansas Criminal Code. See Ark. Stat. Ann. § 41-2909 (1) (e) (Repl. 1977).
If appellants continue to pursue the telephone calls which the chancellor felt compelled to restrain, appellee may initiate a criminal action against appellants. The court in the Webber case held that chancery court was without power to restrain a party from filing a law suit for damages. We also believe that, under circumstances like those before us, chancery court cannot enjoin a party from calling the police or other law enforcement agency. To hold otherwise may cause some rather disastrous, even horrifying, results. If appellants abuse their personal rights on this issue, the criminal court can certainly make that decision.
In conclusion, we note that the trial court did not, and correctly so, attempt to restrain any of the other personal misconduct of the parties. Again, no property or pecuniary rights were shown to be affected. Suffice it to say that a review of the allegations made by the parties against one another are similar, e.g., fighting, profanity, public drinking, and other acts of public disturbance. The Arkansas Criminal Code contains numerous provisions which punish this type conduct, and these matters may be laid to rest between the parties by their initiating appropriate criminal proceedings.
We affirm the trial court’s decision dismissing appellants’ complaint, but we reverse its decision regarding appellee’s action. We direct that appellee’s complaint also be dismissed.
Affirmed in part and reversed and remanded in part.
Mayfield, C.J., not participating.
41-2909. Harassment. — (1) A person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, he:
(e) engages in conduct or repeatedly commits acts that alarm or seriously annoy another person and that serve no legitimate purpose. | [
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Tom Glaze, Judge.
This Workers’ Compensation case involves one primary issue: whether the claimant’s injury was substantially occasioned by her wilful intention to bring about the injury of another as contemplated under Ark. Stat. Ann. § 81-1305 (Repl. 1976). The relevant provisions of § 81-1305 provide:
... there shall be no liability for compensation under this Act ... where the injury or death from injury was substantially occasioned by ... wilful intention of the injured employee to bring about the injury or death of himself or another.
The Commission upheld the Administrative Law Judge’s decision that the claimant’s actions were not a bar to compensation benefits under § 81-1305. The Commission relied in part on certain legal principles enunciated in Johnson v. Safreed, 224 Ark. 397, 273 S.W. 2d 545 (1954). Appellant argues the Commission misconstrued the Safreed case, and that it incorrectly applied the rules adopted in Safreed. Moreover, appellant contends that if the Commission applied the correct law as provided in § 81-1305, as amended, and as required by the decision in Safreed, the evidence presented to the Commission would warrant a holding to deny benefits to claimant.
When the court rendered its decision in Safreed, § 81-1305 read that the injury in question must be “solely” occasioned by the wilful intent of the employee to injure himself or another. In 1976, the General Assembly amended the Act and substituted the word “substantially” for solely. Although we discuss the facts at bar in more detail later, we do not agree with appellant’s argument that the evidence reflects that the injuries incurred by claimant were substantially occasioned by her attempt to inflict injury on a male customer leaving appellant’s store. Nor can we accept appellant’s contention that the legal principles enunciated in Safreed would bar the type conduct manifested by claimant in the case at hand. As noted by appellant, the court in Safreed stated:
Of course, where the aggression of the claimant is so violent as to come within the express legislative exceptions of wilful misconduct or wilful intent to injure, he may not recover even though the assault arises out of the employment.
However, in the same paragraph in which the statement above appears, the court continued as follows:
The applicable rule is stated in Larson’s Workmen’s Compensation Law, § 11.15(d), as follows: “The words ‘wilful intent to injure’ obviously contemplate behavior of greater gravity and culpability than the sort of thing that has sometimes qualified as aggression. Profanity, scuffling, shoving or other physical force not designated to inflict real injury do not seem to satisfy this stern designation. Moreover ... the adjective ‘wilful’ rules out acts which are instinctive or impulsive, so that even violent blows might fail to give rise to this defense if they were spontaneous and unpremeditated." [Emphasis supplied.]
Applying the provisions of § 81-1305, as amended, and the foregoing rule adopted in Safreed, the Commission found the acts of claimant essentially spontaneous and held her injury compensable. On review, we must now view the evidence in the light most favorable to the Commission’s decision and uphold that decision if supported by substantial evidence. Office of Emergency Services v. Home Insurance Company, 2 Ark. App. 185, 618 S.W. 2d 573 (1981).
The claimant testified two male customers came to her check stand, and one of the men claimed he got glass in his foot. When she told him to check with store management, he said that he did not have to check with anybody, she was standing right there and that “he was going to sue some damn body ...” The claimant asked the man if there was anything else he wanted and he said, “cigarettes.” She explained that the man complained about the kind (brand) of cigarettes given him and during this exchange and her returning his change for payment of groceries, he called her a vulgar name. She then refused to wait on him and stepped to the end of the counter where he pushed her and caused her to fall into the baskets. A fight ensued between the claimant and the two men and she related one man heíd her while the other hit her in the stomach. She stated that she grabbed one man’s hair and held on to him.
Although the two men involved in the fight did not testify, four employees of appellant did. Three of these employees admitted they had not seen the events preceding the altercation but did see the ensuing fight. One of the employees did see her hit a man “as he was reaching for her,” and claimant was positioned at the end of her check stand. A second employee heard claimant accuse one of the men of hitting her and another overheard one of the men state he “was going to bust her skull.” None of these employees recalled the men striking claimant nor seeing her fall into the baskets. There was a variance in the testimony of the four employees when each related where claimant was positioned in the store when she physically encountered the two men. Testimony of one employee is consistent in this respect with that of claimant’s while the testimony of the other three employees is in complete conflict with the account given by the claimant.
Where the evidence before the Commission is conflicting, it is within the province of the Commission to weigh the evidence and draw any appropriate inferences therefrom. Hammer v. Intermed Northwest, 270 Ark. 262, 603 S.W. 2d 913 (Ark. App. 1980). The Commission found that the dispute arose between the claimant and the two men over the sale of some cigarettes and that the evidence taken as a whole reflects that the acts involved in the altercation were spontaneous. We believe these findings and inferences were, indeed, appropriate, and we, therefore, affirm the Commission’s holding.
Aside from the evidence mentioned above and which we believe substantially supports the Commission’s holding, we also note that it may have considered the fact that the two men involved in the fight failed to testify. The Administrative Law Judge had concluded that the Commission was entitled to presume that the testimony of these witnesses would have been negative to the appellant, and he cited the case of Brower Manufacturing Company v. Willis, 252 Ark. 755, 480 S.W. 2d 950 (1972). Since we conclude there is sufficient evidence to otherwise support the Commission’s decision, any significance given the two men’s absence is of no import. Suffice it to say, we do not agree that the facts at bar warrant the application of the rule in Brower and as relied on by the Administrative Law Judge.
Affirmed.
Corbin, J., dissents. | [
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Melvin Mayfield, Chief Judge.
During the summer of 1979, the appellant, an architectural student at the University of Arkansas, was employed by the architectural-engineering firm of Blass, Riddick and Chilcote. While playing softball for a team sponsored by the firm, appellant broke his leg. He filed a claim for workers’ compensation which was denied, by a two to one decision of the commission, on the grounds that his injury did not arise out of and in the course of his employment.
Apparently, this is the first company-sponsored team injury claim to be considered by an appellate court in Arkansas and the matter has been ably presented by the briefs of both parties. The parties and the commission have devoted considerable attention to 1A Larson, Workmen’s Compensation Law § 22.24 (1979), where it is said that four categories of tests have figured in company-sponsored team cases. Those tests as summarized in the commission’s opinion are as follows:
(1) Whether the activities occur on the premises during working hours;
(2) The degree of employer initiative;
(3) The furnishing of money or equipment by the employer;
(4) The benefit to the employer from the activity.
The commission found that the injury involved in this case occurred during a game played after office hours at a local park — not on the employer’s premises — and concluded that neither factor mentioned in the first test was present. As to the second consideration, the degree of employer initiative, the commission found that the test had been met. The finding of the commission with regard to the third indicator was “Blass, Riddick & Chilcote supplied jerseys, equipment and trophies and sponsored a picnic after the last game.” The finding of the commission concerning the fourth category was “Eugene Chilcote testified that there were some advertising benefits derived but the main purpose of the team was employee fellowship.” The commission’s conclusion was:
Taking into consideration the Arkansas Supreme Court holdings regarding recreational activity claims and in reviewing Larson’s considerations of this question, we are of the opinion that the within claim should be denied and dismissed.
The appellant contends that the evidence here preponderates on the side of compensation as to each of the four tests proposed by Larson and that it is so strong as to the second and third tests that a finding of compensability is required without consideration of the other two.
The problem with appellant’s contention is that these tests suggested by Larson are only factors involved in making the factual determination of whether the injury arose out of and in the course of employment. The commission has not, as suggested by appellant, failed to apply the applicable law to its own findings of fact. Larson’s tests are not “law.” He is simply presenting an overall view of the results reached in reported cases with this type claim.
As the commission pointed out, injuries received during recreational activities have been considered by the Arkansas Supreme Court before. Larson, in earlier editions, has been cited by the court in Woodmansee v. Frank Lyon Co., 223 Ark. 222, 265 S.W. 2d 521 (1954), where a high-ranking employee of the company was injured while on a duck hunt with some company salesmen. Woodmansee was discussed in West Tree Service v. Hopper, 244 Ark. 348, 425 S.W. 2d 300 (1968), where an employee sustained an injury on the employer’s premises, during the lunch hour, when firing a rifle belonging to his foreman. Larson and Wood-mansee were both discussed in Wilson v. United Auto Workers, 246 Ark. 1158, 441 S.W. 2d 475 (1969), where the employee died while swimming in the pool at a motel where he was required to stay while on his job.
In each of those cases ..the imprente Court held that a factual determination was involved and affirmed the commission’s decision. The case at bar presents a close question and the evidence is certainly sufficient to support a finding for the appellant, but the commission has found otherwise.
As we said in Continental Ins. Co. v. Richard, Adm’x., 268 Ark. 671, 596 S.W. 2d 332 (Ark. App. 1980):
The issue on appeal is not whether this court would have reached the s.ame results as the Commission on this record, or whether the testimony would have supported a finding contrary to the one made; the question here is whether the evidence supports the findings which the Commission made. Herman Wilson [Lumber] Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968). When the Commission makes a finding of fact, that finding carries the weight of a jury conclusion. Taylor v. Plastics Research and Development Corp., 245 Ark. 638, 433 S.W. 2d 830 (1968). The decision of the Commission must stand if supported by substantial evidence. American Can Co. v. McConnell, 266 Ark. 741, 587 S.W. 2d 583 (Ark. App. 1979).
The decision of the commission is affirmed.
Glaze, J., not participating. | [
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George K. Cracraft, Judge.
Appellant Myrna Wallis, an employee of appellee, Whirlpool Corporation, sustained injuries to both wrists on February 9, 1981. Appellant initially filed an application for benefits under her employer’s group health insurance plan, contending that the injuries resulted from a non-job-related fall at home. She maintained that the injuries were non-job-related until about August 19, 1981, at which time she filed for workers’ compensation benefits. Appellee controverted the claim in its entirety and raised the defense of lack of notice as required by Ark. Stat. Ann. § 81-1317 (Supp. 1983).
The administrative law judge held that the injuries to appellant’s wrists had been sustained out of and in the course of her employment with appellee, and that appellee had not been prejudiced by the untimely filing of the claim. However, the law j udge held that appellant was disqualified from receiving benefits because she failed to comply with the timely notice requirements and that no satisfactory reason had been shown by appellant to excuse her from compliance. The full Commission affirmed.
Appellant’s first point for reversal is that the Commission erred in its interpretation of Ark. Stat. Ann. § 81-1317, which provides as follows:
(a) Notice of injury or death for which compensation is payable shall be given within sixty (60) days after the date of such injury or death to the employer, or written notice to the Commission which shall notify the employer immediately.
(b) Failure to give such notice shall not bar any claim (1) if the employer had knowledge of the injury or death, (2) if the employee had no knowledge that the condition or disease arose out of and in the course of employment, or (3) if the Commission excuses such failure on the grounds that for some satisfactory reason such notice could not be given. Objection to failure to give notice must be made at or before the first hearing on the claim.
The Commission found that appellant had not brought herself within the limits of any of the statutory exceptions which excuse a claimant from the responsibility to give notice of injury within sixty days. There was no allegation, and the evidence does not support any finding, that the employer had knowledge of the injury; in fact, the employer was notified that the injury was non-job-related. There is evidence that appellant had knowledge, or belief, that her condition arose out of and in the course of her employment. She testified that she had believed since February 1981 that her inj ury arose ou t of her employment, but was afraid to tell her employer because she had been harassed about a previous claim for workers’ compensation benefits. The third statutory exception gives the Commission discretion to excuse failure to give notice on grounds that for some satisfactory reason such notice could not be given. It was the Commmission’s conclusion that appellant gave no satisfactory reason why the notice could not be given.
The court has held that it must review the evidence in the light most favorable to the Commission’s decision. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983). The Commission’s findings will be upheld if there is any substantial evidence to support their action. Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980). It is our opinion that there is substantial evidence to support the Commission’s finding that the appellant’s reason for not providing notice did not come within any of the three statutory exceptions.
It is true that there is evidence that the employer in this case was not prejudiced by appellant’s failure to make a timely report of her injury. However, § 81-1317, supra, was amended by the legislature in 1979 to remove that part of the section which provided that failure to give a timely notice would not bar a claim if the Commission determined that the employer had not been prejudiced by the failure.
Appellant next contends that the Commission erred in ignoring her argument that her failure to give the notice should be excused under the provision of § 81-1343 (Repl. 1976) which enumerates the powers and duties of the Commission, including the power to “excuse failure to give notice either of injury or death of any employee.” She argues that this section enlarges the provisions of Ark. Stat. Ann. § 81-1317 (Supp. 1983) and gives the Commission full discretionary power to excuse the failure for reasons other than the three enumerated in the earlier section. Appellee concedes in its brief that § 81-1343 does have that effect but contends that the Commission did not ignore this section.
We need not determine what effect § 81-1343 has upon the provisions of § 81-1317. Even assuming that the section does have that effect, we agree with appellee that on the evidence we find no basis for the exercise of that power. It is clear to us that the Commission fully considered appellant’s excuse for failing to give notice and found it insufficient. In its opinion the Commission stated:
We have carefully examined the three bases set out in subsection (b) of the statute for excusing failure to give notice, and we find none of them applicable to this case. . .Ark. Stat. Ann. §81-1317 is plain and unambiguous as applied to the facts in this case. In such a, situation we cannot distort the obvious and intendment of the statute by applying the well known and laudable principles of liberal statutory construction operative in workers’ compensation law. [Emphasis supplied]
The opinion of the administrative law judge adopted by the Commission contained the following finding and conclusion:
The only evidence presented to explain why proper notice of the injury was not given, was the claimant’s own testimony that she intentionally concealed the fact that her wrist condition may have been related to her employment activities until August of 1981 for fear of harassment by her employer. In light of the evidence presented in this case it is my opinion that this has not been sufficiently established to be a. satisfactory reason as to why such notice ‘could’ not be given. [Emphasis supplied]
We find no error and affirm.
Cooper, Cloningér and Glaze, JJ., dissent. | [
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Melvin Mayfield, Judge.
Prior to January 11, 1982, appellees, Couch, Bates and Dickey, who were employed by appellant, Reynolds Metal Company, had been informed that they were among a group of employees who would be affected by a reduction in force. Pursuant to a union contract with Reynolds these appellees had the option of “bumping” less senior employees but chose not to exercise that option and, therefore, ceased work on the above date.
On June 29, 1982, the Arkansas Board of Review affirmed the decision of the Appeal Tribunal holding that appellees were entitled to unemployment benefits. That decision was appealed to this court and we remanded the matter to the Board of Review. Reynolds Metals Co. v. Couch, 8 Ark. App. 37, 648 S.W.2d 497 (1983). It was our holding that whether appellees voluntarily quit work without good cause connected with the work depended upon whether they had failed to accept available, suitable work as defined and explained in Ark. Stat. Ann. §81-1106 (c) (Repl. 1976). Our opinion concluded:
In Terry v. Director, supra, there was no evidence in the record as to whether the offered work was still available after claimant had been given a reasonable length of time to find other work. Here, the record contains evidence that the three positions available to claimants were still available on the date of the Appeal Tribunal hearing, March 18, 1982, approximately 10 weeks after claimants were informed that they would be losing their positions. If the Board of Review finds that the offered work was unsuitable at the time offered, it must then decide whether a reasonable time passed so as to make the work offered claimants in this case suitable. (Citations omitted.)
On remand, the Board of Review held that the work offered appellees when they ceased working on January 11, 1982, was not suitable and was not suitable through the date of the Appeal Tribunal hearing on March 18,1982. The Board noted that it could make findings only “up until that date.”
Reynolds has appealed from the Board’s decision and its sole point is that it “is entitled to a consideration of and a determination as to whether offered and available work was suitable within the contemplation of the statute at times subsequent to 9.5 weeks after the claimants had been on voluntary layoff” and Reynolds contends that the Board "erred in not affording the parties a hearing and an opportunity to present evidence” on this issue. Appellant’s brief states that the problem seems to be that there is no specific statutory provision for handling the situation that is involved, but asserts that this court has established a right and can effect a remedy.
The appellee Director of Labor has filed a brief stating that Ark. Stat. »Ann. §81-1106 (c) (Repl. 1976), which disqualifies a claimant who refused to accept "suitable work when offered,” is administered by the Employment Security Division and when an employer reports a work offer that is refused, the agency will gather the facts and issue a determination of whether the refusal was “without good cause.” The director says he has “no quarrel” with the Board of Review’s deciding the suitability of work question through the date of the Appeal Tribunal hearing on March 18, 1982, but contends that the appellant’s attempt to have the Board go back over the period of two years and three months since the March of 1982 hearing would “circumvent the statutory scheme” and “cause an administrative nightmare for the Board of Review as well as for ESD.” The Director cites the case of Wacaster v. Daniels, 270 Ark. 190, 603 S.W.2d 907 (Ark. App. 1980), as an example of how the statutory procedure is designed to work and says Reynolds simply did not follow that procedure in this case and is now seeking to be exempt from following the law.
Reynolds points out that under the union contract the unemployed appellees could notify the company of their desire to be recalled and the company would have to return them to work at the first available job to which their seniority entitled them. Reynolds cites Price v. Everett, 2 Ark. App. 98, 616 S.W.2d 766 (1981), as authority for the duty of claimants to moderate their employment demands as the period of unemployment continues and says at a hearing before the Board of Review it would be shown that the appellees in this case had sufficient seniority to return to work on multiple occasions after March 18, 1982. The unemployed appel-lees, however, have filed a brief in which they say this procedure is outside the statutory scheme and they point to our opinion remanding their case where we said we “do not believe that a private agreement between an employee and an employer can affect the eligibility of the employee for unemployment benefits.’’
We agree with the arguments of the Director of Labor and the unemployed appellees. Our order of remand directed the Board of Review to consider only the suitability of any work offered prior to the hearing of March 18, 1982. The procedure for the period of time after that date is regulated by the statutes enacted by the Arkansas legislature and the Board of Review was correct in holding that at the time of the remand hearing it could make findings only for the period up to March 18, 1982.
Affirmed.
Corbin and Cloninger, JJ., agree. | [
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Tom Glaze, Judge.
This appeal is from the property settlement provisions of a divorce decree entered May 2, 1983. The appellant contends the chancellor erred in awarding the appellee an undivided one-half interest of appellant’s one-third interest in a partnership. Appellant also contends the chancellor erred in the distribution of the parties’ debts, particularly partnership debts, contracted during the marriage. We agree with appellant that the chancellor erred in awarding the appellee an undivided one-sixth interest in the partnership. However, the chancellor was correct in determining that the partnership was marital property subject to being divided equally between the parties. Therefore, we modify his decision to reflect the proper manner of determining the amount to which appellee is entitled, and we remand for that determination to be made.
The appellant is in business with his father and his brother. Each owns an undivided one-third interest in J-W Foods, a retail grocery store in Huntsville. The chancellor found that the grocery business was marital property to be divided equally between the appellant and the appellee. As a part of his order, the Chancellor found:
Sue Warren [appellee] becomes the owner of an undivided one-sixth interest in such partnership and partnership assets.. . . [T]he interest of. . .Sue Warren in such partnership is subject to the liabilities of such partnership existing on the date of this order.
The appellant contends the chancellor should have awarded the appellee a sum in cash equal to one-half of appellant’s net interest in the partnership. We agree. Under the Uniform Partnership Act, a partner’s rights in specific partnership assets are those of a tenant in partnership. Ark. Stat. Ann. § 65-125 (Repl. 1980). In determining at divorce the rights of a husband or wife to a spouse’s partnership interest, the court cannot make specific awards of partnership assets. The court must first determine the value of the spouse’s interest in the partnership, treating the accounts receivable as assets having a provable fair net present value, and then award the husband or wife a monetary decree equal to one-half that amount, the same to be enforced if necessary by a charging order on the partnership interest. Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967). We cannot make that determination ourselves on the record before us. Further proceedings will be necessary on remand to determine appellant’s net interest in the partnership.
The appellee contends that Glover v. Glover, 4 Ark. App. 27, 627 S.W.2d 30 (1982), is factually similar to the case at bar and that it states the controlling law. Relying upon Glover, appellee contends the chancellor was correct in awarding her a one-half of appellant’s one-third interest in the partnership, giving her a one-sixth interest in the partnership. However, the facts in Glover are distinguishable. The wife in Glover owned a one-fourth interest in the partnership before the divorce. As part of the property division, the chancellor awarded the husband all of both his and his wife’s interests in the partnership. On appeal, we reinstated to the appellant wife the one-fourth interest in the partnership that was hers all along. In the case at bar, the appellee wife was clearly not a partner in the business. However, she did participate in the acquisition of the business during the parties’ marriage, and she is entitled to a share of the value of that business.
For his second point, appellant contends the appellee should be required to pay a portion of the parties’ marital debts, particularly those involving the partnership. The chancellor specifically ordered the appellee to pay those debts she had incurred personally on the parties’ charge accounts from the date of the parties’ separation until the decree was rendered. The appellant’s argument with respect to partnership debts is rendered moot by our disposition of his first issue.
Therefore, we reverse that part of the chancellor’s decree awarding the appellee a one-sixth interest in the partnership and remand for a determination of the value of appellant’s interest in the partnership and a monetary award in appellant’s favor for one-half of that amount.
Affirmed in part; reversed and remanded in part.
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George K. Cracraft, Judge.
On January 20, 1982 Emma Trainer was admitted to the Helena Hospital for treatment. At that time an In-Patient Admission Form was typed for her which identified the patient by name, social security number, date of birth, occupation, address and next of kin. It contained the name of the admitting physician and “Symptoms and chief complaint.” It also contained some information with regard to health insurance but contained no reference to charges for services or room rates and did not purport to impose any obligation upon the patient to do anything. It merely referred to her as “responsible party.” It had a blank for a signature of the “responsible party” but did not define what the responsibilities were to be. This document was. not signed by Mrs. Trainer. The appellant was not present when Mrs. Trainer was admitted to the hospital.
On January 25th at a time when charges in excess of $4,000 had been incurred for Mrs. Trainer’s treatment she was visited by her brother-in-law J. D. Rohrscheib, who became apprehensive about her condition and obtained the concurrence of her doctor to transfer her to a hospital in Memphis. At the time Mrs. Trainer was discharged Rohr-scheib was informed that the ambulance service would require a deposit of $200, which he paid. At that time he was also asked to sign the bottom of the admission sheet as “responsible party,” which he did. That portion of the document on which his signature appeared contained only the following words:
FINANCIAL STATEMENT
1/25/82 /%/ J. Childs _/s/ J. D. Rohrscheib DATE WITNESS Signature of Responsible Party
Some months later the hospital brought this action to collect the sum of $4,239.16 which was the amount owed to the hospital by Mrs. Trainer for services rendered prior to her discharge. It contended that by signing the document as responsible party Rohrscheib had become a guarantor of Mrs. Trainer’s obligation. Rohrscheib denied that he had become obligated for Mrs. Trainer’s debt and contended that in any event the claim was subject to the Statute of Frauds.
Rohrscheib testified that at the time he signed the document it did not show any amount due to the hospital and contained no provisions for payment by him, and that he thought he was merely assuming the responsibility for any injury to Mrs. Trainer that might result from her release from the hospital and transportation to Memphis. There was testimony from a hospital employee that at some point Rohrscheib was informed that he was assuming responsibility for the hospital charges incurred by the patient even though the total amount had not then been computed. The trial court found that although the document might have been more definite and certain, Rohrscheib knew or should have known that he was assuming financial responsibility for Mrs. Trainer’s hospitalization and entered judgment against him for the entire amount.
We agree with the appellant that this was erroneous. The admission sheet contained no promise on the part of Rohrscheib or anyone else to pay the debt. Although the admission sheet does use the words “responsible party,” it fails to provide what that party is responsible for. While the words “Financial Agreement” appear above the signature line for the responsible party, the document does not state what the responsible party has agreed to do financially. The trial court’s finding that by signing the document as responsible party Rohrscheib obligated himself to pay all hospital charges for Mrs. Trainer’s confinement rests entirely on parol evidence. This is expressly prohibited by Ark. Stat. Ann. § 38-101 (Repl. 1966) which provides that no action may be brought to charge any person upon a special promise to answer for the debt of another unless the promise is in writing and signed by the person sought to be charged. It is the settled construction of this section that every collateral undertaking or promise to answer for the default of another is within the statute and void if not in writing and signed by the person to be charged.
It is also settled that where the original debt has already been incurred, an oral promise by a third party to discharge a preexisting debt without new consideration is a collateral promise and within the statute. However, both an original undertaking under which benefits are initially obtained, and a promise to discharge a preexisting debt which is founded on new consideration are enforceable and deemed to be outside the statute. Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 631 S.W.2d 623 (1982); Long v. McDaniel, 76 Ark. 292, 88 S.W. 964 (1905); Kurtz v. Adams, 12 Ark. 174, 7 Eng. 174 (1851).
Even if this particular writing had purported in some manner or by Use of some words to impose liability upon Rohrscheib as a guarantor (which it did not) it would be void for lack of consideration. First Nat’l Bk. of Fort Smith v. Nakdimen, 111 Ark. 223, 163 S.W. 785 (1914) and Wilson Bros. Lumber Co. v. Furqueron, 204 Ark. 1064, 166 S.W.2d 1026 (1942) declare the law clearly applicable to such a case as follows:
It is essential to a valid contract of guaranty that there be a sufficient legal consideration. If there is not to be found in the contract either a benefit to the principal debtor, or to the guarantor on the one hand, or some detriment to the guarantee on the other, the contract will fail for want of a consideration. The mere naked promise in writing to pay the existing debt of another without any consideration therefor is void. . . . The guaranty of a preexisting debt relates to a past consideration and therefore to be valid must be based upon a new and additional consideration. [Emphasis supplied.]
There was no evidence that Mrs. Trainer or Rohrscheib benefited in any way from his signing the document or that the hospital suffered any detriment or forebore the assertion of any right as a result of it. It was not disputed that at the time Rohrscheib signed the document all of the charges for which this action was brought had already been incurred by Mrs. Trainer. There was no contention that any services were rendered to her thereafter in reliance on any oral promise of Rohrscheib. It was also established that had Rohrscheib not signed the document the hospital staff still would not have prevented Mrs. Trainer from leaving.
Reversed and dismissed.
Cooper and Cloninger, JJ., agree. | [
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Tom Glaze, Judge.
Appellant urges one major issue in this appeal: whether her employees’ group health insurance policy covers an eye injury sustained by her twenty-two-year-old son, Michael. The trial court decided against appellant on this issue, and, from our review, we agree.
The essential facts are undisputed. As a result of appellant’s employment with TRW, Inc., appellant was eligible for group health insurance under which she could elect either individual employee coverage only or, for an additional premium, add her dependents to the policy. In 1974, appellant applied for individual coverage, but in 1979, she requested dependent coverage, completing an enrollment card, on which she named her husband. Appellee subsequently approved the husband’s coverage. Appellant contends that she failed to designate her son, Michael, as a dependent because she was unaware he was eligible. Appellee concedes Michael may have been eligible as a dependent under the terms of the group policy, but denies coverage for his injury because appellant failed to enroll or name him as a dependent. Undisputedly, appellant possessed a 1974 and 1977 Certificate of Insurance which defined dependents in the same manner as did the 1979 policy when she applied for the additional dependent coverage. Appellant admits she possessed an insurance booklet which also defines eligible dependents. The booklet further provides, “Each of your eligible Dependents will be covered on the date you become insured or the date he becomes a Dependent, whichever is later, provided you have enrolled for benefits for your Dependents.”
Appellant, as the insured or beneficiary of an insurance policy, has the burden of proving coverage. Peoples Protective Life Insurance Co. v. Smith, 257 Ark. 76, 514 S.W.2d 400 (1974). As previously mentioned, appellant possessed two certificates of insurance, and a booklet which defined “eligible dependents” (as did the insurance policy). She was aware that she must enroll and complete a certificate of insurability for dependents added to her policy, and she did so for her husband. Appellant simply failed to do it for her son.
Appellant argues that appellee had an affirmative duty to explain policy benefits to her, especially those pertaining to eligible dependents. In support of this argument, she cites the Employment Retirement Income Security Act of 1974 — an Act which is simply not applicable here. We are unaware of any legal authority that supports appellant’s argument, and she cites none.
Our Arkansas Supreme Court, quoting with approval from 18 Couch on Insurance §§ 71:30, 71:40 (2d ed. 1967) stated,
“[Conditions going to the coverage or scope of the policy, as distinguished from those furnishing a ground for forfeiture, may not be waived by implication from conduct or action, without an express agreement to that effect supported by a new consideration.”
See Peoples Protective Life Insurance v. Smith, supra, at 85 and 86. In Smith, the Court held the doctrine of waiver or estoppel cannot be given the effect of enlarging or extending the coverage as defined in the contract of insurance. Accordingly, the Court ruled that Smith was ineligible under a group insurance policy even though the insurance company had paid his medical benefits under the policy.
Here, appellee did nothing which would cause appellant’s policy benefits to be extended to her son nor was appellee under any duty to inform appellant that she could or should designate him as a beneficiary. Appellant failed to enroll Michael as a dependent, and the Court is powerless under the facts of this case to reform the group policy to cover him. Because the appellant did not meet her burden of proving coverage, we affirm the trial court’s decision.
Affirmed.
Cracraft, C.J., and Corbin, J., agree.
Appellant’s stipulated testimony was that she discovered this booklet among her papers and that it was evidently mailed to her at some unknown date. | [
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Lawson Cloninger, Judge.
This is a case in which appellees, Ronnie A. and Linda L. Morris, sought specific performance of a sales contract for the sale of land and damages in the amount of $5,000 against the appellant, Charles A. Vaughn, and Virginia Vaughn, his wife. Appellant alleged that he was uncertain regarding the possession of appellees of the property described and asked that the complaint be dismissed. Appellant further alleged that appellees were put on actual notice of an adverse claim of possession to the lands which were the subject of the sales contract. After trial on April 28, 1983, the chancellor dismissed appellees’ cause of action against Mrs. Vaughn and ordered the appellant, Charles A. Vaughn, to specifically perform the contract between the parties.
Appellant’s first point for reversal is that the chancellor erred in granting specific performance. Specifically, hé argues that appellees acquired their interest by virtue of a tax deed which was void and that the property was pasture land under fence and in actual possessioñ of Leon Wilcox, who claimed titled adversely.
At trial, Mr. Vaughn testified that he entered into this contract with the intention of either selling the property to his neighbor, Mr. Wilcox, or trading it to him for other property more desirable. When he approached Mr. Wilcox with the proposal, Mr. Wilcox indicated that he was not interested in purchasing the property because it already belonged to him. Appellant’s attorney subsequently rendered a title opinion, to the effect that the tax deed was void and did not constitute color of title. The attorney further stated that the order of quiet title of June 11,1979, would not be binding on the record owners since there was no actual or constructive notice given to them. He concluded that the title was “not only incomplete, but also not even insurable.” Subsequently, appellees hired an attorney in order to make the title marketable. Addititional quitclaim deeds and an affidavit were recorded. Appellant’s attorney then rendered a supplemental title opinion, stating that all requirements of his original title opinion had been met.
The chancellor found that appellees had provided marketable title within a reasonable time as provided by the contract. He further held that although he could not guarantee that Mr. Wilcox would not bring an action for adverse possession, he found that Mr. and Mrs. Wilcox recognized title of the property in the Morrises when they were parties in a lawsuit in July of 1980. Since Mr. Wilcox acknowledged that the Morrises owned the property, he cannot now claim title by adverse possession.
A party seeking specific performance of a contract must show that he has at all times been ready, able, and willing to perform his part of the contract, and that he has complied with the terms of the contract by performing, or offering to perform the acts which form consideration of undertaking on the part of the other party. Lawson v. Taylor Hotels, Inc., 242 Ark. 6, 411 S.W.2d 666 (1967).
In Holt v. Manuel, 186 Ark. 435, 54 S. W.2d 66 (1932), the Arkansas Supreme Court stated that it will never compel a purchaser to take a title where “the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings; or, as it is usually expressed, it will not compel him to buy a lawsuit.”
The court further stated:
It is not sufficient to create a reasonable doubt that the owner might be exposed merely to idle litigation, but it must be a reasonable apprehension that the purchaser taking the title might be subjected to litigation of a substantial nature from which his title might be placed in jeopardy. In determining whether or not reasonable doubt exists, it appears to be the general rule that the opinion of an attorney that the title to property is bad is not sufficient to raise such a doubt, although, as in the instant case, the attorney may be one of admitted standing and ability. Such opinion that the title is invalid, if erroneous, will not justify the purchaser in receding from his contract, [cases omitted]. If it should appear to the court, upon generally familiar principles of law, that the title is valid, then the doubt as to the title would be unfounded, and there could be no basis for any reasonable apprehension that the purchaser would be subjected to substantial litigation.
In Holt, supra, the attorney, in his title opinion, based his opinion that the title was bad on the fact that minor heirs of a trust which was terminated were not properly served with process in the termination of the trust. The chancellor found that actual service was had on the minors and further a guardian ad litem was appointed in the cause for the minors. See also Baugh v. Johnson, 6 Ark. App. 308, 641 S.W.2d 730 (1982).
We find that the chancellor’s decision is not clearly against a preponderance of the evidence. As was stated in Holt, supra, an opinion by an attorney that the title is not marketable, if erroneous, will not justify the purchaser in rescinding the contract. In this case, appellant’s attorney initially found that the title was unmarketable, but later rendered a supplemental title opinion, stating that all requirements which he had set out in his initial opinion had been met. Further, the chancellor found that Mr. Wicox had recognized appellees’ title to the property in a previous lawsuit and, therefore, any claim of adverse possession would be “idle litigation.” We uphold the chancellor’s decision to grant appellees specific performance on the contract of purchase.
Appellant argues secondly that the chancellor erred in granting specific performance because the appellees sued appellant for a private roadway or access to the tract ¿cross other property owned by the appellant. He argues that this was inconsistent with one seeking specific performance, and cites Walworth v. Miles, 23 Ark. 653 (1861). A review of the pleadings and the transcript indicates that this argument was never raised in the trial court and cannot be considered on appeal. Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967).
Appellees argue on cross appeal that they are entitled to pre-judgment interest. Although appellees-cross appellants asked for interest in their pleadings, we do not find in the record that they presented the issue to the chancellor. The chancellor specifically awarded interest from the date of judgment and no objection was raised. Cross appellants cannot now raise the issue on appeal. Arkla Exploration Company v. Boren, 411 F.2d 879 (8th Cir. 1969).
Affirmed.
Cracraft and Cooper, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellant, Imogene Bledsoe, was employed by Georgia-Pacific as a stacker in its Glenwood lumber mill. She suffered a compensable injury on March 29, 1979. In July she underwent surgery for a herniated disk. When she returned to work in February of 1980, she received temporary partial disability and her medical bills were paid. Her last benefits were paid on March 9, 1982. In September of 1981, appellant ceased work due to back pain. On October 5, 1981, she filed á claim for additional compensation by letter and requested a hearing. The hearing was set and then postponed at appellant’s request due to appellant’s difficulty in obtaining medical treatment. The Administrative Law Judge notified the parties that the case would be returned to the Commission’s general files until another hearing was requested. Appellant requested such a hearing on March 10, 1983. The hearing was held June 29, 1983, and the Administrative Law Judge awarded appellant a 40% permanent partial disability rating, finding that the statute of limitations set out in Ark. Stat. Ann. § 81-1318(b) was tolled when appellant filed her claim October 5, 1981. On appeal the Workers’ Compensation Commission reversed and dismissed on the statute of limitations question. From the decision appellant brings this appeal. We reverse and remand.
The Workers’ Compensation Commission, relying upon Petit Jean Air Service v. Wilson, 251 Ark. 871, 475 S.W.2d 531 (1972), determined that appellant’s claim for additional benefits filed October 5, 1981, failed to toll the statute. We believe the Commission is in error. Petit Jean, supra, is entirely distinguishable upon its facts from the case at bar.
In the Petit Jean case the claimant filed original claims for two compensable injuries in 1968. These claims were not controverted. The claimant received his last compensation payment on September 22, 1969. Thirteen months alter this date claimant filed a claim for additional benefits. The claimant maintained that the filing of his original claims tolled Ark. Stat. Ann. § 81-1318(b), much as the filing of a complaint in a court of law tolls statutes of limitation, and that therefore his failure to file for additional benefits within the one year statutory period was not fatal to his claim. The court rejected his argument pointing out that such claims, uncontroverted and original, were not analogous to complaints in lawsuits which by their nature are almost always contested.
In the case at bar, appellant filed her original claim for a compensable injury on July 16, 1979. On October 5, 1981, she filed a claim for additional benefits. On March 9, 1982, appellant received her last benefits payment. Appellant makes no claim that her original claim tolled the statute of limitations as did the claimant in the Petit Jean case. Rather, appellant argues that the filing of her claim for additional benefits on October 5, 1981, well within the one year statutory period, tolled the statute. We must agree. Otherwise, the statute has no meaning. If the statute is not tolled when the claimant filed a claim for additional benefits, what could possibly toll the statute? We prefer to think the statute means what its plain language implies. The decision of the Workers’ Compensation Commission is therefore reversed and remanded to the Commission for an order in keeping with this decision.
Reversed and remanded.
Cooper and Mayfield, JJ., agree. | [
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Lawson Cloninger, Judge.
The chancellor granted a petition for a change of custody of Amber, the five-year-old child of the parties, from appellant, Deborah A. Bone, to the appellee, James R. Bone, Jr. Appellee was granted custody of the child for nine months each year, and appellant was given custody for three months of each year beginning on June 5.
On this appeal, appellant urges six points for reversal, and appellee urges two points on his cross appeal. Each point raised by the parties will be discussed, but not necessarily in the order presented. We find no merit in any of the contentions of the parties except for appellee’s first point, in which appellee argues that the chancellor erred in failing to restrict appellant to visitation privileges under specific limited circumstances. The decision of the chancellor is reversed on that issue arid the case is remanded.
Chancery cases are tried de novo on appeal, but findings of fact will not be disturbed unless they are clearly against the preponderance of the evidence. Arkansas Rules of Civil Procedure, Rule 52(a); Warren v. Warren, 270 Ark. 163, 603 S.W.2d 472 (1980).
Appellant’s first point for reversal is that the court erred in finding that appellant and a male companion spent the night in a motel room with the appellant’s minor child present. The transcript reveals that at the end of the trial, the chancellor took the case under advisement and, the next morning, he held that pursuant to the rule stated in Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978), he was modifying the custody decree to the extent that the appellant, Mrs. Bone, would have custody for nine months and appellee would have custody for three months. Thereupon, appellee moved to reopen the case to call an additional witness, Mrs. Jessie Lee Coody, who had been in the hospital and was unable to testify. Initially, the chancellor denied the motion to reopen, but upon appellant’s joining in the motion, he granted it. At the end of Mrs. Coody’s testimony, the chancellor made note of the fact that one of appellant’s suitors, Dr. Andrew David, had gone to a motel with the appellant and the minor child, according to Mrs. Coody’s testimony. The chancellor stated that because of Mrs. Coody’s testimony, he was again changing the custody and held that appellee would have custody for nine months and appellant for three months.
The chancellor did make the observation that Mrs. Coody’s testimony was shaky and a bit overzealous. The rule is that an appellate court gives due regard to the chancellor’s opportunity to judge the credibility and demeanor of the witnesses. See Baugh v. Johnson, 6 Ark. App. 308, 641 S.W.2d 730 (1982). Since this is a question of fact, the chancellor was in a much better position to judge the credibility of Mrs. Coody as a witness, and we see no error on this issue.
Appellant’s second point for reversal is that the court abused its discretion in refusing to grant appellant’s motion for a continuance. Appellant based her motion on the premise that Dr. David and Carol Sawyer were needed to testify to contradict and discredit Mrs. Coody’s testimony. Arkansas Rules of Civil Procedure, Rule 40(b) states, “The court may, upon motion and for good cause shown, continue any case previously set for trial.” A trial judge does not abuse his discretion in denying a motion for a continuance based on the absence of witneses where no proffer is made of what the witnesses would testify to. See Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1980). Whether a motion for continuance should be granted is addressed to the discretion of the trial judge, and his decision will not be overturned unless that discretion is manifestly abused. Johnson v. Coleman, 4 Ark. App. 58, 627 S.W.2d 565 (1982). Here, no proffer was made by appellant’s attorney as to what the witnesses would testify to, and we hold that the chancellor did not abuse his discretion in denying the motion.
Thirdly, appellant argues that the trial judge erred in refusing to determine the credibility of the testimony of Mrs. Jessie Lee Coody. We do not understand this point. In all cases the trial judge determines the credibility of the witnesses. In this case, the chancellor specifically found that although Mrs. Coody’s testimony was overzealous at times and was shaky in certain respects, he did find that her testimony with regard to appellant and Dr. David was credible. Specifically, he noted that Mrs. Coody testified that she followed Dr. David and appellant to the Best Western Motel in Monticello, Arkansas. She stated that she observed them go into a motel room with the minor child. The chancellor found this testimony to be credible, and he based his modification of the custody decree on that particular incident. We cannot say that he abused his discretion.
Appellant argues next that the chancellor abused his discretion in refusing to allow John Frank Gibson the right to withdraw as appellant’s attorney and to testify. From a review of the record, we do not find any motion made by appellant’s counsel to withdraw from the case. He did request that the chancellor allow him to testify as a rebuttal witness in response to Mrs. Coody’s testimony. Further, the chancellor’s decision to change the custody from appellant to appellee was based on Mrs. Coody’s testimony with regard to one particular incident: that appellant and Dr. David had taken the minor chlid to a motel. From a reading of the chancellor’s decision, any other testimony of Mrs. Coody’s was not a factor and, at most, cumulative. Mr. Gibson’s testimony was to rebut Mrs. Coody’s testimony on another matter. We find no error in the chancellor’s decision to disallow appellant’s counsel to testify.
Appellant’s fifth point for reversal is that the court erred in refusing to grant appellant’s motion for a new trial. Appellant based her motion on the fact that Carol Sawyer could not testify because she was not present on the last day the testimony was taken. An affidavit was attached to the motion in which she stated that she was not present because she was intimidated by appellee’s present wife. A motion for new trial is addressed to the sound discretion of the trial judge and a refusal to grant such a motion should not be reversed unless the judge has clearly abused his discretion. Black v. Johnson, 252 Ark. 889, 481 S.W.2d 701 (1972). There is no indication that Carol Sawyer was ever subpoenaed, and because of this lack of diligence on the part of appellant to attempt to secure this witness at trial, she cannot now make this a legitimate basis for a motion for a new trial.
Lastly, appellant argues that the chancellor’s findings were clearly against a preponderance of the evidence. The primary consideration in awarding custody of children is the welfare and best interest of the children involved. Digby v. Digby, supra. A chancellor’s findings in custody matters will not be reversed unless they are clearly contrary to a preponderance of the evidence. Digby v. Digby, supra. The chancellor essentially based the modification of the custody decree on the ruling in Digby. In that case, the Arkansas Supreme Court reversed a finding by the chancellor and held that the mother was unfit to have custody of her two sons. The Supreme Court reviewed the evidence and noted that the mother had participated in several affairs with married men and testified that she saw nothing morally wrong with having had sexual relationships with married men as long as the relationship took place outside of the presence of her children. The Supreme Court noted other factors in reversing the chancellor, including the fact that the mother had no religious affiliations or church attendance and testimony that she did not have a good reputation in the community for truthfulness.
In this case, appellant had sexual relationships with at least eight different men over an eighteen-month period. Three of the men were married and appellant did not know the last name of one of the men. She testified that she did not see anything morally wrong with her conduct. Appellant admits that a number of the men visited regularly in her home when the child was there, but insists that the child was not present during the acts of intercourse.
Two observations of the Arkansas Supreme Court in Digby seem particularly pertinent to the facts of this case:
Appellee’s own testimony shows that she does not see anything morally wrong with her having the sexual relationship with the married man so long as these matters took place outside the presence of the boys and after the divorce.
While the chancellor stated that the appellee may have repented for her previous actions, nothing in the record supports this conclusion.'
In Digby, as here, the mother recognized no moral wrong and gave no indication that she had any intention of changing her conduct.
The chancellor found that the father’s home environment was more stable and conducive to better moral values for the child. It is noteworthy that the chancellor changed the custody of the child after Mrs. Coody’s testimony that appellant had gone to a motel with one of the men and was accompanied by the child. The chancellor also stated that he could not distinguish between Digby and the present case. Then, however, the chancellor permitted the child to be in the custody of the mother for three months of each year. The findings of the chancellor are clearly supported by the evidence, but we do not agree that the child should be in the unsupervised custody of appellant for a period of three months each year.
As in Digby, we find that when the evidence is reviewed in its entirety, it clearly preponderates to the effect that the child would have a more stable home relationship and a better sense of moral value if she were in the custody of appellee. We reverse the decision of the chancellor on the issue of custody with directions to enter an order granting custody to appellee, the father, with such visitation rights granted appellant, the mother, as the chancellor deems best for the interest of the child.
Mayfield, C.J., and Cooper, J., dissent. | [
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James R. Cooper, Judge.
The appellant was charged with third degree battery, tried by a jury, convicted and sentenced to 90 days in jail and a $100.00 fine. In his sole point for reversal, the appellant argues that in his closing statement, the deputy prosecuting attorney commented on the defendant’s failure to testify, and the trial court erred in refusing to grant the appellant’s motion for a mistrial based on the comment.
On December 23,1982, the appellant attended a dance at the Folk Center in Mountain View. Richard Sanchez, who was a musician at the dance, went outside while on break at around 11:30. Immediately upon leaving the building where he was playing, Mr. Sanchez was either shoved or tripped and fell down a hill. Upon coming to rest, Mr. Sanchez testified that he looked up and saw the appellant. He stated that the appellant spoke to Mr. Sanchez in a threatening tone, asking if he “wanted some of this.” Mr. Sanchez testified that he replied that he needed someone to carry him to the hospital because he thought his leg was broken. It is further alleged that at this time, the appellant kicked Mr. Sanchez and broke his collarbone, thus giving rise to the battery charge. The defense elicited testimony which indicated that Sanchez had told a different story at the hospital.
In his summation to the jury, the deputy prosecutor stated:
You haven’t heard one person that was there tell you that Randy Phillips didn’t do this. The only people that were there all told you that Randy Phillips . . .
At this point defense counsel objected and requested that the trial court grant a mistrial based on this comment, alleging that it called attention to the fact that the appellant had failed to take the stand and testify. According to the appellant, the statement is improper because it mentions the appellant’s name in the same sentence as it is mentioned that everyone who was at the scene testified that the appellant had committed the crime, thus calling attention to the fact that although the appellant was present, he failed to take the stand and deny his guilt.
The appellee argues that the prosecutor’s statement was simply directed to the fact that the nurses who had testified for the defense in order to impeach Sanchez’ statement were not eyewitnesses to the alleged battery and thus the testimony of the victim and another was more credible.
A statement by the prosecuting attorney which is a comment on an accused’s silence violates the self-incrimination clause of the Fifth Amendment to the United States Constitution made applicable to the states by the Fourteenth Amendment. Since Griffin v. California, 380 U.S. 609 (1965), which held that a prosecutor could not make any direct reference to the failure of the accused to take the stand, most prosecutorial comments on the failure of an accused to testify have been subtle and ambiguous. See, Hall, The Bounds of Prosecutorial Summation in Arkansas, 28 Ark. Law Rev. 55 (1975). While the United States Supreme Court has stated in the recent case of United States v. Hasting, _ U.S. -, 103 S.Ct. 1974 (1983), that Griffin error is not prej udicial per se, and that the reviewing court has a duty to determine if, absent the prosecutor’s statement, it is clear beyond a reasonable doubt that the j ury would have returned a verdict of guilty, the Supreme Court of Arkansas has declined to adopt such a rule. In the recent case of Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984), the court stated:
When a comment about an accused’s silence is made before a jury by the prosecution a mistrial is proper. Prejudice is presumed in such cases. Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978).
See also Evans and Foust v. State, 221 Ark. 793, 255 S.W.2d 967 (1953).
Certain statements by the prosecution in summation referring to the nature of the State’s case have been upheld as not violative of the accused’s right to refuse to testify. In Harris v. State, 260 Ark. 646, 543 S.W.2d 459 (1976), the prosecutor stated:
Possession? You heard the three agents get on the stand and say that the hundred pounds of substance was taken from these two defendants out there on Cato Springs Road on April 29th, 1974. There has been absolutely no testimony to contradict that. I don’t think that is even an issue at this point. They possessed it; a hundred pounds — Approximately one hundred pounds — .
The court held that this statement did not constitute a comment on the appellant’s failure to testify. In Moore, Frazier & Davidson v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968), the statements that the case was “uncontradicted and undenied”; “I will leave that because the record is bare”; “There is nothing else in here except the testimony and proof of the sheriff”; “There has been no proof as to who [certain equipment] belonged to, the testimony was that nobody would claim it, nobody has acquired it, nobody has come here today to acquire it”; and “If I was picked up with [the equipment introduced into evidence], there would be some explanation of what it was doing in my car and what I was doing with it,” all were held to be expressions attributable to the weight to be given to the evidence, rather than attempts to call the jury’s attention to the fact that the appellants failed to testify. For a review of other statements held not to be improper, see Chief Justice Harris’ dissent in Adams v. State, supra.
Other statements by the prosecution in summation, however, have been held to violate the accused’s right to remain silent. In McCroskey v. State, 266 Ark. 806, 586 S.W.2d 1 (1979), the prosecuting attorney stated:
And what evidence do you have concerning this statement? You’ve got two officers who have sworn under oath as to the circumstances of taking the statement. There’s been no evidence submitted in any way to challege anything other than that was a perfectly free and voluntary statement given by Mr. Braden (sic). That’s the only testimony.
The court reversed and remanded for a new trial, holding that this statement focused attention on the fact that the appellant failed to take the stand and in any way challenge the statement of the co-defendant which was introduced in evidence.
In Adams v. State, the prosecutor stated in closing argument to the jury:
.To convict him (the defendant) you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?
The court, in reversing the trial court, stated:
It is apparent that in light of the prosecuting attorney’s comment the jury could have surmised appellant’s failure to tesify was an admission of guilt. Thus, the exercise of. a constitutional right could have been damaging evidence against the appellant.
In Evans and Foust v. State, supra, the court reversed the appellants’ conviction and remanded the case for a new trial based on the following statement by the prosecutor:
. . . and you had been called in here to testify, and placed under bond, you would begin to search your mind and to place in your mind indelibly where you were on that occasion, and what you were doing. These boys are hauling timber all the time. Where were you on the 16th, gentlemen, if you were not where this little boy says you were?
In reversing, the court stated:
Our law wisely provides that the failure of a defendant to testify shall not create any presumption against him. The prosecuting attorney should carefully refrain from using any words or gestures which would be calculated to call to the jury’s attention the fact that a defendant has not testified.
In the case at bar, the prosecutor, in his statement, essentially was arguing that the evidence of the appellant’s guilt to the battery charge was uncontradicted.
It is easy to state that the prosecuting attorney should not comment on a defendant’s failure to testify. Identifying such statements, and separating them from the prosecutor’s comments concerning the uncontradicted testimony of the State’s witnesses, is difficult. The prosecutor must be able to argue the weight of the evidence, including the fact that the witness’ testimony was consistent and uncontradicted. Also, as the Arkansas Supreme Court stated in Pruett v. State, supra:
The court is in a position to note the manner of delivery of such statements and the inflections or emphasis used and is therefore in the better position to understand how the jury perceived it. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982)
In the case at bar, we hold that the trial court did not err in failing to grant a mistrial.
Affirmed.
Corbin, J., dissents. | [
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Lawson Cloninger, Judge.
The single issue on this appeal is whether the chancellor erred in denying full faith and credit to a New York court’s award of custody of a divorced couple’s two children to the mother.
Appellant, the mother of the children, and appellee, the father, were divorced in New York in 1979. At that time appellant was admittedly suffering physical and psychological problems, and appellee was awarded temporary custody. In 1980 appellant moved for an order directing that she be awarded custody. The Supreme Court, Putnam County, New York, granted her motion, but the Appellate Division reversed, holding that the fact that the mother had by that date become a suitable parent did not constitute sufficiently changed circumstances. Cella v. Cella, 439 N.Y.S.2d 219 (1981). The matter was returned to the trial court for the determination of appellant’s visitation rights.
In the meantime, appellee and the two children had moved to Atlanta, Georgia. Appellant last saw her children in March 1982, when they had been sent to New York for a visit. Appellant was unable to communicate with appellee after his telephone in Atlanta was disconnected and he had apparently moved. A private investigator in Atlanta informed appellant of appellee’s presence in Little Rock. In October, 1982, appellant filed an action in Putnam County, New York, seeking a change of custody; notice was served on appellee’s counsel of record. Appellee did not appear, and an order was issued in June, 1983, awarding custody to appellant, who then filed her New York order as a foreign judgment in Pulaski County, Arkansas, Chancery Court on July 13,1983. On July 15, 1983, appellant obtained a writ of habeus corpus against appellee, who, on the same day, filed a motion for relief on the grounds that the order was procured by fraud and that the New York court lacked personal jurisdiction over him.
The matter was heard in the Arkansas court on July 18, 1983, and the special chancellor held that the New York order was not entitled to full faith and credit in the state of Arkansas because of the New York court’s failure to acquire personal jurisdiction over appellant by proper service of process in compliance with the laws of the States of New York and Arkansas and the due process requirements of the United States Constitution. From that ruling this appeal arises. We find no error and we affirm.
Under the full faith and credit clause of the United States Constitution, Art. 4, § 1, a foreign judgment is as conclusive on collateral attack, except for defenses of fraud in the procurement of the judgment or want of jurisdiction in the rendering court, as a domestic judgment would be. Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W.2d 549 (1974); Phillips v. Phillips, 224 Ark. 225, 272 S.W.2d 433 (1954). A.judgment entered by default, such as the one in the present case, is entitled to full faith and credit, except for the defenses mentioned above, and is as conclusive against collateral attack as any other judgment. Purser, supra. Because the chancellor’s denial of full faith and credit was based on the asserted absence of personal jurisdiction on the part of the New York court, we need only determine if the service of notice was defective.
The New York Supreme Court, Putnam County, found that appellant and her children had a significant connection with New York and that it would be in the best interests of the children for jurisdiction to be retained. Further, the court said in its order awarding appellant custody that appellee’s serious misconduct in severing communication and visitation between appellant and her children constituted sufficiently changed circumstances to terminate appel-lee’s right to custody. Service upon appellee’s attorney in the previous litigation was deemed adequate notice.
Both Arkansas and New York have adopted the Uniform Child Custody Jurisdiction Act, the general purpose of which are set out in Ark. Stat. Ann. § 34-2701 (Supp. 1983), as follows:
(1) [to] avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects of their well-being;
(2) [to] promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child’
(3) [to] assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships are most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
(4) [to] discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
(5) [to] avoid re-litigation of custody decisions of other states in this State insofar as feasible.
The denial of full faith and credit to a foreign court order issued under the shield of the UCCJA should not be made without an awareness of the strong policy considerations which prompted the adoption of the Act.
At issue are the notice provisions of the Arkansas and New York acts. Ark. Stat. Ann. § 34-2705(a) (2) (Supp. 1983) reads as follows:
(a)Notice required for the exercise of jurisdiction over a person outside this State shall be given in a manner reasonably calulated to give actual notice, and may be: . . .
(2) in the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction . . .
New York’s Dom. Rel. Law § 75-f(l) (McKinney 1983) provides that:
(1) If a person cannot be personally served with-notice within the state, the court shall require that such person be served in a manner reasonably calculated to give actual notice, as follows:
(a) by personal delivery outside the state in the manner prescribed in section three hundred thirteen of the civil practice law and rules;
(b) by any form of mail addressed to the person and requesting a receipt; or
(c) in such manner as the court, upon motion, directs, including publication, if service is impracticable under paragraph (a) or (b) of subdivision one of this section.
Appellant in this case availed herself of the option codified in subdivision (c) of Dom. Rel. Law § 75-f. The question remains whether the methods required by subdivisions (a) and (b) were indeed “impracticable.”
The record reveals that for a period of about four months appellant did not know of her former husband’s whereabouts. By September, 1982, through the efforts of a private investigator, she learned that he was in Little Rock. In October, 1982, she filed her motion for change of custody and served notice on appellee’s New York attorney, who, the next day, applied to the court to be relieved as counsel. The attorney stated that he no longer represented appellee and that he did not know appellee’s whereabouts. The lawyer’s motion was denied and the matter proceeded. By December, 1982, appellant’s mother, with whom appellant maintains a close relationship, was in correspondence with appellant’s children at an address in Little Rock. The order mandating a change of custody was not issued until June, 1988. Thus, appellant had over six months in which to serve in a manner reasonably calculated to give actual notice.
In Pawlik v. Pawlik, 2 Ark. App. 257, 620 S.W.2d 310 (1981), we denied full faith and credit to an Illinois child custody judgment where one party failed to comply with Arkansas law regarding proper notice, despite the fact that both states employed the UCCJA. We focused on the Arkansas law because the party, had served notice by publication, a procedure allowed under the Arkansas act but not recognized in Illinois. Here, service upon an attorney is permitted under New York Civil Practice Law and Rules 2103(b) and, apparently, under the inclusive language of Dom. Re. Law§ 75-f(l) (c), if directed by the court. Arkansas law recognizes as adequate notice given “in the manner prescribed by the law of the place- in which the service is made.” Hence, in the instant case, we must look for compliance with the New York statutes.
In Cann v. Cann, 127 N.Y.S.2d 55 (1954), the New York court held that a husband remained bound by an attorney’s representation of record when the attorney had appeared for him in his wife’s divorce action so that even if he had ended the attorney-client relationship, the wife could still serve motion papers upon the attorney. This situation is somewhat analogous to the present case, where the attorney for appellee contended that the attorney-client relationship no longer existed. Nonetheless, the fact remains that for half a year, this appellant.had reason to know of appellee’s Little Rock address. The New York Supreme Court’s Appellate Division held in Simens v. Sedrish, 440 N.Y.S.2d 687 (App. Div. 1981), that a party who sought to effect expedient service in an action to set aside the conveyance of real property failed to make a showing that other prescribed methods of service could not be made and that service was ineffective. Such considerations are yet more compelling in the instance of a change of custody action.
We therefore affirm the special chancellor’s refusal to grant full faith and credit to the New York custody decree.
Mayfield, C.J., and Cooper, J., agree. | [
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George K. Cracraft, Judge.
The appellant, Sebastian County, appeals from a decision of the Arkansas Workers’ Compensation Commission that it was liable as employer for a compensable injury sustained by the appellee, Thelma Leyva. The sole issue on the appeal is whether at the time of appellee’s injury she was an employee of Sebastian County or of Western Arkansas Planning and Development District. The appellant argues that there was no substantial evidence to support the finding of the employer-employee relationship between it and appellee, and to the contrary that the evidence overwhelmingly supported a finding that she was in fact an employee of Western Arkansas Planning and Development District. We do not agree.
It is settled that this court will affirm the Workers’ Compensation Commission where there is substantial evidence to support its findings and, in evaluating the evidence, will interpret it in the light most favorable to the Commission’s finding. Clark v. Shiloh Tank & Erection Co., 259 Ark. 521, 534 S.W. 2d 240 (1976); Superior Improvement Co. v. Hignight, 254 Ark. 328, 493 S.W. 2d 424 (1973). The question on appellate review is not whether the testimony would have supported a contrary finding but whether it supports the findings made by the Commission. Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968). When the record before us is viewed in the light of those well settled rules governing appellate review, we find no error in the determination made by the Commission.
The proper approach to the issue in this case requires an understanding of the Comprehensive Employment Train ing Act, 29 U.S.C. § 801, et seq., generally referred to as CETA. The CETA program is designed to fund employment and training in public service jobs for the economically disadvantaged and unemployed. The Act contemplates employment and on the job training for a maximum period of eighteen months, after which the participant must either have become permanently employed at his work site or is terminated from the program and must seek employment on his own account. Appropriate local agencies are designated for the administration of the program and are provided grant funds for the purposes contemplated by the Act. The appointed administrative agency hires unemployed or underemployed persons and pays their wages from the grant funds. Once hired by the agency the employee is placed by that agency at “work sites” in public employment such as city and county departments and other designated agencies. The appellee, Thelma Leyva, was a CETA employee of Sebastian County which had obtained such a grant and been appointed an administrative agency of the CETA program. She was hired by the county on an application form ordinarily used for those seeking county employment. Appellee was initially placed by the county in a job with the local mental health unit and was thereafter recalled by the county, at her request, and placed with the Western Arkansas Planning and Development District in the position of co-ordinator.
The Development District was itself a non-profit organization acting as an administrative agency of CETA. While it had been funded for the purpose of payment of wages to some of its administrative personnel and all of its participants, it had received no funds with which to hire a coordinator. The county was requested to provide, and did provide, from its participants a co-ordinator. Appellee was the county participant so selected.
During the term of her work at the Development District, the appellee was paid exclusively by the appellant County, which withheld taxes, social security and health insurance premiums from her wages. The appellee kept her own time sheets and submitted them to the county for payment of her wages. The only payroll function of the Development District was to verify those time sheets. The Development District did not hire her in the usual sense. She was hired by the County and sent to the Development District for interview to determine if she was acceptable for placement with them. The Development District found her acceptable and furnished her office space, stenographic equipment and supplies, told her what to do and how to do it, and had control over her activities while on the job. While it was stated that the Development District could not fire her in the sense of actual termination, it could request that the County recall her and place her elsewhere. It was further shown that the County could, at will, recall the appellee or place her elsewhere without a request from or the consent of the Development District.
The Development District had twenty-five other employees who were paid by it and from whom taxes and social security were withheld. Other fringe benefits such as sick leave, vacation pay, medical insurance, life insurance and holiday schedules were provided these employees. The appellee was the only person on the staff of the Development District excluded from those benefits. Benefits of that nature were supplied her by the appellant, Sebastian County. There was evidence that the appellee was required to go to the county courthouse for the purpose of submitting her time sheets and receiving her pay, and on occasions she was required to report to the county judge’s office for consultation, progress evaluation and skill testing.
On the date of her injury she had been instructed by the County to report to the office of the county CETA supervisor for the purpose of interview and skill assessment by a person designated by the area administrative agency. After that evaluation was completed, she left the courthouse and was returning to the office of the Development District several blocks away. Before reaching that office, and while crossing a street, she was struck and injured by a passing automobile. It was her testimony that at the time of her injury she had not yet reached the Development District’s office, from which she had been summoned by the County, or where her vehicle was parked. It was her intention to drive that vehicle to another location where she had duties to perform on behalf of the Development District rather than return to her office.
On these facts the Commission found that appellee was a “dual employee” of both appellant Sebastian County and the Development District and that either, or both of them, could be held liable to her for Workers’ Compensation benefits. The Commission further ruled that in determining liability in such a relationship the controlling element is the claimant’s activities at the time of the injury rather than claimant’s activities during the entire period of the relationship. The Commission further found that a preponderance of the evidence reflects that at the time of the accident and injury the appellee had not returned to employment with the Development District but was engaged in activities which were necessitated solely by her employment with the County and that such activities were for the benefit of the County. It concluded that the appellant, Sebastian County, was liable for all appropriate benefits under the Compensation Act as a result of those injuries.
Our courts in Dillaha Fruit Co. v. LaTourrette, 262 Ark. 434, 557 S.W. 2d 397 (1977), recognized that the relationship of employer and employee may be simultaneously sustained between several employers and the same employee; that in such cases the Workers’ Compensation Commission might find either or both employers to be liable for workers’ compensation benefits; and where the Commission makes such a determination, its finding will be sustained if supported by substantial evidence even though it appears that the testimony would have supported a contrary finding. We cannot say that the Commission’s finding, that appel-lee’s recall to the exclusive control of the appellant County had not ended at the time of the injury, is not supported by substantial evidence. It is clear from the opinion adopted by the Workers’ Compensation Commission that if appellee had been injured, not while returning from her summons to the county judge’s office but while performing her intended errand for the Development District, a contrary finding might have been reached.
We find no error in the decision of the Commission and affirm its award.
Mayfield, C.J., and Cloninger and Corbin, JJ., dissent. | [
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Tom Glaze, Judge.
The appellee, McIlroy Bank and Trust, filed a foreclosure suit against the appellants, alleging that appellants were in default on six separate promissory notes due and payable to the appellee. The appellants are Ben Hunt, Jeanne Hunt, George Brown and Coweta Brown, all of whom were doing business at S.B.H. Farms. Appellants filed a general denial, alleged a number of affirmative defenses and counterclaimed against' appellee for $750,000, contending appellants were damaged as a result of certain misrepresentations and a breach of an oral contract by the appellee to loan appellants monies. The trial court found that appellants failed to produce evidence of fraud or misrepresentation, nor was there proof of an oral agreement or contract requiring appellee to loan monies to appellants. The court dismissed appellants’ counterclaim and entered judgment in favor of appellee on its complaint.
One of appellants’ points for reversal arises out of their contention that in October, 1976, the appellee, through its agricultural loan officer, Don Larkin, orally contracted to loan appellants an indefinite amount of monies which would be sufficient to build hog houses, to buy livestock and to generally finance the expansion of their existing farming operation. The appellee argues, and the trial court found, that no contractual agreement was reached between the parties because the terms discussed by the parties were so indefinite and uncertain that neither side could have performed the agreement with any degree of certainty. Since appellants are the parties who urge the existence of an oral agreement, it was incumbent upon them to show by a preponderance of the evidence the existence of such parol agreement, a breach and damages. Hanna v. Johnson, 233 Ark. 409, 344 S.W. 2d 846 (1961).
In reviewing the record before us, we keep foremost in mind two legal principles when deciding whether a valid contract was entered into by appellants and appellee in October, 1976: (1) A court cannot make a contract for the parties but can only construe and enforce the contract which they have made; and if there is no meeting of the minds, there is no contract. Irvin v. Brown Paper Mills Company, 52 F. Supp. 43 (D. C. Ark. 1943), rev’d. on other grounds, 146 F. 2d 232 (8th Cir. 1944); and (2) It is well settled that in order to make a contract there must be a meeting of the minds as to all terms. Hanna v. Johnson, supra, and Gatling v. Goodgame, 209 Ark. 867, 192 S.W. 2d 878 (1946). The essential elements of a contract were recited by the court in Gentry v. Hanover Insurance Company, 284 F. Supp. 626 (D. C. Ark. 1968), viz.: (a) competent parties, (b) subject matter, (c) legal consideration, (d) mutual agreement, and (e) mutual obligations.
After a study of the evidence presented at trial, we have no hesitancy in agreeing with the chancellor that the appellants failed to prove a contract existed between themselves and the appellee. Appellee’s officer, Larkin, and appellant Ben Hunt initially discussed the financing of the expansion of the S.B.H. Farm operation, but the total amount of loan proceeds was never decided. Hunt said that at one time Larkin told him he could have up to $750,000. Larkin testified that the appellee was willing to loan in excess of $500,000, and it could have been $700,000. Both Larkin and Hunt agreed that no interest rate or repayment terms were ever agreed upon. There apparently was some discussion that long term permanent financing would be necessary, but the terms of such financing were left to future determination. Meanwhile, short term notes were signed by appellants for loan proceeds so the farm expansion could commence. Although Larkin and Hunt may have generally agreed on a course of action as to the need for financing the farm project, they never agreed on the essential, much less all of, the terms of a contract to loan monies. There is no way that a court could take the general terms discussed between Larkin and Hunt regarding an open-ended loan with no repayment provisions and be asked to enforce an agreement without filling in necessary terms essential to the formation of a contract. The subject matter of the proposed agreement was indefinite and the mutual assent and obligations were so vague as to be unenforceable.
Appellants argue that all terms of a contract need not be supplied so long as the parties to a contract by their mutual actions furnish an index to its meaning. To support this contention, appellants rely on Swafford v. Sealtest Foods Division of National Dairy Products Corporation, 252 Ark. 1182, 483 S.W. 2d 202 (1972). Appellants urge that they and appellee had depended on the future conduct of the parties to heal the uncertainty of the amount and the precise amortization of the loan. We believe that appellants give the court’s holding in Swafford far too broad an interpretation and application to the facts at bar. The Swafford court dealt with a distributorship agreement and gave effect to the acts of the contracting parties in an effort to clear up uncertainties in the executed portion of the agreement. The court in Swafford did not attempt to supply terms to an executory contract. Even if we should attempt to review the acts of the parties here subsequent to the Hunt/Larkin discussions in October, 1976, it is difficult to see how that would help appellants. There were a series of promissory notes, mortgages and other documents executed, but these and the other contemporaneous actions taken by the parties still fail to tell us the total amount of monies to be loaned nor does it provide us with an index to determine how the parties intended the permanent financing to be arranged.
In anticipation that we might not hold that a valid agreement was existent in October, 1976, appellants argue further that appellee should be estopped from denying the validity of such a contract since appellants reasonably relied on certain acts and misrepresentations made by the appellee, particularly Larkin. It is this alleged misconduct of Larkin’s which appellants contend should not only bar the foreclosure relief sought by appellee against the appellants, but also is the basis of appellants’ action for damages for fraud even when no express contract has been shown. Thus, the equitable estoppel and clean hands defenses as well as the action for fraud asserted by appellants must rise or fall depending upon whether the chancellor clearly erred in not finding that appellee was guilty of misconduct or misrepresentation. Again we must disagree with the contentions of the appellants.
As has been mentioned previously, Larkin and Hunt agreed that appellee would loan monies in excess of $500,000, and Larkin believed it could have been as much as $700,000. The appellee did loan appellants $589,000, which is certainly within the limits and figures stated by Larkin and Hunt. The clear inference from all the evidence indicates that even more monies would have been forthcoming to appellants if the Federal Reserve Examiners in May, 1977, had not classified the loans made to appellants because the value of the security pledged against the indebtedness had fallen below an acceptable level. Obviously, this fact alone restricted future actions between appellants and appellee. Nevertheless, on September 29, 1977, appellants and appel-lee entered into an oral agreement whereby appellee was to loan an additional sum of $235,000 subject to certain conditions. This was the sum which Hunt stated he needed to complete the project. Although there again is a dispute as to what the conditions were to which the loan was subject, it is clear that appellee was still attempting to work with appellants regardless of the action taken by the Federal Reserve Board. At this point in the negotiations between appellants and appellee, we can only conclude from the evidence that appellee was still acting in good faith to work with appellants. Hunt testified that he was happy with this new deal even though he was not perfectly satisfied because he had lost money during the summer of 1977. In view of these actions which took place subsequent to the Hunt and Larkin negotiations in October, 1976, we conclude that there was sufficient evidence for the chancellor to find and hold that the appellee was not acting wrongfully or fraudulently. In doing so, we acknowledge appellants’ argument that Larkin asserted that appellee would make certain loan commitments which, due to the Federal Reserve, it was unable to honor. Contrary to appellants’ contention, Lar-kin’s representations did not meet the test of constructive fraud, i.e., representations made by one (Larkin) who, not knowing whether they are true or not, asserts them to be true. See Evatt v. Hudson, 97 Ark. 265, 133 S.W. 1023 (1911). The record does not reflect that Larkin or appellee intentionally misled the appellants nor does it show that a fact asserted by Larkin was not true in October, 1976. Neither Larkin and the appellee nor the appellants contemplated the action taken by the Federal Reserve Board in May, 1977, when the negotiations took place between them in October, 1976. Certainly, this is not the type of misrepresentation intended to be covered by the rule enunciated in Evatt. If Larkin had asserted, knowingly or unknowingly, a material fact to be true which was not true at the time of the representation, an actionable constructive fraud would lie. The facts before us fail to support such a conclusion or finding. From the evidence, we find no basis to bar appellee’s foreclosure action under the theory of estoppel or unclean hands nor do we find any support for appellants’ action for damages due to constructive fraud.
The last two issues raised by appellants involve the oral agreement reached between the parties in September, 1977. As previously mentioned, the appellee agreed to loan appellants $235,000. Appellants in turn were to pay the loan back at the rate of $50,000 plus interest annually, commencing in. January, 1979, and they were also to complete their farm expansion project. There was a dispute between the parties as to whether additional collateral was also required of the appellants as well as a showing that the S.B.H. Farm could make a profit. Apparently, appellee advanced all of the $235,000 to appellants except for approximately $60,000 which amount was withheld until appellants pledged additional collateral. Appellants first claim appellee breached the September, 1977, agreement by withholding the $60,000, and, secondly, they contend this same agreement effectively changed the due dates on all prior notes executed by appellants and no payments on principal or interest were due and payable until January, 1979- At the time appellee filed this action, one $50,000 payment plus interest was due and in default by appellants.
Whether the parties agreed in September, 1977, that additional collateral was required of appellants was a question of fact determined by the chancellor. Admittedly, the testimony was in conflict on this issue. However, there was testimony given by two officers of appellee upon which the chancellor could premise his finding that additional collateral was required as well as the added fact that the Federal Reserve Examiners had already determined appellants should receive no further loans because the collateral was not sufficient. We are unable to reverse the chancellor’s finding on this factual issue since it is not clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure.
On the final issue raised by appellants, their argument would be well taken except they were clearly in default one payment plus interest on the September, 1977, agreement at the time this action was filed. The appellee and appellants were free to agree in September, 1977, on a different means or method to discharge the prior promissory notes executed by appellants. If the agreement and payment had been fully executed, appellants would be correct that the due dates and payment on the previously signed notes would have been changed to fall due on January of each year commencing in 1979. Until such an agreement is executed, it does not pro tanto extinguish or change the prior notes or the terms of each. See, Vinson v. Wooten, 163 Ark. 170, 174, 259 S.W. 366 (1924).
In accordance with the foregoing, we affirm the trial court’s findings and decision.
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George K. Cracraft, Judge.
The appellant, Lawrence Clayton Vernon, was found guilty of the criminal offense of theft by receiving in violation of Ark. Stat. Ann. § 41-2206 (Repl. 1977), and sentenced to nine years in the Department of Correction. It is from this judgment and the commitment order issued thereon by the trial court that the appellant brings this appeal. He urges five separate points of error. Only those facts necessary for an understanding of our ruling of each point of error alleged will be discussed herein.
I.
Danny Murrell testified that he had stolen some gold jewelry and that he and Sonny Barch then sold the items to appellant, Vernon. Both testified that they informed Vernon that the property was stolen at the time of the purchase. Over the objection of appellant they were permitted to testify that they were paid the sum of $125 in cash and given three bags of marijuana and some LSD in exchange for the stolen property. The appellant, while admitting in his brief that the evidence was relevant or “part of the res gestae as being part of the alleged consideration for the purchase,” contends that it was not necessary to mention the controlled substances as the cash purchase price in excess of $100 had already been established, and that the additional evidence merely “provided a danger of prejudice.”
We cannot agree. This evidence was admissible because it tended to establish the entire criminal transaction. Where acts are intermingled and contemporaneous with one another, then evidence of any and all of them is admissible to show the circumstances surrounding the whole criminal episode. Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972). While evidence of other crimes with which a defendant has not been charged are not ordinarily admissible, there are exceptions. While evidence of separate and isolated crimes, having no bearing on the charge under investigation may not be shown, evidence showing all of the circumstances connected with the particular crime charged may be shown, even if in so doing other criminal offenses are brought to light. Russell & Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977).
II.
The appellant next contends that the trial court erred in permitting the introduction of evidence that on two prior occasions the appellant had purchased property from the witness which he knew was stolen, and made payment in marijuana or LSD. The court admitted the testimony under Rule 404(b) Uniform Rules of Evidence, for the sole and only purpose of showing motive, opportunity, intent, preparation, plan or lack of knowledge or mistake. The court gave cautionary instructions in which the jury was informed of the limited purpose for which that evidence might be considered.
We cannot say that it was error to admit the evidence. Where there is a question whether the crime was with guilty knowledge, evidence of other acts under similar circumstances is admissible as tending to show a system, design or guilty knowledge in the case on hand. Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972). The courts have also held that evidence of two or more crimes so related to each other as to show a general plan to deal in stolen goods is admissible. Long v. State, 192 Ark. 1089, 97 S.W. 2d 67.
Appellant contends that it was objectionable to permit testimony with regard to the controlled substances in payment for the earlier sales. We do not feel that under the circumstances here present the court erred in permitting the testimony. It was the position of the State that part of the consideration paid for the stolen goods for which appellant was specifically charged was delivery of a controlled substance. It was therefore permissible for the State to introduce evidence tending to show the method of procedure and medium of exchange used in appellant’s general plan and course of dealing. Singer v. State, 195 Ark. 345, 112 S.W 2d 426. We find no merit to this contention.
III.
The appellant next argues that the court erred in failing to give a cautionary instruction at the time the testimony objected to in point two was admitted. The record reflects that during the argument in chambers the court indicated that he would permit the introduction of the testimony under Rule 404(b) Uniform Rules of Evidence, and give a “proper cautionary instruction at the proper time.” At that time the court asked counsel if he desired to have the instruction given at the close of the State’s case or at the end of the trial. Counsel indicated he would like to have it at both times. Both instructions told the jury that the evidence of previous similar offenses had been admitted into evidence for a limited purpose “and may be considered by you for the purpose of showing defendant’s motive, design, habits and practices, guilty knowledge, mode and method of operation and for no other purpose. You may not consider such evidence as any evidence whatsoever tending to establish the guilt of the offense for which he is being tried.” After giving the instruction the court asked appellant’s counsel if that was satisfactory. Counsel answered it was. No other objection was made nor did counsel request of the court any further action. We find no error in the timeliness of the cautionary instruction.
IV.
The appellant next contends that the court erred in permitting the State to cross-examine the appellant concerning prior purchases of alleged stolen property from convicted felons. While the appellant was questioned on direct examination and denied knowing or having knowledge that the items in question had been stolen, he testified that he had never bought any stolen property. The State on cross-examination inquired as to specific sales from persons said to have been convicted felons. Appellant denied these transactions but made no objection at the time. He objects for the first time in this court contending that the three-fold test in Gustafson v. State, 267 Ark. 278, 590 S.W. 2d 853 (1979), had not been met. The appellant concedes that there was no objection to the cross-examination of the appellant which he now challenges as improper. This court has on numerous occasions declared that it will not consider objections to evidence which are advanced for the first time on appeal.Parker v. State, 266 Ark. 13, 582 S.W. 2d 34(1979).
V.
The appellant finally contends that the trial court erred in permitting the State in closing argument to make improper statements that the defendant was a “drug dealer” and a “fence” and that he “ought to be removed from the streets to prevent him from his continued sales of narcotics to teenagers.” The record reflects that the defendant made an objection to the statements of the prosecuting attorney, which the court sustained, and immediately admonished the jury to disregard those statements in determining the defendant’s guilt. The record does not indicate that the appellant moved for a mistrial or asked any other action of the court than that which was taken. We find no merit in this contention.
We affirm.
Corbin and Glaze, JJ., dissent. | [
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Tom Glaze, Judge.
This appeal involves the Uniform Child Custody Jurisdiction Act and is the result of divorce and child custody actions filed in Illinois and Arkansas. The appellant, John Pawlik, first filed his action in McHenry County Circuit Court in Illinois, and appellee, Geneva Pawlik, subsequently filed a similar action in Conway County Chancery Court in Arkansas. The Conway County Chancery Court held that the Illinois court failed to obtain personal jurisdiction of the appellee and entered an order awarding permanent custody to appellee. The appellant contends on appeal that (1) the Arkansas court erred in its decision that the Illinois court had no jurisdiction over appellee and (2) since the Illinois action was pending before appellee filed her action, the Arkansas court erred in exercising jurisdiction.
The relevant facts are not in dispute. The parties and their two minor children lived in Illinois until 1979- The parties separated in October, 1979, and the appellee and the children moved to Conway County, Arkansas, in March, 1980. In May, 1980, appellant filed the Illinois action, and since he did'not know the whereabouts of appellee, appellant obtained sendee by publication. In June, 1980, appellee filed her action in Conway County, Arkansas. Appellant entered his special appearance in the Arkansas action, contending that the Illinois court had jurisdiction of the parties and subject matter and requested the Arkansas court to dismiss appellee’s action for want of jurisdiction. On August 1, 1980, the Arkansas court rejected appellant’s contention and entered a temporary custody order awarding appellee the parties’ children.
On August 28, 1980, the Illinois court entered a final judgment, granting appellant a divorce, denying alimony and awarding personal property to the respective parties, and awarding custody of the children to appellant. On September 5, 1980, appellant petitioned to register the Illinois decree in the Arkansas action and requested the Arkansas court to recognize the Illinois judgment and to dismiss the Arkansas action. The Arkansas court held the Illinois judgment was not entitléd to full faith and credit as it related to custody of the parties’ children, and entered an order granting permanent custody to the appellee.
Contrary to appellant’s contention, we believe the Arkansas court was correct in holding that service by publication was not sufficient to vest the Illinois trial court with jurisdiction to decide the child custody issue. Both Arkansas and Illinois have enacted the Uniform Child Custody Jurisdiction Act, and, under the Act and the facts of this case, either state may have acquired jurisdiction of this custody action between the parties. Each party (parent) has a legally protected personal interest in their children’s custody and the due process clause will not permit them to be cut off by a court which has no jurisdiction over the objecting parent. See, R. Leflar, American Conflicts Law, § 243 (3d ed. 1977); May v. Anderson, 345 U.S. 528 (1953), and Cooper v. Cooper, 229 Ark. 770, 318 S.W. 2d 587 (1958). The primary issue before us is whether the Illinois court acquired personal jurisdiction of the appellee.
In the instant case, appellant obtained constructive service on appellee through publication in Illinois in accordance with Section 14 of the Civil Practice Act (Ill. Rev. Stat. 1975, Ch. 110 Par. 14). However, in the case of Lain v. John Hancock Mutual Life Insurance Company, 79 Ill. App. 3d 264, 398 N.E. 2d 278, 34 Ill. Dec. 603 (1979), the Illinois Appellate Court held that Section 14, by its own terms, is limited to in rem actions. The Illinois court stated further:
... The law is well settled that a purely personal decree is not binding against a nonresident who is notified of the proceeding by publication and who does not appear. Wilson v. Smart (1927), 324 Ill. 276, 155 N.E. 288; Killebrew v.Killebrew (1947), 398 Ill. 432, 75 N.E. 2d 855. [Emphasis supplied.]
Here, appellee was residing with the children in Arkansas, and appellant sought to deprive appellee of her personal right to possessory custody of the parties’ children. Since appellant notified appellee of the Illinois proceeding by publication under Section 14 of the Illinois Civil Practice Act, we conclude this was not sufficient notice to vest the Illinois court with the personal jurisdiction necessary to award appellant the parties’ children.
Next, we must decide whether the service and notice obtained by appellant in the Illinois action might be authorized under the Uniform Child Custody Jurisdiction Act. As noted earlier, Arkansas and Illinois have adopted the Uniform Child Custody Jurisdiction Act, and each has, with one deviation, enacted the provision concerning the manner in which notice must be served on persons outside the state before the state can exercise jurisdiction over the non-resident persons. Interestingly enough, the Arkansas law permits notification by publication if directed by the court and in cases where other means of notification are ineffective. The Illinois law does not provide for publication. See Ark. Stat. Ann. § 34-2705 (Supp. 1981), and Ill. Rev. Stat. 1979, Ch. 40, Par. 2106. Both Arkansas and Illinois, however, adopted the Uniform Child Custody Jurisdiction Act’s provision that authorized the notice to be served in the manner prescribed by the law of the place in which the service is made. Ark. Stat. Ann. § 34-2705(a)(2), and Ill. Rev. Stat. 1979, Ch. 40, Par. 2106(b)(2).
Since the Uniform Child Custody Jurisdiction Act as adopted in Arkansas appears to permit notification by publication, we must look to the Arkansas law to determine if the service by publication obtained by appellant in Illinois complies with Arkansas constructive service. We find that it does not.
Rule 4(f) and 4(i) of the Arkansas Rules of Civil Procedure provide for service upon defendants whose whereabouts are unknown and for defendants who are served by mail or warning order and who have not appeared. Basically, Arkansas law requires a warning order to be published in a newspaper for four (4) consecutive weeks, and Illinois law requires only three (3) such publications. More importantly, Arkansas law requires a copy of the complaint and warning order be mailed, by return receipt requested, to the defendant, and an attorney ad litem must be appointed to defend the defendant and to inform him of the action. These procedures are not required under Illinois law, nor did the publication procedures followed by the appellant remotely comply with the Arkansas law.
We conclude that the Illinois court never acquired jurisdiction over the appellee under Illinois or Arkansas law to empower it to decide the issue of custody. Therefore, we hold the Arkansas trial court was not required to give full faith and credit to the Illinois custody order nor defer jurisdiction to the Illinois court action under the Uniform Child Custody Jurisdiction Act.
We affirm.
Affirmed.
Cooper, J., concurs.
Mayfield, C.J., dissents.
Like Arkansas; Illinois has adopted a long-arm statute which requires personal service on persons outside the state. Since the appellant attempted to effect service only under Section 14 of the Illinois Civil Practice Act, it is not necessary for us to consider whether appellant could have acquired jurisdiction under the Illinois long-arm law.
The constitutionality of notice by publication is not raised by the parties and it is unnecessary for us to consider this constitutional question in reaching a decision in this case. See, Commissioner’s Note, Uniform Child Custody Jurisdiction Act (U.L.A.) § 5, and In re Marriage of Blair, 42 Colo. App. 270, 592 P. 2d 1354 (1979). | [
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Tom Glaze, Judge.
The appellant was charged with kidnapping and rape. At a trial by jury, the jury returned a verdict of guilty on the kidnap charge and remained deadlocked on the rape allegation. Since the appellant possessed prior felony convictions, punishment was imposed under Arkansas’ habitual offender’s law. Appellant was sentenced to twenty-five years in the Department of Correction.
Confusion existed from the inception of filing the charges against appellant since he was charged with the crime of kidnapping, which was designated in the information as a Class B felony. Under Arkansas law, kidnapping is either a Class A or C felony. If the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, kidnapping is a Class C felony. Without such a showing, kidnapping is a Class A felony. On this information which reflected the erroneous Class B classification, evidence was presented by both sides without objections at trial, and the case was submitted to the jury. Subsequently, the jury rendered the verdict of guilty to the kidnapping charge.
The State then presented evidence showing that the appellant has been convicted of a felony on two prior occasions. After this additional evidence was admitted, the jury again retired to deliberate on the punishment to be imposed. At this point, appellant’s attorney interposed his motion to set aside the verdict on the ground that it was contrary to law and the evidence, and the court duly denied the motion. Approximately five minutes after the jury had retired, the court recalled the jurors and advised them that they were given the wrong verdict form. The court then gave the verdict form which reflected that kidnapping was a Class A felony rather than a Class B. The appellant objected to the new instruction, contending that he was prejudiced because he had been given notice that he was charged with kidnapping as a Class B felony. He additionally renewed his motion to set aside the verdict based on the insufficiency of the evidence, but he never requested that a Class C verdict form should be submitted to the jury. Appellant’s motions were again denied, and the State orally amended its information to read that the appellant was charged with kidnapping as a Class A felony.
After a review of the evidence, we conclude that the evidence was sufficient to support the kidnapping conviction, but the appellant’s punishment should clearly have been imposed under the Class C felony provision. In a presentation of the State’s case at trial, the prosecutrix testified that she was safely released by the appellant approximately a block from her house. The State argues that Arkansas law requires the appellant (defendant) to show by the preponderance of the evidence that he voluntarily released the prosecutrix alive and in a safe place. We see no merit in this contention. Obviously, this burden of proof was initially the appellant’s. This burden, however, was met by the testimony elicited by the State from the prosecutrix. It is difficult to accept the State’s rationale that the appellant would also have to take the stand to confirm the prosecu-trix’s story that she was voluntarily released alive and in a safe place.
The State, relying on Ply v. State, 270 Ark. 554, 606 S.W. 2d 556 (1980), further argues that the appellant never objected to the verdict form in trial court and, therefore, may not do so on appeal. We find that the rule in Ply is inapplicable to the facts at bar. While it is true that the appellant did not interpose an objection as to the verdict form, appellant did move that the evidence was not sufficient to support a verdict of kidnapping as a Class A felony. In view of the testimony of the prosecutrix mentioned previously, we agree with appellant and hold the penalty imposed as a Class A felony was erroneous. To hold otherwise would be placing form over substance.
The trial court’s error in this instance had no bearing upon the jury’s determination of guilt or innocence. It affected only the extent of the punishment to be imposed. We have a choice among several corrective measures, viz., we may reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for assessment of penalty or grant a new trial. Clark v. State, 246 Ark. 876, 440 S.W. 2d 205 (1969). In this case, we choose to remand the case to the trial court for imposition of the penalty.
Appellant’s next argument is that the trial court erred in giving an Allen charge (otherwise called a “Dynamite” charge). The record reflects that after the jurors had retired to consider their verdict, they returned to the courtroom “after a certain time” and reported to the court that a verdict had not been reached. The judge then asked the foreman how the jury stood numerically, and the foreman replied, “Eleven to one on one count, and ten to two on the other count.” Except for two minor deviations, the supplemental instruction ox Allen charge given by the trial court was the same as that set forth in AMI Criminal, Instruction 6004. Appellant concedes that AMI Criminal, Instruction 6004 has been approved by the Supreme Court for use in Arkansas but contends the trial court’s deviations were prejudicial. The two deviations cited as prejudicial by the appellant are: (1) The trial judge told the jurors that a hung jury would mean additional expense to the tax payers; and (2) The trial judge also told the jurors that he thought they could and should arrive at a verdict in this case. As the State points out in its brief, both of these deviations have been specifically approved by the Supreme Court in the case of Graham v. State, 202 Ark. 981, 154 S.W. 2d 584 (1941), quoting Stepp v. State, 170 Ark. 1061, 282 S.W. 684(1926), wherein the court held:
This court, however, is committed to the general rule ... to the effect that the trial court may detail to the jury the ills attendant upon a disagreement, the expense, the length of time it has taken to try the case, the length of time the case has been pending, and that the case will have to be decided by some jury upon the same pleadings and in probability upon the same testimony.
* * *
This court... has held that the trial court may warn the jury to lay aside all pride of opinion and consult with each other for the purpose of harmonizing their views, if possible, under the evidence, and that it was their duty to apply the law as given by the court to the facts in the case and deal with each other in a spirit of candor in order to arrive a verdict. [Emphasis supplied.]
In view of the Supreme Court’s decision in Graham, we hold the trial court’s variance from AMI Criminal, Instruction 6004 was not prejudicial and was consistent with prior court holdings on the same issues raised here. Even though these deviations have been upheld by prior decisions, appellant still contends that the trial judge erred when he inquired as to the numerical division of the jury regarding the verdict prior to his giving the Allen charge. This issue was not raised at trial, and appellant asks us to consider this assignment of error for the first time on appeal. In accordance with the rule set forth by the Supreme Court in Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980), we are unable to do so. Suffice it to say, appellant concedes that our Supreme Court has held that it is not error for the trial judge to inquire of a deadlocked jury as to its numerical division. See, Hardin v.State, 225 Ark. 602, 284 S.W. 2d 111 (1955).
Appellant finally urges that the trial court erred in failing to credit the time he spent in custody prior to trial against his sentence. Under Ark. Stat. Ann. § 41-904 (Repl. 1977), the court must credit the time a defendant spends in custody against his sentence. From a review of the record, there is no showing that this matter was ever brought to the attention of the trial judge nor is there evidence that the appellant served any incarceration prior to his sentence. Since we are remanding this case for the trial court to impose sentence consistent with a Class C felony, we also direct the trial court to consider any evidence which would reflect jail time credit to which appellant may be entitled under § 41-904 above. See, Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981).
Reversed and remanded.
The appellant contends that the case at bar is controlled by Brasfield v. United States, 272 U.S. 448 (1926), which held that a trial judge’s inquiry as to a deadlocked jury’s numerical division is itself reversible error. | [
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Tom Glaze, Judge.
The appellant, William Hunter, appeals from the decision of the Board of Review affirming a determination that he was disqualified for benefits under the Employment Security Act because he had voluntarily terminated his employment without good cause connected with the work.
Appellant had been an employee of Sears for a period of four years when he resigned on March 31t 1980. On that date, Hunter informed his supervisor that he intended to run for public office and inquired as to how long he would be permitted to work for Sears. His supervisor contacted the Sears regional office concerning Hunter’s plans to run for public office and the supervisor later informed Hunter that if he became a candidate for office he would have to resign immediately and would not be granted a leave of absence to campaign. Hunter then prepared and submitted his resignation on a printed form and filed as a candidate for county judge later that day.
Sears has an unwritten but commonly known policy that any employee who desires to seek public office cannot continue in its employ. Hunter was fully aware of the policy and testified that he had decided not to become a candidate two years previously because of that rule. After resigning his employment, Hunter filed a claim for unemployment benefits stating that he had quit his job but had been forced to do so. The Agency determined that he was not entitled to benefits because he had quit his job without good cause connected with the work pursuant to Ark. Stat. Ann. § 81-1106 (a) (Supp. 1979). This determination was affirmed by the Appeal Tribunal and the Board of Review.
Appellant appeals the Board’s decision to deny benefits, urging that his termination was not brought about by any misconduct but because of a worthy purpose to seek new employment in political office. The Board responds that Hunter resigned because of personal reasons and additionally contends that Hunter’s petition for review should be dismissed for failure to abstract the record as required by Rule 9 (d) of the Rules of the Supreme Court and Court of Appeals.
We first consider the Board’s Rule 9 argument. While it is true that Hunter’s brief did not meet the requirements of that rule, we hold that it was not required to do so. Our Rule 7 (a) requires the filing of briefs in all civil cases. We have not heretofore treated petitions for review from the decisions of the Board of Review as cases in which briefs are required. It is rare when appellants in unemployment benefit cases are represented by counsel. It is even rarer when we are furnished anything other than a transcript of the proceedings on appeal. We have not treated unemployment benefit cases the same as other civil cases under our Appellate Rules. Accordingly, we hold that appellant is not required to abstract the record under Rules 7 or 9 of this court since this appeal involves an unemployment benefit case.
Next, we consider the case on appeal on its merits and the one issue raised by appellant. In so doing, we must affirm the Board’s decision unless we find that its determination is not supported by substantial evidence. Moreover, we are also guided by the rule that we must give the successful party below the benefit of every inference that can be drawn from the testimony. Here, we must view the testimony in the light most favorable to the Board of Review. Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978). In reviewing the evidence before us in accordance with these legal principles, we conclude that the determination of the Board of Review must be affirmed.
Hunter admitted that he was fully aware of the employer’s policy and knew that if he elected to run for public office he would be asked to resign. He had declined to seek office two years earlier because of the same policy. Hunter does not challenge the fundamental soundness of the Sears policy and we do not consider that issue. The Board of Review found from the evidence that he initiated his separation by announcing his intent to act contrary to that policy and although his job would have been available to him otherwise, he chose to submit a written resignation when the employer denied his request for a leave of absence. The Board further found that Hunter resigned voluntarily and, of his own free will, made his choice to give up his job for the purpose of seeking public office. There was substantial evidence to support those findings. No matter how worthy his purpose might be held to be, it was a personal consideration and his resignation did not result from working conditions or other good cause connected with the work.
Affirmed.
Mayfield, C.J., concurs.
Cloninger and Cooper, JJ., dissent. | [
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McHaNey, J.
Appellee recovered a judgment against appellant in the sum of $700 for an injury received by being struck in the eye by a hot cinder thrown or blown from one of appellant’s freight engines while appellee was a passenger sitting at an open window in one of appellant’s passenger trains. Appellant denied all allegations of negligence and that appellee was hit with a hot cinder thrown through the window of the passenger coach. It pleaded the contributory negligence of appel-lee in sitting at an open window in said coach, and that its engines both freight and passenger were equipped with the latest and best known appliances to prevent the throwing of cinders.
For a reversal of the judgment against it, appellant first says that the court should have directed a verdict in its favor at its request, and this challenges the sufficiency of the evidence to support the verdict. It is true that -witnesses on behalf of appellant testified that both engines were equipped with proper spark arresters and appliances of the latest and best known kind, and that said engines did not throw sparks and were skillfully operated. The engineer on the freight train testified that his engine was so equipped, and that it was standing still when the train on which appellee was riding passed the freight train at Donaldson. In this he was corroborated by bis fireman and similar testimony was given by the operators of the passenger train. A piece of screen wire was introduced in evidence of the kind used as spark arresters by appellant, and it was shown that the cinder introduced in evidence by appellee, as the cinder which struck him in the eye, was so large that it would not go through the piece of screening exhibited. While these witnesses so testified, and that the cinder exhibited could not have passed through the piece of wire netting exhibited, it does not necessarily follow that it was not thrown out or blown from the smoke stack of the locomotive as the spark arrester in it may have been defective, although of the same or a similar kind as that exhibited. Appel-lee testified positively that the cinder exhibited while very hot was thrown from the freight locomotive and struck him in the eye. If this is a fact, and the jury was the judge of this, it must have come from the smoke stack of the locomotive, and therefore must have come through the spark arrester. The fact that appellant’s witnesses testified that the locomotive was equipped with the best known spark arrester, was in good condition, and that the engine'was skillfully operated, is not conclusive of the issue. The rule in this court with reference to this matter is stated in the recent case of Missouri Pacific Rd. Co. v. Trotter, 184 Ark. 790, 43 S. W. (2d) 762, where it is said: “As a general rule, where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there are no circumstances shown from which an inference against the fact testified by the witness can be drawn, that testimony may not be arbitrarily rejected, and the fact will be taken as established. But there are exceptions to this rule: Where the witness is interested in the result of the suit, or where facts are shown which might bias his testimony, or from which an inference may be drawn unfavorable to his testimony or against the fact testified to by him, then such fact can not be said to be undisputed, and a case arises for determination by a jury. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243; Mutual Life Ins. Co. v. Raymond, 176 Ark. 879, 4 S. W. (2d) 536; Casteel v. Yantis-Harper, 183 Ark. 475, 36 S. W. (2d) 406.”
Here appellant’s evidence is contradicted, and there are circumstances shown from which an inference against the fact testified by the witnesses for appellant can be drawn. For instance, appellee testified the cinder was hot, and that it burnt his eye. A physician testified the eyeball was burned, another witness testified that on the next morning after the injury the eyeball was swollen and showed a little white spot and still another that the eye was blistered. "We have examined the evidence carefully and find it sufficient to take the case to the jury. The court therefore correctly declined to give appellant’s request for a directed verdict. Other errors are assigned and argued, hut principally on the ground that the court should have directed a verdict for appellant, all of which we have examined and find them without merit.
It is finally insisted that the verdict is excessive. The proof shows that appellee has lost about four-fifths of the vision of one eye. Since the evidence was sufficient to take the question of appellant’s liability to the jury, we do not think an allowance of $700 for such an injury is excessive. We find no error, and the judgment is affirmed. | [
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McIíaNey, J.
Appellant, appellee, and D. B. Bartlett were rival candidates for sheriff of Johnson County, Arkansas, in the Democratic primary election held August 9, 1932. According to the official returns made by the judges and clerks to the county central com mittee, appellee received 1,247 votes, appellant 1,000 votes and Bartlett 387 votes, which gave appellee 247 votes plurality, and a certificate of nomination was thereafter issued to him as to the Democratic nominee for sheriff.
Within the time prescribed by law appellant instituted this action to contest the nomination of appellee, alleging that more than 900 illegal votes were cast for appellee and against appellant, that such votes were illegal because not on the printed list of electors, were not legally and properly assessed, and sundry other grounds of illegality. Appellee and Bartlett in due time answered, and the issues were joined. Thereafter on September 22, 1932, the parties to this appeal agreed and stipulated there were 513 votes cast in the election, naming the voters, that were illegal because their names did not appear on the certified printed list of electors of the county. From that date ,to September 30, the court heard testimony as to other illegal votes cast, at which time court was adjourned to October 13, to hold an intervening regular term of court in Conway County. On October 13, the court found from the testimony that there were 239 other illegal votes cast in said election, which made a total of 752 illegal votes cast. It was then agreed that each side should select a judge or referee and a clerk, and that the court appoint the third judge or referee, and that this committee should examine the ballots so held and agreed to be illegal, ascertain for whom they had voted for sheriff, and report their findings to the court. The court would then deduct the number of illegal votes each had received from the total of each as shown by the election officials, and declare the result accordingly. Objection was made by appellant to the judge or referee appointed by the court, so the court sat in with the committee as the third man. Thereupon this committee, including the trial judge, began to make an examination and tabulation of the ballots agreed and adjudged to be illegal, and shortly thereafter it was discovered by the judge that said ballots, or a large number of them, showed that they had been changed from a vote for appellant to a vote for appellee. As soon as appel-lee learned of this discovery, he filed a motion attacking the integrity of the ballots and seeking to stop the count. Proof was then taken on this motion by both sides, referred to hereinafter, and later all the ballots were counted, both legal and illegal, with the result that many changes were found to have been made in the ballots. In sustaining this motion the court found: “That the ballots have lost their integrity, and, there could be no counting or recounting of the ballots because of the destruction of their integrity, that the election returns are not impeached by the testimony, and that all votes stand as cast and counted by the election officials, and the contest should be dismissed.” Judgment was accordingly entered, from which is this appeal.
Appellant argues eight propositions for a reversal of the case. We find it necessary to discuss only the sixth, as the principal one, and the fourth, seventh and eighth as incidental thereto. The others pass out because of the disposition we make of the case.
The principal question is, did the court err in sustaining the appellee’s motion attacking the integrity of the bállots and in dismissing* the contest? In answering this question in the negative, we are not unmindful of the unpleasant taste left in the mouth, so to speak, and of the unsatisfactory result, with 752 illegal votes out of a total of 2,63'4 votes cast for sheriff. Had the ballots remained inviolate, as the law and common honesty and decency require, then the result might have been changed by casting out the illegal ballots. But if, as the court has found, the ballots or a goodly number of them have been altered, changed, erased, and remarked so as to show they were cast for a candidate other than the one for whom the voter cast it, and this is pursued to such an extent that the court is unable to recount them as originally cast, then of necessity their integrity has been destroyed. This is exactly what the trial court has found.
In determining this question we are bound by the settled rule of this court that the findings of fact by a circuit court sitting as a jury are as conclusive on this court as the verdict of a jury, and the rule is no different in election contest cases. Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024. The decisions are too numerous to mention that the verdict of a jury will not he disturbed unless there is no substantial evidence to support it, when viewed in the light most favorable to the verdict.
Is the court’s finding supported by substantial evidence? When the committee, including the judge, discovered that the illegal ballots had been changed, the motion to dismiss the contest was filed and contestee brought in '28 witnesses, from several of the townships, who had voted illegal ballots, and shown to have been changed from a ballot for appellant to one for appellee. These witnesses testified that they had voted for appellant. Also 8 other witnesses refused to testify for whom they voted, but their ballots showed a change from appellant to appellee. There was other evidence of a similar naturé. The court, not being satisfied, directed the count by the committee to proceed, a third judge being agreed to and all the votes in the county were examined, both legal and illegal. It was found that 111 legal votes had been changed from a vote for appellee to one for appellant, and approximately 70 illegal votes, originally for appellant, now show to be for appellee. In one township the first 40 votes cast were not numbered by the judges of election, but when examined by the committee all were found to be numbered, and other irregularities were found in this same box, as disclosed by the testimony of the judges of election, which occurred after they had delivered it to the central committee. We think this was sufficient to support the court’s finding that the integrity of the ballots had been destroyed, and that they no longer furnished satisfactory evidence of the result. Without knowing exactly how the votes were cast, the court could not accurately determine the result. That a large number of the ballots have been changed, there can be no doubt as the erasures are plainly visible without the aid of a magnifying glass.
But appellant says the testimony of the voters that they had voted differently from that shown by their ballots was inadmissible and incompetent, because (1) parol evidence cannot be introduced to contradict the ballot where the ballot has not been lost or destroyed, and (2) that the ballot, being in evidence, is the best evidence as to how the elector voted. Condren v. Gibbs, 94 Ark. 478, 127 S. W. 731, is cited to support the contention. In that case the court said: “A voter cannot be allowed to testify that he voted for one person when he admits he cast his ballot, which has not since been changed, showing that he voted for another person. This rule is founded upon the principle that the ballot is a writing, and so cannot be contradicted by parol evidence. But, like other writings, it may be shown that the ballot has been changed since it was cast or that another or different ballot has been put in its place.”
But here the ballots of the witnesses had already been examined, and showed they had been changed, and the court did not err in permitting the witnesses to testify that they had voted for appellant whereas the ballots as changed showed they voted for appellee. It is true that the ballots were not shown to the witnesses, nor were they asked to identify them. It would be difficult if not impossible for a witness to identify a ballot not signed by him. The subject of the inquiry was the integrity of the ballot, and since the ballots themselves showed on their face that they had been changed, it was quite proper to admit testimony as to how they had actually voted. Nor does the holding in the case of Cain v. Carl Lee, 169 Ark. 887, 277 S. W. 551, militate against this holding.
Again it is urged that the integrity of the ballots in eight townships was not destroyed because no changes were shown to have been made of the ballots in said townships, and in them appellant received 131 votes, ap-pellee 94 votes and Bartlett 29 votes, giving appellant a plurality of 37, and that he should be declared the nominee on this account. We cannot agree, and in this respect the principle announced in Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631, governs here. There were 24 voting precincts in 22 townships, and to so do would disfranchise the voters in the other townships without fault on their part or of the election officials.
Nor do we think the court erred in refusing to call in all the voters in the county to testify as to how they had voted. The law does not require the court to hold an election, but a contest, and if it develops that there is no legal basis on which the court may determine the contest, it must fail. Compare Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314.
The court found that, because of the many changes, there was no safe or certain way he could determine the result. In this we think the court was correct. Even though the. voters whose ballots had been changed had been called to testify as to how they voted, still the result would be in doubt, as the evidence shows 95 ballots voting against all candidates. It would have been a simple matter for the thief who had unlawful access to the ballots to have marked out the name of the candidate for whom the voter had cast his ballot so as to show a vote against all three. Or again if the voter had failed to mark out any name but left them all on, it would be easy to mark or scratch off two and show a vote for the third, and in either case no one could detect a change. No erasure would appear. We agree that the result could not be determined. This finding is supported by very substantial evidence, and the judgment must be affirmed.
Smith, J., (dissenting). The practical effect of the majority opinion is that an election may not be contested where the 'ballots and the returns thereof have been mutilated to an extent sufficient to destroy the presumption of verity which would otherwise be indulged. The cases cited do not sustain that conclusion, and I think no such case can be found.
On the contrary, as we said in the case of Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74: “The real object of the courts in all election contest cases is to determine ■whether the contestant or the respondent has received the highest number of legal votes. This should be the guiding star, like the star of Bethlehem to the wise men of old.” Tet the majority opinion makes it not only possible to defeat this real object, but makes its defeat certain where some election thief destroys or mutilates the ballots by alterations, erasures, etc., so that the court is unable to recount them as originally cast. The majority appear to decide that if this has happened there can be no contest.
This rule might have some justification if it were ¿applied to a contestant who himself, or whose adherents, had mutilated the ballots; but the rule is not thus limited. There was no finding, in fact, no showing, as to who had mutilated the ballots. We do not know whether this was the work of adherents of the contestant or of those of the contestee. The majority treat this as immaterial.
It ought not to be the law that fraudulent elections may not be contested provided the integrity of the ballots has been destroyed by mutilation or alteration. If this be the law, then one who was not the actual nominee may defeat a contest of his nomination by the added wrong of mutilating the ballots or having that additional wrong perpetrated; No previous holding of this court leads to a decision so unfair or so unfortunate.
The majority say the court did not err in refusing to call in all the voters in the county to testify how they had voted for the reason that the law does not require the court to hold an election; and it is also said that if it develops that there is no legal basis on which the court may determine a contest it must fail.
The court cannot be required to hold another election; but the court may, and should, determine who received a majority of the legal votes in the election which had been held and was being contested, and the right of a contestant to have this fact judicially determined ought not to be defeated by an act of desperation.
It appears that the integrity of the ballots in eight townships had not been destroyed; bnt, if we had the extreme case of an election in which all the ballots had been stolen or their integrity destroyed, yet the right to contest the election wonld remain. There would, even in this extreme ease, be a basis for a contest; that basis being for the court to hear the electors, and all of them, if necessary, or such of them as either party wish to have heard, testify, not how they would now vote, but how they had then voted.
I am authorized to say that Mr. Justice Kirby concurs in the views here expressed. | [
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Butler, J.
The appellant in this case admits liability for the face value of a certain policy of insurance, the obligations of which it assumed, but it denied liability under the double indemnity clause. From a judgment against this contention in the circuit court, the appellant has prosecuted this appeal.
The pertinent facts are undisputed and are these: The premiums were payable quarterly, and the last premium before the date of the injury was ’ due on October 19, 1931, with thirty-one days of grace in which to pay the same. The insured was fatally injured in the afternoon of the 19th day of November, 1931, and died on the 21st day of that month. She was so badly injured that she was rendered unconscious and remained in that state until her death. The premium falling due in October, 1931, was not paid, hut the policy was still in force on the date of the accident by virtue of the thirty-one day grace period allowed for the payment of premiums, which period did not expire until the day following the accident, but did expire before the death of the insured.
That part of the policy which the appellant insists exempts it from liability on the double indemnity benefit provides, among other things, that, after the first year’s premiums have been paid and while the policy is in full force and effect, if the insured, from any cause arising after the delivery of the policy, shall become permanently disabled so as not to be able to do any work of “com-pensable value,” upon receipt of proof the insurer shall waive the payment of any premium or premiums that might become payable thereafter, ‘ ‘ except premiums for double indemnity benefits”; and, continuing, the policy further provided (referring to the double indemnity clause): “This supplemental contract shall cease to be in force when the insured shall attain the age of 43 years, or when any premium provided for in the principal contract shall not be paid when due, or within the days of grace therein set forth, or when premiums on said principal contract shall cease to be payable, or when a ‘premium shall he paid hy the company for insured under any permanent disability clause attached to this policy.” The provisions in the foregoing clause of the policy which provide that the waiver of payment of any premium because of disability does not include premiums for double indemnity benefits, and the further provision that when a premium shall be paid by the company for the insured under any permanent disability clause, the contract shall cease to be in force, are the special provisions which it is claimed exempts the appellant from liability on the double indemnity feature of the policy in question. The supplemental contract, called “Double Indemnity and Beneficiary Insurance,” begins with the following statement: “In the event of the death of the insured by bodily injury effected exclusively by external, violent and accidental means and occurring within ninety days after such injury, the amount payable hereunder as above shall be double the face value of this policy.”
In the eighth paragraph of disability clause No. 2 is the following provision: “This supplemental contract shall terminate and all benefits hereunder shall terminate upon the termination, forfeiture, cancellation, maturity or exchange of the policy first herein above described, and the company shall not be obliged to issue any similar contract in connection with any substituted policy which may thereafter be issued in exchange therefor. ’ ’
The appellant insists that, under the agreed facts and the stipulations in the policy, if “it had not been for the fact that the insured was permanently injured and the injury resulted in death, this policy would have lapsed for the nonpayment of the premium, because the insured did not die until after the lapse of the thirty-one day grace period,” and that, since this is bound to be true, no liability can attach for double indemnity benefits. We agree with the appellant in the statement above quoted, but are unable to assent to the conclusion that follows. The reason is that the insured was permanently injured while the policy was in full force and effect. By paragraph No. 8 of the disability clause No. 2 it was provided that the contract should terminate upon forfeiture of the policy. The policy had not forfeited when the accident occurred, and no premium was then in default, nor was it necessary that any be waived or paid before the day following the accident. It was the accident resulting in death that was the subject of the insurance, and the liability became fixed at the moment of the injury.
In Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, the appellant contended that, under a total disability clause, liability did not begin until six months after final proof of the injury and disability, but we there held that liability attached when disability occurred.
The facts in the case of Burkheiser v. Mutual Accident Association, etc., 61 Fed. 816, 26 L. R. A. 112, were as follows: The insured, husband of plaintiff (appel lant), was insured under a certain policy dated October 4,1890, against injury during the continuance of the policy through external, violent and accidental means, and, if death resulted from accident within ninety days, a certain amount would he payable to the beneficiary. It was provided that, if any member of the association should fail to remit to it the amount of any assessment made within thirty days from notice thereof, he should cease to be a member. It was further provided for reinstatement of a member in default, but that any. member so reinstated should not be entitled to any indemnity for injury sustained during the period he was in default. On the 15th day of December, 1890, the company levied an assessment upon its members, payable on the 15th day of January, 1891, notice of which was given to Burkheiser on December 15, 1890. Under the terms of the policy, he had thirty days from the 15th day of December to pay the assessment upon failure to pay which he would be in default, and his membership would cease. On December 20th the insured met with an accident within the terms of the policy, from the sole effects of which he died on January 23, 1891, which was after the thirty-day grace period had lapsed, without having paid the assessment levied.
On that state of case the district court ruled that the company was not liable under the terms of the policy, and directed a verdict in its favor. On appeal, the Circuit Court of Appeals held that the trial court erred in its ruling, and in doing so said: “The correctness of the ruling is dependent upon the proper construction to be given to the contract of insurance in question. If liability for an accidental injury came to an end when Mr. Burk-heiser, by reason of default in payment of the assessment, ceased to be a member of the association, the instruction was correct. If, however, liability for an accident occurring during the membership in the association continued, notwithstanding the cessation of membership after the accident, then the instruction was wrong, and the court should have directed a verdict for the plaintiff. The policy insures against personal bodily injuries effected during the continuance of membership in this insurance tbrongli external, violent and accidental means. The language of the contract is plain and unambiguous. It was clearly designed to effect the object of the association, wbicb was to indemnify for injury sustained during membership. The consideration paid by the assured is for such protection. The injury which resulted in the death of Mr. Burkheiser occurred during such membership. The accidental injury was the cause; the death, the consequence. The contract indemnified against injury produced by accident as the operating cause, and occurring during membership. The contract, with respect to liability of the company, had relation to the time of the happening of the accident, not to the time of the final outcome of the injury, or to the time when liability should be discharged by payment. The liability of the association became absolute upon the occurrence of the accident, the amount of indemnity and the person to whom it should be payable being contingent upon the character and result of the injury sustained; as to the plaintiff, contingent only upon the death of the assured within the stated time. It was not contingent upon continuation of membership, either within the letter or spirit of the contract. There was no obligation on the part of the assured to continue in membership after an injury, nor does his failure so to do result in forfeiture of indemnity for injuries theretofore received, or in discharge of liability theretofore incurred.”
In Railway Mail Association v. Dent, (C. C. A.) 213 Fed. 981, where the association promised to pay the beneficiary a certain sum in case the insured “received injuries through external, violent and accidental means, resulting in his death from such injuries within 120 days, ’ ’ it was said: “The death was the result of the accident alone, and the accident happened before the amendment. The insurance was against accident, not death, as in an ordinary life policy. The subsequent death was relevant only as indicating the extent of the accidental injury. The cause of action against the association arose when the accident occurred, and was not subject to impairment by subsequent default of the insured in the conditions of continued membership. The insurance being in force at the time of accident, the right of the beneficiary would not have been affected by its lapse before the death ensued. ’ ’
As liability attached upon the happening of the accident, which was the contingency insured against, and at a time when the policy was in effect, it would be immaterial when death resulted if it occurred within the ninety-day period, for the death was relevant only as indicating the extent of the accidental injury. There were no premiums to be waived or paid by the company. Therefore the clauses in the policy relied on have no application, and the trial court was correct in holding that the appellant was liable on the double indemnity clause, and it was proper to include in the judgment a twelve per cent, penalty and reasonable attorney’s fees. The judgment of the trial court will therefore be affirmed. | [
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Smith, J.
Appellees, under the firm name of Askew-Jones Lumber Company, filed suit on September 9, 1931, against appellant, Harrison Blair, in which they alleged that, during the period of time from March 29, 1930, to May 5,1930, they had sold and delivered to Blair certain lumber and building material, of the value of $833.81, which were used by him in the erection of a combination store and residence in the city of West Helena.
The complaint alleged that, the bill not having been paid, plaintiffs, “within the time prescribed by law, filed a duly verified itemized statement of said account, together with a description of the property upon which the said building was erected, with the clerk of the circuit court of Phillips County, Arkansas, and has continued to be on file with said clerk until the date of the filing of this suit.”
The defendant, Blair, employed counsel, who, after investigation of the facts, concluded that there was no defense to the suit, and consented that a decree might be entered for the debt, and that a lien be declared upon the land to secure it. After the expiration of the term at which the decree was rendered, a motion was filed to vacate the decree, upon the ground that its rendition had been procured through fraud practiced upon the court, in that more than fifteen months had expired after filing the lien claimed with the circuit clerk before instituting suit to enforce it, and this fact had not been disclosed to the court.
There is no intimation of collusion between the attorneys for the respective parties. The attorney employed to represent appellant in the original suit candidly stated that he was under a misapprehension as to the time within which suit could be brought after filing a lien claim with the circuit court clerk. But counsel for plaintiffs was not responsible for this misapprehension.
Testimony was heard upon the motion to vacate the decree, and it was conflicting as to the date of the last item for building material, although it appears that the date of filing the account with the circuit clerk was more than fifteen months prior to the date on which the complaint in this suit was filed.
In denying the motion to vacate the decree, the court made the finding that there was no collusion or wrongful act on the part of the attorney for the defendant in consenting to the rendition of the decree; indeed, no such charge was made. The court also found “* * * that no fraud, deceit or collusion was practiced upon the court for the purpose of procuring the original decree fixing a lien upon the land described therein to secure the payment of the indebtedness due the plaintiff, and the court doth further find that the amount of the indebtedness therein found to be due is correct and should be adjudged a lien upon the land there described in accordance with the provisións of said decree * *
The instant case, like that of Parker v. Sims, 185 Ark. 1111, 51 S. W. (2d) 517, was brought under § 6290, Crawford & Moses’ Digest, to vacate a decree after the expiration of the term at which it had been rendered. It war there said: “The law is settled that the fraud which entitles a party to impeach a judgment must he fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself. (Citing numerous cases.)”
As much as can be said of the testimony offered in support of the motion to vacate the decree is that it was to the effect that more than fifteen months had expired after the claim for lien had been filed before the suit thereon was filed, whereas the statute provides that such suit must be brought within fifteen months of the date on which the claim for lien is filed, and not thereafter. Section 6926, Crawford & Moses ’ Digest. In other words, it would have been a complete defense to the original suit to show that the suit had not been commenced within the time limited by § 69'26, Crawford & Moses’ Digest. But, as was said in the case of Gosnell Special School District No. 6 v. Daggett, 172 Ark. 684, 290 S. W. 577: “ ‘The rule has been often announced in this court that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit’.”
We think the decree of the court here appealed from, refusing to vacate the original decree is correct, and it is therefore affirmed. | [
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Mehaeey, J.
The Northwest Engineering Company, a foreign corporation, brought suit in Chicot Circuit Court on September 6,1932, against the petitioner, T. W. Roach, and on the same day a combined summons and attachment was issued against Roach, and at the same time a bond was filed and a writ of garnishment issued against Sternberg Company, Incorporated, a foreign corporation doing business in Arkansas. The writ of garnishment was served on the same day the complaint was filed.
The petitioner states that the only question to determine is one of jurisdiction. It is his contention that there was no suit actually commenced at tlie time tlie garnishment was issued, and that the garnishment is therefore void.
A civil action is commenced hy filing in the office of the clerk of the proper court a complaint, and causing a summons to be issued thereon. This was done on September 6,1932. Complaint was filed, and summons issued thereon.
The summons, however, was not served on Boach, but the respondent says that, under the allegations of the complaint and statements by counsel for plaintiff, which are not denied, at the time the complaint was filed and summons issued, Boach was engaged in levee work in Chicot County, and that before and since the filing of the suit Boach had been in the county from time to time. If Boach was in the county, as alleged by the respondent, where he could have been served, and the complaint was filed and summons issued thereon as alleged, action was begun on September 6, in accordance with § 1049 of Crawford & Moses’ Digest. The mere fact that the defendant was not served would not render the garnishment void.
We have held repeatedly that there must be a strict compliance with the requirements imposed by statute in order that the garnishment proceedings may be sustained, but conversely such a compliance with the statute is sufficient. Missouri Pacific Rd. Co. v. McLendon, 185 Ark. 204, 46 S. W. (2d) 626.
We think the statute was complied with, if the statements of respondent are true, and they are not denied. Moreover, as to whether the court had jurisdiction of the person of the defendant under the circumstances and facts in this case would have to be tried and determined by the trial court.
“It is well settled that, if the existence or nonexistence of .jurisdiction depends on contested facts, which the inferior court is competent to inquire into and determine, a writ of prohibition will not be granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightfully determined, would have ousted the jurisdiction.” Mechanics’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 421.
On September 13 an affidavit was filed by the plaintiff for a warning order, and a warning order was issued on that day. This, however, was not necessarily an abandonment of the effort to get personal service. A man might be a resident of the county and still evade personal service.
When the plaintiff filed an affidavit and secured a warning order, he might still have intended to get personal service, but sought and obtained a warning order because he thought the defendant might evade service.
On December 3, 1932, the petitioner, Roach, filed a motion in the Chicot Circuit Court to quash the garnishment proceeding on the ground, first, as alleged by the petitioner, that plaintiff had filed its complaint in the circuit court on September 6, and that on said date a summons was issued, and also a garnishment was issued; second, that the sheriff failed to find Roach in Chicot County, and served the summons on a Mr. Grant, who was in charge of some equipment for Roach; third, that on September 13,1932, plaintiff’s attorney made and filed an affidavit for warning order for Roach; fourth, that Roach is a resident of the city of Memphis, and has never been a resident of Chicot County, and, fifth, that the garnishment proceeding was void because no suit was actually pending when the garnishment was issued.
As we have already said, under the facts stated by the respondent, which are not denied, the filing of the complaint and issuing of the summons on September 6 was the commencement of the suit.
Thereafter, on December 3, 1932, the petitioner filed a motion to quash the proceeding without limiting his appearance to that motion, and thereby entered his appearance generally.
The writ of prohibition is therefore denied. | [
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McHaNey, J.
Sometime prior to the failure of Browne-Brun Wholesale Grocery Company, appellee sold it a quantity of merchandise. The order for the merchandise was signed by the grocery company’s agent and contained a clause at the head of the order providing that the seller retained title and property in the goods until they were paid for in full. The goods were not paid for, and, the grocery company being in a failing condition, appellee brought replevin against it to recover the merchandise still on hand and unsold, a part of it having been sold. Shortly thereafter the grocery company was adjudicated a bankrupt, and appellant became the trustee. He was substituted as defendant in the action and filed an answer denying that appellee was the owner of the goods and entitled to the possession thereof and all other material allegations in the replevin action. A trial before the court sitting as a jury resulted in a finding and judgment for appellee.
For a reversal of the judgment against him, appellant contends (1) that the provision in the contract of sale for the retention of title in the goods was no part of the contract; and (2) that such retention of title is void as against creditors.
As to the first, proposition', appellant' contends that the purchaser did not notice the provision of the contract relating to the retention of title, and that it was not bound on that account. ■ The testimony was in' dispute as to whether the grocery company had notice .of that provision. of the contract. Appellee’s agent stated that the buyer’s agent knew that it was there; that it was in all their contracts. The buyer’s agent said that the'clause made no impression on him, and that he paid no attention to it. The court’s finding against appellant is supported by substantial evidence. However, we think it would be immaterial whether the purchaser noticed that provision or not. The undisputed fact is that if was in the contract, plainly visible had the purchaser’s agent desired to inform himself of the provisions of the contract. In the recent case of Gray v. Brewer, 177 Ark. 486, 9 S. W. (2d) 81, we held that “where a person signs a paper containing the terms of a proposed contract, and the paper is accepted, he is bound by its terms, whether he reads the paper or not.” See also authorities cited in that case. We therefore hold that this provision is an essential part of the contract. .
As to the second proposition that the reservation of title is void as against creditors, we are of the opinion that the appellant is again in error. One of the leading cases in this court holding against appellant’s contention is Triplett v. Mansur-Tebbetts Implement Co., 68 Ark. 230, 57 S. W. 261. It was there held that a contract of conditional sale is valid, regardless of the fact that it contains a provision that the purchaser may resell the property in the usual course of business, and the conditional vendor was allowed to replevin the goods from the conditional vendee’s assignee in insolvency who had taken possession. See also Swofford Bros. Dry Goods Co. v. Bryant, 153 Fed. 841. This case was affirmed by the Supreme Court of the- United States in Bryant v. Swofford Bros. Dry Goods Co., 214 U. S. 279, 29 S. Ct. 614, 53 Law. Ed. 997.
We find no error, and the judgment is affirmed. | [
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Hughes, J.,
(after stating the facts.) The counsel for the appellant Brown insist in their brief that there were not one thousand dollars per mile subscribed as stock in the railroad before the articles of incorporation were filed, and that this, being a condition precedent to the legal existence of the corporation, is fatal, and that the Wyandotte & Southeastern Railway Company never existed as a legal corporation, and therefore had no power to exercise the right of eminent domain. We understand this to be-the gist of the argument on 1 his point. The chancellor found that one thousand dollars per mile had been subscribed as required by law before the articles of incorporation were filed and certificate issued. We are unable to see that there is a clear preponderance of evidence against the chanchellor’s finding, as this question does not seem to have been raised in the pleadings below, and therefore should not be considered here.
It is contended that the incorporation of the Wyandotte & Southeastern Railway Company was not in good faith, that there was no intention to corporate the road as a railroad, that its purpurpose is to take the logging road from Brown, that the region through which the road is projected to run is wet, poor and thinly populated. We do not think that this contention is so clearly sustained as to warrant this court in saying that the chancellor’s finding is clearly against the preponderance of the evidence. “It should be a very clear .and palpable fraud which would justify the courts in stopping this work at once, and perhaps forever.” Niemeyer & Darragh v. Little Rock Junction Railway, 43 Ark. 112. It is said in Railway v. Petty, 57 Ark. 359, 364, “If the land is needed for legitimate railroad purposes, the motives which influenced the railroad managers in undertaking the work will not take from it its public character.” That it will injure one and benefit another is no argument against the right of condemnation, which is in the public interest. “The making of a public improvement cannot be enjoined because it is unnecessary, or is being made to further private interests.” Lewis on Eminent Domain, § 646.
The counsel for appellant in their brief say that “the form of the articles of association filed in the office of the secretary of state * * * show on their face a substantial compliance with said section 6148, but when the pretended incorporators undertook to meet the requirements of section 6149 they fell short.” Section 6149 provides that “such articles oP association shall be null and void, unless there shall be filed in the office of the secretary of state a preliminary survey of the road and five per cent, on the amount of the original stock subscribed thereto shall have been actually and in good faith paid in cash to the directors named in such articles within two years after said articles of association have been filed,” etc. Now, it is apparent that this is a condition subsequent, and that the failure to comply with it will be only a ground of forfeiture, which will expose the corporation to be proceeded against for a forfeiture, and does not, ipso facto, amount to a forfeiture which may be taken advantage of in a collateral proceeding, as in a proceeding to condemn, unless the words “shall be null and void” constitute a self-executing provision. It is the doctrine of the Arkansas supreme court decisions that “the existence of a corporation, once formed, can be questioned only by a direct proceeding, and that at the suit of the state.” Town of Searcy v. Yarnell, 47 Ark. 269; Niemeyer & Darragh v. L. R. Junction Ry., 43 Ark. 120; Mississippi, O. & R. R. Rd. Co. v. Cross, 20 Ark. 450; Hammett v. Little Rock & N. Rd. Co., 20 Ark. 204. Forfeiture can be claimed only by the government, unless the statute expressly provides for the forfeiture of a charter at the. suit of an individual, and, though grounds for forfeiture may exist, they cannot be shown by individuals in collateral proceedings. 3 Wood on Kailroads, § 497. But see Commentaries on the Law of Corporations by Thompson (Yol. 5, §§ 6586 and 6587), in the latter of which he says: “The sound doctrine is that, where a statute creating a corporation declares that, unless the corporation performs certain acts within a prescribed time, its corporate existence and powers shall cease, or its powers and franchises shall terminate, the statute executes itself; so that, if the prescribed acts are not done within the prescribed time, the corporation, ipso facto, ceases to exist, without the necessity of any further action by the state, either by a legislative declaration of forfeiture, or by a judgment of forfeiture in a judicial proceeding. In such a case, whether the corporation has lost its existence is a fact in pais, which may be ascertained in any judicial proceeding, whether the question arises directly r collaterally, whenever its ascertainment becomes necessary for the protection of 'rights or the redress of wrongs.” In “the regrettable conflict of judicial opinion” on this question, it is quite reasonable to believe that the doctrine of the section 6587 is the sound doctrine. Yet this by no means solves the question we have in this case, for the language of the section of our statute under censideration is not like nor of the same import as the language quoted above.
Section 6149 of Sandel’s & Hill’s Digest is as follows: “Such articles of association shall be null and void, unless there shall be filed in the office of the secretary of state a preliminary survey of the road, and five per cent, on the amount of the original stock subscribed thereto shall have been actually and in good faith paid in cash to the directors named in such articles within two yeai’S after said articles of association have been filed.” This provision of the statute is not self-executing, and declares only a ground of forfeiture, or, in other words, exposes ■ the corporation to proceedings by the state to declare a forfeiture, in the event of non-compliance with the requirements of the statute, provided the state sees fit to proceed for a forfeiture on account of failure to comply with the statute. It has been held that “if the charter of a corporation provides that the corporation shall cease to exist'if a certain thing is not done in a certain time, the question whether the corporation has ceased to exist can be judicially determined only in a suit in which the commonwealth is a party.” Briggs v. Cape Cod Ship Canal Co., 137 Mass. 71.
“Unless the statute expressly provides for the forfeiture of a charter at the suit of an individual, only the government can assert the right to have it forfeited; and the mere circumstance that the corporation has done acts which aré a good ground for a forfeiture cannot be shown by individuals in collateral proceedings, because the state may waive the forfeiture, or enforce it, as it pleases; and, until a forfeiture has been declared, it is not deprived of any of its corporate powers or functions, * * * nor does the fact that a cause of forfeiture exists work a forfeiture or operate as a defense to an action against it; and this has been held to be so, although there is a provision in the charter or general law providing that if the corporation shall do, or omit to do, a certain act, its charter shall, after a certain number of days, be, ipso facto, forfeited, and the period so limited has elapsed. A forfeiture can only be declared by a direct judicial proceeding, and the question whether the company has done or omitted acts which amount to a forfeiture cannot be inquired into collaterally.” 3 Wood on Railroads, § 497 and cases cited; Miss., O. & R. R. Rd. Co. v. Cross, 20 Ark. 443; Hammett v. L. R. &. N. Rd. Co., 20 Ark. 204.
In the matter of N. Y. & Long Island Bridge Co., 148 N. Y. 540, it is said (in the syllabus): “The question whether a forfeiture clause in an act of incorporation is or is not self-executing depends wholly upon the language employed by the legislature. The legislature has undoubted power to provide in an act of incorporation that corporate existence shall cease by the mere failure of the corporation to perform certain acts imposed by its charter. It requires strong and unmistakable language to authorize the courts to hold that the legislature intended that a forfeiture of corporate existence should be effected without judicial proceedings on the intervention of the attorney-general. The words ‘all rights and privileges granted hereby shall be null and void’ do not render a forfeiture clause in a charter self-executing; but the meaning of ‘null and void’ in such a connection is that the corporate existence shall be voidable, i. e., that in case of default the corporation may be dissolved through appropriate legal proceedings by the attorney-general.”
We hold, under the authorities above cited, that the provisions of section 6149 of our Digest (Sandels & Hill’s, p. 1359) that “such articles of association shall be null and void unless there shall be filed in the office of secretary of state a preliminary survey of the road and five per cent, on the original amount of stock subscribed thereto shall have been actually and in good faith paid in cash to the directors named in such articles within two years after said articles of association have been filed,” etc., was not intended by the legislature to work a forfeiture, ipso facto, upon default of the company, but was intended only to declare a ground of forfeiture, upon default of the company, which might, at the election of the state, or not, be taken advantage of in a direct judicial proceeding to have the charter of the corporation declared .forfeited for failure to comply with the statute, and that such failure could not be availed of as a defense in this action. The failure of the cor poration, under the authorities cited, to build five miles of its road within two years did not forfeit its charter, nor annul its powers of association. This is a condition subsequent.
We think it was competent for the company to reduce its capital stock as it did, under the act of February 12, 1895 (Acts 1895, page 19), which provides: “Any corporation organized under the laws of this state may reduce its capital stock.” If it was not done by proper- vote, we cannot see how this would affect the corporate existence of the corporation.
The remaining question of importance to be determined is what are the rights of the parties under the contract between them? Is Brown, the appellant, entitled to the right to buy the logging road at the price of the iron delivered at Gifford; and, if so, what are his damages by reason of the condemnation which the Wyandotte & Southeastern Railway Company has a right to make of the logging road? The solution of the question, has Brown the right under the contract to buy the road on the terms indicated? depends upon the construction of the language of the contract between Hamlin & Son and Joseph Brown, which is as follows: “It is further agreed that the above-mentioned railroad shall remain where located for a period of five years from the date of this agreement, or longer, if the party of the first part so desire; but if the party of the first part [Hamlin & Son] wishes to discontinue and remove said railroad at any time after the period of five years, the party of the second part [Brown] shall have the preferred privilege of buying the same, or any portion thereof, by paying therefor the then market price of such old rails, splices, bolts and nuts, based on the delivery of same at Gifford, Ark., and their actual weight shall be determined as accurately as can be reasonably done, and the said party of the second part [Brown] shall then become the sole owner of that portion of railroad, and its then located right of way, but not south of boundary line of five (5) south, range fifteen (15) west, nor is this meant to convey any right of way over any lands not owned by said party of the first part.” It is contended with much force and ingenuity that the contract means that, before Brown could have the right to purchase, there must be a discontinuance and removal of the logging road shown, and that, as the fact is that the railway does not intend to remove it, but to build its road on the same route, there is therefore no removal, within the meaning of the contract, which would give Brown the right to purchase. But we cannot put this construction upon the contract. Brown doubtless sought by this contract to prevent being cut off from access over this road to his timber lands, many of which were situate along the line of this logging road. When the logging road was discontinued, and the iron was to be removed to convert into a standard gauge road, it was as much removed as a logging road, so far as Brown’s interest was concerned, as if the rails and cross ties, etc., had been actually removed. It deprived Brown of the use of the logging road, over which to haul his timber. This is what this provision of the contract was intended to prevent, and in our judgment this is the reasonable and inevitable proper understanding of the meaning of the parties to the contract. There is no contention that Brown did not give proper notice of his election to purchase the road on the terms set out in the contract. His right to purchase it therefore seems clear to us.
What was the road worth without the iron? Mr. Hartman, a civil engineer and railroad man, examined and measured it, and made an estimate, showing the length to be 93/s miles; (hat the cost per mile, according to his estimate, was $1,200, which would give an aggregate for the whole of $11,520, with estimated cost of bridge added, $1,000, which would aggregate $12,520. Buchanan, another civil engineer, made measurement and estimation of the costs of the road at $8,026. Putting the two estimates together, we have the total of $20,546. The mean cost (one-half of the above amount) will give $10,273. From this we deduct Hartman’s estimate of amount necessary to restore road to its original cost price $3,000, which leaves the sum of $7,273 as the total present value. To which add value of Brown’s right of way $75, making $7,348, present value of road and right of way, exclusive of iron. This we have concluded to be the value of the road without the iron, and the amount Brown is entitled to recover. Mrs. Brown is entitled to a decree for $35.
The testimony tends to show that the road was kept in good condition for a logging road, and Brown has made no proof of damages sustained by him by reason of the road not being kept in good condition. He does contend that it was not kept in such condition that cars could be safely run over it at the rate of twenty miles an hour, and contends that Hamlin & Son were bound by the contract to keep it in such condition. But the contract shows that this construction cannot be maintained. The contract is this: “Provided that, if neither party to this agreement purchase the railroad belonging to the Hearne Lumber Company, then the party of the first part [Hamlin & Son] shall have the privilege of furnishing T iron or steel rails of not less than thirty pounds weight per yard, with spikes, splices, bolts and nuts, to complete the road from the east end of the line owned by the party of the second part [Brown] at Wyandotte and Gifford switch to as far as said road may be constructed; * * * road to be well constructed, and safe to operate a locomotive and train of cars at a speed of twenty (20) miles per hour.” This shows that the provision for twenty miles an hour relates only to a road Hamlin & Son might build in the event neither party bought the road of the Hearne Lumber Company, but which was never built; they having bought the road of the Hearne Lumber Company. The chancellor was correct in denying Brown damages on this account.
We find no error in the decree denying Brown’s claim for damages for the removal by Hamlin & Son of the Northeast spur. We think the circumstances in proof ehow that Brown consented to its removal. Besides, it is not certain that they did not have the right under their contract with Brown to remove it. We deem it unnecessary to make a statement of the facts relating to its removal here.
It appears to us that there is no error in refusing to allow Brown damages for terminal facilities at Gifford, for it seems he did not intend or expect to charge for them at the time they were allowed Hamlin & Son. Having granted the privilege of terminal facilities without intention of charging for them, he could not afterwards change his mind and charge for them. Osier v. Hobbs, 33 Ark. 215; Cantrell v. Clark, 47 Ark. 239.
The judgment and decree of the chancellor is affirmed, except as to the amount of damages allowed Brown for condemnation of the logging road, as to which it is reversed, with directions to enter a decree below in accordance with this opinion. | [
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Haet, C. J.
Lester Harris prosecutes this appeal to reverse a judgment of conviction against him for grand larceny.
The principal assignment of error is that the evidence is not legally sufficient to sustain the verdict.
According to the testimony of O. C. Coekrum, at the time of the trial, he lived in the west end of Fulton County; and sometime before this, when he lived in the east end of Baxter County, four hogs were stolen from him. Upon investigation, he found his hogs in a field of Mrs. Harris and identified them by their color, earmarks, and a scar on the right foot of one of them. He instituted a replevin suit for the hogs against Richmond and Lester Harris and obtained possession of them. Several relatives and neighbors testified that they examined the hogs and knew them by their color, flesh marks and general appearance, and that they belonged to the prosecuting witness. Some of the witnesses testified that one of the' hogs had been caught in a steel trap, which left a peculiar scar on the right forefoot, by which they were able to identify the hog. They were full-blooded red Duroe hogs, and there were no other hogs of that kind and color in that part of the country.
The evidence on the part of the defendant tended to show that the hogs belonged to his brother, Richmond Harris, who had raised them. He testified that the ear mark on the hog with the sear on the right forefoot was his own. He admitted, however, that the hogs were fonnd in the field of his mother, Mrs. Harris, and that he lived in Fulton County, Arkansas.
According to the evidence for the State, the hog had been recently stolen, and that .was a fact to be taken into consideration by the jury in determining the guilt or innocence of the defendant.
The prosecuting witness, in addition to the testimony he gave which we quoted above, testified that the hogs ranged from his home in Baxter County, across the line into Fulton County, near where they were found after having been stolen. It would make no difference whether the theft of the hogs occurred in Baxter County or in Fulton County. By the common law, larceny is a crime committed by the movement of the stolen property from one county to another, and the indictment may be had in any county in which the stolen property may be carried. State v. Alexander and Moore, 118 Ark. 357, 176 S. W. 315.
The evidence for the State tended to show that the hogs were stolen from the prosecuting witness, and soon afterwards they were found at the farm of the defendant’s mother, where he lived, in Fulton County, Arkansas, and that one of the hogs was in the defendant’s mark.
The evidence for the State, if believed by the jury, was sufficient to warrant a verdict of guilty. Dennis v. State, 88 Ark. 418, 114 S. W. 926; Starnes v. State, 128 Ark. 302, 194 S. W. 506; and Yelvington v. State, 169 Ark. 359, 275 S. W. 701.
Another assignment of error is that the court erred in instructing the jury. We do not deem it necessary to set out the instructions complained of. It is sufficient to say that the court defined larceny within the meaning of § 2490 of Crawford & Moses’ Digest. The court also explained to the jury that all persons present aiding and abetting in any felony may be deemed principal offenders and indicted and punished as such. This conforms to § '2311 of Crawford & Moses’ Digest; and there was no error in so instructing the jury, because, under the evidence for the State, the jury might have found that Lester Harris was present, aiding and abetting his brother, Richmond Harris, or that he took the hog with the scar on the right forefoot himself and carried it to his mother’s farm with the intention of stealing it. The jury might have believed that there was no reasonable explanation of his story of the stolen property, and that, if it was in his mark, it had been marked after it was taken by him. It is true that he testified that the earmark was his own; but the jury might have believed the prosecuting witness in this particular, who testified that he was familiar with the earmarks,0 and that one of the hogs was in the earmark of the defendant.
It is next insisted that the court erred in remarks made to the jury while they had the case under consideration. The record shows that, after the jury had been out for sometime considering the case, the court called them back into the courtroom and asked how they stood as to numbers. On being informed that the jury stood eight to four, he related an anecdote which the counsel for the defense construed as meaning that the minority should yield to the majority. The court then expressly told the jury that it did not mean that any juror should yield his honest conviction to the balance of the jury. On the other hand, the court impressed on them the fact that each juror should render a verdict according to his own conviction. The language of the court would remove any possible prejudice which might have resulted from the language first used.
We find no reversible error in the record, and the judgment must therefore be affirmed. | [
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McHaNey, J.
Appellee contracted in writing with, appellant for the rent of “a series of advertising films for a continuous period of twelve months from the date the first film is shipped,” to be screened in the Siegel Theatre of McG-ehee at a cost to appellant for screening of $10 per month. He also agreed to pay appellee for rent of the advertising films in installments of $15 per month, the first to be and was paid at the date of the contract, March 7, 1930; the second to be due and payable 30 days after the first shipment of service, and the others every 30 days thereafter, covering twelve months. The first shipment of film service was April 5, 1930, and the service was thereafter continued as per contract until said theatre was closed, about May 20,1930. Thereafter, on July 30, 1930, the theatre was reopened by Mr. Bara-del under the name of the Ritz Theatre. Shipments of film service was then continued to the Ritz Theatre, which screened the films under agreement between appellee and Baradel that a monthly charge of only $7.50 should be made to appellant. This new arrangement with the Ritz was brought to the attention of appellant by appellee, and he made no objection thereto. These shipments continued to September 20, 1930, when they were suspended by appellee because appellant had breached the contract by refusing to pay it the rental price of $15 per month. The contract provides that “the film company may, in case of delinquency in payments, suspend service until such payments are made.” Upon appellant’s refusal to proceed further under the contract, or to pay therefor, this suit was instituted for the recovery of $150, the balance due, appellant having paid the cash payment and one installment of $15. Trial before the court sitting as a jury resulted in a .judgment for appellee for the amount sued for with interest.
For a reversal of the judgment, it is first urged that the closing of the Siegel Theatre terminated the contract, and that the evidence fails to show it was thereafter revived. We think appellant is wrong in both contentions, but, assuming without deciding that the closing of the Siegel Theatre did terminate the contract, we are of the opinion that the evidence is sufficient to support the judgment of the court on the finding that it was thereafter revived. The evidence shows that, after the opening of the Ritz Theatre, appellee arranged with Mr. Baradel to screen the same film service for $7.50 per month, a cost to appellant of $2.50 per month less than was to have been paid to the Siegel, and that appellant was imm.fi-diately notified of such arrangement and made no objection thereto. The films were thereafter exhibited at the Ritz with his knowledge and without objection, and it is admitted that he made at least one payment to the Ritz. The proof further shows, viewed in the light most favorable to appellee, as we must do, that he promised appel-lee that he would pay, would mail his check in payment for the service under the contract. This conduct on appellant’s part is strong evidence of a waiver of the right to insist on a breach, and this court has many times so held. In Clear Creek Oil & Gas Co. v. Brunk, 160 Ark. 574, 255 S. W. 7, we said: “The principle is elemental that one party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and suffers the other party to continue in performance thereof, waives the right to insist on a breach”- — citing cases. This principle applies here in bar of the rig’bt of appellant to insist on a breach when sued for the price of the service agreed to be rendered.
It is next urged that the court erred in rendering judgment for the full amount of rentals less payments, as that is not the correct measure of damages. That was not an issue in the court below. Appellant defended on the sole ground of a breach of the contract. The question of the measure of damages was raised in the motion for a new trial for the first time. Since it was not an issue in the court below, it cannot be considered here on appeal.
No error appearing, the judgment must be affirmed. It is so ordered. | [
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Bunn, C. J.
This is a bill for divorce by T. J. Crews against his wife, Ann Crews, in the chancery court of the Eastern district of Clay county. Answer and cross-bill by defendant. The same grounds and prayer for divorce from the bonds of matrimony were made in the bill and the cross-bill. The cross-bill contained certain property allegations, and prayer for alimony, Upon the testimony in the case the chancellor granted the defendant a divorce “a mensa et thoro," and an allowance of $80 per annum, payable quarterly to her, as alimony.
In the findings of the chancellor is this expression: “Upon consideration the court finds that both parties are to a degree in fault, and that neither is entitled to an absolute divorce, but finds that a decree of divorce from bed and board should be rendered, with alimony to the defendant in the sum of $80 per annum.” It is contended by appellant that this finding of the chaixcellor is tantamount to finding that both are equally at fault, and that, under the x'ule laid down in Cate v. Cate, 53 Ark. 486, neither was entitled to a divorce. But we do not think that the language of the chancellor has that meaning, but rather that, while neither was blameless, yet there was a difference in their guiltiness in degree. In Rose v. Rose, 9 Ark. 507, it was held that it is not necessary that one be'entirely without blame to entitle him or her to a divorce. The decree of the chancellor in favor of the defendant, as between her and her husband, clearly indicates in whose favor were his findings.
The statute on the subject of divorce is as follows, to-wit: Section 2505. “The circuit court shall have power to dissolve and set aside a marriage contract, not only from bedl'and board, but from the bonds of matrimony, for the following causes.” Then follow the seven causes in their order, some of them being the same as at common law, and others being additional causes or grounds.
Section 2508. “The action for alimony or divorce shall be by equitable proceedings.”
The decree from bed and board and the divorce from the bonds of matrimony both rest upon the same ground, and the same evidence will sustain either, with this qualification: Upon the evidence the chancellor has a sound discretion to grant the one kind of divorce or the other as he may deem best under the circumstances. The text writers generally, and many jurists, declaim against divorces from bed and board as useless, if not absolutely wrong in principle, but we cannot enter upon a discussion like that. The law authorizes divorces of that kind, and the implication, at least, is that circumstances must determine when they should be granted. The chancellor has exercised his discretion, and we cannot say that his discretion has been abused. His decree is therefore affirmed. | [
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Butler, J.
Nelson Faulkner, a locomotive engineer in the employ of the Missouri Pacific Railway Company, suffered an injury while in the discharge of his duties, from which injury he died.
He left surviving him Lillian Faulkner, his widow, aged 38 years, and two children, a son born to him and his wife, Lillian Faulkner, who was at the time of his father’s death 20 yearSj 3 months and 24 days old. The other child was an adopted son, William August Faulk-per, pged 22 months ydien the father died,
The deceased Fad made a will, whieli was filed for and admitted to probate, in which the said Lillian Faulkner was named executrix. Thereafter she, as such executrix, filed suit against the Missouri Pacific Railway for the benefit of the estate and for herself as widow and the next of kin. On December 24, 1929, judgment was rendered in the sum of $1,000 for the benefit of the estate and $4,000 for benefit of the widow and next of kin.
In January, 1932, Nelson Edward Faulkner brought suit alleging the death of his father, the recovery of the aforesaid judgment, and that at the time of his father’s death he was a minor residing* with, and dependent upon the earnings of, his said father for support. He further alleged that the defendant, Lillian Faulkner, had collected the sums adjudged; that he was entitled to one-third of the sum recovered for benefit of the widow and next of kin, but which had been kept or appropriated by the defendant for her own use. Judgment was prayed for $1,333.33 with interest at -6 per cent, from December 24, 1929, the date the defendant was alleged to have received the money on the judgment. To this complaint the defendant made answer denying that the plaintiff had been supported by or was dependent upon the earnings of his father or that he was entitled to share in the said recovery, and, by way of cross-complaint, alleged that the plaintiff was indebted to her in the sum of $1,306.25, for which she prayed judgment.
On these issues the case proceeded to trial, at which testimony was introduced tending to sustain the allegation that plaintiff lived with and was supported by, and was dependent upon, the earnings of his father, and to refute the allegation of the cross-complaint. The test i mony on the part of the defendant sharply controverted that of the plaintiff and tended to sustain the allegation of her answer and the averments of her crossrcomplaint. On that state of testimony the court instructed the jury to find for the plaintiff the sum sued for, less whatever, if any, the .jury might find to be due defendant on her cross-complaint, and refused the request of the defendant to instruct the jury as follows:
1. “You are instructed that, if you find from the evidence in this case that Nelson Edward Faulkner was not dependent upon his father, the deceased, for support, and that he sustained no pecuniary injury by the negligent killing of his father, then Nelson Edward Faulkner would not be entitled to recover, and your verdict will be for the defendant on his cause of action.”
2. “If you find from the evidence in this case that Nelson Edward Faulkner was dependent upon his father for support, then his proportionate part of the recovery would be for the remaining time of his minority as compared with the expectancy of his mother, the defendant, and William August Faulkner, his foster brother.”
There was a verdict and judgment for the plaintiff in the sum of $500 from which defendant has appealed and argues error of the trial court in its instruction given for the plaintiff and in its refusal to instruct the jury as requested by her.
The court evidently adopted the theory which ap-pellee here maintained, viz., that the suit of Mrs. Lillian Faulkner was instituted under § 1074 of Crawford & Moses ’ Digest, and that the sum recovered should be distributed as provided by § 1075 of the Digest which provides that the amount recovered for the benefit of the widow and next of kin be distributed to such widow and kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and 'by § 3535, Id., which provides for an allotment of one-third of the personal estate to the widow as her dower; and by § 3471, Id., which provides for the distribution of the estate of a deceased person.
The act of the General Assembly, approved March 6, Í883, of which §§ 1074 and 1075, Id., is a part, embodied certain provisions of an English statute known as Lord Campbell’s Act, and applies in cases where a recovery may be had for an actionable injury resulting in death, regardless of the agency by which the injury was inflicted and gives the right of action to the personal representative of any person whose death has been caused by the wrongful act of any other. Davis v. Railway, 53 Ark. 117, 13 S. W. 801.
The act did not limit a recovery for the death of one of a certain class by another of a certain other class, but applied equally to all persons alike, both as to those for whose death a recovery was sought and to those through whose fault the death was occasioned. Under its provisions suit might be brought for the death of a railway employee against the railway company responsible therefor and thus remained the law until the General Assembly, by an act passed at its 1911 session, now § 7138 et seq. of Crawford & Moses’ Digest, provided for liability of common carriers by railroad for damages for the death of its employees resulting from its negligence. It is the contention of the appellant that this suit was authorized and prosecuted under the latter act, and that it is to be, and is, determined by the allegations of the complaint.
The Federal Employers’ Liability Act of April 22, 1908, applies only to railroad carriers and to those suffering injury resulting from the negligence of such carrier while in their employ and engaged in the prosecution of their work. The act of March 6, 1911 (§ 7138 et seq.) was modeled upon the Federal statute and was construed in the case of K. C. & M. Ry. Co. v. Huff, 116 Ark. 461, 173 S. W. 419, as not applicable to the case of every servant of a railroad company injured when he was performing his duty as such, and'in St. L., I. M. & S. R. Co. v. Ingram, 118 Ark. 377, 176 S. W. 692, following the decisions of other states construing similar acts, it was held that our statute was designed for the exclusive benefit of those who, in the course of their employment, are exposed to dangers peculiar and incident to the use and operation of engines and trains and to injuries occasioned by these instrumentalities.
In St. L., I. M. & S. R. Co. v. Wiseman, 119 Ark. 477, 177 S. W. 1139, following and approving the doctrine announced in the two cases above mentioned, the dangers enumerated therein were designated as “railroad hazards” which the court said “are those peculiar dan gers to which, employees are exposed while they are engaged in work connected with, and necessary to, the operation and running of trains.” The facts in that ease, in the opinion of the trial court, brought it within the statute (§ 7138 et seg). In overruling the trial court, this court said: “It would be a difficult task to determine in advance and to define specifically what cases may fall within the purview of the statute. Each case will depend upon its own peculiar facts as developed. But the undisputed facts of the present record show that Wiseman at the time of his injury was engaged in the work of repairing a car in the shops at McGehee. This work in no manner exposed him to those peculiar hazards which are incident to, and connected with, the physical use and operation of a line of railroad, and the work in which he was engaged did not bring him within the protection of act No. 88 of the Acts of 1911, as construed by us in Ry. Co. v. Ingram, supra.”
The doctrine of those cases was applied by the court in the case of Murphy v. Province, 153 Ark. 240, 240 S. W. 421, relied upon by appellant. In that case a recovery was obtained on a suit by the executrix against the railroad company for the death of her testator, one of its employees, by reason of the negligence of the railroad company. A married daughter brought suit against the executrix to recover a share of the amount recovered on the ground that the “recovery of the funds in controversy was secured in an action under the statute of this State which is generally referred to as having been patterned after Lord Campbell’s Act (Crawford & Moses’ Digest, §§ 1074, 1075), which provides that the recovery secured thereunder ‘shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate’.”
That suit was resisted by the executrix, her contention being that the judgment for the death of her testator was had either under the Federal Employers’ Liability Act or under the statute, § 7138 et seq., supra, which act she claimed provided a different method of distribution from that contended for by the plaintiff. This is precisely the issue presented in the instant case.
The court, in that case, found it unnecessary to determine whether the original recovery should be treated as one under the Federal statute or under § 7138 et seq., of the Digest, holding that it might be under either according to the fact whether or not the employee was engaged in interstate commerce and noted that the complaint in the original action was silent on that subject. The court held against the contention of the plaintiff (appellee) and that, under the allegations of the complaint in the original case as “denoting the character of the accident, ’ ’ the case stated was not based on §§ 1074 and 1075, supra, as claimed by the plaintiff, but on the latter statute, § 7138 et seq., as contended for by the executrix. In that connection the court said: “It was alleged in the original complaint that Murphy, at the time of his injury, was in the employ of the defendant, ‘not operating any engine, but on said date was assisting engineer Schultz to disconnect engine 2395 at Cotter, and, on account of defects in said engine, the radiator rod was blown out of said engine, striking said Murphy in the back of the head, breaking his skull,’ etc. This allegation brings the cause of action within the last statute referred to as interpreted by the cases cited above. It is clear therefore that the other statute of this State (the one patterned after Lord Campbell’s Act) has no application, and we need not determine what the distribution would be under that statute.’’
The court, continuing, observes that our statute with unimportant variations is the same as the Federal statute, and that it is clear that it was intended to cover the same subjects included in that, so far as it affects causes of actions of the kind described other than those while the employee was engaged in interstate commerce. The court notes the construction placed by Federal courts on the Federal statute and says: “Our statute is, of course, subject to tbe same interpretation. That statute {% 7138 et seq.) does uot contain any express provision or direction witb reference to tbe distribution of tbe fund, as is tbe case witb respect to our statute patterned after Lord Campbell’s Act. But it does clearly appear from tbe statute that tbe recovery is for tbe benefit of tbe person or class of persons wbo suffer injury on account of tbe, death caused by tbe wrongful act, and, in tbe absence of an express provision to tbe contrary in tbe statute itself, tbe only reasonable interpretation is that the. participation in tbe distribution of tbe fund must be limited to those wbo are to be compensated for the injury.”
We have seen that tbe contention of the appellant and tbe appellee in tbe instant case as to tbe statute under which tbe original suit was brought are tbe same as those of tbe parties in Murphy v. Province, supra.
In this case tbe complaint alleged that “tbe deceased was in tbe employ of tbe defendant as a locomotive engineer, and on said date, while be was in tbe exercise of due care for bis own safety, be was attempting to alight from bis engine at Hoxie, Arkansas, and, on account of tbe negligent and careless handling of tbe engine by tbe fireman wbo was running tbe engine at tbe time, and on account of tbe defective condition of tbe steps and handholds on tbe cab of said engine, said deceased was caused to fall to tbe ground, suffering severe injuries * * '* and finally died.”
A comparison of tbe complaint last quoted witb that in tbe case of Murphy v. Province, supra, discloses that in each tbe person for whose death suit was brought was an employee of a railroad company engaged at tbe time of bis injury in work for bis employer “directly connected with, and incident to, tbe operation of a railroad, ’ ’ and neither complaint contains any allegation indicating whether or not tbe employees were engaged in interstate commerce. This comparison shows beyond question that tbe complaints are identical in legal effect, and that tbe conclusion reached in Murphy v. Province, supra, controls in this case.
We do not overlook the argument of learned counsel for the appellee (1) that when § 1075 is considered as a whole there is no conflict between that section and § 7138, as that section has been construed by this court, or (2) that by the express provision of that statute § 1075 has not been repealed; nor (3). do we disregard the contention that, as § 1075 contains the only directions for distribution of the amount recovered for wrongful death, therefore “when, in any case for wrongful death in this State, it has been determined which of the children are entitled to share in the damages recovered for the wrongful death, the provisions of said § 1075 furnish the only legal guide for the division of such damages among the widow and those of the children who are entitled to any share in such damages”; or (4) that this contention is sustained by the recent case of Adams v. Shell, 182 Ark. 959, 33 S. W. (2d) 1107, in which it was decided that the amount of recovery should be distributed, after the widow’s interest was deducted, among the next of kin, share and stare alike, as provided for in § 1075, supra.
The first three propositions advanced are answered by the court in Murphy v. Province, supra, where it is held that there are inconsistencies in the two statutes, and, where there are such, the later statute repeals the former, and that, while there is not any express direction for the distribution of the fund as in the statute patterned after Lord Campbell’s Act, that act has no application in cases such as this. This last statement is made by the court in a paragraph quoted supra. With reference to the proposition that the statutes are inconsistent in certain particulars and when inconsistent the former is to that extent repealed by the latter, the court said:
“The act of 1911, supra, contains a provision in the last section to the effect that the act shall not be held ‘ to limit the duty of common carriers by railroad, or impair the rights of their employees in the existing laws of the State.’ This, provision may be conceded to show an intention on the part of the Legislature not to repeal any statute then in existence except those repugnant to the terms of the later statute, hut that statute necessarily operated as a repeal of any other statute conferring a right of action under the facts set forth in this statute. The two statutes are inconsistent to that extent, and the last one repeals the first to that extent. This is necessarily so, for the remedies of the two statutes are entirely different and for the benefit of different persons.”
The last point raised by the appellee noted above (4) that their position is sustained by the opinion in Adams v. Shell, supra, because of the claim that the applicable law in that case was § 7144, a statute which, with the exception of the word ‘corporation’ being substituted for the words ‘common carriers by railroad’ found in § 7138, is the same, and in that case (as it is claimed) this court held that a fund derived from a judgment for wrongful death should be distributed, one-third to the widow and one-third each to the two children, and that therefore in the case at bar a similar order should be made and that the trial court correctly so held.
An examination of Adams v. Shell, supra, will disclose that the propositions advanced find no support in that case. In the first place, that was not a suit against a common carrier by railroad for the wrongful death of one of its employees, but an action for damages against the International Paper 'Company, and, in discussing the question of the distribution of the fund arising from moneys obtained in satisfaction of the judgment, the court assumed, whether correctly or not, that the suit for the wrongful death was under §§ 1074 and 1075, and not under § 7144, as counsel suggests. This is apparent because in the reference in the opinion to the manner of the distribution of the fund the court said: “Under § 1075 of the Digest, the personal representative of a deceased person may bring an action for the wrongful death of said decedent, and the amount recovered shall be for the exclusive benefit of the widow and next of kin of such deceased person and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate. Tiras, it will be seen that it is the duty of the administrator to bring the suit as provided by the statute, and, in the event of a recovery, to distribute the amount recovered according to the provisions of the statute which covers the distribution of personal property. The damages are recovered in the name of the personal representative of the deceased, but do not become assets of the estate. The relation of the administrator to the' fund when recovered is not that of the representative of the deceased, but of a trustee for the benefit of the widow and next of kin; and the suit is wholly for their benefit.”
Further than holding that the distribution of the fund obtained by a cause of action, prescribed by § 7138, was not to be distributed as prescribed by § 1075, the court, in Murphy v. Province, supra, did not indicate how distribution should be made, as that was unnecessary because the plaintiff, having sustained ho pecuniary injury, was not entitled to any part of the fund.
The statute as interpreted makes the pecuniary injury the b.asis of damage and of the participation in any judgment recovery therefor. The dependence of the plaintiff and whether or not the deceased had contributed to his support are merely evidentiary facts from which, with the other circumstances in the case, the question of the pecuniary injury and its extent is to be ascertained. The distribution not having been prescribed by the governing statute (§ 7138) and the mode named in § 1075 not being applicable, it becomes the duty of the court to formulate a rule of distribution consonant with reason and the principles of sound justice.
It is not difficult to perceive how the rule provided for in § 1075 or how any other fixed and arbitrary rule might be the occasion of an unfair division by which one in no sense in need and in every sense unworthy and who had received and had no right to expect any contribution would share equally with those entirely dependent and most worthy and who had, in the lifetime of the deceased, been the principal beneficiaries of his bounty and had the right to expect that this would continue. Many cases might be imagined illustrative of how that rule might work, but the mere statement of the rule suggests to the mind circumstances which might, and frequently do, arise where an equal distribution among the next of kin would be most unreasonable and unjust. Therefore the rule to be adopted should be flexible to fit the circumstances of each case, which should determine who should participate in the distribution and to what extent.
The statute itself, as construed by this court, indicates the proper method to be adopted. It is clear that simply because one is among the number of next of kin does not entitle him to recover damages or to share with the others, but it must appear that some pecuniary injury to him must have been suffered. If then the injury suffered is the basis of the recovery, the extent of that injury as compared with others of the next of kin ought to be the measure by which his proportionate share in the damages recovered should be ascertained. In many cases that could not be determined by any single fact but only from a consideration of all the attendant circumstances.
The rule evoked by appellant’s requested instruction No. 2 is unsound because it leaves out of consideration the pecuniary injury suffered and makes the ages of the respective parties the only measure of the extent of the injury. It might be, and it sometimes is, the case that an adult child may be more dependent than a minor and have received and may have reason to expect much greater contribution than the minor child. The fairest rule, it appears to us, is that it should be for the jury to say from a consideration of all the facts and circumstances whether the plaintiff in a given case had suffered pecuniary injury, and, if so, what was its extent as compared with the others entitled to share in the fund — that, also, to be determined from a consideration of all the circumstances in the case, and from this his proportionate share will be fixed.
In the instant case counsel for the appellee call attention to the allegation in the complaint of the executrix filed in the' original suit, to-wit: “That at the time of his death the said Nelson Faulkner was in good health, aged about forty-seven, and earning large sums of money, practically all of which he was contributing to the support of his, your executrix, and two children, Nelson Edward, aged twenty-one, and William August, aged three, the latter named being his survivors.”
'Counsel for appellee then calls attention to the judgment based upon this allegation, which was “for the benefit of the widow and next of kin of said deceased. ’ ’ We are inclined to the view of counsel that this allegation precludes the appellant in the instant case from denying the right of appellee to share in the fund and that the cases cited by him support his contention. Less v. Less, 158 Ark. 255, 249 S. W. 588; 15 R. C. L., p. 1012, § 485; Westfield Gas Co. v. Noblesville Gravel Road Co., 41 N. E. 955; Parkhurst v. Berdell, 18 N. E. 123. Therefore the only question which would be before the court would be the proportionate part of the fund due the appellee to be ascertained in the manner we have pointed out, that to be diminished by whatever it might appear was due appellant on her cross-complaint.
The judgment of the court below is therefore reversed, and the cause is remanded for a new trial. | [
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Hart, J.
Sallie Wilson instituted an action for divorce against her husband, W. W. Wilson, on the ground that he had been addicted to habitual drunkenness for the period of one year before the bringing of the action.
The record shows that the husband filed an answer to the complaint, but it does not contain the answer itself. The record also shows that the parties were given time within which to take depositions.
Upon final hearing of the case, the chancellor found that the testimony of the plaintiff’s witnesses established the fact that her husband had been addicted to habitual drunkenness for the period of one year before the institution of the suit. The chancellor further found that the plaintiff had offered such indignities to the person of the husband as to render his condition in life intolerable. He was of the opinion that both parties were equally at fault and dismissed the plaintiff’s complaint for want of equity. The plaintiff has appealed.
(1) Habitual drunkenness is not shown by the habit- ’ ual, but moderate, use of intoxicating liquors. The charge of habitual drunkenness within the statute is shown, however, by proving that the person has a persistent habit of frequently getting drunk. It is not necessary that he be constantly drunk, nor that he have more drunken than sober hours. It is enough that he has the habit so firmly fixed upon him that he becomes drunk frequently, and is unable to resist when opportunity or temptation is presented. O’Kane v. O’Kane, 103 Ark. 382.
Tested by this rule, we think the court was correct in holding that the testimony of the plaintiff showed that the defendant was an habitual drunkard within the meaning of our divorce statute. We do not deem it necessary to abstract the testimony on this point, for the reason that we think the chancellor properly denied the plaintiff relief, because she was equally at fault.
(2-3) Habitual drunkenness for one year and statutory cruel treatment are each grounds for divorce in our statute. Section 2672 of Kirby’s Digest. Hence, each is a good recriminatory defense to the other. It is well settled that one who has been guilty of misconduct, which is in itself a ground for divorce, has no standing to demand a divorce upon another statutory ground. In such, cases the parties will be denied relief because they are equally in fault. Malone v. Malone, 76 Ark. 28; Healy v. Healy, 77 Ark. 94.
It is true in the present case the answer of the defendant is not in the record, but the record does show that the defendant filed an answer, and also was granted leave to take testimony. The depositions filed by him tended to disprove the charge of habitual drunkenness on his part, and to establish statutory cruel treatment on the part of his wife. The evidence adduced by him tended to show that his wife frequently cursed and abused him in the presence of others; that she accused him of being drunk when he had not drank any intoxicating liquors at all; that she had threatened him with bodily harm before their separation, and had threatened to kill him after she separated from him.
His wife admitted that she had gotten a butcher knife to him at one time, but stated that she had done so because he was drunk and had a gun. She also admitted that she had kicked him on one occasion, but she' stated that she had done so because he had mistreated one of the children. ' She also admitted that after she had separated from her husband, she had threatened to kill him if he came back to her house, and said that she was disgusted with him and had a settled hatred for him because of his drinking.
Without going into details, it may be said that the other evidence in the case shows that the defendant always treated his wife kindly when he was not drunk, and that she was in the habit of cursing and abusing him without any cause therefor; that she had a very violent temper and systematically treated her husband with rudeness and contempt.
It follows that the decree was correct, and it will be affirmed. | [
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Kirby, J.
This appeal comes from a judgment of the circuit court refusing to vacate and set aside a default judgment rendered herein.
The case was begun in the justice court as a suit on a note with an attachment issued. An affidavit and bond for attachment were filed and a writ of replevin was issued, it seems. The case was transferred to the court of common pleas on motion of the defendant’s attorney, who failed to appear for his clients, and the default judgment against them and their bondsmen was rendered but was not entered on the judgment record of that court. Their attorney, Kelley, filed a motion to vacate the judgment, but withdrew it and took an appeal to the circuit court.
There was no record of the proceeding and no judgment of the court of common pleas, no note or copy of it and no mortgage transmitted to the circuit court,
On December 21, 1931, the circuit court affirmed the judgment of the court of common pleas by default, it being alleged that no evidence was introduced there nor a copy of the note upon which suit was brought, no judgment or docket entries of the court of common pleas, and no evidence to support the attachment and fix the damages. The defendants and their bondsmen learned of the judgment and at the adjourned day of the court on February 19, 1932, presented their motion to vacate the default judgment, which the court overruled, and this appeal is prosecuted from that order.
The motion to vacate the judgment was filed on the 21st day of January, 1932, and heard by the court at an adjourned day of the regular term on February 19, 1932. It was alleged in the motion to vacate that the defendants had employed and paid an attorney to defend the suit, but that he failed to attend the trial or notify the defendants and judgment was taken against them by default. It was alleged that the judgment was void because rendered -without evidence and was but an af-firmance of the judgment of the common pleas court, where no judgment was in fact entered of record; and that the defendants and their bondsmen have a good defense for the following reasons:
“(a) That the property was never attached; (b) that the affidavit calls for attachment but no order of attachment was issued but an order of delivery in its stead; (c) that the property was never taken under the order of delivery; (d) that the property, if attached or taken, was not worth over $25.”
The court was requested to make findings of law and fact, but refused to do so and overruled and denied, the motion to vacate the judgment. Appellants gave notice to opposing counsel on March 15, 1932, that the motion for a new trial would be presented on the 16th day of March, the court having adjourned. The motion was overruled, and an appeal granted.
It is urged that the court erred in not setting aside the default judgment on the ground of unavoidable cas ualty because defendants’ attorney, duly employed, failed to appear and represent them at the trial or notify them that he would not do so or had not done so. The motion to vacate or set aside the judgment, however, did not set up a meritorious defense so far as the original defendants were concerned, but only stated that they had such a defense and specified that the bondsmen were not liable because, the property was never attached, but an order of delivery was issued therefor, and that if the property was attached or taken it was not of the value of more than $25.
One seeking relief from a default judgment on the ground of unavoidable casualty preventing defense to the action, as here, must allege and show that he has a meritorious defense, it being held in some cases that such defense must not only be alleged but a prima facie showing of merit made in order that the court may determine whether he was injured by not being permitted to have benefit of it. Lambie v. Rawleigh and Co., 178 Ark. 1019, 14 S. W. (2d) 245; Smith v. Globe-Rutgers Fire Ins. Co., 174 Ark. 346, 295 S. W. 388; United Order of Good Samaritans v. Brooks, 168 Ark. 570, 270 S. W. 955: Minick v. Ramey, 168 Ark. 180, 269 S. W. 565; Supreme Lodge of Woodman of Union v. Johnson, 179 Ark. 589, 17 S. W. (2d) 323.
A mere allegation of having a meritorious defense is not a sufficient showing of such defense as would warrant or require the granting of the relief sought.
There was no abuse of discretion in .the court’s holding, and the judgment will be affirmed. It is so ordered. | [
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MoHaNey, J.
Appellee was employed by appellant to work in its yards connected with its North Little Rock shops. At the time of his injury, hereinafter mentioned, he was engaged in stenciling coal cars. It was usual and customary to do this work out in the yards in the open in good weather, but on the morning of October 23, 1930, the date of the injury complained of, it was raining to such extent that such work could not proceed in the open, and about 1 p. m. of said date, the rain continuing, the foreman caused ten coal cars to be moved under the sheds, and directed appellee to stencil the cars. There were a number of tracks under the sheds about eight or ten feet apart. There had been stacked a°pile of grain strips between the track on which the coal cars were placed and another, same being about two feet wide and one and one-half or two feet high and held together by stakes driven in the ground. These grain strips were three-cornered pieces of wood of about two-inch faces, about thirty feet long, and were used in coal cars to prevent wastage of bulk grain when shipped therein. Some three or four of these strips had fallen off the pile. In moving from one place to another in doing his work, and while carrying his ladder, appellee stepped on said grain strips, which gave way and caused him to fall, injuring his back.
A suit by appellee against appellant resulted in a verdict and judgment against appellant.
The only error urged for a reversal of the judgment by appellant is that the court erred in refusing to direct a verdict in its favor on its request, on the ground that the undisputed evidence shows appellee assumed the risk. We must agree with appellant in this contention.
While it is true that appellee was performing his work under the sheds, a place in which he was not accustomed to work, and that he was in a hurry because he was directed to get the ten cars out, a whole day’s work in half a day, still this pile of strips was perfectly open and obvious, and whatever danger there was in stepping on them was likewise open and obvious; as much so to appel-lee as to appellant. He testified himself that he saw the strips, knew some three or four of them had fallen off the pile, and that the pile was higher than the stakes that held them. It is not clear whether he stepped on the pile and slipped, or whether on one of those that had fallen off, but in either event he must have known that to do so might cause him to fall. If was not incumbent therefore upon appellant to warn him of such danger, as whatever danger there might be was apparent. As said by this court in Crawfordsville Trust Co., v. Nichols, 121 Ark. 556, 181 S. W. 904: “Where the elements of danger are obvious to a person of average intelligence, using due care, an employer is not required to warn his employees to avoid the danger, which ordinary prudence would make him avoid without warning. * * * Something may properly be left to the instinct of self-preservation and to the exercise of the ordinary faculties which every man should use when his safety is known to be involved."
In the recent case of Missouri Pacific Rd. Co. v. Lane, ante p. 807, we said: “He was unloading this car in broad open daylight, and the only excuse he gives for not seeing the oil and thereby avoiding it is that he did not look. Had he looked he would have seen the oil, as it was plainly visible on the top of the car. The law, under such circumstances, is well settled. In the recent case of Mississippi Valley Power Co. v. Hubbard, 181 Ark. 487, 26 S. W. (2d) 118, we said: ‘It is true employees do not ordinarily assume risks created by the negligent act of the master, and that he has a right to require of the master to provide suitable appliances and a safe place in which to do his work, and to do such is the clear duty of the master. St. L., I. M. & S. R. Co. v. Touhey, 67 Ark. 209, 54 S. W. 577, 77 Am. St. Rep. 109; Pettus & Buford v. Kerr, 87 Ark. 396, 112 S. W. 886; St. L., I. M. & S. R. Co. v. Holmes, 88 Ark. 181, 114 S. W. 221. But it is equally true that, where the danger arising from the negligent conduct of the master is so apparent and obvious in its nature as to be at once discoverable to one of ordinary intelligence, an employee, by voluntarily undertaking to perform bis work in such a situation, assumes tbe hazards which exempts the employer from liability on account of injury to the employee. Wisconsin & Ark. Lbr. Co. v. McCloud, 168 Ark. 352, 270 S. W. 599; C. R. I. & P. Ry. Co. v. Allison, 171 Ark. 983, 287 S. W. 197; Ward Furniture Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002.’ Other recent cases on the subject are: Howell v. Harvill, 185 Ark. 977, 50 S. W. (2d) 597, and Koss Construction Co. v. Vanderberg, 185 Ark. 316, 47 S. W. (2d) 41.”
So here, appellee was working in a place which was open and light. He not only could see, 'but actually saw the strips, and deliberately or otherwise stepped upon them. It would be placing too high a duty upon the master to require him to keep the employee’s place of work clear of every object upon which an employee might step and slip or fall. They are not insurers, but are only held to the exercise of ordinary care to furnish a safe place to work. .
For the error in refusing to direct a verdict for appellant, the judgment will be reversed, and, as the case appears to have been fully developed, it will be dismissed. | [
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Mehaffy, J.
The appellant is a fraternal insurance company, and on June 5, 1923, it issued a policy of insurance to James Rivers, and another to his wife, Zetta Rivers. Zetta Rivers was the beneficiary under the policy issued to James Rivers, and he was the beneficiary under the policy issued to her. The policies were identical except the differences in the insured and beneficiary.
The policies provided that the premiums or dues should be paid to the local financial secretary by the first of the month, and it provided that they must be forwarded to the home office of appellant by the tenth of the month, and, if not so forwarded by such date, the policies should be null and void.
It was also provided that, when an amount greater than the premium for one month became due, the insured became automatically suspended, and that, if such dues should be paid later, neither insured nor beneficiary should be entitled to any benefits, not only during the delinquent period, but for 30 days after payment was made.
There was also a provision in the policy that the financial secretary was the agent of the insured, and not the agent of the appellant, and failure of the home office to receive payments rendered the policy null and void.
James Rivers died January 25, 1930, and Zetta Rivers two days later. All premiums were paid by both parties, and they were both in good standing until December, 1929.
The appellant contends that neither the December, 1929, premium, nor the January, 1930, premium was paid as required by the terms of the policy. Appellant also contends that the payment to the local financial secretary was not a payment to appellant. There was a controversy as to whether the January payment had been made.
H. R. Reavis, administrator of the estates of Zetta Rivers and James Rivers, -brought suit in the Prairie Circuit Court, and the appellant filed answer denying all the material allegations in the complaint, and alleged that the policies were void for failure to pay premiums. It also alleged that, under the rules of the company, each of the beneficiaries, being over 51 years of age at the time the policies were taken out, was entitled to only one-half of the face value of the policy.
The case was tried on August 15, 1932, and the jury returned a verdict for the appellee, as administrator, on the policy’' issued to Zetta Rivers in the sum of $300, and on the policy issued to James Rivers, in the sum of $150, and judgment was entered for the sum of $450 with interest from May 1, 1930, at the rate of 6 per cent, per annum. Tlie case is here on appeal.
Appellant contends first that there is no competent evidence tending to show that the premiums for the month of January, 1930, were paid.
H. R. Reavis, the administrator, testified that at the time of the deaths of James and Zetta Rivers, proof of the deaths and the two policies were turned over to hipa, and he mailed all of the papers to the home office of the insurance company at Little Rock. He did not know whether there were any receipts among the papers, hut he sent all of the papers turned over to him to Little Rock, and demanded a receipt. The receipt showed that the company received the papers. Witness had not seen any of the papers nor the policies since he sent them in. The policies called for $300 each, and $50 burial expenses.
It was admitted by the appellant that proof of death was sent in, and that the policies were a printed form, a copy of which was exhibited in court.
The court thereupon told the jury that it was admitted that proof of death was filed and sent to the insurance company, and that Mr. Reavis was duly appointed administrator, and had a right to bring this lawsuit. The court told the jury that the only question involved now, was whether or not premiums were paid up according to the rules of the insurance company at the time of their deaths. This instruction was agreed to by both the parties.
Reavis further testified that James Rivers died first, and Zetta Rivers died two or three days later; that he paid the burial expenses himself, and that the insurance company had never paid him.
J. E. Humphreys testified that he was in the undertaking business in Stuttgart, knew James and Zetta Rivers in their lifetime, and furnished the burial supplies; that he examined the insurance papers, and had all the receipt's from the insurance company before him.
The receipts were exhibited by witness, but the one for December was missing. He bad the January receipt. These were receipts issued by appellant and showed that the January premium had been paid, but there was no receipt for the December payment. All the receipts from the company were there except the one for December.
Witness received the receipts from Zetta Rivers, and they were in a long envelope post-marked Little Rock, and it came from the headquarters of the lodge. A letter acknowledged the receipt of dues sent in for January; this receipt was on a printed form, signed by W. 0. Hill.
H. R. Reavis was recalled, and testified that the dues for December were paid to the local secretary, but she failed to send them in. The money was handed to the local secretary, whose name was Zola Price. She was the local secretary of the United Order of Good Samaritans. Witness knew that the secretary, Zola Price, at times bought money orders and sent them to the company. The company had a local lodge at Brummit, and Zola Price was its local secretary.
Jim Curry testified that he paid Zola Price the December dues at a store down town. He also testified that he took the money to Mrs. Hoover, the postmistress at Brummit, and gave it to her to pay the January dues, and got a receipt for his money. After Jim Rivers died, the company sent a dun, stating that they had received the January dues, and to hurry with the December dues.
1 A letter was introduced, which was on the letterhead of appellant, acknowledging receipt of the December dues.
Appellant introduced some witnesses whose testimony was in conflict with the evidence offered by appel-lee, but as to whether the January and December dues were paid was a question of fact properly submitted to the jury. The, appellant itself stated that the court gave proper instructions, and no objections were offered to any of the court’s instructions.
The burden was upon the appellant to show a forfeiture. Supreme Council American Legion of Honor v. Haas, 116 Ill. App. 587; Ry. Passenger & Freight Conductors Mutual Aid & Benefit Ass’n v. Thompson, 91 Ill. App. 580; United Brotherhood of Carpenters & Joiners of America v. Fortin, 107 Ill. App. 306; Sup. Tent of Knights of Maccabees v. Stensland, 206 Ill. 124, 68 N. E. 1098; Sleight v. Sup. Council of Mystic Toilers, 133 Iowa 379, 107 N. W. 183; Kidder v. Sup. Commandery United Order of Golden Cross, 192 Mass. 326, 78 N. E. 469.
It is not disputed that the December dues or premiums were paid to the local secretary, but it is contended by appellant that, because the dues were not sent in to the home office by the local secretary, the policies were void.
The policy provides that the Supreme Colony shall in no event be responsible to individual members for the failure of the secretaries to send to the Supreme Recorder of Records and .Seal their names and money. The policy also provides that in each or every case or condition that may arise, it is expressly understood and declared that the Colony is the agent of the member or insured, and not of the Supreme Colony.
Whenever an insurance company authorizes the clerk of the local lodge to collect dues from members, it thereby constitutes such person its agent, notwithstanding it may provide in its constitution, by-laws, or policy that such officer, in collecting and forwarding assessments, shall be the agent of the insured. «
It is not disputed that the December dues were paid to the local secretary. The proof shows conclusively that they were so paid, and the local secretary did not testify, and this evidence that they were paid to the local secretary is not contradicted. In order that there, should be a forfeiture of the policy, the burden was on the appellant to show a forfeiture of the policy, and, sino,e the undisputed proof shows that the dues were paid to the local secretary, who was the agent of the appellant in collecting and forwarding the dnes, this was a payment to the company. Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132, 219 S. W. 759; Eminent Household of Columbian Woodmen v. Simmons, 150 Ark. 325, 234 S. W. 182; Supreme Lodge K. of H. v. Davis, 26 Colo. 252, 58 Pac. 595; Sup. Tribe of Ben Hur v. Hall, 24 Ind. App. 316, 56 N. E. 780, 79 Amer. State Rep. 262; Sup. Lodge K. of P. v. Withers, 177 U. S. 260, 20 Sup. Ct. 611.
One provision of the policy provides that the policy shall be void if the dnes are not received at the home office as required by the constitution and laws of the society, and, if the dues are paid after the time, neither the insured nor the beneficiary shall be entitled to any benefits before the expiration of 30 days.
Another provision of the policy provides that when the dues exceed one month’s dues, taxes and fines included, the insured shall be automatically suspended, etc.
There seems to be some conflict in these provisions of the policy. They, at all events, make the provision of the policy with reference to forfeiture ambiguous.
This policy, like all policies of insurance, should be construed most strongly against the insurance company that wrote it, and it is also a well-established rule of this court in the construction of contracts of this character that, if capable of two constructions, one of which will make the policy void, and the other will avoid a forfeiture, that construction must be adopted which avoids the forfeiture. Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; American Indemnity Co. v. Hood, 183 Ark. 266, 35 S. W. (2d) 67; Ætna Casualty & Surety Co. v. Sengel, 183 Ark. 151, 35 S. W. (2d) 67; Mech. Ins. Co. v. Inter-Southern Life Ins. Co., 184 Ark. 625, 43 S. W. (2d) 81; Gilbert v. Life & Casualty Co., 185 Ark. 256, 46 S. W. (2d) 807; Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; McClain v. Reliance Life Ins. Co., 174 Ark. 478, 295 S. W. 730; Mosaic Templars of America v. Crook, 170 Ark. 474, 280 S. W. 3; Fire Ins. Co. v. Boydston, 173 Ark. 437, 293 S. W. 730; Nat. Benevolent Society v. Harris, 178 Ark. 24, 9 S. W. (2d) 773.
We find no error, and the judgment is affirmed. | [
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Hart, J.
On the 26th day of August, 1909, Mrs. Carrie Winkleman was killed and robbed in the city of Fayetteville, Washington County, Arkansas. She was accustomed to carry $8,000 or $10,000 in a bustle on her person, and was robbed and killed to secure her money. The evidencé tended to show that the crime was committed by Gus Sartin. The defendant was indicted for the crime of accessory before the fact to robbery. He was tried before a jury, found guilty, and his punishment assessed at three years in the State penitentiary.
The indictment (formal parts omitted) is as follows:
“The grand jury of Washington County, in the name and by the authority of the State of Arkansas, accuse N. H., alias ‘Red,’ Fox, of the crime of accessory before the fact to the crime of robbery committed as follows, towit: that one Gus Sartin in the said county of Washington, in the State of Arkansas, on the 26th day of August, 1909, unlawfully, feloniously, and violently did by force and intimidation take from the person of Carrie Winkleman the sum of ten thousand dollars in money, gold, silver and paper money, current money, in the State of Arkansas, of the value of ten thousand dollars, the personal property of the said Carrie Winkleman. And the said N. H., alias ‘Red,’ Fox, not being present aiding, abetting and assisting, in said county of Washington in the State of Arkansas, on said 26th day of August, 1909, and before said crime of robbery was committed by said Gus Sartin, as aforesaid, unlawfully and feloniously did advise, and encourage the said Gus Martin to commit said crime of robbery, as aforesaid, against the peace and dignity of the State of Arkansas.”
It is insisted by counsel for appellant that the court erred in not sustaining their demurrer to the indictment. They insist that the indictment only alleges that at some time and place not in Washington County, Arkansas, the defendant advised and encouraged Gus Sartin to commit the crime. While the indictment is susceptible of this meaning, it would be a strained construction to place upon it. We think that the indictment in plain terms alleges that the defendant, not being present aiding, abetting, and assisting, did, in the county of Washington in the State of Arkansas, unlawfully and feloniously advise and encourage the said Gus Sartin, etc. Therefore, the indictment alleges that he was in said county and State, and aided and encouraged the commission of the crime before it was committed.
It is urged by counsel for appellant that the court erred in refusing to discharge him upon his motion for the reason that he was not brought to trial before the end of the second term of the court having jurisdiction of the offense, which was held after the finding of the indictment. He bases his contention on section 2313 of Kirby’s Digest. If it be conceded that the statute is mandatory, before a defendant would be entitled to his discharge for want of prosecution, he must have placed himself on record in the attitude of demanding a trial, or at least resisting a postponement. Dillard v. State, 65 Ark. 404; Stewart v. State, 13 Ark. 720. Here the defendant was.admitted to bail, and did not either demand a trial or resist the order for a continuance. The court was correct in refusing to dismiss his case for want of prosecution.
The third assignment of error in defendant’s motion for a new trial is that the court erred in admitting certain testimony which was alleged to be prejudicial to the rights of the defendant. Under this assignment the defendant complains of the introduction of the testimony of James Izgregg, a witness, who testified at the trial of this defendant in the Washington Circuit Court on the charge of accessory before the fact to the murder of Carrie Winkleman. It was proved at the trial that the witness had since died. The defendant agreed that, in the event the court should hold that the testimony was competent, the testimony taken by the stenographer at the previous trial should be read as his evidence, and agreed that the testimony as transcribed by the stenographer from her shorthand notes was a true and correct statement of his evidence taken upon the former trial.
It is contended by counsel for defendant that the testimony is not competent because it was taken under a different indictment and in a different case. We do not think that the objection is well taken. The record shows that the testimony was taken under an indictment charging the defendant with the offense of being accessory .to the murder of Mrs. Carrie Winkle-man,. and the present indictment charges him with being ac-. cessory to the crime of robbery of Carrie Winkleman. The robbery and the murder were all parts of the same transaction, and were committed by the same persons at the same time for the same purposes. The identity of the issues was complete, and-there can be no well founded reason why the testimony taken on the first trial should not. be read as evidence on the second trial where it appears that the witness is dead. This precise question has not been passed on by the court, but in the case of Poe v. State, 95 Ark. 172, where all our earlier cases bearing 6n this question are cited, the court held: “Where an absent witness in a felony case is dead, beyond the jurisdiction of the court, or upon diligent inquiry can not be found, what such witness had previously testified upon the examining trial of the defendant may be proved at the trial of the case, provided the defendant was present at the examining trial, and had the opportunity of cross examination.”
The reason given by the court in so holding was that the defendant was present and had a right and the opportunity to cross examine the witness. The general rule in such cases is that it is not necessary, in order to admit the testimony, that it should have been given on the trial of a case in the exact technical shape for the second action, or that the parties should be identically and nominally the same with those on trial of the first action. The true test in regard to the admissibility of such evidence where the issues are substantially the same is, did the party who is to be affected by it have the power to cross examine the witness and the opportunity to do so? The issues in the two cases were substantially the same, and the parties were the same. As far as the testimony given by Izgregg is concerned, it may be said that it related to the same issue in both cases, and was competent for the same purpose in both cases. The parties in both cases were the same, and the testimony was admitted for the same purpose, and to establish the same issue in both cases. Both indictments arose from the same facts, and the defendant, as we have seen, had the opportunity to cross examine the witness on the first trial. The witness having died since the first trial, we hold that his testimony, taken on-the first trial, is competent. Cox v. State, 28 Tex. App. 92; 1 Greenlead, Ev. (16 ed.) § § 163-4; 16 Cyc. 1095; Ency. of Ev. vol 1, p. 915-18; Charlesworth v. Tinker, 18 Wis. 663. The testimony tended to show that Gus Sartin committed the murder and robbery. Izgregg testified: “I live in Sulphur, Oklahoma. Before the murder and robbery of Mrs. Carrie Winkleman, I heard Fox and Sartin in conversation. I heard Fox say: T know the money is there.’ And again: T roomed at that place two or three years ago.’ I also heard Fox say: Tf you go there, you want to get a room in the small house out from the big one, where you will have a better chance to get the money.’ Sartin replied: Tf I go after it, I will be damned sure to get it.’ Fox left early in August saying he was going to visit his mother near Van Bureh, Arkansas. After his return home, he read carefully all of the papers and was in possession of a considerable sum of money. It was some time in October I heard of Mrs. Winkleman’s death.”
Other testimony was adduced tending to show that the defendant was in the restaurant where Mrs. Winkleman worked, and came there with Gus Sartin on Thursday before she was killed on Saturday in the month of August following the conversations testified to by Izgregg, and that they knew that she carried a large sum of money in her bustle. Other testimony showed that Mrs. Winkleman had two rooming houses, and that Sartin rented a room in the smaller one, and was rooming there at the time Mrs. Winkleman was murdered and robbed. Mrs. Winkleman carried a large sum on her person in a bustle. When she was found, her bustle and the money contained in it had been taken from her person.
It is also insisted that the testimony of Izgregg which was read in the case was incompetent for the reason that the advice and encouragement given by Fox to Sartin occurred at Sulphur, Oklahoma, and beyond the jurisdiction of the courts of this State. Counsel rely upon the case of the State v. Chapin, 17 Ark. 561, to sustain their contention. In the Chapin case, the defendant was never in the State of Arkansas at any time prior to the burning of the boat. The facts in this case are distinguishable from those in the Chapin case, The testimony here shows that Fox came to Washington County, Arkansas, in company with Sartin a few days before the commission of the crime. He was present with him in the restaurant where the murdered and robbed woman worked, and the acts and declarations of Fox and Sartin in Oklahoma are competent as circumstances tending to show for what purpose they were in Washington County, Arkansas.
The next assignment of error is in regard to the misconduct of Wythe Walker who assisted the prosecuting attorney in the case. He was examining a witness in regard to the past life and conduct of the defendant and asked the witness to tell what place in Texas the defendant hadbeen in beforehecame to reside in Sulphur, Oklahoma. Upon objection being made to the question, Mr. Walker said: “If your Honor please, I think it is proper to show whether he knows he had been in Texas; whether he knows he was in the penitentiary.”' The court said: “It is entirely improper at this time. Everything that relates as to whether the defendant had been in the penitentiary is cut out and withdrawn from the jury and not to be considered in any way.” Whatever of prejudice might have been created against the defendant by the remarks of Mr. Walker, we think, was eliminated by what the court said at the time. The court told the jury that the testimony was not competent and directed it not to consider the same. This appears to have been done promptly and with sufficient impressiveness under the circumstances. Therefore we do not think that, the judgment should be reversed on that account. Walker v. Fayetteville, 93 Ark. 443; Blackshear v. State, 94 Ark. 548; Kansas City So. Ry. v. Murphy, 74 Ark. 256.
It is next urged that the court erred in refusing to instruct the jury to acquit the defendant if it found that Mrs. Winkleman died from the effects of the assault made on her before the money was taken from her person. The court by proper instruction had told the jury what robbery was under our statutes, and in plain and unambiguous language had covered every phase of the question. All the evidence in the case tended to show that the murder and robbery were a part of the same transaction, and that the robbery was the purpose for which the murder was committed. Therefore, we do not think that the court erred in refusing to give the instruction.
It is next urged that the court erred in permitting Mr. Walker to assist in the prosecution of the case. The case was in direct charge of the prosecuting attorney, and there was no error in permitting Mr. Walker to assist him in trying the case.
Finally, it is contended by counsel for the defendant that the court erred in not permitting them to argue their motion for a new trial. It will be noted that precisely the same evidence was given in this ease as was given on the trial of the defendant as accessory for the murder of Mrs. Winkleman, and it can not be doubted that the court was perfectly familiar with all the testimony and with all the assignments of error which the defendant had made during the progress of the trial. Therefore, it was in the discretion of the court whether or not time should be given for the argument of the motion for a new trial, and we hold that the court did not abuse its discretion in refusing to allow counsel for defendant to argue it before him.
The judgment will be affirmed. | [
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Feauenthal, J.
This is an action instituted by C. S. Holt to recover $175 for services rendered as a physician and surgeon to two employees of the defendant. The defendant denied any original undertaking on his part to pay for said services, and pleaded the statute of frauds. The defendant was a contractor engaged in the construction of a building in the city of Fort Smith. He had two laborers employed on the building who were there injured and then taken to a hospital for treatment. The testimony on the part of the plaintiff tended to prove that he told the defendant, before rendering the services to the injured men, that he desired to know who would pay him for such services, and that defendant directed him to attend on the men, and told him that he would pay him for his services. Thereupon he rendered the services and charged same to the defendant. The defendant on the other hand testified that he told plaintiff that, if he could not collect the amount of his services from the injured men, he would see that he got his money. The testimony on the part of. the plaintiff tended further to prove that, some time after the services were rendered and the men had recovered, the defendant agreed to the charge which had been made by the plaintiff against him for these services rendered to his employees. He then requested the plaintiff to make out the account against each of them and turn same over to his (defendant’s) attorney so that he might collect them from said employees. The plaintiff testified that he did this, but did not thereby release defendant from his promise to pay the debt. The court gave a number of instructions at the request of the defendant, embodying the principle that a promise to pay the debt of another is not enforceable unless in writing, signed by the party to be charged therewith, and applied it specifically in various forms to the facts of the case. One of the instructions thus requested was refused, and it is claimed by counsel for de fendant that he was thereby prejudiced. We do not think it would serve any useful purpose to set this instruction out because it was, in our opinion, fully covered by other instructions which were given. Among others, the court, at the request of the plaintiff, gave the following instruction:
“4. If you believe from the evidence that the plaintiff charged the value of his services to defendant and after such charge was made defendant ratified same, then the defendant’s promise to pay need not be in writing. ’ ’
Counsel for defendant urge that this instruction was erroneous for the reason that in effect it warranted a recovery upon an oral promise made to pay the preexisting debt of another and without any new consideration to support it, whereas such promise is within the statute of frauds. The question as to whether or not the promise of a third person to pay for services rendered to another must be in writing under the provisions of the statute of frauds depends upon whether the promise was original or collateral; that is, whether the debt is the primary undertaking of the promisor or of the person to whom the services were rendered. If the debt was that of another, and the liability to pay it rested with such person, then the promise by a third person to pay it is collateral and must be in .writing; but the mere fact that the services were rendered to another does not necessarily determine that the promise made by the third person is collateral. It may be an original undertaking by him; and whether it is or not depends upon the transaction, rather than on the motive of the promisor or the nature of the consideration. If the promise made by the third person placed him under an obligation to pay the debt independently of any contract of guaranty, then it is binding without writing. If the credit at the time services are performed for another is, at the direction of the third person, given solely to him, then the transaction is simply an undertaking to pay the promisor’s own debt, and is a primary obligation not within the statute. Brown v. Harrell, 40 Ark. 429; Cauthron Lumber Co. v. Hall, 76 Ark. 1; Long v. McDaniel, 76 Ark. 292; Leifer Mfg. Co. v. Gross, 93 Ark. 277.
If, however, the primary debt subsists against another, and the promise of the third person to pay it is made subsequent to the time it was incurred, then such promise to pay by the third person will not be an original undertaking unless the promise is founded on a new consideration moving to and beneficial to him, so that he thereby comes under an independent duty to pay irrespective of the liability of the other person. The rule, as declared by this court in the case of Hughes v. Lawson, 31 Ark. 613, is thus stated: “A promise by a third person to pay the preexisting debt of another, founded upon an original liability and without any new consideration to support it, is a collateral undertaking and within the statute of frauds.” Kurtz v. Adams, 12 Ark. 174; Chapline v. Atkinson, 45 Ark. 67; White v. Rentoul, 108 N. Y. 222. The controlling question in all such cases is whether or not, at the time the services were rendered, to another, the credit therefor was given to the third person then promising to pay for them. If it was, then the debt becomes the original undertaking of the promisor and need not be in writing. When the services are rendered to another, the law implies a promise upon his part to pay therefor, and a liability is thus imposed by law upon him to make such payment. If subsequently a third person agrees to pay such debt, then it becomes a promise to pay the debt of another, and, unless based upon a new consideration independent of the original debt, it is only a collateral undertaking and must be in writing to be enforceable.
In the above instruction numbered 4, given on behalf of the plaintiff, the court told the jury that if the value of the services was charged to the defendant, and subsequently the defendant ratified the same, then his promise to pay need not be in writing. According to this instruction, the only direction or promise made by the defendant was subsequent to the time that the services were rendered, and such agreement was therefore a promise to pay a preexisting debt. Inasmuch as the services in the case at bar were rendered to the injured men and the promise referred to in this instruction was made after such services had been rendered, the charge for the services referred to in the instructions was necessarily not the debt of the defendant but of these injured men. There could be no ratification by the defendant of the act of charging this debt to him unless the charge was made by direction of some agent authorized or unauthorized. McTighe v. Herman, 42 Ark. 285. There was no testimony that any one claiming to represent the defendant at the time the services were rendered authorized them to be charged to him. Under the facts adduced in evidence in this case, this instruction could only mean that if, after the charge was made, the defendant agreed to it, then such agreement need not be in writing; but such agreement only constituted in fact a promise to pay the debt. As we have seen above, a subsequent promise by a third person to pay the preexisting debt -of another must be in writing unless founded on a new consideration. The court erred, therefore, in giving this instruction.
We have examined the other instructions given in the case and those which were refused, and find no error in the rulings made by the lower court thereon. We do not deem it necessary to note or pass upon other alleged errors suggested by counsel for defendant, as it is not likely that the matters complained of will occur upon another trial of this case. For the error indicated above, the judgment is reversed, and this cause is remanded for a new trial. | [
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Humphreys, J.
This is an appeal from a .judgment rendered in the circuit court of Jefferson County against appellant for $454.60' and interest on its surety bond conditioned for the payment of all labor materials to whomsoever due used in the construction of a school building in Fordyce Special School District No. 39 of Fordyce, Arkansas, provided suit be brought thereon within twelve months from the day on which the final payment under the contract falls due. The bond made the basis of the action is as follows:
“KNOW ALL MEN; that we, Tom Wilmoth, of Camden, Ark., hereinafter called the principal, and the National Surety Company, a New York corporation with its principal office located at No. 115 Broadway, in the city and State of New York, hereinafter called the surety or sureties, are held and firmly hound unto Fordyce Special School District No. 39 of Fordyce, Ark., hereinafter called the owner, in the sum of seven thousand eight hundred sixty-four dollars ($7,864) for the payment whereof the principal- and the surety or sureties bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
“Whereas, the principal has, by means of a written agreement, dated September 25,1930, entered into a contract with the owner for erection of a one-story brick -veneer school building at Fordyce, Arkansas, a copy of which agreement is by reference made a part hereof;
“Now therefore, the condition of this obligation is such that if the principal shall faithfully perform the contract on his part, and satisfy all claims and demands, incurred for the same, and shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the owner may incur in making good any such default, and shall pay all persons who have contracts directly with the principal for labor or materials, then this obligation shall be null and void; otherwise it shall remain in full force and effect.
“Provided, however, that no suit, action or proceeding by reason of any default whatever shall be brought on this bond after twelve months from the day on which the final payment under the contract falls due.
“And provided, that any alterations which may be made in the terms of the contract, or in the work to be done under it, or the giving by the owner of any extension of time for the performance of the contract, or any other forbearance on the part of either the owner or the principal to the other shall not in any way release the principal and tbe surety or sureties, or either or any of them, their heirs, executors, administrators, successors, or assigns, from their liability hereunder, notice to the surety or sureties of any such alteration, extension, or forbearance being hereby waived.
“Signed and sealed this 1st day of October, 1930.
“In presence of “as to Tom Wilmoth
B. E. Wait, Jr. “as to National Surety Company
“Attest Artie Lee. “By Wm. E. 'Silliman,
“Agent & Atty. in fact.”
The cause was submitted to the court, sitting as a jury, on the bond and under the following agreed statement of facts:
“That the amount of the account alleged to be due by Tom Wilmoth to the Standard Lumber Company is correct;
“That it is a balance due upon an account for material furnished and actually used in the school building in the town of Fordyce, Arkansas, under a contract entered into by the Fordyce Special School District No. 39, and Tom Wilmoth
“That the bond was executed for the purpose of securing the faithful performance of said contract as set out in the bond;
“That said bond was not filed in the office of the circuit clerk of Dallas County, Arkansas, where said school building was located, until the 17th day of July, 1931, but that it was so filed on said date;
‘ ‘ That the complaint filed herein was not filed within the period of six months from the date of the completion of said job, but was filed within one year from the date of the execution of said bond, and within one year from the date of the completion of the job.”
The only question presented by the appeal is whether the bond sued on was executed pursuant to and in accordance with §§ 1913 and 1914 of Crawford & Moses’ Digest, which provides, among other things, that laborers and materialmen shall bring their suits within six months from the completion of the public improvement or buildings; or whether executed independent of and without reference thereto. If a statutory bond, then ap-pellee’s suit was barred when instituted. If not a statutory bond, then the suit was broug’ht within the time specified in the bond and was not barred.
There is nothing’ in the language of the bond indicating that it was intended to be a statutory bond, and nothing in the stipulation of facts so indicated. The requirements of the statute were not incorporated in the bond. It was ruled in the case of Ætna Casualty & Surety Company v. Big Rock Stone & Material Company, 180 Ark. 1, 20 S. W. (2d) 180, that a bond which did not indicate by its terms that it was intended to be in compliance with the statute could not be treated as a statutory bond.
This court also ruled in the case of Mansfield Lumber Company v. National Surety Company, 176 Ark. 1035, 5 S. W. (2d) 294, that a bond identical in form with the bond involved in the instant case, except as to names, dates, and amounts, was not a statutory bond.
This suit was brought within twelve months after the completion of the building and was not barred under the terms of the bond when brought.
The judgment therefore is affirmed. | [
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Butler, J.
The question in dispute in this ease is the ownership of nine bales of cotton which the appellees had purchased in open market and which they claim by reason of that purchase. The claim of the appellants was based on a mortgage given by Case, appellees’ vendor, which included “all crops of cotton, corn, cotton seed, hay, and all other crops grown by the party of the first part (J. H. Case), or grown by his tenants and share-croppers for him; or caused to be grown by the party of the first part on any of the above places owned or rented by him in Cleveland and Lincoln counties, or other places during the year 1928. Also, all amounts due to the parties of the first part on account of rents and accounts for supplies furnished to tenants and share-croppers during the year 1928 or theretofore. ’ ’
Case, the mortgagor, at or about the close of the cotton season 1928-1929, being heavily involved, left the country, and, on the application of the mortgagees (appellants), a receiver was appointed to take charge of the crops of Case included in the mortgage. The receiver, in the discharge of his duties, took charge of the nine bales of cotton then in the custody of the compress in Pine Bluff which he claimed was cotton upon which the appellants had a mortgage. The appellees intervened, and it was, and is, the contention of the appellants that the burden was upon the appellees to establish their claim to the cotton. In this they are doubtless correct, but the burden was discharged by the undisputed testimony which established the fact that the appellees had bought the cotton in open market from Case and paid full value for it. The burden then shifted to the appellants to show that the cotton was included in the mortgage given by Case to them.' It is also true that the sale of property mortgaged will not divest the mortgagee of its title, although the property is sold in another county than the county in which the mortgage is executed and recorded and to a purchaser who had no knowledge of such mortgage.
These principles of law seem to have been applied by the court, and the question before it for determination was whether or not the mortgage covered this particular cotton. There was little conflict in the testimony, all of which was more or less vague as to how Case came into possession of the cotton that was sold by him to the appellees. Case was a public ginner and had a small store. He would sometimes buy cotton for resale and also had tenants on his farm who grew cotton and some customers whom he furnished, but it is uncertain who grew the cotton in question or from whom it was procured. We are inclined to the opinion that the preponderance of the evidence justified the conclusion reached by the chancellor that the cotton was not included in the mortgage. This being our view, we deem it unnecessary to review the testimony in detail.
Decree affirmed. | [
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McHaNey, J.
This is an action for divorce and custody of an infant child brought by appellant against ap-pellee under our “ninety-day divorce law,” commonly so-called, same being act 71, Acts of 1981, p. 201. This act amends § 3505, Crawford & Moses’ Digest, and, among other things, provides that the plaintiff must prove, but need not allege, “a residence in the State for three months next before the final judgment granting a divorce in the action, and a residence for two months next before the commencement of the action.” Appellant established her residence in Texarkana, Miller County, Arkansas, on November 4,1931. On January 9,1932, she began this action by filing complaint, making affidavit for warning order against appellee, a nonresident, causing same to be published according to law, and having an attorney ad litem appointed, who notified appellee of the pendency of the action and made report thereof. All necessary legal steps to obtain constructive service were taken, and appellee actually appeared and moved to quash the service, at which time he was served with process. On February 12,1932, the cause was tried on the depositions of witnesses theretofore taken and upon oral testimony before the court, with the result that appellant’s complaint was dismissed because the court was of the opinion that it had no jurisdiction of the parties. After reciting the substance of appellant’s testimony in regard to her residence in Texarkana, the decree recites: “From the above testimony it is perfectly apparent that the plaintiff had no permanent intention on November 4, 1931, (the date she moved to Texarkana) and has no permanent intention at this time of making Arkansas her permanent home.”
We think the learned trial court misconstrued the effect of act 71, supra. It does not provide that the plaintiff must, at the time of becoming a resident of this State, or at the time of trial, have a “permanent intention * # * of making Arkansas her permanent home.” All that is required in this respect is that proof must be made of a residence in this State of two months before suit is brought, and of three months before final judgment. The statute makes no mention of a permanent intention of making Arkansas a permanent home. Under the old statute, § 3505, Crawford & Moses’ Digest, it was necessary to allege and prove, in' addition to a legal cause of divorce, a residence in this State for one year next before •commencement of the action. Under this statute this court held in Wood v. Wood, 54 Ark. 172, 15 S. W. 459, that actual and not constructive residence was contemplated. See also Vanness v. Vanness, 128 Ark. 543, 194 S. W. 498, and Wood v. Wood, 140 Ark. 361, 215 S. W. 681. But it has never been held that the plaintiff must have had a permanent intention to make this State a permanent residence. We have held that absence from-the State for a few months on a visit, being temporary, did not interfere with the residence once established. Wood v. Wood, 140 Ark. 361, 215 S. W. 681. The law of divorce is purely statutory, and the General Assembly has enacted the statute under consideration. Whether it be good or bad is not a question for the courts.
In this case the undisputed proof is that appellant had been a resident of the State for more than three months before the trial. The statute relative to jurisdiction had been literally complied with, and the court was of the opinion that the evidence was sufficient to establish a cause of divorce. She frankly admitted that she came to this State to obtain a divorce; that she would remain here if she could secure employment to support herself and child. Even though she moved to this State to bring a divorce suit and had the intention of leaving after the divorce was granted, this would not deprive the court of jurisdiction, if she were actually and in good faith a bona fide resident for the period prescribed by the statute.
The decree will therefore be reversed, and the canse remanded, with directions to grant a divorce and the custody of the child to appellant. | [
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Smith, J.
Mrs. Jane Greene Weseher owned fifteen shares of the capital stock of the Citizens’ Bank & Trust Company, of Harrison, Arkansas, which became insolvent and was taken over on September 1, 1931, by the State Bank Commissioner for liquidation. The Commissioner made and levied an assessment of the full amount of the capital stock of said hank against the shareholders thereof. Mrs. Weseher refused to pay the assessment against her stock, amounting to $375, and the Commissioner brought this suit to enforce its payment. As Mrs. Weseher is a nonresident, service was had by attaching her undivided interest in a certain tract of land.
An intervention was filed in this suit by Laura Glass Greene, who alleged the following facts: Frank B. Greene, the husband of the intervener and the father of the defendant, owned and occupied the attached land as his homestead at the time of his death. He was survived by his widow and three children, all of whom have now passed the age of twenty-one years. Intervener, the widow, occupies the property as her homestead, and does not own any other homestead.
No personal service was had on Mrs. Weseher, and she has not entered her appearance.
A demurrer was filed to the intervention by the plaintiff, which the court overruled, and, as no amend ment to the complaint was made, it was dismissed, and this appeal is from that judgment.
The question for decision is, whether the interest of the nonresident heir is subject to attachment during the continuance of the homestead right of her mother, there being no minor children to share the homestead right with -the widow?
It is apparent, from the facts stated, that the defendant and the other heirs have a vested interest, the enjoyment of which is. postponed during the homestead estate of their mother. McCarroll v. Falls, 129 Ark. 245, 195 S. W. 387. The homestead is not subject to partition during the continuance of the homestead estate. But it is not prayed that partition thereof be granted. It is prayed that an attachment be sustained against a nonresident heir more than twenty-one years of age; and we think this relief may be awarded. The Commissioner had the right, and was under the duty, to collect the stock assessment from the stockholder, and, upon his demand for payment being refused, he had the right to invoke the aid of the court, and, as an incident to this right, to attach the vested interest of the nonresident heir in the land which she had inherited from her father, even though this interest was subject to the homestead right of her mother.
The third headnote in the case of Scoggin v. Hudgins, 78 Ark. 531, 94 S. W. 684, 115 Am. St. Rep. 60, reads as follows: “Notwithstanding Constitution 1874, art. 9, § 3, provides that the ‘homestead of any resident of this State who is married or the head of a family shall not be subject to the lien of any judgment or decree of any court, or to sale under execution or other process thereon,’ etc., a court of equity may declare that a claim of creditors is a lien on the homestead of a deceased debtor in the hands of his widow and heirs, but that it shall not be sold until the homestead expires.”
In the case of Winfrey v. People’s Savings Bank, 176 Ark. 941, 5 S. W. (2d) 360, the facts were as follows : Pottebahm sued Williams, a nonrésident, upón'a note. Judgment was rendered for the amount of the note, and an attachment was sustained against a lot, upon which the mother of the defendant resided as the homestead of her deceased husband, who was the father of the defendant. • The interest of the nonresident defendant was later sold under the judgment to Potte-baum. The homestead estate of the widow was later terminated by her death, and the widow of Pottebaum, who had acquired the interests of the heirs of her husband, brought suit to partition the lot which had constituted the homestead, and to have assigned to her the half interest which her husband had purchased at the execution sale under the judgment against Williams, one of the heirs. It was there said: “It was alleged that the judgment against Williams was void for the following reasons: The lot levied upon had been owned by Williams’ father, who, upon his death, was survived by his widow and two children, and the lot was then occupied by Williams’ mother as her homestead. It is therefore insisted that, as the lot was a homestead, it was not subject to sale. In reply to this contention, it suffices to say that the widow was not a party to the attachment suit, and her homestead right was not affected by it. The defendant had an interest in the lot, which was, of course, subject to his mother’s right of homestead, and it was upon this interest that the attachment was levied. The homestead interest of the widow terminated by her death in 1925, before the institution of this suit.” The decree from which the appeal had come directing’ the partition of the land was affirmed.
In the instant case the widow occupying the attached property is a party, but she became a party upon her own intervention. No relief was prayed against her, and her homestead right is not questioned, and no judgment rendered against her daughter will divest this right. See, Brandon v. Moore, 50 Ark. 247, 7 S. W. 36. There is therefore no reason why the court should not adjudicate the claim of the Bank Commissioner for a judgment against the daughter, and the judgment of the court below overruling the demurrer to the intervention will he reversed, and the cause will be remanded with directions to sustain the demurrer. | [
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Mehaety, J.
The firm of Jackson-Hill Cotton Company became indebted to the American Southern Trust Company, and, to secure its debt, executed a deed to the American Southern Trust Company conveying about 8,000 acres of land in Ashley County, Arkansas. The conveyance, although a deed in form, in fact was a mortgage, and signed by the individual members of the firm of Jackson-Hill Cotton Company, and their wives, as follows: Ranson J. Jackson and Ann C. Jackson, his wife; B. 0. Jackson and Della McM. Jackson, his wife; Harry E. Hill and Bracey Jackson Hill, his wife.
Bracey Jackson Hill was the sister of B. 0. Jackson and Ranson J. Jackson, and was living in Pulaski County until the time of her death. Harry E. Hill was appointed administrator of her estate.
W. O. Davis was appointed receiver of the American Southern Trust Company, and presented the claim to the administrator of the estate of Bracey Jackson Hill, which claim was disallowed by the administrator.
Thereafter, on October 15, 1931, the claim was allowed by the probate court of Pulaski County. Before the claim was filed in the probate conrt of Pulaski County, suit had been filed by W. 0. Davis, receiver, in Ashley County, Arkansas, to foreclose the mortgage in that county. Said suit is now pending in the Ashley County Chancery Court.
Thereafter a petition on behalf of the children of Bracey Jackson Hill was filed in Pulaski Probate Court, asking that the allowance of said claim he set aside, and that the court remove Hill as administrator, and appoint R. J. Jackson administrator in succession of the estate of Bracey J. Hill, deceased.
The probate court made an order reciting the pen-dency of the suit in Ashley Chancery Court against the administrator and others to foreclose the mortgage, and to obtain a judgment against the administrator and others upon the notes sued on. The probate court, for that reason, set aside the allowance made on December 23,1931, and refused to allow or disallow the claim-. Appellant then filed in the Pulaski Circuit Court a petition for a writ of mandamus to compel the Pulaski Probate Court to act on the claim.
Ross Lawhon, the judge of the Pulaski Probate Court, did not appear, and an order was issued directing him to pass on the claim, and either allow or disallow it.
Thereafter Ross Lawhon, judge of the probate court, filed a petition and asked that the writ he set aside. The circuit court set aside the writ and refused to issue the writ of mandamus. The case is here on appeal.
The only issue involved is whether appellant can foreclose in one county a mortgage which he holds and at the same time, during the pendency of the foreclosure suit, probate his claim against the estate in another county.
The appellee’s first contention is that § 1189 of Crawford & Moses’ Digest prohibits the prosecution of the suit in Pulaski Probate Court, while the foreclosure suit is pending in another county. He relies on the third paragraph of the above section, which states, as a ground of demurrer, that there is another action pending between the same parties for the same cause.
The suits are not between the same parties, and they are not for the same cause. The suit in the Pulaski Probate Court is against the estate of Bracey Jackson Hill for an allowance against the estate. The suit in Ashley Chancery Court is against several persons, including the administrator of the estate of Bracey Jackson Hill, and is for the foreclosure of a mortgage.
The Pulaski County Probate Court would have no jurisdiction to foreclose a mortgage, and the Ashley Chancery Court would have no jurisdiction to allow a claim against the estate of Bracey Jackson Hill.
It is only in cases where two courts have concurrent jurisdiction of the same cause of action that the pendency of the case in one court bars the right to pursue the same remedy by the same parties in another court. Kastor v. Elliott, 77 Ark. 148, 91 S. W. 8; Simms v. Miller, 151 Ark. 377, 236 S. W. 828; Bd. Dir. St. Francis Levee Dist. v. Redditt, 79 Ark. 154, 95 S. W. 482.
It is said that, if the Pulaski County Probate Court allows or disallows the claim, this will bring about a conflict of jurisdiction with the chancery court of Ashley County. It is true that one court might find one amount, and another court a different amount. One court might find there was liability and the other that there was no liability, but these questions are not before us, and, if such a thing should happen, and appeals be taken in both cases to this court, it would then become the duty of this ■ court to decide this question.
But the question now before the court is whether another suit pending in Ashley County was a bar to the right of prosecuting the claim in the probate court of Pulaski County, and, as we have said, it is not between the same parties, and is not the same cause of action, and the pendency of the suit in Ashley County does not prevent the claimant from prosecuting his claim in the probate court of Pulaski County. It is only in cases where the causes of action are inconsistent that the prosecution of one suit bars tbe other. Where the two remedies are cumulative and not inconsistent, both snits may be prosecuted at the same time. Sturdivant v. Reese, 86 Ark. 452, 111 S. W. 261; Dilley v. Simmons National Bank, 108 Ark. 342, 158 S. W. 144; Craig v. Meriwether, 84 Ark. 298, 105 S. W. 585.
“Where the law affords several distinct but not inconsistent remedies for the enforcement of a right, the mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies. In order to operate as a waiver or estoppel, the election must be between coexistent and inconsistent remedies. To determine whether coexistent remedies are inconsistent, the relation of the parties with reference to the right sought to be enforced as asserted by the pleadings should be considered. If more than one remedy exists, but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. All consistent remedies may in general be pursued concurrently even to final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.” American Process Co. v. Florida Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054.
“Another class of cases exists where there is but one cause of action but in which different or alternative remedies may be pursued. It is permissible to follow these remedies or reliefs independently, even in some cases to judgment, although but one satisfaction can be had. Thus a creditor whose claim is secured by two written obligations falling due simultaneously has a right to proceed at once thereafter upon either or both of them to enforce payment of the amount due. ” 9 R. C. L. 958-59.
“The doctrine of the election of remedies, that the pursuit of one remedy will exclude the pursuit of another applies only to those cases in which the party has two or more remedies which are inconsistent with each other, and has no application to a state of facts where the remedies available to him are concurrent and consistent. Where the law furnishes a party with two or more concurrent and consistent remedies, he may prosecute one or all until satisfaction is had; but a satisfaction of one is a satisfaction of all. He may select and adopt one as better adapted than the others to work out his purpose, but his choice is not compulsory or final. ’ ’ 20 C. J. 6-7.
It is said in a note cited in support of the above text as follows: “If more than one remedy exists, but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. All consistent remedies may in general he pursued concurrently even to-final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.” Note 56, 20 C. J. 7.
If the remedies had been the same, and the parties the same in each court in this case, then the jurisdiction of the court which had been first invoked would retain jurisdiction, and no other court would exercise jurisdiction during the pendency of the first suit. In other words, where courts have concurrent jurisdiction, the one that first obtains jurisdiction will determine the case, and no other court with concurrent jurisdiction would be permitted to interfere. But where the remedies are wholly different, as they are in this case, and are consistent, as they are in this case, then they are cumulative, and the plaintiff may pursue as many remedies as he may have.
In a recent case we said: “We find nothing in the law requiring a plaintiff to exhaust his security in the mortgage before resorting to other proceedings. A plaintiff creditor may prosecute all remedies against a debtor with the right, of course, to only one satisfaction of the debt.” Vaughan v. Screeton, 181 Ark. 511, 27 S. W. (2d) 789; Rhodes v. Cannon, 112 Ark. 6, 164 S. W. 752; England v. Spillers, 128 Ark. 33, 193 S. W. 86.
Our attention has been called to the case of McLean v. McLean, 184 Wis. 495, 199 N. W. 459. It may be said in the first place that the authorities on the question here involved are not entirely harmonious. Different States have different statutes governing the question, but in the case of McLean, referred to, the conrt said that the owner of the mortgage had the right to pnrsne one of three remedies, and that statement indicates that that court might hold that they could not all be prosecuted at the same time.
But this question was not 'before the court in the McLean case. The court itself stated as follows: “The appellants in the court below pleaded the statute of limitations, and the only question involved on this appeal is whether or not the note and mortgage are barred by such statutes.” The court was not considering the question before us; it was unimportant. No one connected with the case gave any thought to the proposition here involved, because the only question before the court was the question of the statute of limitations.
The weight of authority seems to be that, where one has cumulative and consistent remedies, he may pursue all or one.
Attention is called to the case of Jamison v. Adler-Goldman Commission Co., 59 Ark. 548, 28 S. W. 35, and the case of Merchants’ Nat. Bank of Ft. Smith v. Taylor, 181 Ark. 356, 25 S. W. (2d) 1048. Under these authorities, if any amounts were collected from the securities, it would, of course, have to be applied in reduction of the claim in probate court. So, also, if payments were made on the claim in the probate court, the claim pending in the Ashley Chancery Court would necessarily be reduced by the amount collected in the probate court.
In other words, although a person may pursue one or all his remedies, he can have but one satisfaction.
* The judgment of the circuit court is reversed, and the cause remanded with directions to issue the writ. | [
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McHaney, J.
Appellant district was organized in 1925. The properties of appellees were located in the dis trict. The board of assessors assessed benefits against their respective properties as follows: Johnson, $2,430; G-reenhaw, $1,215, and Shaffer at $2,265. In 1929, acting-pursuant of an order of the board of commissioners, the board of assessors reassessed the benefits against the real property of the district, notice of which was duly published and said readjusted assessment approved by the city council. In such readjusted assessment the property of appellees was assessed as follows: Johnson, $4,430; G-reenhaw, $1,500, and Shaffer, $2,365. No action was taken by appellees regarding the increased assessment of benefits against their properties. Again, in April, 1931, pursuant to another order of the board of commissioners, the board of assessors again readjusted the assessment of benefits against the real property in the district, but no change was made at this time in the assessment of the benefits on the properties of appellees. Each of the ap-pellees took an appeal to the city council, in which they objected to the readjusted assessment of benefits against their respective properties, and prayed that such assessment be restored to the amount at which the properties had been originally assessed in 1925. The city council granted the prayer of appellees and restored such assessments of benefits against their respective properties to the amounts herein first above stated.
Thereupon, appellant filed this action against appel-lees in the chancery court, praying that the action of the city council, in reducing their assessments of benefits, be vacated, and that the readjusted assessment against their respective properties as made in 1929 and as approved in 1931 be reinstated against their respective properties, and have judgment for the taxes due on the readjusted basis. The court held that the city council was without authority to reduce said assessment of benefits, and that its action in attempting to do so is void and should be vacated. The court found, however, that no material improvements had been made on the respective properties of appellees subsequent to the original assessment of benefits, and that the action of the board of assessors in attempting to increase said assessments was void, and entered a decree restoring the assessment of, benefits against their respective properties to the amount of the original assessments made in 1925. Appellant’s complaint against each of the appellees was dismissed for want of equity.
We think the trial court correctly held that the board of assessors was without authority to reassess the benefits against the properties of appellees,” except there had been some material physical change in the» condition of the property since the original assessment which would increase or diminish their value. Section 5664 of Crawford & Moses’ Digest, authorizing a reassessment of benefits, was construed by this court in Street Improvement District No. 74 v. Goslee, 183 Ark. 539, 36 S. W. (2d) 960, in which it was specifically so held, and we are of the opinion that this case is ruled by that.
No material physical change in the property since the original assessment was made. No improvements of such a nature as to increase the value of the property have been made, nor have any improvements been destroyed so as to decrease the value.
It is true that this is a collateral attack on the action of the board of assessors, but, since the board was without power to make the readjusted assessment in this instance, its action is wholly void and open to collateral attack.
We find no error, and the decree is accordingly affirmed. | [
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McHaney, J.
Appellees, Mrs. Esther Biddle and A. E. Bandol, were the lawful guardians respectively of Eddie Becknell and Carroll Lee G-ould, minor children of World War veterans, and each had on deposit, at 4 per cent, interest, in tlie First National Bank of Bector, Arkansas, sums belonging to their respective wards in excess of the amount necessary for their support and education, Mrs. Biddle having $1,167.67 and Bandol $1,925.02, when the bank became insolvent. These funds had come froin the Federal 'Government by reason of the fact that they were dependent minor children of deceased World War veterans. Just when these guardians were appointed and qualified as such is not shown, except Mr. Bandol testified he was appointed guardian in succession in January, 1926, and perhaps Mrs. Biddle was appointed prior thereto. Nor is it shown definitely just how long this money had been on deposit in said bank when it closed— date of closing not being shown, but probably in 1931. As early as June 15, 1928, appellant, through its attorney, began writing appellees, advising that it was their duty to invest said surplus funds in the manner provided by law, and not to permit them to remain in a bank on deposit. A number of letters passed between the parties, and, although appellee Bandol had experienced a bank failure and consequent loss of funds in the Bank of Mar-madnke, he continued to keep the money on hand in the First National at Bector. In a letter to appellant’s attorney of August 27, 1929, in answer to one from it of the 15th, he said: “Now, as to loaning the money I have on hand, I can say if I have the money, you cannot hurt me. And as to the if of the bank failing why we can if on many things. ’ ’ The last letter of appellant to Bandol was dated November 13, 1930. Although appellees consulted with the probate judge, no order was ever made authorizing these deposits to be made in said bank, nor was any other investment approved or rejected by order of the probate court.
After the failure of said bank, appellants filed separate petitions against each guardian, in the nature of exceptions to their annual settlements, in which it was sought to hold each personally liable for the loss sustained in said bank failure, to which responses were filed. The court denied the relief prayed, and, on appeal to the circuit court, the cases were consolidated and tried by consent before the court sitting as a jury. Its findings and judgment were also adverse to appellant, and the case is here by appeal.
The court found, among other things, “that the said guardian did not make an investment as suggested by the said attorney for the reason that he was unable to find a safe and suitable investment for such funds. The court finds that he, as such guardian, acted in good faith and with due diligence with reference to investing the funds of said ward. That he consulted with and advised with the county and probate judge with reference to investing of such funds, and with the knowledge and consent and advice of the county judge loans were not made, Liberty bonds were not purchased, but that such funds were placed in the First National Bank of Rector on time deposit at 4 per cent, interest; that at such time said funds were so placed in said bank the bank was considered and thought to be a safe and solvent institution, and had such a reputation for safety and solvency up until the time that the same closed. That the said guardian was not negligent in the handling of said funds, and that he acted in good faith in an effort to safeguard the funds of the said ward. ’ ’
Like finding’s were made in both cases, and were made upon testimony, admitted over objections by appellant, that the guardians had used due diligence to obtain investments, had consulted with the .judge regarding certain proposed investments and had been advised by him not to make them. Conceding without deciding the competency of this testimony, we are of the opinion that it does not excuse the guardians from personal responsibility for loss of said funds. The records of the probate court fail to show any application of either guardian for authority to deposit said funds on time deposits or otherwise in said bank, or to make any other investment of said funds, and no order of court was ever made touching same. The statutes of this State are very plain regarding the duties of guardians to make investments of the surplus funds of their wards and the kind or character of security to be taken. Section 5059, Crawford & Moses’ Digest, provides that “such guardian shall, under the direction of the court, loan the same to such person as will give good security therefor, and such money shall be loaned on such time as the court shall direct.” Section 5061 provides that the loan shall he “at the highest rate of interest prevailing in the community that can be obtained on unincumbered real estate security,” not to exceed one-half the value. Section 5067 provides: “No guardian shall be personally responsible for any money belonging to his ward and loaned out by him, under the direction of the court, and no security, which may have been approved by the court, in case of the inability of the person to whom such money may have been loaned or his security to pay the same.”
Under the latter section of the statute, this court held in Parker v. Wilson, 98 Ark. 553, 136 Ark. 981: “that where a guardian loans the ward’s money without first obtaining an order of court authorizing him to make the loan, he assumes the responsibility, and no subsequent order of the probate court confirming his action will relieve him from liability if loss occurs.” 7th syllabus. In the case cited the guardian testified that, sometime before making the loan he presented a petition to the judge for authority to make the loan, and that the judge indorsed thereon: “Examined and allowed,” which was placed among the guardianship papers, but not delivered to the clerk, and no order was entered. This court held that a finding of the chancellor that no order was obtained would not be disturbed. In holding these provisions of the statute mandatory, including those above mentioned and others related thereto, the court in this case said: “While the language of the provisions under consideration is not as strong and positive as that in the section last referred to, we think that it should be construed to be mandatory. The money belongs to the ward, but he is not consulted, and has no voice in regard to the loaning out of his own money. The statute contemplates that it shall be done under the direction and orders of the probate court. It is true the guardian may assume the responsibility and loan it out without an order of the court, but in such case he acts at his own peril. If he imprudently loans the ward’s money upon inadequate security, without having first procured an order of the court to loan it, he must suffer the loss occasioned thereby, even though he may have acted honestly in the matter.”
The deposits made in this case appear to be time deposits at 4 per cent, interest. "Whether a certificate of deposit was issued in either case is not shown, but apparently they were made for a definite time, and not subject to withdrawal, except upon some notice, but, whether so or not, they were time deposits and had been there for perhaps three years or more. They cannot be regarded other than as investments made by the guardians without security and without an order of the probate court, for which they are personally liable in case of loss. 28 C. J. 1145, § 244.
Nor does the decision of this court in Harper v. Betts, 177 Ark. 977, 8 S. W. (2d) 464, militate against this holding. There the executor had deposited the money in a bank only 18 days before it closed, and the holding in that case was bottomed on the shortness of time in which the money had been on deposit and the reputation of the bank.
Section 5065, Crawford & Moses’ Digest, makes it the duty of the probate court to require guardians to make reports at every annual settlement of the disposition made by him of his ward’s money, and § 5066 reads as follows: “It shall be the duty of said court to carefully examine into such report as soon as made, and, if in its opinion the security is insufficient, it shall be the duty of the court to require additional security to be given to protect the. interest of said ward, and, if such additional security be not given within such time as the court shall order, not exceeding ten days, it shall be the duty of the guardian or curator to institute suit forthwith on such security to recover the amount due thereon; and he and Ms security shall be liable on the bond for any omission so to do; and, if such money has not been loaned out, the court shall order the money to be forthwith- invested in United States bonds, for the use and benefit of such ward, and wMch shall remain so invested until said court shall order otherwise; and a report of the action of such guardian or curator shall be made of his proceedings. ’ ’
If the guardian fails to lend his ward’s money after being ordered by the court to do so, he is liable not only for the money but the interest thereon at the legal rate. Merritt v. Wallace, 76 Ark. 217, 88 S. W. 876. In Lee v. Beauchamp, 175 Ark. 716, 300 S. W. 401, the guardian deposited the money in bank at 4 per cent. It was sought to charge him, not with the deposit, but a higher rate of interest than 4 per cent. This court declined to do so because the rate received was as high or higher than that on Government bonds.
Here, however, these guardians did not invest in real estate securities and did not purchase Government bonds. We think the evidence sufficiently establishes the fact that they could have done either with safety, at least with the protection of an order of the probate court. They permitted these funds to remain on deposit over the strenuous objections of appellant for about three years, at least from June, 1928, until the bank closed. This they had the right to do by making themselves and their bondsmen liable for the loss sustained, just as they could by making any other investment without the approving order of the probate court.
The judgment will be reversed, and the cause rer manded with directions to enter a judgment against appellees for whatever loss has been sustained by reason of the failure of said First National Bank, with interest at 6 per cent, from the date of failure, and to certify same to the probate court for its guidance in the premises. Costs will be awarded against appellees.
Smith and Humphreys, JJ., dissent. | [
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Smith, J.
This appeal is from the judgment of the Fulton Circuit Court sentencing appellant to a term of one year in the penitentiary for the larceny of four hogs, the property of O. C. Cockrum.
For the reversal of this judgment, it is first insisted that the venue was not proved. It has been many times decided that it is essential to prove the venue of a crime, that is, the place of its commission, in order that it may appear that the court trying the case has jurisdiction. It is ordinarily so easily proved that many prosecuting officers neglect to prove it except inferentially. It is, however, a fact which may be inferred from all the circumstances shown by the testimony, and we hold the venue to be proved when the place of the cominission of the crime appears from all the testimony in the case to have been within the county (or in the district of the county) in which the indictment was returned. Atwood v. State, 184 Ark. 469, 43 S. W. (2d) 70.
There is some uncertainty as to whether the hogs were stolen in Fulton County or in the adjoining county of Baxter. But we think the jury was warranted in finding from a preponderance of the evidence that the larceny was committed in Fulton County. The owner of the hogs testified that he lived two and one-half miles west of Yiola, which village we judicially know is in Fulton County, and an inspection of the maps of the county, with reference to the public surveys, shows that village to be about ten miles east of the line between Fulton and Baxter counties. The owner testified that his hogs ran at large “east of my place and near the county line, ’ ’ and, when asked when and where he lost the hogs, he answered in May or June, 1931, and “in this county and State.” As the trial was being had in Fulton County, the inference is inescapable that this is the place in which the witness said the larceny had been committed. We therefore hold that the venue was sufficiently proved.
There was a question as to the identity of the hogs and their ownership by Cockrum. But this question was submitted to the jury under correct instructions, and is settled by the jury’s verdict. According to the State’s testimony, one of the hogs had been caught in a steel trap, and still had the scar of the trap on his right front leg, and the marks of all the hogs had been recently changed. Without further recital of the testimony, we announce our conclusion that it was legally sufficient to support the jury’s verdict.
Among other instructions, the court gave one numbered 4, which reads as follows: “You are'instructed, gentlemen, that any person who stands by, aids and abets and encourages in the commission of a felony, being present, is deemed in law a principal, and- punished as such. ’ ’ Upon objection being made to this instruction, the court said: “The court withdraws this instruction from your consideration, in view of the fact that in this case, in the trial of this defendant, there is no evidence on which to submit that instruction. ’ ’
As an abstract declaration of the law, the instruction is correct, and no objection can be made except that it was abstract. But, even so, there was no prejudicial error in giving it, as it was promptly withdrawn upon objection being made to it, and this action cured the error. Middleton v. State, 162 Ark. 530, 258 S. W. 995.
The most serious question in the case relates to the condition of the record. As- certified in the original transcript, the judgment recited that the cause was heard before seven members of the regular panel and five jurors selected from a special venire, their names not being recited. Section 6378, Crawford & Moses’ Digest. Upon this point being raised, a writ of certiorari issued upon the suggestion of the Attorney General that there had been a diminution of the record. Upon the return of this writ the clerk of the Fulton Circuit Court has certified a judgment in proper form, which contains the names of the five bystanders, together with those of the seven members of the regular panel, it being recited in the judgment that all members of the jury had qualified as jurors and that the jury had been duly sworn.
In the reply brief of counsel for appellant there appears a copy of an affidavit of counsel for appellant to the effect that, as originally entered, the judgment did not recite the names of the jurors. It does not appear, however, when, where or with whom this affidavit was filed, and it has not been made a part of the record in this case.
The judgment of the circuit court cannot be impeached in this manner. We have before us, under the seal of the clerk of the Fulton Circuit Court, a judgment conforming to the law, and we must take it as being correct.
In the ease of Hagerman v. Moon, 68 Ark. 283, 57 S. W. 935, it was said: “Parties aggrieved by errors in the record of the circuit court, and desiring to have them corrected, should apply to that tribunal for correction, and not to this court. This is not the proper forum in which to institute such proceedings.”
In the case of Memphis Land & Timber Co. v. Board of Directors of St. Francis Levee District, 70 Ark. 409, 68 S. W. 242, it was said: “We must presume that the transcript of the case filed here is a true and perfect copy of the record. If incorrect or incomplete, it should have been corrected by appropriate proceedings. This has not been done, 'and we cannot go outside the record for facts, but must determine the case from the facts as they appear in the record.”
We have here no such question as wás presented in the case of Cochran v. State, 169 Ark. 503, 275 S. W. 895. There an indictment for receiving stolen goods as copied in the transcript, and, as certified by the clerk, failed to contain an allegation that the goods were received by the defendant with the intent to deprive the true owner thereof. An attempt was made by certiorari to correct the indictment to show that, as originally drawn, it contained an allegation that the defendant received the stolen goods with the intent to deprive the true owner thereof, and that by some means the allegation was omitted from the indictment when it was copied into the transcript. Evidence was taken before the circuit court and presented to this court, upon which we were asked to correct the record in this court, and to supply the omission in the indictment. We held that we could not do this, as the authority to supply a lost record or to correct a mutilated one is vested in the court in which the case was pending at the time the paper was lost or mutilated.
Here we are not asked to correct or supply a record. On the contrary, we are asked to ignore a record which has been properly certified to ns, and this we cannot do.
As no error appears, the judgment must be affirmed, and it is so ordered. | [
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Butlee, J.
The parties to this litigation lived together as man and wife.in this State until 1911, at which time they separated and appellee removed to Texas, where, in January, 1914, he obtained a divorce. The decree awarding him a divorce contained no reference to his property. Tears later, after appellee’s health had failed, he returned to this State, and on November 10, 1930, brought this suit against his former wife to recover possession of certain real estate, both rural and urban.
The complaint alleged the joint ownership of the real estate there described, but testimony was offered touching the title to only three town lots the title to- which had been conveyed to appellee individually. The judgment rendered from which is this appeal makes no reference to the rural property.
Appellant defended upon the grounds that she took title to the property under a parol agreement to that effect and through adverse possession for many years. She testified that, after a conference in 1911 with ap- pellee, who was then her husband, it was agreed that he should deliver to her the possession of all his real estate, a portion of which was incumbered, and that she should become the owner thereof. The consideration for this agreement was the assumption of payment by appellant of the debts upon the property secured by liens thereon and the payment of certain unsecured personal debts then owing by appellee amounting to several hundred dollars, and the additional agreement on her part to take care of and educate their three children. Appellant testified that these obligations had all been performed, and was corroborated by the two children now living, the third having died.
Appellee denied having made this agreement, although he admitted having left his wife in possession of the property. His version of their agreement upon separating was that she might occupy and use the property while the children were being educated.
This brief statement presents the issues of fact in the case, and no useful purpose would be served by setting out the more or less conflicting testimony.
As has been said, the case as adjudged related only to the city property, and upon this issue the court gave the following instruction: ‘ ‘ Gentlemen of the jury: Mr. Bristow sues Mrs. Bristow for joint possession of three certain pieces of property, claiming that he is the record title owner of said property and is entitled to have possession and income of said property jointly along with -the defendant. Mrs. Bristow claims that he is not entitled to have possession and part of the income along with her of said property for the reason that he gave her the property and it is now all hers. It is admitted on the part of the defendant that the record title or deed is in Mr. Bristow; that he bought it and paid for and the deed made to him. Mrs. Bristow contends that when he left about '20 years ago he gave her the property.
“So, gentlemen of the jury, you will find for the plaintiff, Mr. Bristow, unless you find from a preponder- anee of the testimony that Mr. Bristow gave the property to his wife. If you find that he gave the property to her then, he now has no interest in it, and she should win. If he didn’t give the property to her then, he now has interest in it, and he should win.”
Upon a verdict in favor of appellee the following judgment was rendered: “It is therefore the order and judgment of the court, upon the verdict of the jury, that the plaintiff, Geo. 0. Bristow, do have and recover of and from defendant, Josie E. Bristow,” the lands in controversy, which, as there described, were the town lots.
If this judgment is proper, the instruction was not, as its import is that the plaintiff was seeking to recover a joint interest, and not one which was several. " The court, in giving the instruction, no doubt had in mind the allegations of the complaint alleging joint ownership. It is inferable, although not established, by the testimony that a portion of the property described in the complaint had been acquired by the parties as tenants by the entirety. However, no objection was made to this instruction, but we make this comment upon it in view of the fact that a new trial must be ordered.
The appellant asked, but the court refused to give, the following instruction: “You are instructed that if you find from the preponderance of testimony that the plaintiff did at the time of their separation or any other time .give the defendant the property he owned in Ozark in question, and that she has been in possession of it and has held the same for a period of more than seven years, and that she had relied upon that gift, then you will find for the defendant.”
We think this instruction should have been given. It is true appellant claimed title under a parol conveyance, which the witnesses referred to as a gift, but she also claimed title by adverse possession, and the testimony on her behalf was sufficient, if believed, to support a finding that she had adversely occupied the property as owner for many years. It is to be remembered that the parties were divorced in 1914, and. this suit was not commenced nntil 1930. Wilkerson v. Powell, 173 Ark. 33, 291 S. W. 799. There was no inconsistency in the defenses which appellant interposed, first, that she took title by a parol conveyance, and second, that she had acquired title by adverse possession. The instruction should therefore have been given.
Over appellant’s objection, the court permitted ap-pellee to offer in evidence the following letter:
“Ozark, Arkansas, Nov. 13, 1930.
“Dear Mr. Bristow: Why do you want to law out all we have? We owe to the children what we can leave them. I will give you a home a room as good as I have if you will withdraw that suit, on account of the children. You can have a room and make yourself at home, and it seems to me that would be better than lawing it all out. If you will withdraw the suit, you know how low down Jack is. Now please keep what we have for the babys. You can have a home, and we will neither have one when we finish. Please let me hear from you and come back home. The sheriff has sued for the taxes, so I don’t know what to do, but will manage some way. Let me hear from you.
“Joe.”
This letter was written after the institution of this suit, and was admitted on the theory that it tended to explain the character of appellant’s possession.
We think, however, that the letter should not have been admitted in evidence. It was evidently an offer in good faith to compromise the litigation. Notwithstanding the divorce of the parties, their children were their heirs, and the reference to them as such is not inconsistent with appellant’s claim of title by adverse possession.
For the error in refusing’ the instruction set out above, and for the error also in admitting’ the letter in evidence, the judgment of the court below must be reversed, and it is so ordered. | [
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McCulloch, C. J.
Appellants sold a farm in Miller County, Arkansas, to W. L. Perkins, and received from Perkins a mortgage on the land and all crops produced on the land by Perkins in which he was interested in the year 1923, to secure the purchase price of the land and also for money, loaned to Perkins to enable him to operate the farm. Perkins cultivated the farm for that year through tenants, or croppers, and was to receive a share of the crop. Appellees, Lesser-Goldman Cotton Company and Friedman & Hasson, were engaged in the cotton business, and each maintained a place of business in Texarkana.
During the autumn of 1923 Perkins marketed the cotton crop gathered from the farm, and the appellees purchased some of the crop from Perkins and settled with him. The Lesser-Goldman Cotton Company bought forty-one bales, and Friedman & Hasson bought two 'bales. The cotton was brought to market by Perkins, ■usually accompanied by the tenants or croppers, who produced the cotton, and .it was sold in the usual and regular way on the streets of Texarkana.
Appellants filed this action in the chancery court of Miller County to foreclose the mortgage on the land and the crops, and Lesser-Goldman Cotton Company and Friedman & Hasson were made defendants, and a decree was asked against them, respectively, for the valne of the cotton which they had purchased from Perkins. Appel-lees answered, admitting- that they had purchased the cotton from Perkins and settled with him for the price, and alleged that appellants had consented for Perkins to sell the cotton and thereby waived their lien, if they had any. They also denied that Perkins had any such title to the crops which he could mortgage, and alleged that he was merely the landlord of the croppers who produced' the cotton. On final hearing the chancery court found in favor of appellees, and dismissed the complaint of appellants for want of equity.
We pass over the disputed questions of law and fact as to whether or not Perkins had such an interest in the cotton crop as he could mortgage to appellants, for we are of the opinion that the decree should be affirmed on the ground that appellants, through their agent, N. H. Williamson, waived their lien by consenting for Perkins to sell the cotton.
Mr. Turquette, who was the resident agent of Lesser-Goldman Cotton Company, and who purchased the cotton in controversy from Perkins, testified that at the beginning of the cotton season in September, and before he had purchased any cotton from Perkins, he had a conversation with N. H. Williamson, the authorized agent of appellants, and that the latter told him that he could buy the cotton raised on the farm directly from Perkins. The witness stated that the conversation first arose with reference to the sale by a Mr. Warmack of cotton in which appellants were interested, and that Williamson instructed the witness not to.settle with Warmack for cottón purchased, but to call him (Williamson) over the telephone, so that he could come in and make a settlement, but that the witness could go ahead and buy cotton from Perkins. He testified that, pursuant to this con versation and knowing that Perkins was from time to time marketing’ cotton within the knowledge of Williamson, lie bought the cotton in controversy, as well as other cotton, from Perkins. The last purchase was sis hales, and before settlement was made for the purchase, Perkins left the community, and settlement was made with Williamson for appellants.
Mr. Willis, the resident agent for Friedman & Has-son, testified that he bought the two bales of cotton from m Perkins, knowing that he had been marketing cotton throughout the season, and that Williamson was frequently on the street and cotton yard and was bound to have known that Perkins was marketing the cotton.
Other witnesses, who apparently have no interest in this controversy, testified that they saw Williamson on the street when Perkins was marketing cotton. One witness testified that he saw Williamson standing on the street near the wagon when Perkins sold a lot of cotton to Turquette.
The testimony is undisputed that N. H. Williamson was the authorized agent of the appellants, one of whom is his wife and the other his sister. Williamson testified as a witness and denied that he had a conversation with Turquette related by the latter on the witness-stand. He testified that he did not authorize Perkins to sell the cotton, and denied that he knew that Perkins had sold the cotton until after the sales were made.
The evidence clearly preponderates in favor of ap-pellees in their contention that Williamson was present on the streets when Perkins was selling cotton and made no objections to the sales; and, as to the question whether or not Williamson expressly agreed with Turquette that the latter could buy cotton from Perkins, there is a sharp conflict between Turquette and Williamson, and it cannot be said that the finding’ of the chancery court is against the preponderance of the evidence.
It is a mere statement of elemental principles of law that where a mortgagee of chattels authorizes the mortgagor to sell the property, he is bound by a sale made to a purchaser from the mortgagor, and cannot complain, even though the purchaser knew of the existence of the mortgage. Fincher v. Bennett, 94 Ark. 165, 126 S. W. 392.
The finding of the trial court not being against the preponderance of the evidence, it becomes our duty to leave the decree undisturbed.
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Humphreys, J.
On petition of appellant, a writ of certiorari was issued out of this court to bring up the record in a habeas corpus proceeding by appellant against appellee in the chancery court of Phillips County, on the trial of which the writ of habeas corpus was denied.
It was alleged in appellant’s petition for a writ of habeas corpus that he was held and confined by appellee, sheriff, in the county jail of said county under an invalid commitment issued by Leo J. Mundt, claiming to be the judge of the municipal court of Helena, Arkansas.
In the response filed to the petition by appellee, he admitted that he was holding appellant in said jail under a commitment for robbery issued by Leo J. Mundt, judge of the municipal court of Helena, but denied that the commitment was invalid.
The cause was submitted upon the petition, response, and an agreed statement of facts, which is as follows:
“It is hereby stipulated and agreed that the following facts shall be taken as true and shall be used as the testimony on which the court may base its findings.
“First, that a vacancy existed in the office of municipal judge of the city of Helena, Arkansas, on the 30th day of December, 1932.
“Second, a commission was issued by the Governor of the State of Arkansas to one Charles W. Straub purporting to appoint Charles W. Straub the municipal judge of the city of Helena, Arkansas. The said commission issued on the 31st day of December, 1932.
“Third, that the city council of the city of Helena, Arkansas, refused to be bound by such appointment, and on the 3'lst day of December, 1932, the said city council of the city of Helena, Arkansas, met in special session duly and legally called and held and on the said date and at such meeting duly and regularly appointed and elected Leo J. Mundt as municipal judge of the said city of Helena, Arkansas.
“Fourth, thereafter and immediately following the election and appointment of the said Leo J. Mundt as municipal judge by the said city council of the said city of Helena, Arkansas, the said Leo J. Mundt took, and has ever since that time held, physical possession of the said office. The said Leo J. Mundt has uninterruptedly, since his appointment, regularly held the said court at the time and place designated by law. He has complete and exclusive charge of all papers, records and dockets pertaining to the said court, all by order of the city council of the city of Helena, Arkansas. The regularly and duly elected city clerk of the city of Helena, Arkansas, has been acting as the clerk of said municipal court, obeying only the orders of the said Leo J. Mundt; this by the order of the said city council; that no docket entries, nor orders have ever been made by the said clerk of the municipal court except such as have been made by the said Leo J. Mundt.
“That the said C. W. Straub undertook on five occasions to hold the said court. On such occasions he acted without the records of the said court, except warrants that had been issued by himself in county cases, having no dockets nor any papers nor other records pertaining to the said court. No judgments or other docket entries have been made on the order of C. W. Straub by the clerk of the municipal court. This was by order of the mayor and city council of the city of Helena, Arkansas.
“That on the 2d day of January the county court ordered and directed E. Gr. Howard, clerk of the municipal court to deliver over to C. W. Straub all dockets and records in civil, county and State cases, and the said order was duly served on R. Gr. Howard, and he refused to obey said order of the county court and refused to deliver possession of said court records to C. W. Straub as therein directed.”
It was not alleged, and the agreed statement of facts does not reflect, that the process of commitment was issued out of a court that had no jurisdiction over the crime charged or that the process was void for any other reason than that the judge who presided over the court and signed the commitment was not entitled to hold the office.
The general rule announced in 29 C. J. page 40, § 32, is as follows:
“If the court qr office is of recognized legal existence and the officer is at least a de facto officer and not a mere trespasser, his legal title to that office cannot be questioned in a habeas corpus proceeding.”
This court said in the case of Ex parte Andreiv Jackson, 45 Ark. 158 (quoting syllabus three) that:
“"Where one is held in custody for crime upon void process of commitment or without any process, a chancellor may discharge him upon habeas corpus; but, if the process be valid, and the prisoner not entitled to bail, the chancellor cannot go behind the process to determine whether there was error in the proceedings.”
This court also said in the case of Keith v. State, 49 Ark. 439, 5 S. W. 880, that the right to office cannot be questioned collaterally.
Neither one of the claimants to the office of municipal judge are parties to the proceeding, and, in order to try the title to the office, both should be parties in a proper proceeding for that purpose.
This proceeding is clearly a collateral attack upon the judgment of a de facto, if not a de jure, official and cannot be maintained.
The decree denying the writ of habeas corpus is affirmed. | [
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Ward, *J.
This appeal presents two issues: (a) Res judicata, and (b) sufficiency of the evidence to establish bona fide residence in a divorce action.
On July 26,1954, appellee, John E. Chiotte, filed suit for divorce against appellant, Angela M. Chiotte, alleging eight years separation. On August 20, 1954, appellant appeared specially and moved ¿he court to dismiss appellee’s complaint on the ground that he was not a bona fide resident of Arkansas. On September 1, 1954, appellant appeared specially and filed an amendment to her original motion to dismiss, stating that appellee filed a petition for divorce on June 1, 1953, which petition he voluntarily dismissed, and that appellee filed another petition for divorce on January 29, 1954, which the court dismissed for want of jurisdiction. The chancellor deferred action on the motion and amended motion to dismiss until after he heard appellee’s testimony on his divorce petition, and on September 28, 1954, he dismissed said motion and amended motion and entered a decree of divorce in favor of appellee. This appeal followed.
(a) Res judicata. We cannot agree with appellant that the disposition made of the first two divorce suits is res judicata of this action. The record shows that the second divorce suit was dismissed by the court for lack of jurisdiction on May 17, 1954, which simply means that the trial court, as of that date, was of the opinion that the testimony did not show appellee to he a bona fide resident of Arkansas. The first divorce action was voluntarily dismissed by appellee less than a year before this suit was instituted. As stated in 30 Am. Jur., page 918, § 174, ‘ ‘ In the application of the doctrine of res judicata, if it is doubtful whether a second action is for the same cause of action as the first, the test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both. . . . If, however, the two actions rest upon different sets of facts ... a judgment in one is no bar to the maintenance of the other. It has been said that this method is the best and most accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties, and it has been designated as infallible.” The above stated rule, which is generally recognized, is peculiarly applicable to the case under consideration. Bearing in mind that, as we have heretofore held, the facts constituting residence must exist at the time a divorce suit is filed, it is obvious that the facts relative to appellee’s being a bona fide resident of Arkansas might he [and they are] entirely different on July 26, 1954, when the present action was begun from those existing on June 1, 1953, and January 29, 1954, when the former divorce suits were filed respectively. For this Court to hold otherwise would lead to an absurdity, for then, if a person once failed to establish a residence in this state, he would forever be precluded from doing so in the future. Appellant recognizes, in her brief, the validity of this principle, but insists it does not apply here because the facts [indicating residence] are identical in both instances. We cannot agree with appellant. When this suit was filed appellee had not only resided longer in Arkansas but he had indulged in additional activities indicating a bona fide residence.
(b) Sufficiency of the evidence. The testimony on' behalf of appellee, uncontradicted by any testimony on behalf of appellant, is substantially as follows: Appellee and his wife lived together in Peoria, Illinois, until they separated in the early part of 1947. After that Mrs.. Chiotte resided in her home and appellee moved to a hotel where he lived until March 1953 when he moved to Little Bock. During the years mentioned appellee was the principal owner and president of the Western Coal and Fuel Company, from which business he was drawing a salary of $833 per month. He drew this same salary after coming to Little Bock until January 1954. From this date until August 1954 he drew a salary of $400 per month after which time he has been drawing a salary of $200 per month. As heretofore stated he filed the first divorce suit against his wife on June 1,1953, which he voluntarily dismissed, and filed the second suit January 29, 1954, which the court dismissed because of lack of jurisdiction. After his separation appellee kept company with Mrs. Mildred Schwiette in Peoria, and in December 1953 he and Mrs. Schwiette purchased the Betreat Café on West Seventh Street in Little Bock for $6,000, $2,000 of the purchase price being paid at the time. The two have jointly owned and operated the café continuously since the date of purchase. Mrs. Schwiette lives in North Little Eock and appellee lives in rooms adjoining the café, and they have a joint bank account at the Union National Bank. Appellee works regularly in the café except that he takes off occasionally for fishing or recreation. Since coming to Arkansas he has gone back to Illinois only twice, the first time for three months in the latter part of 1953 and the second time for four days in August 1954, when he attended a board meeting.
Appellee states that he is afflicted with arthritis and for that reason came to Arkansas for his health, and that he intends to make this his permanent residence. Appellee testified that he has assessed his property and paid Ms taxes here, has bought State and City automobile licenses, and has purchased or renewed business licenses five times. Several other witnesses corroborated appellee as to the fact that he works in the café and purchases supplies for the same and that he has continuously lived in Arkansas since early 1953.
Under the above factual situation as disclosed by the record we cannot say that the chancellor’s finding that appellee was a bona fide resident of Arkansas is not supported by the evidence. It is true, as stated in May v. May, 221 Ark. 585, 254 S. W. 2d 957, that appellee 4‘must in fact and in truth be a bona fide resident of Arkansas and that such residence must be shown by overt acts sufficient to demonstrate a real and bona fide intent to acquire such a residence.” However, the question of whether appellee is a bona fide resident of Arkansas with the intention of remaining here and making this State his home is, as stated in Walters v. Walters, 213 Ark. 497, 211 S. W. 2d 110, “purely a question of fact.” Obviously no court can look into the mind of a person and say with confidence what his intentions are, therefore the necessity of looking to “overt acts” for corroboration or contradiction of the person’s expressed intentions. In determining this difficult question of fact in similar cases this Court has frequently followed the decision of the trial court and lias always done so unless the testimony shows the trial court to have held contrary to the weight of the testimony.
The facts in the case under consideration are somewhat similar to those in the ease of Knaus v. Knaus, 223 Ark. 517, 267 S. W. 2d 16. In the cited case the parties lived in Pennsylvania and had not lived together since 1945. The husband came to Little Bock in June 1952 and filed suit for divorce on August 28, 1952. Testimony in his behalf showed that he had moved his belongings to Arkansas, opened a bank account, rented an apartment, paid taxes and had done other things tending to show that he had become a permanent resident of this State. In an effort to discredit his testimony it was shown that when he came to Arkansas a divorce suit was still pending in Pennsylvania and also that he had been absent from Arkansas approximately twenty-eight days. The trial court in the cited case concluded that a bona fide residence had been shown and we approved that finding. In doing so we said: “As in most cases of this kind, turning upon a question of subjective intent, the issue is not free from doubt and might with some plausibility be decided either way. The chancellor concluded that the appellee is acting in good faith, and we cannot say that his conclusion is contrary to the weight of the testimony. ’ ’
Appellant, in support of her contention for a reversal, cites Walters v. Walters, supra, May v. May, supra, and Hart v. Hart, 223 Ark. 376, 265 S. W. 2d 950, but we think these cases are obviously distinguishable and are in harmony with the conclusion we have reached. In the first case the opinion shows that appellant virtually admitted he claimed to be a resident of Nebraska at the time he filed his suit in this state, and in the latter two cases the evidence [tending to show residence here] was different from [and weaker than] the evidence in this record, and, also, we upheld the trial court in both instances.
Finding no error, the decree of the trial court is affirmed. | [
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Kirby, J.,
(after stating the facts). If the first complaint filed by appellant was insufficient the court properly sustained a demurrer thereto. Having sustained the demurrer and noted appellant’s exceptions to its action in so doing, without any further order made or judgment rendered by the court, its action was not final, and the judgment could not be appealed from. Moody v. Ry. Co., 83 Ark. 371.
After the demurrer was sustained, the appellant had the right to amend his complaint, and was properly given leave to do so by the court. Kirby’s Digest, § 6095.
The court struck the amended complaint from the files upon said motion, holding that the matter had already been adjudicated by the sustaining of the demurrer at the former term, but erred in doing so. The amended complaint sufficiently alleges a cause of action in unlawful detainer, which is to determine the right to the immediate possession of lands and tenements, and not the title thereto. Dunlap v. Moose, 98 Ark. 235.
The motion to strike will be treated as a demurrer, and, the complaint being sufficient, the court erred in sustaining it and dismissing plaintiff’s cause of action upon his declining to plead further.
It seems from appellee’s brief that a writ of possession was issued upon the filing of the first complaint, and the possession of the premises delivered thereunder to appellant; but appellees did not set up as a defense any disclaimer of possession or claim of right thereto, but only objected to plaintiff’s right to proceed. ’
The complaint alleges that he acquired the title of J. W. Maddox, appellee’s lessor, to the lot in question and the right to the possession thereof under the trustee’s deed conveying same after a sale under the mortgage to satisfy the indebtedness secured thereby; that appellees were unlawfully detaining and holding the possession thereof, after the expiration of their lease, and paying rent from month to month thereon to said original lessor and refused to surrender possession after written notice given them as required by law.
If these allegations be true, and the demurrer admits that they are, then appellant should have been given judgment for the possession of the lands and damages for the detention until the time they were delivered to him, and costs of the suit in any event.
Appellees would be in no better position to dispute appellant’s title, having acquired possession of the premises under their lessor, to whose rights appellant succeeded, by the sale , and conveyance under the trust deed, than they would have been to dispute the title of their original lessor and landlord. Dunlap v. Moose, supra.
For the error of the court indicated, the judgment is reversed, and the cause remanded, with directions to deny and overrule the motion to strike out and for further proceedings.
It is so ordered. | [
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J. Seaborn Holt, Associate Justice.
Appellees, T. W. Derrick and Tunney Stinnett, leased from appellant, Arthur L. Wells, and operated for the years 1952 and 1953, two farms in Phillips County. Wells furnished appellees money with which to purchase equipment to operate these farms and with which to pay the costs of cultivating and harvesting the cotton crops grown thereon during these two years. According to Wells, and it appears to be conceded, there was a carry over indebtedness to him from appellees for the 1952 operations, and in February 1953 appellees executed their note, in the amount of $40,000 due December 15, 1953, to appellant which covered the above carry over from the 1952 crops and afforded a backlog of credit for funds to be furnished by Wells to appellees in producing the 1953 crop. To secure this note appellees executed a chattel mortgage covering not only all crops produced but also a large amount of valuable farm machinery such as tractors, cultivators, mowing and dusting machines, disks, plows and many large trucks and trailers. The facts disclose that during 1953, and before the above note became due, Wells, without the consent of appellees, went upon these farms, gathered up and took possession of the pledged chattels described in the mortgage and in effect converted them to his own use. This was done without complying with the terms of the mortgage, which required that the chattels be sold at public sale after notice upon default in payment of the secured debt. There was also no appraisement made of the property.
The present suit was filed by appellant to recover judgment for an alleged balance due him following the harvesting of the 1953 crops and after the proceeds from these crops had been applied on the above note. Appellant further prayed that the chattel mortgage lien above, which was given to secure the note, be foreclosed. On a trial the court found that the unpaid balance of the indebtedness of appellees to appellant as of March 22,1954, was $29,294.09 but that Wells by his actions, in taking the chattels in disregard of the terms of the chattel mortgage and converting them to his own use, thereby elected to and did extinguish the balance due on the debt of appellees. The decree in part recited: “7. That the said Arthur L. Wells in going upon the premises of the defendant on the 14th of December, 1953, and taking possession of the chattels aforesaid, and converting the same to his own use and benefit and using the same in and about his business in the manner that he did and not having the same appraised in the manner provided by law, effected the extinguishment of any amount of the debt owing the plaintiff by the defendants after crediting the amounts received by the plaintiff from the sale of certain equipment and the crops, for the year 1953. That the plaintiff, Arthur L. Wells, having elected to take said property in extinguishment of the balance of the debt after crediting certain equipment and the sale of the crops for 1953 he is entitled to have title to said equipment vested in Him.
“It is therefore ordered, adjudged and decreed by the court that title to the chattels described herein be and the same is hereby vested in Arthur L. Wells in complete satisfaction of any debt which the defendants may owe the said Arthur L. Wells growing out of the 1953 farm operation as set out herein.”
This appeal followed. For reversal appellant says : “. . . appellant is prosecuting this appeal from that part of the decree which adjudges that the vesting of the title of the property described in the deed of trust be a complete satisfaction of any debt which the appellees may owe him. ’ ’ In other words, appellant contends that the trial court erred in holding that appellant, by his actions, was required to accept the equipment and chattels so recovered in full satisfaction of the indebtedness of appellees to him. We agree with appellant that the court erred in so holding. It appears to be undisputed, as the court found, that the balance of appellees ’ indebtedness as of March 22, 1954, was $29,294.09. While it appears that appellant wrongfully converted the property in question and should have sold the property publicly under the power of sale provided in the chattel mortgage, however, we have many times held that the proper procedure, in circumstances such as are here presented, is to ascertain and charge appellant with the fair market value of the property at the time of its conversion by him and apply it on the debt and after this is done if there be any balance due appellant, he should have judgment for such amount. On the other hand, if the fair market value of the property was more than sufficient to extinguish the debt, then in this event appellees should be awarded this amount. Interest should be charged against appellant on the fair market value of the property from and after the date of its conversion. We held in Perryman v. Abston, Wynne & Co., 164 Ark. 290, 261 S. W. 622: “[Headnote 3.] Mortgages — Conversion of Property by Mortgagee. — Where mortgagees took possession of mortgaged chattels, but failed to sell them under the power of sale in the mortgage, they are chargeable with their market value at the time of their conversion.” We said in Anderson v. Joseph, 95 Ark. 573, 130 S. W. 165: “Where the defendant is a mortgagee, who was entitled to the possession, with power to sell at the time of the seizure or conversion, and who has become a wrongdoer by reason of the manner of acquiring possession, or in the irregularity of the sale, he is liable to the mortgagor (in the absence of proof of special damages) only for the value of the property at the time of the conversion, less the amount of mortgage debt. McClure v. Hill, 36 Ark. 268.”
Accordingly, the decree is reversed for further proceedings consistent with this opinion. | [
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Ed. F. McFaddin, Justice.
This is a suit brought by appellees who claim a commission as real estate brokers. In rendering judgment, the Chancery Court necessarily found: (a) that appellees had a valid and enforcible contract with appellants; (b) that appellees had not abandoned the contract; and (c) that appellees were the procuring cause of the sale of the property. On this appeal, several questions are argued; but we find it necessary to consider only one point: that the appellees had abandoned whatever contract they formerly possessed.
The Broadway Hotel Company, a corporation, owned certain property in Hot Springs: part of the property was operated as a hotel and part was rented for stores and offices. The appellees, Frank Harper and Charles Hughes, rented an office from the corporation and operated a real estate brokers’ partnership known as “Hot Springs Realty Company.” In January, 1952, the Broadway Hotel Company duly filed its Certificate of Dissolution in Garland County; and the three Directors named in the said Certificate were Vance M. Thompson, B. F. Lewis and Mrs. B. F. Lewis. By force of law (§ 64-807, Ark. Stats.) these three Directors became Trustees of the corporate property. They are the appellants in this case. B. F. Lewis continued to operate the Broadway Hotel for the benefit of the former stockholders.
In early April, 1953, B. F. Lewis told appellees, Harper and Hughes, that the Broadway Hotel Company’s property was for sale; and that he thought the property would be sold for $50,000 cash. Lewis signed no contract with the appellees.- They were to get an offer and transmit same to Lewis who was then to submit the offer to the other parties interested with Lewis. All of the “other parties” do not appear to have been named, but appellees understood that Vance M. Thompson was one such party interested with Lewis.
Shortly after the above conversation, appellees reported to Lewis that E. D. Murphy would buy the property for $65,000 provided (a) Murphy’s home was taken as $15,000 payment and (b) the balance of $50,000 was to be paid $10,000 cash and $40,000 in deferred payments secured by vendor’s lien note or first mortgage. Lewis agreed to submit this offer to Mr. Thompson; and in a few days Lewis advised appellees, Harper and Hughes, that there could be no deal made. Here is Appellee Harper’s testimony as to this final conversation with Lewis:
“. . . he informed me that he didn’t think Mr. Murphy had enough money and he didn’t think they would be interested in it. A little later on, a few days later on, I met him on the street and I asked him what he was going to do about it, if he was going to do anything about it, and he said no, Mr. Thompson wouldn’t go along with him, so he let Mr. Thompson have all his interest in the hotel, so he sold out to him.
“Q. Mr. Lewis sold to Mr. Thompson?
“A. Yes.
“Q. Did jmu have any further dealings with Mr. Murphy after that?
“A. No, I didn’t have any further dealings with Mr. Murphy after that.”
Also here is Appellee Hughes’ version as to the final conversation with Lewis:
“Q. You knew about Mr. Lewis? You heard his testimony that he said forget about everything, everything was off, some few days after you had this discussion with him?
“A. Yes, he said that. . . .
“Q. I am talking about Mr. Lewis said forget about it, did you contact them any more or have any further conversation with the Murphys after that?
“A. Yes, I did. . . .
“Q. Now, that was after they had already purchased it?
“A. Yes, sir.
“Q. In other words, you didn’t talk to either Mr. Murphy or Mrs. Murphy after Mr. Lewis said for you to forget about it until after Mr. Murphy had already purchased the hotel from Mr. Thompson?
“A. That’s right.”
Lewis’ testimony is to like effect:
“A. I told Mr. Harper that Mr. Thompson wouldn’t take $50,000 and to just forget the whole thing, that I had washed my hands of it, that I wasn’t going to have any more to do with it, and so far as I was concerned, I would continue to operate it.”
After this conversation the appellees dissolved their real estate brokers’ partnership. Appellee Harper had nothing further whatsoever to do with'Hughes or the Broadway Hotel Company’s property. Appellee Hughes went to Alabama on a trip and did nothing further in regard to the Broadway Hotel property. We emphasize that Lewis signed no contract with the real estate brokers; that they had no listing of the Broadway Hotel property for any definite time; that any offer they got they were to submit to Lewis and he to submit it to Thompson; and that when Lewis notified appellees of Thompson’s rejection of the offer, appellees did what Lewis suggested — i. e., they forget the entire matter.
Some time after the quoted conversation and, presumably, while Hughes was on his trip to Alabama, Murphy sought out Lewis in order to locate Thompson; and Murphy went to McCrory, Arkansas, to see Vance M. Thompson and there closed a deal with him for the purchase of the Broadway Hotel property for $60,000, being payable: $9,308.08 cash; first mortgage notes on some California property for $8,691.92; and the balance of $42,000 evidenced by vendor’s lien note on the Broadway Hotel property. After Appellee Hughes returned from Alabama he learned of the sale of the Broadway Hotel property by Thompson to Murphy. No demand for real estate commission was ever made by either of the appellees: instead they filed this suit on July 3, 1953, for $15,000 as claimed real estate commission. Equity jurisdiction was invoked because the defendants, Thompson, B. F. Lewis and Mrs. B. F. Lewis, were by law (§ 64-807, Ark. Stats.) trustees of the Broadway Hotel property.
We have repeatedly held that a real estate broker’s contract.need not be in writing. See Long v. Risley, 208 Ark. 608, 188 S. W. 2d 132, and cases there cited. We have also held that when the owner sells the property even after the expiration of the real estate broker’s contract, the owner is liable to the real estate broker for the commission if the broker was in fact the procuring cause of the sale. See Hartzog v. Dean, 216 Ark. 17, 223 S. W. 2d 820. But in the case at bar whatever kind of contract the appellees had regarding the Broadway Hotel property was entirely abandoned by them. Lewis told them they could “forget the whole thing” and they thereupon considered the matter entirely ended. Harper did nothing and Hughes went to Alabama. When Murphy went to see Thompson he did not tell Thompson that Hughes or Harper or anyone else had anything to do with the property; and Thompson testified that he did not know of the connection of either of the appellees with the property. Lewis testified that Harper and Hughes had no contract and were not the procuring cause of the sale.
In 8 Am. Jur. 1069, in discussing the effect of abandonment on the part of the broker, the holdings are summarized in this language:
“If a broker, after introducing a prospective customer to his employer to no purpose, abandons his employment entirely, or if, after procuring a person who proves to be unwilling to accept the terms of his principal, he merely ceases to make further endeavors to negotiate a deal with that particular individual and all negotiations in that direction are completely broken off and terminated, he will not be entitled to a commission if his employer subsequently renews negotiations with the same person, either directly or through the medium of another agent, and thus effects a sale without further effort on the part of the broker first employed.”
In an Annotation in 9 Ann. Cas. 435 many cases are cited to sustain this statement:
“If a broker does not procure a purchaser on the terms authorized and he abandons further efforts to sell to a prospective purchaser, or if negotiations between the broker and the purchaser are completely broken off and terminated, the broker will not be entitled to a commission if the owner subsequently enters into negotiations with the same party and effects a sale.”
The rules stated in the foregoing quotations are completely applicable to the case at bar; and find inferential support in our own holdings. Our cases, while factually different nevertheless, recognize the rule that abandonment of the contract by the broker leaves the owner free to act without being liable for a commission. See Stogsdill v. Holmes, 144 Ark. 574, 169 S. W. 961; Johnson v. Knowles, 169 Ark. 1089, 277 S. W. 868; and Oliver v. Dent, 207 Ark. 843, 183 S. W. 2d 302. We conclude that the appellees abandoned whatever contract that might have been originally made, and therefore they are not entitled to any recovery.,
Reversed and dismissed.
Chief Justice Seamster not participating.
Justice Holt dissents.
Here is Lewis’ testimony as to the so-called “listing”: “Well, one day I was passing the real estate office and Mr. Harper was there and I just remarked T believe I’m getting just about ready to quit the hotel business and if you ever have anybody that was interested in the hotel to get an offer and then I would submit it to the owner, Mr. Thompson, and if theywanted to sell, so far as I’m concerned we could sell it, that I was ready to stop,’ and that was when I told him I couldn’t list it with him that I didn’t have any authority to list the hotel.”
These questions and answers are taken from Hughes’ discovery-deposition which is in the record. Hughes testified to the same effect at the trial.
Annotations listing the cases supporting the quoted textual statement are contained in: 9 A. L. R. 1194; 12 A. L. R. 2d 1367; 27 A. L. R. 2d 1402; 44 L. R. A. 346, 613; 16 L. R. A. (N. S.) 432; 139 A. S. R. 231; 9 Ann. Cas. 435; Ann. Cas. 1913D, 824; and Ann. Cas. 1913E, 788. | [
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Ed. F. McFaddin, Justice.
This is the second suit to reach this Court between the same parties, who are adjoining property owners. The other case is Timmons v. Brannan, 219 Ark. 636, 244 S. W. 2d 136; and is hereinafter referred to as “the first case.”
In the first ease we sustained a contract between the parties which established the entire West boundary line of Timmons’ property and the entire East boundary line of Brannan’s property. The written contract between the parties, dated May 20,1950, was copied in full in our opinion in the first case. For convenient reference we recopy two of the paragraphs:
“ It is hereby mutually agreed that the iron stake as now located at the southwest corner of the property of the party of the first part is hereby established as the true boundary line between the southwest corner of the property of the party of the first part and the southeast corner of the property of the party of the second part
“ It is hereby agreed that said line shall run directly or due north of the iron stake hereinabove mentioned to the northwest corner of the property of the party of the first part to the now placed post in said northwest corner of the property of the party of the first part.”
In the first case Timmons, as plaintiff, claimed that he had been induced to sign the said boundary line settlement agreement through fraud and misrepresentation, and also that there was a mutual mistake. Brannan filed a cross-complaint and claimed the contract settled the boundary question and prayed that his title be quieted. Timmons answered the cross-complaint. The Trial Court held against Timmons and we affirmed, saying: “. . . the contract is effective to establish the boundary line. ’ ’
Our opinion in the first case was delivered December 3, 1951. On August 11, 1953, Timmons filed the present suit against Brannan claiming that Brannan was obstructing certain streets in the City of Morrilton and praying that the Court order the removal of such obstructions. Brannan offered several defenses to the present suit but the only one we need to mention is that of res judicata Here is a pertinent portion of Bran-nan’s pleading in the present case:
“That the case of Timmons v. Brannan, 219 Ark. 636, 244 S. W. 2d 136, was decided by the Supreme Court of Arkansas, on December 3, 1951. That the parties herein are the same as the parties thereto, and that the land, upon which are located the alleged streets as set out in plaintiff’s interlineations to his complaint, is the same land and properties; that the issues are the same as were in issue in the case which was decided by this court and affirmed by the Supreme Court of Arkansas on the above date. That basis of the matters complained of by the plaintiff herein have been fully adjudicated by the courts in another action by and between the same parties in the same case, and that the defendant pleads Res Judicata to plaintiff’s complaint with interlineations. ’ ’
At the trial of the present case, the entire transcript in the first case was made a part of the evidence; and we now sustain the plea of res judicata and thus never reach any of the other questions ably argued in the brief for the appellant.
In the present cnse, Timmons claimed: (1) that Ridge Street is between the West side of Timmons’ property and the East side of Brannan’s property and that Brannan is blocking a portion of Ridge Street; and (2) that Spring Street goes East and West through Bran- nail’s property and that Brannan is blocking Spring Street. Bnt in the first case we sustained a boundary line settlement agreement between Timmons and Bran-nan which established a common boundary between them along all of Timmons’ West line and all of Brannan’s East line. If Timmons had thought, at that time, that Ridge Street separated the two property-holders, then he should have so asserted and the issue as to Ridge Street could have been decided: instead, Timmons claimed that there was a common boundary line between him and Brannan. Likewise as to Spring Street, the fence on the common boundary between Timmons and Brannan effectively blocked Spring Street, if there be such a street. It is too late for him now to raise questions of streets between his property and that of Bran-nan : these were matters that should have been litigated in the first suit.
In Shorten v. Brotherhood of Railway Trainmen, 182 Ark. 646, 32 S. W. 2d 304, a plaintiff attempted to bring a second action on a matter that could have been litigated in the first action between the same parties. In sustaining the plea of res judicata we quoted from the case of Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610:
“ ‘The test in determining the plea of res judicata is not alone whether the matters presented in the subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issue and might have been litigated in the former suit.’ ”
The test is not whether the matters in the second suit were actually litigated in the former suit between the parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit. The following recent cases declare and follow the rule of res judicata as above quoted: Thomas v. McCullum, 201 Ark. 320, 144 S. W. 2d 467; Meyer v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958; Ripley v. Kelly, 209 Ark. 389, 190 S. W. 2d 526; Lillie v. Nunnally, 211 Ark. 202, 199 S. W. 2d 751; Crump v. Loggains, 212 Ark. 394, 205 S. W. 2d 846; Andrews v. Gross and James Tie Co., 214 Ark. 210, 216 S. W. 2d 386; Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S. W. 2d 70; Timmons v. Clayton, 222 Ark. 327, 259 S. W. 2d 501. The rule of res judicata applies in the case at bar.
Affirmed.
i.e., Timmons.
i.e., Brannan.
In Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S. W. 2d 70, we said: “The Latin words ‘res judicata’ literally translated into English mean ‘a thing adjudged’; and freely translated into English mean ‘the matter has already been decided.’ ” | [
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J. Seaborn Holt, Associate Justice.
Appellant, Dewey Harris, and Bennie Harris were the parents of Birdie Harris, Avho was killed in an automobile collision July 11, 1954. Dewey Harris and Bennie Harris have been divorced for some eight (8) years. Their daughter, Birdie, had also been married, was divorced December 15, 1950, and was 24 years of age at the time of her death. She had no children. A damage suit following the automobile mishap, and filed by her administratrix [her mother], resulted in a recovery for Birdie’s estate of $4,000. Birdie died intestate and left no other estate. December 23, 1954, appellant [as Birdie’s father] filed a petition in the Probate Court asking that the assets of the estate be disbursed equally between him and Bennie, and that the administration be closed. January 24, 1955, on petition of appellee, a partial distribution was made, $1,000 being paid to Dewey Harris and $1,000 to Bennie Harris, leaving a balance of $2,000. On February 17, 1955, Bennie Harris filed a claim against her daughter’s estate for $3,000 and on a hearing the court allowed her $2,490. This appeal followed.
For reversal appellant relies on the following five points: 1, 2 and 3, in effect, question the sufficiency of the evidence and “4. Because the testimony of Bennie Harris, Administratrix, was incompetent and inadmissible for the purpose of establishing her claim against the estate of Birdie Harris, deceased. 5. Because the testimony of Frank Landers was not sufficient to establish the claim of Bennie Harris, Administratrix, against the estate of Birdie Harris, deceased.”
Appellee based her claim against her daughter’s estate on the following itemized account: ‘ ‘ For expenditures on behalf of the decedent during the period from September, 1951, to May, 1954, during the school year, only: Lunch — $10.00 per mo., Incidentals — $10.00 per mo., Pood & Lodging — $30.00 per mo., Clothing & Shoes —$20.00 per mo., Books — $5.00 per mo., Medical & Dental —$5.00 per mo., Total — $80.00 per month.
“Total expenditure for 27 months @ $80.00 per month — $2,160.00.
“Por expenditures on behalf of the decedent during the period September, 1951, to May, 1954, during vacation only: Incidentals — $10.00, Pood & Lodging — $30.00, Clothing & Shoes — $10.00, Medical & Dental — $5.00, Total $55.00.
“Total expenditure for 6 months @ $55.00 per month, $330.00.
Total Expenditure.....................$2,490.00. ’ ’
There was evidence to the effect that Birdie, following her divorce December 15, 1950, had lived with her mother continuously until her accidental death July 11, 1954. During this period she went to school and it does not appear that she earned anything. Her mother [67 years old] received $75 a month from the government and earned $40 per month working for Prank Landers. Her mother testified that Birdie promised to pay her [Bennie Harris] for her [Birdie Harris’] expenses while she lived with her mother. On direct examination Birdie’s mother testified:
“Q. Actually, Bennie, did Birdie finish school in May of 1954? A. Yes, sir, and she told me she was going to pay me — we made an agreement — • MR. MARTIN: We object to any agreement between the Administratrix and the deceased. MR. ROWAN (continuing): Q. During the time she went to school, from September, 1951, until May, 1954, when she finished, who paid her expenses? A. Me.”
Appellant’s contention that this evidence of Birdie’s mother was inadmissible as falling within the terms of Section 2 under “Schedule” to the Constitution of Arkansas, commonly referred to as the “Dead Man’s Stat ute,” must be sustained. It appears, however, that appellant brought out on his cross-examination of Bennie Harris the same testimony, in effect, that he complained about, as indicated, on her direct examination. He, therefore, waived the incompetency of this testimony, Smith, Administratrix v. Clark, 219 Ark. 751, 244 S. W. 2d 776. On Bennie Harris’ cross-examination she testified :
“Q. Did you get a note for any of this money you gave her? A. I didn’t have to because she told me she was going to give me back every cent. Q. How was she going to pay it back? A. Get a job and pay me back. . . . Q. Now why do you claim pay for Birdie after she is dead — why didn’t you make the claim while she was living? A. I did make it — and she told me she was going to pay it when I put her through high school and she could get a job and make some money.” . . .
In addition to the above testimony Prank Landers testified: . . . “That she [Bennie Harris] works for his wife in the house and has worked for her since 1951. That he knew her daughter, Birdie Harris. Q. Were you aware, or did you know any expenditures made by Bennie Harris for the purpose of educating Birdie Harris? A. Yes, sir. Q. How did you know of it? A. Well, a number of times Bennie would get money from me to take care of Birdie’s school bills. Q. Did you hear any conversation between Birdie Harris and Bennie Harris regarding this matter ? A. Yes, sir. Q. Tell the court what they were. A. Well, at one particular time, Birdie got off the bus and came in my house and asked her mother for some money for books, and her mother said she didn’t have the money, and that it was costing a lot to send her through school, and she said — she didn’t call her Mother, she called her Bennie,' — and she said: ‘Bennie, when I get through school I am going to pay every, bit of this money back. ’ ” . . .
The cause comes to us for trial de novo, just as in chancery appeals. The burden was on Birdie’s mother to establish her claim. “ It is incumbent upon the claim ant to show that, at the time the services were rendered, it was expected by both parties that she should receive compensation, but she may show this by circumstantial as well as' by direct evidence. All the surrounding circumstances under which the services were performed may be proved, Meers v. Potter, 208 Ark. 965, 188 S. W. 2d 500.
After a careful review of all the testimony, some of which is contradicted by appellant, we have reached the conclusion that the preponderance of the testimony does not support a claim of appellee for more than $2,000. The claim will, therefore, be reduced to $2,000 and affirmed for this amount. All costs in the trial court and here to be paid out of the estate.
Justices Smith and Robinson dissent. | [
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Per Curiam:
Appellant, Will Jordan, was convicted of a felony, and an appeal was granted by the circuit court.
He moves this court for a rule on the clerk of the circuit court to require the latter to furnish a transcript of the record in the case, which he alleges that the clerk has prepared but refuses to deliver or to send up to this court until the fees for making the same are paid.
This raises the question whether the clerk may rightfully demand payment of his fees in advance for making a transcript in a felony case.
At common law costs were unknown, either in civil or criminal cases, and the question of recovery thereof never arose. A decision of such questions must therefore depend entirely upon a construction of the statutes on the subject. The statutes of this State concerning payment of costs in criminal cases read as follows:
“Sec. 2469. Fees allowed in criminal cases shall be paid by the defendant; but if sufficient property belonging to the defendant can not be found for that purpose, they shall be paid by the county where the conviction is had, except in such cases of misdemeanor, where the county is not to be liable.
“Sec. 2470. In all criminal or penal cases, pending under indictment in the circuit courts, if the defendant shall be acquitted or nolle prosequi entered by the attorney for the State, except in cases where the prosecutor shall be adjudged to pay the costs, or in cases of felony, if the defendant shall be convicted and shall not have the property to pay the costs, the same shall be paid by the county.
“Sec. 2471. The county shall not be liable for costs when the defendant is convicted, until execution shall have been issued against the property of such convict, and returned unsatisfied for the want of property to satisfy the same, unless the court in which the trial was had shall certify that, in the opinion of such court, the costs can not be made out of the property of the defendant.” Kirby’s Digest.
The statute concerning judgment for costs in felony cases on appeal to this court reads as follows:
“Sec. 2626. On the affirmance of a judgment, where the appeal is taken by the defendant, and on the reversal of the judgment, where the appeal is taken by the State, a judgment for costs shall be rendered against the defendant.” Kirby’s Digest.
In some jurisdictions it has been held, under statutes making a county liable “for costs of prosecutions,” that there is no liability on the part of the county for costs made by the defendant. 11 Cyc. of Law, p. 283, and cases there cited.
Our statute is, however, much broader in its terms, as it makes the county liable for all fees allowed in felony cases where property of the defendant can not be found.
The Constitution of this State and the statutes thereof declare the right of appeal under certain restrictions, but no intention is evinced to impose on a person convicted of felony the payment of fees for transcript as a condition to his right to appeal. The conclusion is, therefore, that the circuit clerk must furnish a transcript on application therefor and cannot demand payment in advance of his fees. The rule against the clerk, requiring him to furnish transcript, is therefore awarded.
Kirby, J., dissents. | [
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Minor W. Millwee, Associate Justice.
The issue here is whether a tort action against an estate is barred by our statute of nonclaim.
According to an agreed stipulation of facts, J. W. Meek died testate May 13, 1952, and defendant, Jim D. Meek, was appointed executor of his estate. On May 27, 1952, a notice to creditors was duly published calling upon all persons to present claims against the estate within six months, and the time for filing such claims expired November 27, 1952. On June 12, 1952, plaintiffs, A. J. and Sallye Turner, filed the instant action in circuit court against the defendant executor seeking damages for injuries allegedly sustained by Mrs. Turner, a nurse, by reason of a willful assault upon her by J. W. Meek while she was nursing him on May 8, 1952. Plaintiffs took a nonsuit on October 20, 1952, and on January 20, 1953, refiled their complaint which was subsequently amended to assert an action based solely on the alleged negligence of decedent. In the course of the administration of the estate, the probate court entered aii order on December 19, 1952, allowing a partial fee to defendant’s attorneys for certain services, including services rendered in connection with the present action.
Defendant pleaded the nonclaim statute as a bar to the instant action in his answer and a motion to dismiss, which was overruled on October 1, 1953. The case proceeded to trial and resulted in a judgment for plaintiffs on October 13, 1954. This judgment was set aside and a new trial ordered upon defendant’s motion on November 10, 1954, and there was no appeal from such order. Defendant renewed his motion to dismiss which was submitted to the trial court upon the foregoing facts and the additional stipulation that neither plaintiff filed a claim with either the executor or the probate court; and that neither of the plaintiffs, nor anyone acting for them, ever filed with the probate court a copy of any complaint filed herein or any statement signed by plaintiffs, or their attorneys, setting forth the nature of the action, the claim or demand therein involved, the parties to the action and the court in which the action is pending. Upon this stipulation of facts, the circuit judge held the instant action barred by our nonclaim statute and plaintiffs have appealed.
A determination of the validity of the trial court’s action involves a consideration of certain sections of the Probate Code [Act 140 of 1949] which made some sig nificant changes in our nonclaim statute. Section 110 of Act 140 appears as Ark. Stats., § 62-2601, and provides that, with certain exceptions which are not pertinent here, all claims against a decedent’s estate are barred unless verified and presented to the personal representative or filed with the probate court within six months after the date of the first publication of notice to creditors.
Section 111 of Act 140 appears now as Ark. Stats., § 62-2602, and reads: “The provisions of Section 110 [§ 62-2601] shall not preclude the commencement or continuance of separate actions against the personal representative as such for the debts and other liabilities of the decedent, if commenced or revived within the periods stated in Section 110 [§ 62-2601]. Any action pending against any person at the time of his death, which survives against the personal representative, shall be considered a claim duly filed against the estate from the time such action is revived, and any action commenced against a personal representative as such after the death of the decedent shall be considered a claim duly filed against the estate from the time such action is commenced; provided that, within the time required by Section 110 [§ 62-2601] for filing claims against the estate, the plaintiff in such action files with the Probate Court in ivhich the estate is being administered a copy of the petition for revivor or of the complaint, or a statement signed by the plaintiff or his attorney setting forth a description of the nature of the action, the claim or demand therein involved, the parties to the action, and the court in which the action is pending. Nothing in this Section shall impair the individual liability of the personal representative for his own acts and contracts in the administration of the estate.” (Italics supplied.)
Present counsel for plaintiffs, who did not represent them prior to January, 1954, concede there was no compliance with § 62-2601, supra, but earnestly contend there was a substantial compliance with § 62-2602 because defendant and his attorneys had knowledge of the pendency of plaintiffs’ action by reason of the service of summons on defendant and tbe order of the probate court of December 19, 1952, allowing a partial fee to defendant’s attorneys for services, which included services rendered in connection with the instant action. In rejecting this contention the trial court stated:
‘ ‘ The Legislature, in enacting the remedy under Section 62-2602, seems to have had in mind that where an estate is sued some notice thereof in writing should be filed with the probate court having jurisdiction over the estate.. A copy of the complaint may be filed, or, in lieu thereof, a signed statement giving all of the details ordinarily found in a complaint, may be filed. In the face of such language it is believed that if actual notice, such as the personal representative always has by service upon him of summons, were intended to suffice under this statute, that the Legislature would have so said if they wished the courts to so hold. ’ ’
We concur in the circuit judge’s interpretation of the statute. Section 62-2602, supra, amended § 99 of Pope’s Digest which provided that all actions commenced against a personal representative after death of the testator or intestate should be considered legally exhibited claims against the estate from the time of service of process on said personal representative. The amended statute clearly placed the additional duty on the plaintiffs, and not upon the executor, to file either a copy of the complaint or a statement of the nature of the action, etc., with the probate court prior to November 27, 1952, and this was not done. In making proper determinations and orders relative to claims, family allowance, dower, etc., at the termination of the six-months period on November 27, 1952, the probate court was entitled to rely upon the statute, which was not complied with by the mere service of process on defendant in this action. As to the contention that the allowance of a fee to defendant’s attorneys by the probate court on December 19, 1952, amounted to a substantial compliance with the stat ute, it is noted that the six-months period had already expired, and there was no action pending in the circuit court, at that time.
Plaintiffs’ second and final point is that § 62-2602 is inapplicable for the reason that the claim asserted by them is contingent in nature under Ark. Stats., § 62-2610 (c), which provides: “Contingent claims not presented within the time prescribed by Section 110 (62-2601), or subsection b hereof, shall be barred as against the estate, but within the time now or hereafter permitted by law for bringing actions thereon, may be enforced against distributees of the estate to the extent of the assets of the estate or the proceeds thereof, remaining in the hands of such distributees.” Plaintiffs argue that their claim remains contingent so long as it is undetermined judicially, and that they, therefore, have a right to proceed against the distributees of the estate under this provision of the statute.
We cannot agree that the claim involved here is ‘ ‘ contingent ’ ’ within the meaning of the statute. In those jurisdictions where the question has arisen, the courts have uniformly held that liability upon an unliquidated claim for damages arising out of a tort is not a ‘ ‘ contingent claim” within the meaning of statutes relating to contingent claims against an estate. In passing on this issue in Pierce v. Johnson, 136 Ohio St. 95, 23 N. E. 2d 993, 125 A. L. R. 867, the court said: “In 21 American Jurisprudence, 582, Section 356, it is stated: ‘According to the ordinary acceptance of the term, a contingent claim is one where the liability depends upon some future event which may or may not happen, and which, therefore, makes it wholly uncertain whether there ever will be a liability.’ See also 11 Ruling Case Law, 205, Section 229.
“A liability on an unliquidated claim for damages arising out of a tort does not depend for its creation upon the occurrence of some uncertain event in the future. On the contrary, such claim is, as of necessity it must be, based on the theory that the event, the tort, giving rise to liability, has already occurred, and that a cause of action has already accrued and is in existence. A claim thus grounded cannot be said to be contingent. ’ ’
Other decisions to the same effect are: Rehn v. Bingaman, 151 Neb. 196, 36 N. W. 2d 856; Mueller v. Shackett, 156 Neb. 881, 58 N. W. 2d 344; Hicks v. Wilbur, 38 R. I. 268, 94 A. 872; Des Moines Transportation Co. v. Harring, 238 Iowa 395, 27 N. W. 2d 210; Helliker v. Bram, (Mo.) 277 S. W. 2d 556. The distinguishing feature of a contingent claim is that the cause of action has not accrued. Any cause of action available to plaintiffs as a result of the alleged tort on May 8, 1952, accrued at that time, and any claim grounded thereon is unliquidated, but not contingent, within the meaning of the statute.
The trial court properly sustained the motion to dismiss, and the judgment is affirmed. | [
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Paul Ward, Associate Justice.
This appeal raises the question of the constitutionality of Section 2 of Act 86 of 1937, said § 2 being Ark. Stats., § 81-312. This question comes to us in the manner and upon the facts and pleadings hereinafter set out.
The real parties in interest in this litigation are the Capitol Transit Company, an Arkansas Corporation owning the bus franchise in Greater Little Rock, and 158 of its former employees [members of Division 701 of the Amalgamated Union and intervenors] who left the employment because of a strike. On September 26, 1955 said employees, through their attorneys, filed individual claims before the Arkansas Department of Labor alleging that certain wages were due them from the said Transit Company. This petition was filed pursuant to said § 81-312 of the Ark. Stats, and attached thereto was a statement containing the names of each of the claimants showing the amount alleged to be due to each. The Commissioner of Labor, the appellant herein, set Monday October 10, 1955 at 10:00 A. M. for a hearing on said petition and gave notice thereof to the attorney for the Transit Company.
On October 7,1955 the Transit Company filed in the Second Division of the Chancery Court of Pulaski County a petition asking said court to restrain and enjoin the said Labor Commissioner from proceeding under Ark. Stats., § 81-312, to determine the claims of the said 158 former employees. On the same date the appellee herein, the Judge of the said Chancery Court, issued an order restraining appellant from proceeding further in determining the rights of said employees on their claims against the Transit Company.
Thereupon appellant filed in this court a petition for a Writ of Prohibition directed to appellee.
Petition treated as an appeal. Since both parties have orally expressed to this court the desire that we pass upon the constitutionality of the statute involved as above noted regardless of any procedural matters involved we have chosen to treat the petition for a Writ of Prohibition as an appeal from the order of the Chancery Court. We are also authorized to do this under the holdings in Boyd v. Dodge, Chancellor, 217 Ark. 919, 234 S. W. 2d 204. This procedure makes it unnecessary to consider the first argument in appellee’s brief that “Prohibition does not lie.”
Appellee’s contentions. Appellee’s over all contention is that the statute involved violates the Constitution of the State of Arkansas. In support of this contention appellee directs our attention to different provisions of the statute and to numerous reasons for that contention. It is urged that the statute violates Article 7, § 1 and Article 7, § 40 of the Arkansas Constitution; that the Legislature cannot delegate judicial power; that the statute denies the right of trial by jury; that the statute is vague, indefinite and inoperative, and; that the statute creates a presumption and provides for free legal services.
Before we discuss the above questions it is proper to point out the well established rule of construction of legislative acts to the effect that such acts are presumed to be constitutional. This rule which has been many times announced by this court is very well stated in Baratti v. Koser Gin Co., 206 Ark. 813, 177 S. W. 2d 750. From page 816 of the Arkansas Reports we quote: ‘ ‘ This court has always held that, before it may strike down an act of the Legislature on the ground of unconstitutionality, it must clearly appear that the act is at variance with the constitution, and that an act of the Legislature is presumed to be constitutional, and that any doubt on the question of constitutionality must be resolved in favor of the act.”
Article 7, § 1 of the constitution vests the judicial power of the State in the Supreme Court, the Circuit Court, the County and Probate Courts and in Justices of the Peace. Section 40 of the same article provides generally that the jurisdiction in matters of contract is vested in Justices of the Peace Courts where the amounts involved are limited. It is appellee’s contention that the statute under consideration is an attempt by the Legislature to invest an executive officer with judicial powers. It is true that appellant, the Labor Commis sioner, is an executive officer functioning in the Arkansas Department of Labor. The vital question presented therefore is: Are the duties performed by the Labor Commissioner under Ark. Stats., § 81-312, the exercise of judicial functions in violation of the constitutional prohibitions above mentioned? If the answer to the above question is in the negative it must necessarily follow that the statute does not violate those portions of the constitution above mentioned and that it does not constitute a delegation of judicial powers.
After careful consideration we have concluded that Ark. Stats., § 81-312, is not an unconstitutional delegation of judicial power by the Legislature. This section of the statute reads:
“From and after the passage of this act [§§ 81-311-81-315], upon application of either employer or employee, the Commissioner of Labor, or any person authorized by the Commissioner, shall have authority to inquire into, hear, and decide disputes arising from wages earned, and shall allow or reject any deduction from such wages. Upon motion of either employer or employee, the amount found to be due may be paid in the presence of the commissioner or person designated by him, [and] after final hearing by the commissioner or person appointed by him, he shall file in the office of the Bureau of Labor and Statistics [Department of Labor] a copy of findings and facts and his award. The amount of the award of the Commissioner of Labor shall be presumed to be the amount of wages, if any, due and unpaid to the employee. If either employer or employee shall fail or refuse to accept the findings of the commissioner, then either shall have the right to proceed at law as now or hereinafter provided; or if the claim is meritorious, and if within the discretion of the Commissioner the claimant’s lack of financial ability entitles him to the services of the Bureau of Labor and Statistics [Department of Labor], the Commissioner of Labor in the name of the State of Arkansas for the use of such claimant may institute action in any court of competent jurisdiction, without paying costs or giving bond for costs, and shall be entitled to all remedies now or hereinafter available to litigants in the prosecution of actions, and their enforcement, if successful, without paying costs or giving bond for costs; provided that nothing herein shall be construed so as to relieve an unsuccessful defendant from paying costs.” [emphasis supplied]
Unlike appellee we cannot see in the above statute anything that deprives either an employee or an employer of his constitutional rights. In the first place the statute is not compulsory in that one of the parties must make an application to the Commissioner of Labor before that officer has any power to act. In the second place, once the Commissioner has made a finding, the losing party has a right to refuse to accept the Commissioner’s finding. After such refusal neither party is bound and each party has a right to pursue his remedy in a court of law or, as the statute says “they shall have the right to proceed at law as now or hereafter provided.” It appears to us that actually the statute simply provides a forum in which the employer and employee may settle their differences if they so desire. Under this interpretation of the act it has been urged that the act is meaningless and useless, but we do not think so. Through the many years that this statute has been in existence it is not unreasonable to suppose that many small claims have been adjusted to the satisfaction of all- concerned without having had to resort to the trouble and expense of court procedure which would otherwise have been necessary.
It is appellee’s contention, and we agree, that notwithstanding the fact the claimants here are members of a labor organization they are in fact suing on a contract of employment which they had with the Transit Company. It is then stated that a suit on a contract is a common law action in the nature of assumpsit and that they are therefore entitled under the constitution to a trial by jury, and that the statute in question denies them that right. This contention is fully answered by what we have heretofore said. As pointed out either side, the employee or the employer, has the right to re sort to a regularly constituted judicial tribunal if it is so desired. In other words both parties have every right to a trial by jury under the provisions of the questioned statute that they had before the statute was enacted.
It is urged by appellee that the statute is unconstitutional because it is vague and indefinite. The main point stressed here is that the statute sets out no clear and definite provisions for the taking of an appeal. In this connection is quoted a portion of the statute stating in effect that if either party refuses to accept the finding of the Commissioner then he shall have “the right to proceed at law as now or hereafter provided.” We think appellee is in error in considering this language to purport to provide a method of appeal. As already pointed out, the statute contemplates no appeal but provides instead that in case either party does not agree with the finding of the Commissioner he has the right to institute an original action in a court of law.
It is again argued that the statute is unconstitutional because it provides that the Labor Commissioner may furnish free legal services if he finds that certain claimants are in need thereof. Article 2, § 18 of the Constitution is cited by appellee which provides that “the G-eneral Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the samé terms shall not equally belong to all citizens.” It is also contended that the statute is unconstitutional because of the language stating that “the award of the Commissioner of Labor shall be presumed to be the amount of wages, if any, due and unpaid to the employee.” The contention in this connection is that this language shows that the Commissioner does in fact make a judicial finding and that a finding by the' Commissioner in favor of an employee places a burden upon the employer which he must overcome in a later trial of the case.
We find it unnecessary to pass upon the validity of these last two contentions on the part of appellee for the reason that no such questions have arisen so far in this case. Since it is not necessary to pass on these questions we deem it expedient to wait until they may be properly raised in a trial court and properly presented and briefed in this court. Section 7 of said Act 86 contains a severance clause so that if any portion of the act is held unconstitutional it will not affect other provisions in the act if they constitute a reasonable and workable entity.
We find that a few other states, including California, Indiana, New Mexico, and New York, have statutes similar to the ones under consideration here, but we do not find the constitutionality of any of them has been challenged in any court. We have therefore been unable to find any legal precedent to guide us here, and none has been called to our attention by either party. In view of this, and giving effect to the presumption of constitutionality, we are unable to find anything in Ark. Stats., § 81-312, here challenged which justifies us in holding it unconstitutional.
We call attention to the fact that § 1 of Act 86 of 1937 [now Ark. Stats., § 81-311], limits the jurisdiction of the Labor Commissioner to amounts not exceeding $200.00, and also to the fact that a few of the claims presented to the Commissioner in this instance exceed that amount. It is obvious, we think, that the Commissioner has no jurisdiction over such excessive amounts and that they should be stricken if objected to by the Transit Company.
It follows from what we have said that the injunction order of the trial court was erroneously made and must be voided. To that end the cause is reversed.
Justice MoFaddin concurs.
Justice Millwee dissents. | [
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Paul Ward, Associate Justice.
This appeal challenges the validity of a divorce decree rendered in the Circuit Court, City of St. Louis, Missouri, on October 5, 1948. Appellee [then Helen Edwards] married Moe Kanner on October 9,1948 in the. State of Missouri. Soon thereafter the Kanners moved to Hot Springs, Arkansas where, on July 6, 1951, they purchased property on Lake Hamilton, in Garland County, valued at Fifteen or Twenty Thousand Dollars. This property was conveyed to them by warranty deed in which the granting clause read: “. . . do hereby grant, bargain, sell and convey unto the said Moe Kanner and Helen Kanner, husband and wife, as tenants by the entirety . . . ” Moe Kanner died August 19,1951, and Helen Kanner married Dr. Jett 0. Scott of Hot Springs on September 20, 1952.
At his death Moe Kanner was survived by his daughter and only heir, Lauretta Kanner Dilk, who instituted this action as an individual and as administratrix of the estate of her father. For the purpose of this opinion Ave will treat her in the capacity of an individual only.
In 1929 appellee Avas married to one Raymond D. Edwards with whom she lived for only a few months. On or about June 30, 1948, appellee filed a petition for divorce in the Missouri court above mentioned and on October 5, 1948 she Avas granted a decree of divorce from the said Raymond D. Edwards.
On July 19, 1954, Lauretta Kanner Dilk instituted this action in the Chancery Court of Garland County, Arkansas to recover one-half of the property above mentioned as the sole heir of her father, Moe Kanner. It Avas and is the contention of appellant that appellee’s divorce from Raymond D. Edwards was null and void and that, consequently, appellee Avas not the legal Avife of Moe Kanner when the property above mentioned was purchased by them. Alleging these facts to be true it is further alleged and contended that appellee and Moe Kanner did not own the said property as tenants by the entirety but merely as tenants in common. Appellee’s contention is that her divorce from Edwards was valid, that she and Moe Kanner owned said property by the entirety, and that at his death she became the owner in fee of all of the property by right of survival.
Aside from the question of laches pleaded by appellee, which it is not necessary to consider in this opinion, it is agreed by both parties that the only question for our consideration is the validity of the decree of divorce obtained by appellee from Edwards in the Missouri court. The trial judge refused to set aside the said divorce decree and we have concluded that the decree of the trial court must be affirmed.
It is the contention of appellant that the Missouri divorce decree is null and void and should be so declared by this court for the alleged reason that the procedure in the Missouri court to obtain service on Raymond D. Edwards by publication did not meet the requirements of the Missouri statute pertaining thereto.
In her brief appellant sets out the pertinent portion of Paragraph 3 of Section 506, 160 Mo. Rev. Stats. 1949 which pertains to service by publication. This section of the Missouri Statute provides for several alternative requirements to be met in procuring service by publication but only the ones pertinent to this case will be mentioned. It requires that the plaintiff or some person for the plaintiff shall allege either in a verified petition or an affidavit that: (1) The defendant is a non-resident of the State, or; (2) The defendant has “absented [himself] from [his] usual place of abode in this State.” In the latter event the defendant’s address must be shown, if it is known, or, if unknown, it must be so stated. After the showing is made the statute provides that “the court or judge or clerk thereof shall issue an order of publication of notice . . .”
Appellant, conceding this action to he a collateral attack on the Missouri divorce decree, still strenuously contends that under the Missouri law at least one of the above specified requirements must he met before the trial court could obtain jurisdiction and that it was not done in this case, citing extensively from Orrick v. Orrick, Mo. App., 233 S. W. 2d 826, and Kunzi v. Hickman, 243 Mo. 103, 147 S. W. 1002. As we read the Kunsi case, supra, the principal holding there, as it is pertinent to appellant’s contention here, is: First the court laid down the general rule of law that:
“. . . the courts will presume, in a collateral proceeding, that a court of general jurisdiction properly acquired jurisdiction over the parties to the proceedings therein, nevertheless that presumption must yield and give way under the positive evidence disclosed by the record therein showing that no service whatever was had upon them. Or in other words, the recitals of jurisdiction or of service of process contained in the judgment must be construed in connection with the whole record, and may be overthrown by other recitals in the record of equal dignity and importing equal verity showing that the former recitals are untrue.”
Relying upon the above pronouncement the essence of appellant’s contention is that the record here shows positively that the Missouri court had no jurisdiction to render the said divorce decree. Without disagreeing with appellant as to the Missouri law in this connection, we cannot agree with appellant as to what the record shows in this case. In other words we do not agree that the evidence in the record before us shows positively that the Missouri court did not have jurisdiction. On the other hand we think the record shows just to the contrary. Let us therefore examine the record on this point.
(a) Appellee’s verified petition in the divorce case contains the allegation that Raymond D. Edwards “absented himself from their usual place of abode . . . since the date of the separation” in 1929. It will be noted that this allegation is the exact language used in the statute quoted above with the exception that it does not con tain the words, “in this state.” It appears to us that this deletion is immaterial for it is clearly stated in another part of the petition that Mrs. Edwards resided in the State of Missouri. Moreover, it is further stated in the petition that the “whereabouts of this defendant are unknown to her so that the ordinary process of law cannot be served on him in this state and she prays that an order of publication be granted ... in compliance with the statutes . . .” (b) The minutes of proceedings in the Missouri case show that the Order of Publication was granted pursuant to the above prayer. This order is not shown in the record but it is not contended by appellant that it was not in proper form and content as required by law. (c) The same minutes show that the proof of publication was made. This proof was not introduced in the record but again there is no contention that it is not proper in all respects, (d) The record contains an affidavit of Raymond D. Edwards’ “attorney and agent” stating that “the defendant [Edwards] was employed at a race track in the eastern part of the country. ’ ’
Thus it appears that the Missouri court in said divorce proceeding must have felt justified in issuing the order of publication, and, after examining the petition, the affidavits, the order and proof of publication, it must have felt that it had jurisdiction to enter the decree of divorce on October 5, 1948. We think the record before us shows affirmatively that the Missouri court did have jurisdiction. Taking all the allegations in the petition and in the affidavit it conclusively appears that plaintiff was a resident of Missouri, that the defendant was not a resident of Missouri, that he had absented himself from his usual place of abode in Missouri and that his address was unknown. Not only does it so appear but we are also entitled to presume that the other papers mentioned in the divorce proceeding, but not shown in this record, may have contained information which gave the trial court jurisdiction.
In the case of Ray v. Ray, et al., 330 Mo. 530, 50 S. W. 2d 142, the Supreme Court of Missouri said: “Our circuit courts are courts of general jurisdiction, and the prevailing rule is that in a collateral attack upon a domestic judgment of a court of general jurisdiction every reasonable presumption is indulged to support the judgment.” The court then quoted with approval: “ ‘It accordingly will be presumed that all the facts necessary to give the court jurisdiction to render the particular judgment were duly found and that every step necessary to give jurisdiction has been taken.’ ” We have carefully examined the holdings in the Orriclc and Kunsi cases, supra, and do not find that they are in any way contrary to the conclusion we have reached herein. The Orriclc case, supra, was an opinion by the Court of Appeals and was considering a direct attack upon the decree of divorce. The Kunsi case, supra, is readily distinguishable on the facts from the case under consideration. There the records of the first trial showed affirmatively that the trial court had no jurisdiction to render a decree, while in the case under consideration not only is jurisdiction in the trial court shown by the record but by the presumption which we are entitled to draw from records not introduced.
Other decisions of the Supreme Court of Missouri are in accord with the conclusion which we have reached. In the case of Sanders, et al. v. Savage, 234 Mo. App. 9, 129 S. W. 2d 1061, the court said: “ A judgment is not subject to collateral attack unless it affirmatively appears upon the face of the record that the court rendering judgment did not have jurisdiction of the subject matter or the person of the defendant, in which event the judgment is void. ’ ’ In Drummond, et al., v. Lynch, et al., 82 F. 806, the court, in dealing with a Missouri decree, after first stating that the recitals of the judgment record of a foreign judgment are not conclusive as to jurisdiction, stated: ‘ ‘ The inquiry, however, must be confined to jurisdictional infirmities which would render the decree void, it cannot be here refused or impeached for mere irregularities. ’ ’
In questions of this nature it is our understanding of the Missouri rule, as well as the general rule, that it is our duty to inquire whether the trial court in the first instance had jurisdiction and not whether the publication statute was complied with, and that jurisdiction may be determined from the entire file of the first proceeding if it appears in the record, or from the presumption of jurisdiction that attaches to all judgments when collaterally attacked in the absence of material parts of the file in the first proceeding.
There are good reasons founded in public policy to support the rule that judgments of courts of record, particularly in divorce matters, should not be lightly regarded and should not be revoked for mere irregularities. In the case before us appellee certainly had every reason to believe that she had secured a valid divorce from Edwards in 1948, and relying on this belief she married Kanner and after his death married Dr. Scott. If the Edwards divorce decree is now nullified it is obvious that appellee will find herself in an embarrassing position.
We could not use words to express this concern of public policy more appropriate than those used by the Supreme Court of Missouri in McDermott v. Gray, 198 Mo. 266, 95 S. W. 431, where that court said:
“While there may be objections urged against the liberality of our divorce laws, in furnishing an easy method of dissolving the marriage relation, yet as long as the law exists and courts pronounce judgments in obedience to it dissolving such marriage relation, the tendency of the American courts is to regard such judgments as possessing elements of strength and stability which frequently do not attend other decrees and judgments. This is but a proper recognition of the principle of public policy which has repeatedly been respected by the courts for the reason that such decrees and judgments affect directly the status of the married persons by dissolving the marriage relation and thereby enabling them to contract new matrimonial relations with other and innocent persons. Therefore, such decrees and judgments should not be dealt lightly with. To do so would endanger the peace and good order of society, as well as the happiness and well being of those who have a right to rely upon the stability of such decrees.”
It is therefore our opinion that the decree of the trial court refusing to set aside the divorce decree of the Missouri court is not against the weight of the testimony.
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Minor W. Millwee, Associate Justice.
Appellant, Melvin Callahan, was the owner and operator of Callahan Tractor Company in Lawrence County, Arkansas, in November, 1950, when that company became a retail dealer for the sale of farm machinery manufactured by Harry Ferguson, Inc., hereinafter called Ferguson. The dealership was established under a plan customarily employed by Ferguson which enabled the retailer to ‘‘ floor plan” his merchandise and to immediately receive the price of equipment sold by transferring the conditional sales contracts either to Ferguson or its assignees. Under this arrangement, Ferguson and the appellant, as “Owner” of the Callahan Tractor Company, executed a “Dealer Underlying Agreement” on November 20, 1950. In this agreement the Callahan Tractor Company in effect guaranteed the payment of all notes and conditional sales contracts which it transferred to Ferguson, or its assignees, although the assignment of such instruments ■was under a non-recourse endorsement. The agreement was by its terms effective until terminated by either party by 60 days written notice. Appellant also furnished a financial statement to Ferguson prior to issuance of the retail franchise.
On the dates of September 17, 1951, and October 18, 1951, respectively, the Callahan Tractor Company sold certain farm machinery to Bill Kissee and Lester Bilbrey under conditional sales contracts signed by each purchaser and by Harold Callahan, appellant’s brother, for Callahan Tractor Company without any indication as to official title or the capacity in which he acted for the company. Each sales contract, upon issuance, was immediately assigned by Callahan Tractor Company to Ferguson and the assignment was likewise executed by Harold Callahan. Subsequently Ferguson assigned said sales contracts and the ‘ ‘ Dealer Underlying Agreement ’ ’ to Universal C. I. T. Credit Corporation which in turn assigned said instruments to appellee, Farm Equipment, Inc., on December 30, 1953. Appellee is engaged in handling negotiable paper issued in the sale of farm equipment, with its principal office at Memphis, Tenn. Its officers are also the officers of Southland Tractors, Inc., hereinafter called Southland, which was the general agent and distributor for Ferguson in negotiating the dealership with Callahan Tractor Company.
Both Kissee and Bilbrey defaulted in the payments due under the conditional sales contracts. On May 29, 1954, appellee brought this action against Melvin Callahan and Harold Callahan for the balance of $2,710.17 due on the two contracts under the terms of the “Dealer Underlying Agreement” executed on November 20, 1950. The complaint alleged the two brothers were doing business as a partnership under the name of Callahan Tractor Company at the time of the execution of the conditional sales contracts and the underlying agreement sued upon. Each defendant filed separate amended answers. Appellant defended on the grounds that he was not a proper party, alleging he was sole owner of the business until about June 25,1951, when he sold to his brother and that such facts were known to Ferguson and its assignees; and that the business was never operated as a partnership. Similar allegations were made by Harold Callahan who admitted execution of the sales contracts and the assignments to Ferguson but denied any indebtedness to appellee.
At the conclusion of the testimony offered by appellee, the court indicated that a motion for a directed verdict would be granted as to the defendant, Harold Callahan. Counsel for appellee stated that the action was against the defendants both individually and as a partnership; that the pleadings should be amended to conform to the proof and the cause allowed to proceed against appellant individually and as owner of the Callahan Tractor Company. At the conclusion of appellant’s evidence, the court instructed the jury that appellee had been permitted to take a voluntary nonsuit as to Harold Callahan. In requesting an instructed verdict against appellant, counsel for appellee insisted that under the undisputed proof appellant was either still the actual owner of the Callahan Tractor Company or had so conducted himself that he was estopped to deny such ownership and his liability for the debts sued upon. Appellant also requested an instructed verdict on the ground that the undisputed proof showed his brother owned the company when the two contracts were negotiated. Both requests were denied and the cause was submitted to the jury which returned a verdict against appellant for the balance due under the two conditional sales contracts.
Able counsel for appellant, who were employed after the trial, first contend the trial court erred in refusing to direct a verdict for appellant. It is argued that the undisputed evidence showed appellant was not the owner of the business when the two contracts in question were negotiated, and that appellee and its assignors all knew of, and acquiesced in, such transfer. "While we are of the opinion that a jury question was made as to whether appellant was still the owner of the business when the sales contracts were executed, this question was not submitted to the jury nor was it the basis for the jury’s verdict against appellant. Since neither party requested an instruction on this particular issue, neither is in position to complain now of the trial court’s failure to present it to the jury. Jones v. Seymour, 95 Ark. 593, 130 S. W. 560.
Appellant next argues that a verdict should have been directed in his favor because the evidence was insufficient to warrant the submission of the issue of estoppel to the jury. While this point was not urged at the trial, we hold that a jury question was also made on the issue of estoppel upon which the verdict rests. Appellant was in ill health in June, 1951, when Harold took over the operation and management of the business. According to the two brothers the business was then sold to Harold but there is no proof as to the terms or conditions of such a sale. There were other circumstances which tend to refute the sale theory. After Harold took charge of the business, he made periodic financial statements of the Callahan Tractor Company to Southland as required by Ferguson. In none of these did he sign as owner of the business and all were made by him in the name of Callahan Tractor Company as were the two conditional sales contracts sued upon. In each of these several financial statements the individual lands of appellant, valued at $28,000.00, were listed as assets of the Callahan Tractor Company just as in the original statement submitted by appellant in November, 1950. These lands constituted more than 50% of the total listed assets of the business at any time.
Although appellant testified that Southland knew he reserved no interest in the business after June 25, 1951, ho admitted he knew that his lands were still being listed as assets of the Callahan Tractor Company by his brother. He understood this was done “to aid in the financing and floor planning of new equipment” and also stated that Southland knew it was being done for that purpose. Harold gave similar testimony and, in addition, stated that the false statement as to ownership of the lands was made to both Southland and Universal C. I. T., “to satisfy the higher ups” in these corporations. T. D. "Warner, who was secretary-treasurer of both the appellee and Southland, testified that Ferguson relied on the financial statements in handling the instruments sued upon and other paper of Callahan Tractor Company. Appellant admitted his signature to an underlying agreement with Universal C. I. T. dated December 31, 1951, as “owner” of the Callahan Tractor Company. There was no showing that Harold Callahan ever executed a dealer underlying agreement and the one signed by appellant on November 20, 1950, was terminated by written notice of Southland received by appellant and his brother on April 11, 1953.
Under the foregoing evidence, appellant insists that it is undisputed that appellee and its assignors were not only aware of the falsity of the representations in the financial statements but that some of the officers in these corporations actually induced such misrepresentations for the purpose of increasing their business and misleading some of the other officers of such corporations. Since appellant and his brother were interested parties to the litigation, it cannot be said that their testimony to this effect is undisputed. Besides, the testimony of Warner and other circumstances in the case tend to contradict the strange theory advanced to the effect that some of the officers of the various agencies conspired with appellant and his brother in order to mislead certain other officers and thereby defraud said companies. On the whole case, we hold it was for the jury to determine, from the conflicting testimony, whether credit was ex tended to the Callahan Tractor Company by appellee and its assignors dne to the admittedly false representations in said financial statements. The jury resolved this issue in appellee’s favor upon evidence that is substantial and sufficient to support the verdict.
It is next contended that the trial court erred in permitting the issue of estoppel to be raised by oral amendment of the pleadings either at the conclusion of the evidence on behalf of appellee or that introduced by appellant. Appellant says the court’s action in permitting the pleadings to be amended to conform to the proof on the issue of estoppel amounted to the allowance of an amendment which introduced a new cause of action after commencement of the trial in violation of Ark. Stats., § 27-1160. Appellant relies on the general rule to the effect lhat estoppel must be pleaded to be available as a defense. However, we have held that it is within the sound discretion of the trial court to treat the pleadings as amended to conform to the proof on the issue of estoppel where no objection was made to such proof on the ground that it was not responsive to the pleadings. Brotherhood of Railroad Trainmen v. Long, 186 Ark. 320, 53 S. W. 2d 433; Williams v. Davis, 211 Ark. 725, 202 S. W. 2d 205. The financial statements of Callahan Tractor Company, upon which the issue of estoppel was primarily based here, were introduced without objection. Other evidence relating to the issue was also admitted without any objection on the ground that estoppel had not been pleaded, and there was no plea of surprise. Under these circumstances, the trial judge did not abuse his discretion in treating the pleadings as amended to conform to the proof.
Appellant says the trial court erred in permitting the witness Warner to testify as follows: “Q. Do you know whether in handling paper from Callahan Tractor Company, and in particular the two contracts here of Bilbrey and Kissee, Harry Ferguson relied on the financial statements and on the financial worth of Melvin Callahan: A. Yes, sir; they did.” The objection at the trial was that proper foundation had not been laid for the question, but it is now argued that the question was leading. Warner was an officer of both appellees and Southland and testified that he was ‘ ‘ the internal operations man” of the corporations. Since there was nothing in the question to suggest the answer, which might have been yes or no, it can hardly be classed as leading. Jim Fork Coal Company v. Rhotenberry, 183 Ark. 319, 35 S. W. 2d 590. It is true that the probable effectiveness of the positive answer of the witness was somewhat weakened by further questioning which tended to show that it was based more upon general business practices than actual personal knowledge of particular transactions. But this did not render the previous testimony incompetent in the absence of a renewal of the objection.
It is next argued the court erred in giving Instruction No. 3 which reads: “You are also instructed that if you find by a preponderance of the evidence that credit was extended to the Callahan Tractor Company due to representations made by Melvin Callahan, or his agents, if any, or by any other person with his knowledge and consent, then your verdict should be for the plaintiff. Unless you so find, your verdict should be for the defendant, Melvin Callahan.”
All the instructions were given by the court on his own motion and there was only a general objection to Instruction No. 3. The jury were given the usual admonition to consider the instructions together and there' was no objection to any other instruction by either party. If appellant felt at the trial, as he now contends, that the instruction was abstract and the issue of estoppel was inadequately defined therein and that the instruction was too general in not confining the “credit” extended to that involved in the suit, his duty to the trial court was to point out such alleged defects by specific objection or offer instructions that more clearly defined these issues. American Realty Company v. Hisey, 113 Ark. 78, 167 S. W. 488; Bennett v. Snyder, 147 Ark. 206, 227 S. W. 402. A party is in no position to complain because instructions given by the court are too general where he fails to request correct instructions on the subject. Queen of Arkansas Ins. Co. v. Malone, 111 Ark. 229, 163 S. W. 771.
The only question now is whether the instruction is inherently erroneous. When considered with the other instructions, we hold that Instruction No. 3 embodied the principle announced in such cases as Graham v. Thompson, 55 Ark. 296, 18 S. W. 58, and Jett v. O. B. Crittenden & Co., 89 Ark. 349, 116 S. W. 665. In the last case cited, the court said : ‘ ‘ The rule broadly stated is that a person, who intentionally or by culpable negligence induces another to act on his representations will be estopped from denying their truth.” In the Graham case it was held (Headnote 1): “One who induces another to credit a third person by representing him to be the owner of certain property will be estopped, as to the creditor, to deny such ownership.” From the appellant’s own viewpoint, it is undisputed that the representations here were known by him to be false and for the purpose of obtaining credit by misleading someone. It was for the jury to determine whether this was done by appellant and his brother in collusion with certain officers of the lending agencies as they contend, or without such collusion as appellee maintains. In these circumstances, we cannot say the instruction is inherently erroneous.
It is finally argued that error was committed in permitting appellee to introduce a second underlying agreement executed by appellant to Universal C. I. T. on December 31, 1951, in which he signed as “owner” of the Callahan Tractor Company. It was, of course, appellant’s theory throughout the trial that he had no proprietary interest in the Callahan Tractor Company after .June 25, 1951. On the other hand, it was appellee’s theory that appellant never disposed of his interest in the business. After appellant had fully testified in support of his theory, he was presented with the second agreement and admitted his signature thereto. It was then offered in evidence to impeach his previous testi mony. The instrument was clearly admissible for this purpose under Ark. Stats., §§ 28-707 and 28-708.
We find no prejudicial error, and the judgment is affirmed. | [
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Ed. F. MoFaddin, Justice.
This case stems from the sale of a stock of groceries, by appellant Marvin to ap pellee Brooks; and is here on an appeal by Marvin (from a judgment quashing his writ of attachment), and a cross-appeal by Brooks (from directed verdicts which denied him damages and awarded Marvin a judgment for debt).
The facts are somewhat complicated. We refer to the parties by name. Marvin owned, or was interested in, grocery stores in Prairie Grove, Springdale and Fayetteville. Brooks had managed Marvin’s Springdale store for several years on a salary of $60.00 per week. In February, 1953, and apparently without any previous negotiations, Marvin proposed to sell to Brooks the stock of groceries at Prairie Grove, which inventoried slightly in excess of $11,000.00. From the inventory there were deducted accounts payable of $2,302.00 and an overdraft at the bank of $1,098.00. These deductions left Marvin’s equity at $7,664.08, to evidence which amount Marvin took Brooks’ unsecured note. The maturity date of the said note presents a sharply disputed factual issue. It is undisputed, however, that Brooks was to draw $75.00 per week from the store for the services of himself and wife; and that he was to pay Marvin $135.00 a month rent for the fixtures and $60.00 per month rent for the building.
Brooks operated the store from February, 1953 to May, 1954 and had paid the bank overdraft and most of the accounts payable, when, without demand or notice, Marvin filed the present action against Brooks for $8,009.08 and also had the stock of groceries attached. The Sheriff sold the groceries pendente lite. Brooks resisted the attachment as well as the claim for debt, and also counter-claimed for damages for wrongful attachment. At the conclusion of the trial, the Circuit Court (1) found that Marvin had not established any grounds for attachment and ordered the proceeds of the attachment sale returned to Brooks; (2) directed the Jury to return a verdict for Marvin on Brooks’ claim for damages for wrongful attachment; and (3) directed the Jury to return a verdict for Marvin for $7,934.08 on the debt sued on. Marvin has appealed from so much of the Court’s action as quashed his attachment; and Brooks has cross-appealed from the. Court’s action regarding the two directed verdicts.
I. Marvin’s Appeal in Regard to the Attachment. When Marvin filed his action he filed his affidavit and bond for attachment and the Sheriff seized the entire stock of groceries. Marvin’s claim to the right of attachment was two-pronged: (1) he claimed he was the vendor of the stock of groceries and entitled to attachment under § 34-2301 et seq., Ark. Stats.; and (2) he claimed he was entitled to attachment under the general attachment statute, which is § 31-101, Ark. Stats.
It was proper for the Trial Court to decide as to the existence of the alleged grounds for attachment, rather than to submit such issue to the Jury. See Stair v. Jones, 223 Ark. 882, 269 S. W. 2d 297, and Ward v. Nu-Wa Laundry, 205 Ark. 713, 170 S. W. 2d 381, and cases there cited. Furthermore the finding of the Circuit Court, as regards the grounds for attachment, is to be sustained if supported by substantial evidence. Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. 2d 462; and Wallace v. Wells, 221 Ark. 750, 255 S. W. 2d 970, and cases there listed.
The Court was correct in denying Marvin’s claim for attachment under § 34-2301, Ark. Stats. In Borengasser v. Chatwell, 207 Ark. 608, 182 S. W. 2d 389, we pointed out that a vendor’s lien attachment could only reach the property actually sold by the vendor to the vendee. Here, Marvin was attempting to attach a stock of groceries that had been replenished and regularly exposed to sale over a period of 15 months from the date of the original transaction. Marvin made no effort to show that any article of groceries was other than one recently purchased by Brooks from some wholesaler; and there was ample evidence that Brooks had been purchasing from wholesalers all during the 15 months’ period in which he had been running the store. The Court was correct in deciding against Marvin on this phase of the attachment claim.
The Court was also correct in deciding against Marvin in his claim for attachment under the general statute, § 31-101 et seq., Ark. Stats. Marvin’s affidavit claimed that Brooks (1) was about to remove his property without leaving enough to satisfy the plaintiff’s claim; (2) had disposed of his property with fraudulent intent to cheat, hinder or delay his creditors; or (3) was about to do so. While not stated in the words of the statute, it is evident that Marvin’s affidavit was designed to contain the allegations as found in Items 6, 7 and 8 qf the first subdivision of § 31-101. But Marvin’s testimony in no wise sustained the affidavit. In fact, Brooks’ attorney used Marvin as a witness to show that no grounds for attachment existed. We therefore conclude that the Court was entirely correct in finding and ordering that the attachment had been wrongfully issued.
II. Brooks’ Claim for Damages for Wrongful Attachment. Our cases hold that an action for damages for wrongful attachment is a jury case (Bank of Wynne v. Stafford, 129 Ark. 172, 195 S. W. 397); but these cases necessarily mean that some evidence must be offered as to the elements of damages claimed. Here no such evidence is in the record; and in the absence of evidence the Court correctly directed a verdict for Marvin on this phase of the case.
III. Brooks’ Cross-Appeal on the Judgment for Debt. As previously stated, the Court directed a verdict in favor of Marvin and against Brooks for $7,934.08 as the debt to Marvin. We hold that a fact question was made as to the time and manner of paying the debt, and that this issue should have been submitted to the Jury.
The evidence was in sharp dispute as to what the agreement was between Marvin and Brooks concerning the maturity of the original debt of $7,664.08. Brooks testified that no part of this amount was to be due until he had paid all of the accounts payable of $2,302.00, and that some of these had not been paid. One of these creditors made proof that its debt had not been paid. So, if the $7,664.08 was not due, the action was premature; and a Jury question was made on that point.
Marvin testified that Brooks executed a note to him for the $7,664.08 and the note was introduced in evidence and stated that it was payable ‘ ‘ $50.00 monthly, payable every six months, plus interest.” But Brooks stoutly insisted' — and other evidence corroborated him — that the monthly payment clause was placed in the note after he signed it and without his knowledge or consent. But against that insistence, Marvin established that the note merely evidenced the amount. The maturity of the debt presented an issue of fact.
Again, Brooks testified that Marvin agreed that if Brooks could not pay the $7,664.08, then Marvin would take back the store and cancel the debt. This defense also presented a Jury question.
Therefore, the judgment is affirmed on all issues except the judgment in favor of Marvin for the debt. As to that issue, the judgment is reversed and the cause is remanded. In view of such remand, we think it proper to mention that the record shows that Brooks made an assignment of some of the funds in the hands of the Sheriff but that Marvin superseded the entire judgment of the Lower Court. In view of Brooks’ testimony that Marvin agreed to take back the stock and cancel the unpaid debt, we order that the Sheriff will hold all funds on hand until the Court below makes disposition of the same. The costs of this appeal are to be paid by appellant. | [
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George Rose Smith, J.
This is a suit filed by the appellee to obtain cancellation, for usury, of a conditional sales contract that was executed after the decision became final in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973. The chancellor canceled the contract and quieted the plaintiff’s title to the car that had been sold. It is contended by the appellant that the apparently usurious nature of the agreement was the result of mutual mistake and that even if the contract should be set aside the purchaser is not entitled to keep the automobile.
On July 13,1953, the appellee Stanley bought a used car from Brown Motor Company for an agreed price of $1,895. By cash and a trade-in Stanley made a down payment which left due a balance of $1,000. On forms furnished' by the appellant the seller prepared two instruments relating to the sale. First is the conditional sales contract now in issue, which recites a “time balance” of $1,260.54, payable in eighteen monthly installments. Second is an invoice which discloses that the time balance was composed of these items:
“[Unpaid balance of purchase price]........................$1,000.00
“Insurance 18 months w/pkg.............."..........$129.00
“Finance Charges..................................................... 131.54
260.54
$1,260.54”
Within a day or two after the sale the appellant bought the commercial paper from the seller. Stanley made two monthly payments and then filed this suit for cancellation.
It is conceded by the appellant that if the invoice charges of $1,000 for purchase money and $129 for insurance are the only items owed by Stanley, then an interest charge of $131.54 is usurious. The appellant undertook to prove, however, that insurance “w/pkg” (with package) includes not only a comprehensive automobile policy, for which the appellant paid the recited $129 premium, but also life and accident policies for which the appellant paid an additional $39.32. It is insisted that the latter item should have been designated by Brown as part of the finance charges, leaving a difference attributable to interest that would be within the legal rate.
The trouble with this argument is that there is almost nothing in the conduct of either party to confirm the existence of a mutual mistake. Stanley, on the one side, denies that he agreed to pay the extra insurance charges now demanded by the finance company. As was said in the similar ease of General Contract Corp. v. Duke, 223 Ark. 938, 270 S. W. 2d 918: “It cannot be said here that the ease involves a mutual mistake of fact, since the plaintiff merely accepted the terms given him by the seller.” And the appellant, on the other side, presumably examined the invoice and found it satisfactory. The company accepted two monthly payments and put forward no suggestion of error until suit had been brought. Even at the trial the appellant failed to show just how Brown, who admittedly used the appellant’s rate hook in computing the' amount owed, arrived at a finance charge of exactly $131.54. In the absence of persuasive proof that either party intended to make the agreement now asserted by the appellant it would manifestly be difficult to hold that both parties so intended.
The appellant’s second contention is that the chancellor erred in allowing Stanley to keep the car. Here the argument is that Stanley’s only claim to the vehicle derives from the conditional sales contract and that if that contract be abrogated Stanley’s assertion of title must fail as well. This line of reasoning disregards the basic fact that, by the ruling in the Hare case, supra, a transaction such as this one is in reality a loan rather than a sale. It is not our intention to undermine the Hare case by reverting to the outmoded fiction that what is actually a loan must be treated as a sale. The present contract plainly comes within the purview of Act 39 of 1887: “The maker of a usurious contract may by suit in equity . . . have such contract . . . annulled and cancelled, and. any property, real or personal, embraced within the terms of said lien or conveyance, delivered up if in possession of any of the defendants in the action, and if the same he in the possession of the plaintiff, provision shall be made in the decree in the case removing the cloud of such usurious lien . . .” Ark. Stats. 1947, § 68-609; Bailey v. Commerce Union Bank, 223 Ark. 686, 269 S. W. 2d 314.
Affirmed.
Seamster, C. J., not participating. | [
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Ed. F. McFaddin, Associate Justice.
This is a Workmen’s Compensation claim by appellee, a traveling salesman; and is resisted by appellant (employer) on the contention that the appellee’s injuries did not arise “out of and in the course of the employment.” The Workmen’s Compensation Commission made an award in favor of the claimant; the Circuit Court affirmed; and the employer has brought'this appeal.
Mr. Oates was employed by Frank Lyon Company as a traveling salesman. His territory consisted of ten counties in Western Arkansas and three adjacent counties in Oklahoma. The eastern boundary of Mr. Oates territory was a north and south line about forty miles west of the Town of Perry and approximately ninety miles west of Little Rock. Mr. Oates worked on a commission basis, furnishing his own car and paying his own expenses. Mr. Oates, a single man, resided with his parents in the Town of Perry, which is not in his territory. He would leave Perry Monday morning, drive westerly to his territory, work in the territory until Friday eve ning, and then return to Perry for Friday night. On Saturday morning he was required to go to Little Rock to attend a sales meeting at 9:00 o’clock at the Frank Lyon Company. That meeting closed at noon or thereafter ; and then Mr. Oates was free to return to Perry for Sunday and he ready to resume working in his territory Monday. The fact that Mr. Oates stayed with his parents in Perry and returned there after each Saturday sales meeting was known to the Frank Lyon Company.
The injuries which Mr. Oates received, as herein involved, occurred on Saturday afternoon when his car went out of control as he was returning to Perry after having attended a sales meeting. The sole question is whether the injuries were received “out of and in the course of the employment. ” It is conceded by appellant that Mr. Oates, after attending to some personal matters in Little Rock, was on the direct road returning from Little Rock to Perry at the time of the mishap; but appellant insists that Mr. Oates’ presence at the sales meeting was required the same as was the attendance of the three other salesmen, who were residents of Little Rock; and that under the “going and coming rule” the employee is not covered by the Workmen’s Compensation Law for injuries occurring en route to the place of business. In addition to the cases from our own State— hereinafter to be mentioned — appellant cites such cases as Postal Telegraph Cable Co. v. Industrial Accident Comm., 1 Cal. 2d 730, 37 Pac. 2d 441, 96 A. L. R. 460; Covey-Ballard Motor Co. v. Industrial Comm., 64 Utah 1, 227 Pac. 1028; Lunde v. Congoleum-Nairn Co., 211 Minn. 487, 1 N. W. 2d 606; and Dooley v. Smith Trans. Co., 26 N. J. Misc. 129, 57 Atl. 2d 554.
For an injury to an employee to be compensable under the Arkansas Workmen’s Compensation Law the injury must, among other essentials, arise “out of and in the course of the employment”; and as regards most workers, injuries sustained in going to or returning from work are held to be non-compensable. Such injuries are ruled out of compensability because of tbe “going and coming rule.” In 58 Am. Jur. 723 this rule is stated:
‘ ‘ The hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer’s premises, are not ordinarily incident to the employment, and for this reason injuries resulting from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment. This general rule is subject, however, in most jurisdictions, to certain well recognized exceptions which depend upon the nature, circumstances, and conditions of the particular employment, and the cause of the injury.”
There are many, many well recognized exceptions to the “going and coming rule”; and employees coming within such exceptions are held to have received their injuries arising “out of and in the course of the employment. ’ ’ "We list only a few such exceptions:
(a) Where the employer furnishes a method of transportation. See Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579; and Tinsman Mfg. Co. v. Sparks, 211 Ark. 554, 201 S. W. 2d 573.
(b) When the employee is injured while in close proximity to the place of business. See Bales v. Service Club, 208 Ark. 692, 187 S. W. 2d 321.
(c) When the employee has a duty to perform for the employer while en route home.
(d) Another exception to the “going and coming rule,” and involved in the present case, is the so-called “traveling salesman rule.”
In 58 Am. Jur. 730, in discussing the compensability of injuries to employees, the performance of whose duties necessitates their traveling from place to place away from the premises of the employer, the text states:
‘ ‘ The course of the employment of a traveling salesman, for the purposes of workmen’s compensation, covers both the time and place of the traveling as well as of the selling of goods.”
And under the traveling salesman exception employees have received compensation in a vast variety of situations. In 71 C. J. 704 to 706 the holdings are summarized in this language :
“Outside workers, traveling salesmen or solicitors. Where the nature of an employee’s work is such that it is actually, usually, or customarily performed while the employee is off the premises of the employer, harm which befalls such employee while he is engaged in his work away from the premises of the employer may be compensable as arising out of and in the course of the employment. . . . Harm sustained by a traveling representative of his employer may be compensable notwithstanding such harm is sustained while the employee is away from the premises of the employer. ’ ’
Professor Larson, in his treatise on “Workmen’s Compensation Law,” says in Yol. 1, § 16.00:
“The most obvious application (exception to the ‘going and coming rule’) is, of course, to the traveling salesman. It is well established that his travels are within the course of his employment from the time he leaves home on a business trip until he returns, for the self-evident reason that the traveling itself is a large part of the job. . . .”
Schneider, in his text on “Workmen’s Compensation,” Permanent Ed., Vol. 7, § 1665, summarized the holdings allowing traveling salesmen to recover in this language:
“Where the trip or attendance is one which the employer ordered or directed, or is for the sole benefit of the employer, or is to the mutual advantage of both the employer and his employee, compensation may be recovered.”
There are numerous cases involving factual situations somewhat similar or analogous to the case at bar, and in which the employee was allowed compensation. For some such, see Teshnor v. F. E. Compton & Co., 263 N. Y. App. Div. 263, 32 N. Y. S. 2d 266; State ex rel. McCarthy v. Dist. Court, 141 Minn. 61, 169 N. W. 274; Harby v. Marwell Bros., Inc., 203 App. Div. 525, 196 N. Y. S. 729; Solar-Sturges Mfg. Co. v. Industrial Comm., 315 Ill. 352, 146 N. E. 572; Spradling v. International Shoe Co. (Mo.), 270 S. W. 2d 28; Newman v. Rice Stix, 335 Mo. 572, 73 S. W. 2d 264, 94 A. L. R. 751; Green v. Heard Motor Co., 224 La. 1078, 71 So. 2d 849; Townsend v. General Aniline & Film Corp., 284 N. Y. App. Div. 919, 134 N. Y. S. 2d 415. Whittemore Bros. Corp. v. De Grandpre, 202 Miss. 190, 30 So. 2d 896, is an interesting case: there the Mississippi Court applied the Massachusetts Workmen’s Compensation Law to a claim of a traveling man en route from his Arkansas territory to his headquarters in Vicksburg, Mississippi; and allowed a recovery. Other cases are collected in West’s Decennial Digest System, “Workmen’s Compensation,” § 715. See Annotations in 20 A. L. R. 325; 29 A. L. R. 123; 36 A. L. R. 474; 49 A. L. R. 454; 63 A. L. R. 469; and 100 A. L. R. 1060.
Appellant insists that the case at bar is ruled by our holding in Fox Bros. v. Ryland, 206 Ark. 680, 177 S. W. 2d 44, wherein we denied compensation to Ryland for injuries he received on the sidewalk en route to the hotel where he was going to “kill a little time.” The Ryland case was on the borderline, and its holding must be confined to the particular facts; but, even so, there is a big distinction between the Ryland case and the one at bar. Byland was a salesman in Pine Bluff with limited territory. He left the company office and started on a personal journey to the hotel, which was a deviation from his direct route; and it was while he was on such deviation that he received his injuries. That the opinion was bottomed on the idea of deviation is shown by the following language:
“. . . a majority of the Court are of the opinion that there was no evidence in this case to the effect that the trip to the hotel constituted any part of his duties, and that the fact that he was willing to make a sale, in the event he had met a customer while on the trip, is not sufficient to establish that his intended visit to the hotel was to be made in the course of his employment.”
In the case at bar Mr. Oates was regularly required by the Frank Lyon Company to go to Little Bock for a sales meeting each Saturday morning. That trip was certainly a part of his duties. It was while he was returning from Little Bock to his assigned territory, and on no deviation whatsoever, that he received his injuries. It is true that he was en route from Little Bock to Perry; but Perry is on the direct route from Little Bock to Mr. Oates ’ territory.
We therefore hold that the Commission correctly allowed a recovery in this case.
Affirmed.
The quoted language is found in the definition of “Injuries,” § 81-1302 (b) Ark. Stats.
For some Arkansas cases involving application of the “going and coming rule,” see O’Mearn v. Beasley, 215 Ark. 665, 221 S. W. 2d 882; Stroud v. Gurdon Lbr. Co., 206 Ark. 490, 177 S. W. 2d 181; Cerrato v. McGeorge, 206 Ark. 1045, 178 S. W. 2d 247; Penny v. Hudson, 218 Ark. 594, 237 S. W. 2d 893; and Thornton v. Texarkana, 219 Ark. 650, 243 S. W. 2d 940.
Some of these are stated in 58 Am. Jur. 731 in the following language: “In the application of the foregoing general principles in particular instances or classes of situations, such as injuries while at hotels or other lodging or eating places, while traveling on boats or trains, while boarding or alighting from streetcars, while flying,_ while traveling in taxicabs, automobiles, or hired vehicles, while waiting or resting, while going toward a station, hotel, conveyance, or home, while going home for the week end, while going toward the employer’s place of business, while proceeding toward the employee’s working territory or area of service, while performing work, or while engaged in social or recreational activities, . . .” We quote the foregoing_ language as illustrative only, and without binding effect should similar situations arise in our jurisdiction.
In our later case of Cagle v. Gladden-Driggers Co., 222 Ark. 517, 261 S. W. 2d 536, we affirmed the Commission which refused compensation benefits to a salesman who was injured while on a private mission. | [
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Paul Ward, Associate Justice.
Truman T. Poster is a resident of Stone County, Arkansas, and is the owner of 160 acres of land situated in that county. On June 11, 1953, he filed a complaint in the Stone Comity Circuit Court against Mr. and Mrs. J. C. Pearson stating that Mr. and Mrs. Pearson resided in Cleburne County, Arkansas, but operated a sawmill in Stone County during the year 1951 and perhaps at later dates; that said Pear-sons wrongfully and unlawfully entered upon complainant’s lands and cut and removed therefrom over 879 virgin pine trees reasonably worth $800, and; that they also cut and removed from said land 131 white oak trees and converted same to their own use, valued at $300. The prayer was for the market value and also, because of the wrongful and unlawful cutting, for triple damages.
Summons was issued by the Clerk of Stone County directed to the Sheriff of Cleburne County and there served upon Mr. and Mrs. Pearson.
On November 16, 1953, Pearsons filed a motion in the Circuit Court of Stone County to quash said summons and service, contending that the action instituted by Foster was transitory, and that they could be sued only in the county where they were served. This motion to quash was, on the same day, granted by the trial judge.
On February 2, 1954, Foster filed an amended and substituted complaint in which was reiterated substantially the same allegations contained in the original complaint but which contained two general additional allegations. In the first part of the amended complaint which deal with the pine and oak trees it was alleged that Pearsons “unlawfully trespassed upon said lands . . . cut roads through and upon said lands, cut and otherwise damaged young trees growing on said lands, and by these and other things and matters greatly injured and damaged said lands.” Following the above appears this additional allegation: ‘ ‘ That in addition to the damages above described and prayed for, the aforedescribed lands have been damaged by having young growing trees bruised, cut, skinned, and otherwise ruined for future growth by having roads cut through said lands, by having ruts and resulting ditches erode in said lands, from which said lands have been damaged in the amount of $200.00.”
The prayer was for judgment in the amount of $4,245 with interest at 6 per cent from date of trespass and for costs.
Again summons was issued and served in the same way as the first summons as heretofore stated, and again Pearsons, without entering their appearance for any other purpose, filed a motion to quash the service of summons. In this motion it was stated “. . . the plaintiff cannot maintain an action against them [Pear-sons] both for damages to plaintiff’s land by reason of any alleged trespass thereon by defendants, and for treble, or other value of the timber alleged to have been cut, removed and converted by the defendants; that the two actions are separate and distinct, cannot be joined in the same suit as plaintiff has sought to do and that either of said actions when instituted, is a bar to the bringing of the other.”
The above motion to quash was overruled by the trial court, and by this petition Pearsons ask this court to prohibit the Circuit Judge of Stone County “from proceeding in any wise or manner against petitioners in said cause, except on that count and allegation in said amended and substituted complaint asking damages to plaintiff’s lands, . . .” Prom this we take it that the petitioners are asking us to restrain the Circuit Judge of Stone County from proceeding further in this cause of action except as to the last portion of the amended complaint referred to above wherein $200 damage to the lands is alleged.
It is conceded by all the parties that if a cause of action similar to this one is based solely upon damage or injury to real property that the cause must be tried in the county where the land is situated, and that service may be had on the defendants in any county of the state; and further that if the complaint states only an action for conversion of timber then the cause must be tried in the county where the defendants reside or in the county where they are served with summons.
The petitioners here make an ingenuous and forceful contention that, except for the last portion of the amended complaint relating to $200 damage to the land, only an action for conversion is stated. The result therefore, petitioners say, is that there is no proper service upon which an action for conversion can be tried in Stone County. The argument then is, citing Southeast Construction Company v. Wood, Judge, 223 Ark. 325, 265 S. W. 2d 720, and the same style case in 223 Ark. 328, 265 S. W. 2d 722 that Foster cannot pursue both an action for damages to land and for conversion of timber in the same suit, that he must choose between them and that the choice of one excludes the other. From this argument it would seem to necessarily follow that Foster in this instance could only choose to sue for damage to his land since that is the only cause of action in which he has proper service, and that consequently this court should enjoin the trial court from trying the action in conversion.
It is our conclusion that petitioners’ position and argument are untenable and that they are based on a false premise. It appears to us that petitioners are assuming that the first portion of the amended complaint states only a cause of action for conversion of timber. In this they are in error. A careful reading of the amended complaint shows, and it is revealed by the portions heretofore set out, that a cause of action for injury to land is clearly stated. Since the trial court ruled that the original complaint stated an action for conversion only it is reasonable to assume that the very purpose of the amended complaint was to change it to an action for injury to land.
It seems to us that petitioners have also fallen into error in their interpretation of the holding in the Southeast Construction cases cited above. Those cases did not deal with the duty of a complainant to choose between a cause of action for conversion and a cause of action for injury to land where they are both stated in the same complaint. In fact, as we have just stated, we are here dealing with a complaint [the amended complaint] which states only a canse of action for damage or injury to land. The cases referred to above merely hold that, before the complaint is filed, the complaining party, in many instances, has an option to file a complaint for conversion or a complaint for injury to land and that he must choose between them. It has been many times recognized by this court that two different causes of action may arise out of the same set of facts in cases of this kind. In the case of Western Union Telegraph Company v. Bush, 191 Ark. 1085, 89 S. W. 2d 723, 103 A. L. R. 367, this fact was stated in these words: “It does not follow that, because articles may be severed from the soil, the action therefor must be one for damages to real property nor does it follow that because severed articles may be converted a suit for conversion is the only remedy.”
Therefore it is clear to us that since Poster, in his amended complaint, stated a cause of action for injury or damage to his lands situated in Stone County the suit could be tried only in Stone County and that consequently proper service was had on the petitioners in Cleburne County. This being true the Circuit Court of Stone County acquired jurisdiction and this court is without authority to restrain him from proceeding in the trial of the case.
Petitioners apparently are disturbed by the prospects of Poster suing for injury to his land and at the same time recovering treble damages for the timber cut and removed therefrom under the provisions of Ark. Stats., % 50-105. Any questions that may rise because of this anticipated procedure are not ones which we are called on to pass upon at this time, nor have they been briefed. Such questions, if they arise, may be properly presented to the trial court.
Writ denied. | [
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Geoege Rose Smith, J.
The question in these cases is whether Acts 109 and 142 of 1955 are contrary to § 4 of Amendment 37 to the state constitution, which places a limitation upon the salary and expenses of circuit judges and chancellors.
It was provided by Amendment 15, approved in 1928, tliat tlie annual salary of these judges should be $3,600 each. Amendment 15 was superseded in 1946 by Amendment 37. Section 4 of the amendment now in force reads: ‘ ‘ The General Assembly of Arkansas shall by law determine the amount and method of payment of salaries and expenses of Circuit Judges and Chancellors of the various Circuit and Chancery districts; provided that the salary and expenses of any Circuit Judge or Chancellor shall not be less than $4,800.00, nor more than $7,200.00 per year.” At its first session after the adoption of the present amendment the legislature fixed the annual salary of these officers at the maximum figure of $7,200.00, and that amount is now being paid to each of them. Ark. Stats., 1947, § 22-348.
These cases involve the seventh judicial circuit, of which the appellee, Ernest Maner, is judge. By Act 109 of 1955 the legislature found that “the judge of the Seventh Judicial Circuit must provide the costs of travel and other costs incident to the holding of court in such district, and that such costs reduce the income of such judge to approximately $3,600 annually — a sum much less than that received by other public officials who fill less responsible positions.” The Act then directs the judge to relieve the burden of current business by holding pre-trial conferences and adjourned days of court. It is next ascertained and declared that the expenses occasioned by duties imposed since the adoption of Amendment 37 amount to $200 a month, which sum is declared to be a necessary expense of the counties within the circuit. The Act directs the counties to pay to the circuit judge the sum of $200 monthly, of which $85 is to be paid by Hot Spring County, a like amount by Saline County, and $30 by Grant County.
The other statute in question, Act 142 of 1955, is of more general application. It amends Ark. Stats., § 22-349, by authorizing any circuit judge or chancellor to determine mileage and other expense occasioned by duties imposed since the adoption of Amendment 37 and to direct that such expense he paid by the counties comprising the circuit or district.
On February 26, 1955, under the authority of Act 109, Judge Maner entered a circuit court order directing Saline County to pay $85 monthly to the circuit judge for necessary expenses. Two days later the appellant, as a citizen and taxpayer, filed his notice of appeal from that order; that appeal has been docketed here as Case No. 5-757. Later on Judge Maner set aside the brief order of February 26 and entered a more detailed order by which it was found that expenses attributable to duties imposed after the adoption of Amendment 37 amounted to $200 a month, which was apportioned among the three counties in the ratio specified by Act 109. Gipson’s appeal from that order is Case No. 5-758.
In addition to appealing from the above orders, neither of which seems to have been preceded by the taking of testimony, Gipson filed a separate suit in the chancery court to enjoin the county treasurer from making the payments in question and from providing a telephone for the circuit judge’s chambers. Trial of that case resulted in a decree denying all relief, it having been stipulated that the county should not pay for personal long-distance calls made by Judge Maner or anyone else. Gipson’s appeal from that decree is Case No. 5-827.
The appellee in the first two cases has filed a motion to dismiss the appeals, upon the ground that there was no litigation in the trial court from which an appeal could be taken. This position is not well taken, for if the orders direct an unconstitutional expenditure of public funds they can be set aside either upon appeal or by certiorari. We need not determine which method of review is technically correct, for the real questions at issue are equally well presented by the third case and must in any event be decided. The motion to dismiss is therefore denied.
The appellant’s objection to the county’s furnishing a telephone for the judge’s chambers can be answered quickly. This outlay does not constitute a per sonal expense for which, the judge is being reimbursed; it is a payment made to the telephone company for a service reasonably necessary to the transaction of the court’s official business. No one doubts the county’s authority to provide a courtroom and judge’s chambers, nor its duty to supply furniture, heat, light, stationery, and other ordinary requirements for the operation of a public office. Not long ago we approved the installation of air-conditioning as a proper county expenditure. McArthur v. Campbell, 225 Ark. 175, 280 S. W. 2d 221. There is no sound basis for drawing a distinction between telephone service and the many other facilities that are regarded as necessary to the conduct of a modern business office.
With respect to the principal question a number of able briefs have been filed in support of the validity of this legislation. We need not enumerate all the arguments that are advanced. The main contention is that the legislature is free to provide reimbursement for expenses incident to duties imposed since the adoption of Amendment 37. Most of the proof in the chancery case is directed to this issue. It is shown without dispute that the amount of travel necessary to the performance of a circuit judge’s duties has been greatly increased by the enactment of laws pertaining to pre-trial conferences, adjourned days of court, etc. There is no reason to doubt the accuracy of the legislature’s conclusion that as much as half of the salary authorized for circuit judges and chancellors may be consumed by hotel and travel expense. We know without proof that a trial judge’s conscientious discharge of the heavy responsibilities placed upon him by law involves financial hardships of which the general public is wholly unaware.
The question, however, is one not of expediency but of constitutional law. We find it impossible to hold that Acts 109 and 142 are not in direct conflict with the plain language of the constitution. It makes little difference by which principle of constitutional interpretation the issue is tested; in each instance the result is the same.
It is a fundamental rule that the words of the constitution should ordinarily he given their obvious and natural meaning. State ex rel. Norwood v. New York Life Ins. Co., 119 Ark. 314, 171 S. W. 871, 173 S. W. 1099. Amendment 37 bluntly declares that “the salary and expenses of any Circuit Judge or Chancellor shall not be less than $4,800.00, nor more than $7,200.00 per year.” This language is simple, direct, and unequivocal. It contains no hint that the limitation applies only to the expense of duties currently imposed. A statement as positive and explicit as this one is leaves no area of doubt that might call into play the exercise of judicial interpretation. If Amendment 37 does not have the effect of fixing a $7,200 maximum for salary and expenses, then, as far as we can see, the words have no meaning at all.
The basic spirit of the constitution is to be considered along with its literal meaning and may even prevail where a conflict exists. Bailey, Lieutenant Governor, v. Abington, 201 Ark. 1072, 148 S. W. 2d 176, 149 S. W. 2d 573. In this case there is no discernible conflict between the letter and the spirit. The broad purpose of § 4 of Amendment 37 was undoubtedly to set a definite limit, expressed in dollars and cents, upon the salary and expenses that can lawfully be paid to circuit judges and chancellors. It is perfectly clear that this purpose would be defeated if the present acts were upheld. The travel expense attributable to duties imposed since 1946 cannot be measured in dollars and cents or even be estimated with any degree of accuracy. If it should be held that Judge Maner’s present additional duties entitle him to an allowance of $200 there would obviously be no limit to the further increases that with equal plausibility would have to be sustained in the future. The limitation that was intended by the people would be as effectively destroyed as if the amendment had not been adopted. ■
Especially applicable to this case is the rule that in determining the intention of the framers of a constitutional amendment the court must keep in mind the situation that the amendment was meant to remedy. Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22. By this test there can. remain no donbt that one of the purposes of Amendment 37 was the elimination of expense allowances snch as that now in dispute.
The original constitution, Art. 7, § 18, invested the legislature with almost unlimited authority to fix the compensation of circuit judges, the only restriction being that a judge’s pay could not be diminished during his term of office. While that provision was in force many acts were passed to require the various counties to contribute to the expenses of circuit judges and chancellors. Amendment 15 referred only to the annual salaries of judges, not to their expenses, and the legislature continued to authorize the payment of expenses that were undoubtedly incurred. Some twenty-five of these special acts are cited in the index to the 1947 Annotated Statutes, Yol. 8, pp. 1302-04. It was with this background of experience that the constitution was amended to refer expressly to both salary and expenses. We are compelled to believe that the deliberate change in wording was intended to terminate a practice that would be revived if the present statutes were sustained.
We have studied carefully the many cases cited in the briefs, but none is applicable to this situation. More nearly in point than any other is the holding in Ashton v. Ferguson, 164 Ark. 254, 261 S. W. 624. There the legislature attempted to authorize an allowance of $100 to each of its members, despite a constitutional amendment strictly limiting the legislators’ salary and mileage expense. The court unanimously held that the allowance was contrary to the constitution and void. A different rule cannot be applied to the judiciary.
Beversed. | [
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George Rose Smith, J.
This application for a temporary writ.of prohibition has been presented to me during the court’s summer recess. The petitioner, Mae Thomas Lester, asks that the respondents, who are the judges of the Clark Probate Court, be prohibited from making any further orders in a guardianship proceeding in which this petitioner is the assertedly incompetent person. It is the petitioner’s contention that this guardianship is void (a) for want of notice to her when the proceedings were originally instituted and (b) for want of a judicial finding that she is in fact incompetent.
On November 23, 1951, when this petitioner was thirty-nine years old, the proceedings in the probate court were instituted by her daughter. On that date the court entered an order finding Mrs. Lester to be incompetent and directing that she be transferred to the State Hospital for treatment. It does not seem ever to have been contended that Mrs. Lester is insane; instead, her asserted incompetency results from alcoholism, which by statute is a basis for a finding of incompetency. Ark. Stats. 1947, § 57-601. On November 27, 1951, the court appointed Arvin A. Ross as Mrs. Lester’s temporary guardian, and Ross took charge of his ward’s real estate and other property.
About two weeks later the State Hospital discharged Mrs. Lester, the staff finding that she was without psychosis but that she had a schizoid personality associated with chronic alcoholism.
On February 29, 1952, the court found that the temporary guardianship should be made permanent, the order reciting that the court had appointed three named physicians to examine Mrs. Lester and that the court was acting after having heard the testimony of these doctors. By the same order Boss was discharged as temporary guardian and C. H. Berryman was named as permanent guardian. An order of April 3, 1952, approved the temporary guardian’s final accounting and directed that the estate be turned over to the permanent guardian. On June 17, 1955, the court granted Berry-man’s request that he he discharged and designated George S. Dews as guardian in succession. It appears from the petition and from statements of counsel in oral argument that throughout the guardianship proceeding Mrs. Lester, except for her brief confinement in the State Hospital, has been living at home with her husband. She is free to come and go as she likes. Her various guardians, however, have continuously had charge of her property, collecting rents, making sales, paying bills for her, etc. Mrs. Lester insists that she is completely competent, that she no longer indulges in the use of alcohol, and that the allegedly void guardianship proceeding should be terminated by order of this court.
In my opinion the record fails to sustain the contention that the proceedings below are void. It is true that the initial order of November 23, 1951, failed to recite that a summons or other notice had been served on Mrs. Lester; hut that fact, if it was ever of importance, has long since become immaterial. In so far as the temporary guardianship is concerned, the statute permits the appointment to be made without notice. Ark. Stats., § 57-620. With respect to the permanent guardianship proceeding Mrs. Lester has undoubtedly entered her appearance. Two of the orders mentioned above— those of February 29, 1952, and June 17, 1955 — recite that Mrs. Lester was present with her attorney. The petition now before me alleges: “Petitioner has numerous times orally and by letter and twice by formal petition asked the Clark Probate Court to remove and revoke said above described guardianship orders and the order finding her incompetent, such petitions having been pre sented to Judge Pilkinton September 11, 1952, and to Judge Howard September 1, 1954. ’ ’ By participating in the case, in person and by her attorneys, the petitioner has undoubtedly entered her appearance if she is in fact competent. Mercer v. Motor Wheel Corp., 178 Ark. 383, 10 S. W. 2d 852. And of course if she is incompetent then the entire theory of her present petition for prohibition fails.
Nor can it be said that there is merit in the assertion that the probate court has not made a finding of incompetency. That determination was expressly made in the order of November 23, 1951, and at least by inference was reaffirmed in the order of February 29, 1952, when the court considered the testimony of three physicians who had been appointed to examine the ward. It is insisted that the issue of competency should have been explored ele novo when Dews was appointed as guardian in succession in 1955, for the reason that the statute provides that a successor shall be appointed “in the same manner and subject to the same requirements as are . . . provided for an original appointment of a guardian. ” Ark. Stats., § 57-622. In my view this language is merely intended to carry forward the original requirements with reference to the guardian’s qualifications, bond, and the like. Since the existence of incompetency, as originally determined, is presumed to continue until a change has been established by proof, there would be no sound reason for requiring the court on its own initiative to reexamine the issue whenever it happened to be necessary to appoint a guardian in succession.
If this petitioner wishes to assert her restored competency as a reason for terminating the guardianship, her petition should be addressed to the trial court. Ark. Stats., § 57-643. No basis for the issuance of a writ of prohibition has been shown.
Temporary writ denied. | [
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Paul Ward, Associate Justice.
Appellees, O. D. Meadors and his wife, instituted this action against appellant, Lavada M. Burns, ashing a rescission of a contract under the terms of which appellees agreed to purchase certain lands belonging to appellant and ashing for damages, and, in lieu thereof, for damages to compensate for defects in the title. The issues were tried and judgment was rendered in favor of appellees, on the basis of a rescission and damages. From a decree in favor of appellees appellant prosecutes this appeal.
The complaint alleges that a written contract was entered into on December 1, 1951, whereby appellant agreed to sell and appellees agreed to buy approximately 415 acres of land for the total purchase price of $6,000 and that $4,000 had been paid to appellant under said contract; that the contract required appellant to deliver an abstract of title showing good title vested in her; that the description of the lands contained in the contract and in the deed proffered by appellant was indefinite and uncertain, and that a survey is necessary to obtain a definite metes and bounds description; that a deed to one-half of the mineral rights in and under said lands was outstanding; that when appellant delivered the abstract and the deed they showed appellant did not have a marketable title for the reason that the description was indefinite and uncertain and for the reason that an undivided one-half interest in the mineral rights was outstanding and that they immediately notified appellant of this situation; that they are entitled to be reimbursed for the $4,000 purchase price already paid and for the amount for which they had increased the value of the land while they were in possession thereof, or in the alternative, if a rescission should not be granted that they be awarded damages for the amount necessary to procure a definite description and the outstanding mineral lease.
Appellant entered a general denial and further stated: she admits that she did agree to sell appellees said lands for the price stated but subject to the reservation of the one-half interest in the mineral rights and that this fact was well understood by appellees at the time the agreement was entered into, and; it was an oversight of the draftsman of the contract and the deed that the reservation of the mineral rights was not included therein. Also, by way of cross complaint, appellant admits receipt of $4,000 and states that appellees delivered to her a check for the balance of the purchase price, and that this check could not be cashed because of insufficient funds, and prayed for judgment in the amount of said check.
After hearing the testimony the chancellor made the following findings: After appellees had delivered a check for the final payment to appellant they stopped payment thereon because they learned, after examination by an attorney, that the title to said lands was not good; appellees demanded of appellant that she make and convey to them a good title but that appellant refused, claiming that the proffered title was good; that the title offered by appellant to appellees was not a good title for the reasons that (a) the description of the land in the deed and abstract was indefinite and void and (b) appellant did not have title to an undivided one-half interest in the mineral rights; that appellant’s failure to proffer a good title constituted a breach of the contract although appellees had performed all obligations imposed upon them by the contract, and; that appellant should be required to pay to appellees the sum of $7,011.86, including the $4,000 which appellees had paid on the contract and $623.83 interest thereon, taxes paid on said lands by appellees, the cost of abstracting paid by appellees, and $2,500 for enhancement in value of the land due to permanent improvements placed thereon less $300 which appellees had received for a water tank.
After a careful consideration of the entire case we have reached the conclusion the chancellor was correct in holding that appellees were entitled to a rescission of the contract to purchase. We base this decision on the fact that the description contained in the deed proffered by appellant to appellees was indefinite.
Since we base our decision on the ground above stated it is not necessary for us to pass upon two other questions which have been raised, viz.: (a) Appellant-sought to reform the written contract to show that appellees agreed to take the land subject to an outstanding lease for one-half of the mineral rights, and; (b) appellees contend that the title was not marketable because of the outstanding mineral lease.
Although the deed itself does not state the exact number of acres to be conveyed the best obtainable esti mate indicates approximately 415 acres. The description of the lands in the deed which appellant delivered to appellees contains 13 parcels of land some described by metes and bounds, and the entire description covers three pages as it is copied in the record. We will call attention to the descriptions in some of these parcels which we consider indefinite.
1. “the Northeast quarter of the Southeast quarter of Section 13, (save and except lots and parcels aggregating 2 acres, more or less, out of the South West corner of said tract; conveyed by deed of record prior to the 15th day of April 1918, containing 38 acres, more or less.”
2. “the Southeast quarter of the Southeast quarter of said Section 13 (save and except lots and parcels aggregating 16 acres, more or less, off of the West side of said forty acre tract and conveyed by deeds prior to the 15th day of April 1918, containing 24 acres herein, more or less.”
3. “also a part of the Southeast quarter of the Northwest quarter of said Section 13, Township 13 North, Range 30 West, described as follows: Beginning at the North Bast corner of said forty acre tract, and running, thence South 670 feet; thence in a northwesterly direction 420 feet to the South East corner of a lot deeded to A. N. Cole; thence in a Northeasterly direction 210 feet; thence in a Northwesterly direction to the East line of County Road known as the Fayetteville and Yan Burén Road; thence in a Northeasterly direction bordering on the East line of said road to the North line of said 40 acre tract; thence East to the beginning point, containing 8 acres, more or less. ’ ’
4. This description purports to convey a part of the Northeast quarter of the Northeast quarter, Section 24, Township 13 North, Range 30 West, save and except that part lying South and West of the old Fayetteville and Yan Burén public road. Then follows these three exceptions: (a) “The lots embraced in the First Division of Winslow Park”; (b) “Two lots and 13 feet of additional frontage adjoining said lots and having the same depth in the Second Division of Winslow Park heretofore conveyed to Mrs. Caldwell McFedden,” and; (c) “A parcel of land adjoining the First Division of Winslow Park bnt not a part thereof, heretofore sold to James A. Ward, Jr., comprising about one-third of an acre.”
An examination of the above copied descriptions reveals that it is necessary to refer in many instances to other conveyances. It will be noted that in no instance is the book and page indicated where the conveyance may be found, and in some instances neither the grantor nor the grantee is mentioned, nor is the exact date of the conveyance indicated.
We are cognizant of the well established rule that a description is good if it contains a key by which it may be made good, but in this case we are forced to conclude that the descriptions copied above contain no such key. We are forced to this conclusion for the reasons set out hereafter. First, it is certain that appellant has introduced no evidence to show that the description contained in the deed can be made definite and certain by referring to the records, and she made no request for time and opportunity to do so. Second, the chancellor being confronted with the lack of evidence to show a definite description appointed a Master to see if a definite description could be obtained. The Master’s report shows that he made an examination of the records in the recorder’s office and was still unable to obtain a description. Appellant had ample opportunity to cross-examine the Master but did not do so, and she entered no objections. Under these circumstances and under the facts as shown by the record we must conclude that the chancellor was justified in finding that appellant had not furnished appellees a marketable or merchantable title due to the defects in the description of the lands, and to that extent he must be affirmed.
In assessing damages in favor of appellees the trial court rendered judgment in favor of appellees in the sum of $7,011.86. A careful review of the entire record con vinees us that this judgment for damages should be reduced by $1,600, leaving judgment in favor of appellees in the amount of $5,411.86.
The record in this case is lengthy and it is impossible to determine to a mathematical certainty what damages appellees have suffered, but we are thoroughly convinced that a reduction in the judgment to the extent above mentioned is justified. There are several grounds upon which we base this conclusion.
The total number of items of damages allowed by the chancellor totals $100 less than the judgment rendered. Appellees disposed of a large water tank on the premises and arbitrarily fixed the value at $300 which the court accepted. We note that appellees’ own witness stated that the tank was worth $750. The trial court correctly held that appellees’ damage for improvements placed on the property would be the amount they had increased its value. Pursuant to this ruling, appellees undertook to prove the value of the premises at the time of the trial. Appellee Meadors testified that the premises were worth $12,000, thus placing the enhanced value at $6,000. This was so unreasonable in the face of the testimony that the chancellor correctly refused to accept this figure. Appellees introduced George D. Kennick, a cattle raiser and real estate man, to prove the enhanced value of the land. This witness’ testimony, however, is inconclusive and must be discounted to some extent. The essence of Ken-nick’s testimony was that as a former appraiser of farm lands for the U. S. Government he would approve a loan on this farm for $5,000, and stated that the value in his judgment would be something less than twice that amount, or approximately $10,000. He made this estimate of the value of the farm from a somewhat casual examination just before the trial. He was not at first allowed to say what value he would have placed on the farm as of December 1, 1951, since the value as of that date was fixed by the court to be $6,000. Without this information there is no way of knowing to what extent the witness thought the farm had been enhanced in value by reason of tbe improvements placed thereon. On cross-examination he was asked: Q. “Taking the tract as a whole, the whole 400 acres, can you give us your opinion as to its value in December 1951?” A. “I don’t believe I can because I wasn’t over it all in ’51, we just went over it all, didn’t go over it all yesterday but went over most of it, we could drive, but I never got out of the car but about once because it was bad weather up there.” The above answer manifestly throws some doubt on the witness’ ability to accurately judge the value of the farm shortly before the trial. Although Kennick was called by appellees to testify to the enhancement in value because of improvements placed thereon, yet it is obvious that he could not do so without knowing what the improvements were. In this connection he was asked if he could give the court some idea as to the value of the improvements and he gave this answer: “I can’t answer that because I don’t know. Because you have got to measure that land to tell. I could give an estimation of it, if I knew how many acres he had cleared.” On the whole it appears to us that the witness did not make a careful examination of the farm, including the improvements supposed to have been placed thereon by appellees, and he gave no convincing reasons to justify his estimate that the farm was worth $10,000. Testimony given under these circumstances is subject to evaluation by this Court on a trial de novo. In the case of Texas Illinois Natural Gas Pipeline Co. v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477, this Court was called upon to evaluate the testimony of certain witnesses as to damage done to land, and we said: “It is true that one or more witnesses for appellee placed the damage at a sum equaling the verdict returned by the jury, but the cross-examination of these witnesses failed to show any fair or reasonable basis for the opinion.” Likewise in the case of Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738, where a similar question was involved, this Court said: “Where a witness gives his opinion as to damages, such testimony must be considered in connection with the related facts upon which the opinion is based.”
The trial court permitted appellees to introduce a large number of cancelled checks, not to show the extent of enhancement of value but to show that improvements were made. Even for this limited purpose, it seems to us the checks had little evidentiary value. Quite a few of the checks were dated before the contract was executed, and some show they were given for seed and fertilizer. Other checks were given for tools and implements which still were of value to appellees and did not enhance the value of the farm.
In the complaint appellees admit having received $500 for timber cut off the land in question. Appellant should have been given credit for this amount even though no testimony was introduced on that point. The case of Bonacci v. Cerra, 134 Neb. 476, 279 N. W. 173, announces the applicable rule this way:
“Statements, admissions and allegations in pleadings [upon which the case is tried] are always in evidence for all the purposes of the trial; they are before the court and jury, and may be used for any legitimate purpose.”
It is our opinion that, under the facts and circumstances of this case, appellees should not have been allowed to recover $623.83 as interest on the money they had paid on the purchase price. It is true that appellant had the use of this money since the date of payment, but it is also true that appellees had had the use of the farm since the date of the contract to the time of trial, and apparently have possession now. This being true, we think appellees would be entitled to interest only from date of the decree of the trial court. This conclusion appears to be in harmony with the better rule. Pertinent to this question we find this statement in 171 A. L. R. at page 851:
“Where it appears in an action to recover back payments made under a contract for the sale of land which was procured by fraud or duress that the purchaser had possession of the property for all or a part of the time elapsing after the execution of the contract, the courts seem to feel that it would be inequitable to permit the purchaser to receive interest on the sums paid by him during the period in which he had possession of the property with the corresponding right to enjoy the rents and profits thereof.”
In 55 Am. Jur. 939 under the title “Vendor and Purchaser” and the subtitle “Interest on Payments Recoverable ’’ this statement is made: “If the purchaser has been let into and remains in possession, he is not entitled, it has been held, to interest on the purchase money paid when he seeks to rescind the contract for the vendor’s fraud or default.” Sustaining the above rule the case of Robinson, et al. v. Bressler, et al., 122 Neb. 461, 240 N. W. 564, 90 A. L. R. 600, is cited in which this question was discussed extensively under facts similar to the ones here. The court there, after discussing an allowance of interest by the trial court, made this statement: ‘ ‘ There appears to be no occasion for the computation of interest at all up to the time of trial. By their voluntary acts the defendants had possession of the property and plaintiffs had possession of $125,000 of the purchase price which had been paid to them.” "VVe think this rule which disallows interest under the circumstances of this case is not only sound but equitable.
It follows from the above that the trial court is affirmed in holding that appellees were entitled to a rescission of the contract, but the judgment for damages rendered by the trial court in the amount of $7,011.86 should be reduced to the amount of $5,411.86, and it is so ordered.
Modified and affirmed.
Justice MoFaddin concurs. | [
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Sam RobiNSON, Associate Justice.
This case grows out of a controversy between stockholders of a small corporation engaged in the cleaning business. There are three points in issue: First, appellants, Earl D. Whit-well and his wife, Mary D., say they were induced by means of a fraudulent financial statement to purchase corporate stock from appellees, Carl J. Henry, Sr., and his wife, Virginia, and as a result thereof, they have been damaged and ask for a judgment against the Henrys for such alleged damages. Next, appellants contend that an increase in the capital stock of the corporation was contrary to law and void; lastly, it is maintained by appellants that the corporation had no authority to issue stock for debts owed by the corporation.
We cannot say the Chancellor’s failure to find that the Henrys furnished a fraudulent financial statement to the Whitwells is contrary to a preponderance of the evidence. In an effort to prove the financial statement fraudulent, the Whitwells introduced the testimony of two accountants, but we fail to see how the testimony proves fraud. It is true that there is a discrepancy in various financial statements made over a period of about a year, but, from the accountants’ testimony, it appears that the discrepancy is due to bookkeeping methods and not to fraud.
Appellants’ contention that the increase of capital stock is void is based on the assumption that the Board of Directors did not call the meeting of the stockholders at which the increase in stock was voted. Sixty days notice of the meeting for the purpose of increasing the capital stock was given to the stockholders. This notice was sent out by the Secretary and there is no showing that the Board of Directors did not authorize the calling of the stockholders’ meeting. All of the stockholders were present at the meeting at which the increase of capital stock was authorized.
The capital stock was increased from 300 shares of No Par Value to 5,000 shares of $1.00 Par Value. The corporation owed Henry about $3,000.00,- 2,250 shares having a par value of $1.00 per share were issued to Henry as part payment of the debt owed to him by the corporation. Appellants say the corporation could not legally issue stock in payment of a corporate debt. At the time the stock was issued to Henry the Whitwells owned 149 shares. They were given the opportunity to exercise their preemptive right of purchasing additional stock out of the new issue on a pro-rata basis with the stock they already owned; but they did not desire to exercise their preemptive right.
The question before us is not whether a corporation may pay a debt with a new issue of stock without giving those owning stock at the time an opportunity to purchase the new stock on a pro-rata basis with the stock then owned, it being undisputed that here appellants were given such opportunity. Article 12, § 8 of the Constitution of Arkansas provides: “No private corporation shall issue stocks or bonds, except for money or property actually received or labor done, . . .” Here, there is no showing that the corporation did not receive from the appellees money, property or labor for which the stock was issued.
Affirmed. | [
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J. Seaborn Holt, J.
A jury found appellant guilty of the crime of rape (Ark. Stats. 1947, § 41-3401) and assessed his punishment at a term of life imprisonment in the state penitentiary. From the judgment is this appeal.
Case No. 4805, consolidated with this appeal (Case No. 4804), relates to a motion for a new trial based on alleged newly discovered evidence.
— 1 —
For reversal appellant first questions the sufficiency of the evidence, — Assignment 1 — (a), (b), (c). The prosecuting witness is appellant’s thirteen-year-old daughter who was in the ninth grade in school. She testified that in early July, 1954, at about 1:30 P. M. her father, .. . came in and he said he wanted to take us berry nicking, and I told him I didn’t feel like going because I kind of thought that was what he was going to do.” A short time before, appellant in their home got in bed with the prosecutrix and tried to have intercourse with her. “Q. However, he didn’t have intercourse with you on that day? A. No, sir. Q. He didn’t force you to have intercourse with him? A. He tried to, but I jumped out of the bed, and he told me he would knock my head off for acting so smart with him about it.” Continuing her testimony: “I went with him and the three little kids were with us. ("Witness begins crying.) And so we got out there, and he told the little kids we were going to look for berries. I told him I didn’t want to go — I wanted to stay in the truck, and he made me go with him, and so I got down, and I had on blue jeans, and he made me pull them off and he raped me, and we went back to the truck. He tried to start it and it wouldn’t start and so he made me go back with him again, and when we came back, it still wouldn’t start, and he made me go back the third time. . . . Q. Each time he carried you back in the woods, did you take off your clothes? A. Yes, sir. Q. And you put them back on each time when he had finished? A. Yes, sir. Q. What is your feeling toward your father, Miss McDonald? A. Well, I don’t want ever to have to live with him again. Q. Isn’t it true that you strongly dislike your father? A. Yes, sir . . . And when we got back to the truck, he pulled the truck and we started home, and we got to a little store on Highway 67, and he bought the children some ice cream, and we went on home. Q. Where was your mother? A. She was there at the house. We tried to get daddy to let her go with us and he wouldn’t do it. He told her there wasn’t any use, it wasn’t any of her business — that she didn’t need to go. Q. Did you tell your mother what occurred? A. No, sir, not then. Q. When did you tell her ? A. That night. He told me if I told her, it would be too bad for me. He told me I had better not tell her. . . . Q. Do you know what intercourse is? A. Yes, sir. Q. Did he have intercourse with you? A. Yes, sir.” The prosecutrix was afraid of her father. She testified as indicated that she resisted his advances, that he chased her and brought her back and raped her forcibly and without her consent.
Appellant denied his daughter’s accusations, or that he had ever tried to have illicit relations with her, however, the jury, which was the sole judge of the testimony and of the weight to be given to it, evidently chose to believe the child’s version of what happened. When we give to her testimony and all the evidence in the case its strongest probative force in favor of the State, as we must, we cannot say that it is not substantial and legally sufficient to support the jury’s verdict and judgment.
Her testimony standing alone was legally sufficient to convict. It was not necessary that it be corroborated. We held in Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747 (Headhote 4): “Since one of the essential elements in the crime of rape is that the act must be committed forcibly and against the will of the prosecutrix, she is not an accomplice and corroboration of her testimony is not necessary.” The words “forcibly ravish a female” mean that the act “was done ‘against the will’ of the female or without her consent, which has the same meaning.” State v. Peyton, 93 Ark. 406, 125 S. W. 416, 137 Am. St. Rep. 93.
The lesser offenses of assault with intent to rape, and carnal abuse of a female under the age of 16 years, were properly presented to the jury by the court, but, as indicated, the jury elected to find appellant guilty of the greater offense of rape.
— 2 —
Appellant in Assignment 2 argues that the State erred in offering as a witness appellant’s wife knowing that she could not be compelled to testify against her husband (by virtue of §§ 43-2019 — 20), and that this offer prejudiced the jury against him. We do not agree.
On this issue the record discloses: “Essie Marie McDonald, being called as a witness for the State, and after having first been duly sworn, was seated in the witness chair. By the Court: Let the record show Essie Marie McDonald, wife of the defendant, is called. Do you have a motion, Mr. Lowe? (Discussion off the record.) By the Court: The Court will hold that Mrs. McDonald is incompetent to testify. By Mr. Lookadoo: I want to make an objection to this later. By the Court: Mrs. McDonald, you may stand aside and go back to the witness room. Gentlemen of the Jury, the witness who is leaving the stand is the wife of the defendant, and the Court has held that a wife cannot testify against her husband except where she has been personally injured; the Supreme Court has held that this does not include children. All right, call your next witness. (Witness is excused.) ”
It appears that appellant made no objection to the court’s action and he is, therefore, in no position to complain for the first time here. Lewis v. State, 202 Ark. 6, 148 S. W. 2d 668.
— 3 —
In Assignment 3 appellant contends that he is entitled to a new trial on the grounds of newly discovered evidence. He says: “That defendant has obtained newly discovered evidence that could not have been presented to the court at the trial on his behalf and in his defense at the original trial.
“One. Because, same is in the nature of medical evidence and was not made available to him or his Attorney at time of trial, nor could not have been found at the time because of concealment. ’ ’ Our rule is that one relying on newly discovered evidence for a new trial must show: “Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. ’ ’ Ark. Stats. 1947, § 27-1901.
In this connection appellant argues that Dr. H. H. Holt made a physical examination of the prosecutrix after the trial which revealed that her hymen was still intact and that this testimony was concealed from the-appellant. To secure a conviction it was not necessary to prove tliat the hymen had been broken. ‘ ‘ ‘ The carnal knowledge that is required to constitute rape must be a res in re, but to no particular depth,’ and the hymen need not be ruptured nor the body torn.” Poe v. State, 95 Ark. 172, 129 S. W. 292. The record shows that the attorneys for appellant at the trial in effect admitted to the trial court during consideration of appellant’s motion for a new trial that they knew that a medical examination had been made of the prosecutrix prior to the trial but since it was made about thirty days after the alleged rape, they had concluded it would be of no material value. On this issue the court commented as follows: “The defense attorneys were aware that a medical examination had been made, and they were aware of that fact prior to the day of the trial, and that after consultation with a qualified neurologist, they concluded that the examination of the examining physician would be of no material value, particularly in light of the approximately 30 days which had elapsed between the date of the alleged act and the date of the examination . . . the attorneys for the defendant had unrestricted access to the prosecuting witness, and the mother, Mrs. McDonald, and that they questioned those parties at length.” We hold that this proffered medical evidence failed to meet the above statutory requirement for admission. French v. State, 205 Ark. 386, 168 S. W. 2d 829.
Another doctor, Henry, also testified at the hearing on the motion for a new trial in effect that to have intercourse the hymen must be perforated. His testimony was based on hypothetical questions. He made no physical examination of the prosecutrix and admitted that he had never seen her. There was no proper showing that his testimony could not have been obtained by due diligence prior to the trial.
Three ladies also testified, at the hearing on the motion for new trial, in effect, that about January 27, 1955, about six months after the alleged rape, that they went to appellant’s home and in the presence of the prosecutrix had asked her mother whether the appellant had had intercourse with the prosecutrix and that Mrs. McDonald replied that appellant had tried to but did not succeed, and that her daughter did not know the difference, and that she took her to a doctor.
Appellant argues that the above statements of Mrs. McDonald were admissible for the reason so he says: “The mother can make statements for the daughter in her presence, if the daughter is silent and stands by, and makes no effort to refute them. What were the statements made, that were offered? Those are declarations against interest, as she is an interested party, also the State.” As we view the testimony of those ladies its effect would be to discredit and impeach the testimony given by the prosecutrix which the evidence shows she had never recanted. Such testimony is not a ground for a new trial. “A new trial will not be granted for newly-discovered evidence which is merely cumulative of that offered on the trial or which tends to impeach the credibility' of the State’s witnesses.” Norrid v. State, 188 Ark. 32, 63 S. W. 2d 526, Headnote 4. See also, Edgeman v. State, 183 Ark. 17, 34 S. W. 2d 753, and Reeder v. State, 181 Ark. 813, 27 S. W. 2d 989. So we hold that the court was correct in overruling the motion for a new trial on the ground of newly discovered evidence.
Finding no error, the judgment is affirmed.
Bobinson, J., dissents.
Chief Justice Seamstbr not participating. | [
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George Rose Smith, J.
This is a suit by the appellant for specific performance of a contract by which she was to sell a tourist court to the appellee for $17,500. Atothe close of the plaintiff’s proof the chancellor announced upon his own initiative that the complaint would be dismissed without the necessity of hearing the defendant’s testimony. In a memorandum opinion the chancellor gave several reasons, some of which are relied upon by the appellee, for holding that the plaintiff had failed to establish a prima facie ease for relief.
The tourist court is situated on Lot 26 and an L-shaped portion of the adjoining Lot 25, in a designated block in Fort Smith. When the contract of sale was executed Lot 26 was owned by the appellant, Pearl Ray, and the portion of Lot 25, which had belonged to Mrs. Ray’s husband at the time of his death, was owned by the Rays’ three children with Mrs. Ray having a dower interest. There had been no administration upon Mr. Ray’s estate.
On March 1, 1955, the contract was signed by the appellee and was signed for the appellant by her son Fred. Abstracts of title were delivered to the purchaser’s attorneys, who prepared opinions listing a number of defects and suggesting the desired curative steps, chief of which were the appointment of an administrator for Ray’s estate and the sale of the fractional lot by the administrator so that title might be vested in Mrs. Ray. These opinions were submitted to the seller’s attorney, who began the required curative work. While this work was in progress the appellee gave notice that he was withdrawing from the agreement. The appellant nevertheless had the curative work carried to completion, offered to perform the contract, and brought this suit when the appellee refused to carry out the agreement.
The appellee first contends that this description in the contract is too indefinite to support a decree for specific performance: “ A tourist court consisting of ten cabins, furnished, including all extra bedding, located on one full lot and a fractional part of adjoining lot. Said location being 3408 Midland Blvd., Fort Smith, Ark. ’ ’
While the question is not free from difficulty, we think the description legally sufficient. It is settled that a valid description of land must furnish a key by which the property can be located. Routen v. Walthour-Flake Co., Inc., 221 Ark. 354, 253 S. W. 2d 208. But the description is not objectionable merely because parol evidence must be resorted to in following the guide furnished by the instrument. Thus ‘ ‘ 15 acres known as- the Mart Emmons place” is a good description, though obviously oral proof is needed to identify the land. Davis v. Davis, 171 Ark. 168, 283 S. W. 360; case note, 3 Ark. L. Rev. 219.
Here the proof shows that 3408 Midland Boulevard is the correct address for the ten cabins comprising the tourist court. With the exception of the Supreme Court of Washington, Martin v. Seigel, 35 Wash. 2d 223, 212 P. 2d 107, 23 A. L. R. 2d 1, the American courts uniformly uphold a description by street number. We sustained such a description in Kempner v. Gans, 87 Ark. 221, 111 S. W. 1123, 112 S. W. 1087. In a case much like this one, Pence v. Archer, 191 Tenn. 385, 234 S. W. 2d 820, the property was described as “a house and lot at 403 West Walnut Street.” The tract actually consisted of four lots and a fraction of a fifth lot. Upon proof that the residence and surrounding yard had been used and considered as one lot the court upheld the description. In like manner the identity of a tourist court, containing ten cabins, located at 3408 Midland Boulevard, can be readily ascertained.
The chancellor stressed the fact that Fred Bay was without written authority to execute the agreement for his mother and the fact that Bay’s authority as an agent was proved only by his own testimony, which the court considered incompetent. Neither point is well taken. Although a contract for the sale of land must be in writing, an agent’s authority to execute the contract for his principal may be conferred orally. Vaught v. Paddock, 98 Ark. 10, 135 S. W. 331. And the agent’s testimony, as distinguished from his out-of-court declarations, is admissible to establish the agency. Thompson v. Hollis & Co., 194 Ark. 1, 104 S. W. 2d 1065.
It is insisted that the contract lacks mutuality of obligation for the reason that Mrs. Ray did not have title to the fractional part of Lot 25 when the agreement was signed. This argument was rejected in Elliott v. Hogue, 113 Ark. 599 (mem.), 168 S. W. 1097. Inasmuch as there are often defects in a vendor’s title it is a familiar rule that he is entitled to a reasonable time in which to perfect his title. Sturgis v. Meadors, 223 Ark. 359, 266 S. W. 2d 81. In the case at bar there is nothing to indicate that time was of the essence of the agreement or that the seller delayed unreasonably in meeting the title requirements imposed by the purchaser ’s attorneys.
The appellee contends that the appellant’s present title is not merchantable and enumerates a variety of flaws that are said to exist. In considering this contention it must be remembered at the outset that a vendee who resists a suit for specific performance has the burden of pleading and proving the specific defects upon which he relies; the plaintiff cannot be expected to prove the negative. Lone Rock Bank v. Pipkin, 169 Ark. 491, 276 S. W. 588. Here the appellee’s answer does not describe any given defect in the plaintiff’s title. The appellee’s present argument can be sustained only if the plaintiff’s own proof establishes with a fair degree of certainty a fatal defect in her title.
The principal defect now asserted by the appellee is the supposed existence of a five-foot easement across'the L-shaped tract that lies at the rear of Lot 25. Fred Ray testified that he understood that his father had given such an easement to the owner of the front portion of the lot, as a means of access to the alley. The agreement, if made, was apparently oral. Ray says that he explained the matter fully to the appellee, Avho made no objection. "Whether there is really a valid easement, and, if so, whether the appellee has waived his right to object, are questions that cannot be decided with certainty upon the plaintiff’s proof alone. It is clear that this issue has not been fully developed, and since the appellee has the burden of proof the duty of producing additional evidence rests upon him.
These same considerations apply to nearly all the other attacks made by the appellee upon the appellant’s title. Only one — an asserted irregularity in the devolution of an interest formerly owned by a bridge improvement district — finds much affirmative support in the proof, which includes the abstracts of title. This matter, however, was mentioned without objection in the purchaser’s title opinion and was not put in issue by the answer. There was no reason for the plaintiff to anticipate an objection that the purchaser had twice failed to raise. It would plainly be unfair to allow this rather weak battery to be' unmasked on appeal.
Reversed and remanded for further proceedings.
McFaddin and Ward, JJ., dissent. | [
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Lee Seamster, Chief Justice.
This is an appeal by the appellants, from a decree of the Arkansas Chancery Court, southern district. The decree was filed in the clerk’s office on February 16, 1955, and the appeal has been properly filed in this court.
The chancellor, in his decree, made the following awards: to the appellee, W. H. Davis, an 8/27th interest in all moneys derived from the sale of real property, and an 8/27th interest in the real property in litigation; to the other appellees, intervenors below, an 2/27th interest in all moneys derived from the sale of real property, and a 2/27th interest in the real property in litigation; to the appellants, the widow and the only heir of R. M. Davis, deceased, a 17/27th interest in the real property in litigation. The chancellor also directed that a master be appointed by the court to determine the proportionate amount of money owed to one another by these co-tenants as rents and profits, taxes, repairs and improvements on the property and that the cause be continued for the purpose of procuring a report of the master.
The appellants contend that Jane Davis Woolfolk, the only heir of R. M. Davis, deceased, is the owner in fee of all the property involved in the instant suit by virtue of the following reasons: by reason of a decree of the Arkansas Chancery Court, Southern district, dated September 24, 1945, in a case wherein Ham Davis was plaintiff and the parties to this suit were defendants, in which the court confirmed title to the property in appellant, Jane Woolfolk; that appellee’s suit is a collateral attack on the decree and that said decree is not void but is res judicata; that the appellees are barred by the seven year, the five year, and the two year statutes of limitation; that the court erred in overruling the claim of title by Jane Woolfolk, by reason of her deed from Alberta Davis, widow of T. J. Davis, Jr., deceased, and also by reason of her deeds from Myrtle McKenzie, the commissioner of State lands and the sewer improvement district of the City of DeWitt, Arkansas; that the court erred in holding appellant liable for rents and profits and in awarding any of the property to appellees.
The facts in this case show that T. J. Davis, Sr. was the owner of the property involved in this action at the time of his death, on March 8, 1911. Davis died intestate leaving surviving him his widow, Jennie Davis, and his five children, Ham A. Davis, W. H. Davis, T. J. Davis, Jr., R. M. Davis and Myrtle Davis McKenzie, who were all of age and his sole heirs at law. There was no administration on the estate of T. J. Davis, Sr., and the family made a division of this property among themselves. W. H. Davis, Ham Davis and Myrtle Davis McKenzie were each deeded separate tracts of property as their respective shares in the estate, and on February 5, 1913, the said W. H. Davis, Ham Davis and Myrtle Davis McKenzie joined in a deed conveying the property involved in this litigation, and other property, to Jennie Davis, T. J. Davis, Jr., and R. M. Davis, in consideration for certain property which they all held as tenants in common. This deed recited the relationship of the parties and contained a warranty clause to warrant and defend the title to the land conveyed to the grantees ‘ ‘ against the claims of all persons whomsoever claiming the same by, through, or under us, but none other.”
On September 1, 1914, T. J. Davis, Jr. and R. M. Davis conveyed by deed to Jennie Davis, their two-thirds interest in said lands and on September 15, 1915, Jennie Davis, secured a decree of the proper court in which the absolute fee simple title to said lands was confirmed in her. On January 3, 1918, Jennie Davis conveyed by deed, to T. J. Davis, Jr. and R. M. Davis, a two-thirds interest in said lands. At this point, Jennie Davis, T. J. Davis, Jr. and R. M. Davis, each owned an undivided one-third interest in said lands as tenants in common. They occupied, controlled and used said lands together, until December 7,1932, when Jennie Davis died intestate, leaving surviving her the five children, hereinabove named, as her sole heirs. No administration was had on her estate. Thereafter, T. J. Davis, Jr. and it. M. Davis used said lands until July 6, 1935, when T. J. Davis Jr. died intestate. There was no administration of his estate and he left surviving him his widow, Alberta Davis. He left no descendants and his only heirs were his sister and three brothers, who are hereinabove named. The family had a settlement as to the property and the heirs all joined in a deed, conveying to the widow, Alberta Davis, certain common property (not here involved) as her dower interest in her husband’s estate. Alberta Davis executed a deed conveying the land here involved to Jane Davis Woolfolk, one of the appellants herein and the daughter of it. M. Davis, deceased.
R. M. Davis continued to live on the old home place with his wife, daughter and brother, Ham Davis, who was unmarried. R. M. Davis continued to control the property, collected rents and made improvements thereon. On February 11, 1938, R. M. Davis made a deal with his sister Myrtle McKenzie (nee Myrtle Davis) whereby, he conveyed to her common property or the proceeds from the common property in return for her interest in the estate of Jennie Davis and T. J. Davis, Jr., both deceased. R. M. Davis had the deed made to his daugh • ter, Jane Davis Woolfolk, one of the appellants herein. Jane Davis Woolfolk does not claim to have paid Myrtle McKenzie any consideration for this deed.
R. M. Davis continued to manage said property until January 25, 1942, when he died intestate. There was no administration of his estate. His widow, Helen Davis, has continued to collect rents, make repairs and pay taxes on the property, since her husband’s death. She carried on this business through a bank account in the name of “R. M. Davis, agent.” Both she and her daughter now contend that she was acting as agent for her daughter, Jane Woolfolk, and that Jane permitted her to use such of the money as she needed. In January, 1944, Ham Davis, while still living in the family house with the appellants, filed a suit against the appellants and W. H. Davis and Myrtle McKenzie, in which he sought an accounting and a partition of the real estate herein involved.
On November 3, 1944, Myrtle McKenzie died intestate and no administration was had on her estate. She left as her only heirs, the appellees, Jean Black, Pattie Martin, Tom McKenzie, Danna Jean Pond and Paula Irene Campany, who were the intervenors in the trial of this cause. Ham Davis died intestate on April 6, 1945, while his suit for an accounting and partition of the property was still pending in the court below. The cause was never properly revived against the heirs of Myrtle McKenzie and the cause was never properly revived by the heirs of Ham Davis. Jane Woolfolk filed an answer in the Ham Davis suit and claimed the fee simple title to all the land in question, by reason of the tax deeds and other deeds, as well as being the sole and only heir of R. M. Davis, deceased. Her answer was set up as a defense to the Ham Davis complaint and she prayed that he take nothing by reason thereof. Her answer was not made a cross-complaint and no notice was served on any of the other defendants in that suit, that she was claiming the title to the property by way of her answer.
An attempt was made to revive the action on the Ham Davis suit, on May 21, 1945, by the plaintiff’s attorney calling the court’s attention to the plaintiff’s death. All of the heirs of Ham Davis were named as defendants in the Ham Davis complaint. None of his heirs, except Jane Woolfolk, ever appeared in court to have the cause revived or to take any other steps in the case. None of the others had any notice of the proceedings, as required by law. On September 24, 1945, the plaintiff’s complaint in the Ham Davis suit was dismissed and a decree was issued éonfirming the title to the land in appellant, Jane Woolfolk.
During his lifetime, R. M. Davis had sold several tracts of this land and in each case the appellee, W. H. Davis, joined in the deeds to convey this property to purchasers. In the Spring of 1947, a Mr. Graves started improving a town lot in DeWitt, which was a part of the land in litigation. W. H. Davis made an inquiry into the matter and discovered that Jane Woolf oik had sold the lot to Graves on August 3, 1946. Upon confronting Jane Woolf oik with this matter, he was told that the property was hers and she could dispose of it as she pleased. Mr. Davis contends that this was the first knowledge he had that she was claiming title to the property. On May 13, 1950, the appellee, W. H. Davis, filed the instant suit against the appellants, setting up his claim to the property and asking for an accounting and partition of the lands in question. Appellants filed an answer, claiming title to the property. On July 3, 1952, the appellee, heirs of Myrtle McKenzie, filed an intervention in the action, claiming an interest in the property, as heirs of Ham Davis.
The appellants’ contention that the judgment in the Ham Davis suit, rendered September 24, 1945, is res judicata, cannot be sustained. It is unnecessary to determine whether the attack by appellees on this judgment, is a direct or collateral attack. The judgment is void on the face of the record. It is a well settled principle that the record in a case embraces the successive judicial steps which have been taken and are necessary to show the jurisdiction of the court in the case. The necessary records for this purpose are the pleadings and exhibits thereto; the process or summons with proof of service thereof, and the record made by the court, such as intermediate orders and the final judgment.
The record here shows that there is a total lack of service upon any of the appellees; no pleadings either by complaint or cross-complaint to authorize the judgment. A judgment rendered without notice to the parties affected is void under our statute, Ark. Stats., 1947, § 29-107.
The appellees herein are barred from claiming any interest in the property as heirs of Ham Davis. At the time of his death, Ham Davis had pending a suit against the appellants and appellees for the purpose of having his rights determined in the land here involved, and to have such rights enforced by the court. The appellants were in possession of the land and the suit of Ham Davis was to determine his interest in the property as against appellants. When Ham Davis died the suit abated, subject to the right of his heirs to have the action revived within one year from the next session of court after his death. They failed to have the cause revived within the time and manner provided by Ark. Stats., 1947, § 27-1012 to 27-1017.
The failure of the appellees to revive the action is a complete bar to any claim the appellees might have as heirs of Ham Davis in the property herein involved. See Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833; Keffer v. Stuart, Admr., 127 Ark. 498, 193 S. W. 83. The trial court erred in awarding to appellees that interest in the land which they would have taken as heirs of Ham Davis, had it not been for the pendency of the Ham Davis suit. The only interest claimed by the intervenors, as heirs of Myrtle McKenzie, deceased, was such interest as they might have as heirs of Ham Davis. Their intervention should have been dismissed by the court. This result also reduces the interest claimed by appellee, W. H. Davis. His interest would be reduced by 2/27th, which would leave his remaining interest as a 2/9th interest in the property here involved.
The trial court was correct in its findings and decree, except as to the heirs of Ham Davis. Appellee, W. H. Davis, insists that he received his first notice of Jane Woolfolk’s claim to be absolute owner of the lands involved, in April of 1947. However, the appellants contend that W. H. Davis is bound by the public record of the answer filed in 1944, in the Ham Davis suit. The instant suit was filed in 1950 and is within seven years of the date the answer was filed. During the lifetime of R. M. Davis, the appellee, W. H. Davis, frequently talked to R. M. Davis about the affairs of the common property. When a sale was made of any of the property, W. H. Davis joined with R. M. Davis and others in conveying such property. Thus, R. M. Davis recognized the interest that W. H. Davis held in the common property.
Possession of property, by one tenant in common is prima facie the possession of all tenants in common. The sole enjoyment of rents and profits by one tenant does not necessarily amount to a disseizin as to the other tenants in common. For possession by one tenant to be adverse to his co-tenants, the knowledge of such adverse claim must be brought home to the co-tenants, either directly or by such acts that notice may be presumed. R. M. Davis had the greater interest in this property and he had managed and operated it since the death of his mother in 1932. He had also managed it since the death of his brother, T. J. Davis, Jr., in 1935. -There was never any disagreement between R. M. Davis and appellee, W. H. Davis. In fact there was no disagreement between said appellee and appellants, until sometime in April of 1947. Adverse possession is no defense in this case. Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690; Singer v. Karon, 99 Ark. 446, 138 S. W. 958; Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809.
The appellant, Jane Woolfolk, claims title to the land by reason of certain deeds made to her by the State Land Commissioner and the City Improvement District of DeWitt. The purchases from these tax sales were made by R. M. Davis, at a time when he was one of the co-tenants and was in possession of the property. He was managing the property and collecting the rents and profits. It was his duty to pay the taxes out of these rents and profits. His daughter, Jane, was living with him in the home as a member of his household. The purchase of the tax title, under the proof adduced in this case, amounted only to the payment of the taxes and no title passed to the grantee. Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579; Inman v. Quirey, 128 Ark. 605, 194 S. W. 858; Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809; Zachery v. Warmack, 213 Ark. 808, 212 S. W. 2d 706.
The deed from Alberta Davis to appellee, Jane Woolfolk, does not strengthen Jane Woolfolk’s title. The heirs of T. J. Davis, Jr., inelnding the appellee, W. H. Davis, by agreement with Alberta Davis, conveyed to her certain of the common property as her dower. The heirs of T. J. Davis, Jr. took title to the remaining land by descent. The deed from Myrtle McKenzie to Jane Woolfolk, which was made at the request of R. M. Davis, was for the benefit of all the owners of the property. Common property was given Myrtle for her interest in the estate and the transfer of her interest was for the good of all the owners.
The appellants contend that appellee, W. H. Davis, by his deed to his mother and two brothers after his fathers death, conveyed the whole and with a warranty of title and that his after acquired title by inheritance inures to the appellants. It will be noted that the warranty in the deed was a special warranty and the grantors agreed to defend the title only against all claims by, through or under the grantors, and none others. It will also be noted the conveyance was to the grantees and their heirs. Appellee, W. H. Davis, was one of the five heirs of Jennie Davis and one of four heirs of T. J. Davis, Jr. The interest that appellee acquired after the conveyance, was as heir to the grantees or their heirs. There was nothing in the conveyance by which appellee waived his future right of inheritance from the grantees.
The deed in question was made to partition the estate of the- deceased husband and father. No one contests the fact that the grantees failed in any way to get the complete title to the property, at the time the deed was made to them. There is no claim that the grantors did not have a legal estate in said lands. It is perfectly clear that all the parties to the deed knew the interest owned by the other, and knew that by said deed, the grantees would become the owners in fee simple of the lands. There was no outstanding title to be acquired by the grantors that would inure to the grantees.
The decree of the trial court is affirmed, except as to the interest in the property claimed by appellees, as heirs of Ham Davis. The intervention of the intervenors is dismissed and appellee, W. H. Davis is declared the owner of a 2/9th interest in the property. The appellant, Jane Davis Woolf oik, is declared the owner of a 7/9th interest in the property, subject to the rights of her mother, Helen Davis, who is the widow of R. M. Davis. The case is affirmed in part and is reversed and remanded in part, as herein set out with instruction to proceed according to law and not inconsistent with this opinion. The costs are ordered paid as follows: by appellants 60% of the cost; by appellee W. H. Davis 20% of the cost; by appellees, the heirs of Myrtle McKenzie 20% of the cost. | [
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George Rose Smith, J.
This is a suit by Kate Anthony Sheppard and others to recover possession of 120 acres of land. The defendants assert title to the property and, if their claim of title should be rejected, seek to recover the value of their improvements to the land. The chancellor held that Mrs. Sheppard has a life estate which entitles her to possession, but the defendants were awarded $1,000 for their improvements. The defendants have appealed on the issue of title, and the plaintiffs have cross appealed from the $1,000 allowance for improvements.
The principal issues turn upon the construction of three separate deeds, each presenting separate questions of law. The first deed was executed by Samuel Anthony, who was the father of four children — Kate (now Mrs. Sheppard), Edgar, Ethel, and Emma. On January 27, 1914, Samuel Anthony conveyed 280 acres, including the 120 now in dispute, to Kate and Edgar “for the term of their natural lives and to the heirs of each of their bodies in fee.” The habendum clause reads: “To Have and To Hold, all of the above described lands unto the parties of the second part during the term of their natural lives, then to descend in fee simple to the heirs of their brother [body] begotten. If either one of the parties of the second part should die without issue- surviving, then that one’s-live [life] estate, or the remainder thereof to vest in the survivor.”
In 1924 Kate and Edgar partitioned 240 of the 280 acres, the land now in question going to Edgar. The material parts of the partition deed are these:
“Whereas, [Edgar and Kate] are the owners for life as tenants in common and are in possession of the following described lands [240 acres described], and;
“Whereas, the said tenants in common acquired a life estate in said lands under ... a certain deed of conveyance from their father Samuel W. Anthony, dated the 27th day of January, 1914 . . . and;
“Whereas, the said tenants in common have agreed upon a partition of said lands so that each may have and hold his or her interest therein in severalty and in dividing said lands have made the allotment to each as near in value as possible:
“Now, Therefore, for the purpose of making partition of all the real property above described, and in consideration thereof, the parties hereto do mutually covenant and agree, each with the other, as follows:
‘ ‘ [First, Edgar, in language similar to that next to be quoted, conveys to Kate the 120 acres allotted to her.]
“Second: [Kate], for the purpose of said partition and in consideration thereof, does by these presents, grant, sell and quitclaim unto the said Edgar Anthony, all her right, title, interest and claim in and to [the 120 acres now in controversy].
“To Have and To Hold the same unto the said Edgar Anthony and unto his heirs and assigns forever, together with all the tenements thereon, and rights, ways, improvements, appurtenances and hereditaments thereunto belonging.”
.After the land had been so partitioned Edgar Anthony, on November 23, 1927, conveyed his 120 acres to Virgil Hutchison by the third deed involved, which we quote in part:
“Warranty Deed
“Know All Men By These Presents:
‘ ‘ That I, Edgar Anthony, ... do hereby grant, bargain, sell and convey unto . . . Virgil Hutchison and unto his heirs and assigns forever the following lands . . . :
“My entire interest in and to [the 120 acres now in dispute].
“To have and to hold the same unto the said Virgil Hutchison and unto his heirs and assigns forever, with all appurtenances thereunto belonging.
“And I hereby covenant with the said Virgil Hutchison that I will forever warrant and defend the title to my interest in said lands against all claims whatever.”
Virgil Hutchison took possession under the above deed, and by various mesne conveyances his title has now passed to the appellants, Porter and Zelma Hutchison. Edgar Anthony died without issue on January 7, 1953, his only child having predeceased him before reaching maturity. After Edgar’s death the present action in ejectment (later transferred to equitj^) was brought by Kate Anthony Sheppard, her sister Ethel, and the two children of the third sister, Emma Anthony Mantooth, who had died on some date not disclosed by the record. It is shown by undisputed proof that Mrs. Sheppard is childless and is past the childbearing age. In Greer v. Parker, 209 Ark. 553, 191 S. W. 2d 584, we gave effect to a stipulation that the life tenant, a woman of sixtv-six, was too old to have children.
The appellants’ two asserted claims to the fee simple title may be disposed of quickly. First, it is contended that the deed from Samuel Anthony to Kate and Edgar conveyed the fee by operation of the Rule in Shelley’s Case. That rule, however, applies only when the remainder is to the life tenant’s heirs generally. Here the remainder was to the life tenants’ bodily heirs, and it has long been settled that such a conveyance creates a life estate in the grantee with a contingent remainder to his bodily heirs. Horsley v. Hilburn, 44 Ark. 458. Nor does it matter that Edgar Anthony had a child who predeceased him; for, as the Horsley case held, the remainder does not vest until the death of the life tenant with issue surviving.
Second, the appellants rely upon a tax title which they purchased in 1947 from E. D. Wilmans. It was, however, the duty of the appellants and their predecessors in title, as holders of the life estate, to keep the taxes paid. Ark. Stats. 1947, <§ 84-922. We need not cite the many cases holding that a life tenant’s purchase of a tax title resulting from his failure to pay the taxes amounts merely to a redemption.
The appellants also contend that even if their claims to the fee simple are rejected they are nevertheless entitled to retain possession during Kate Anthony Sheppard’s lifetime. It will be remembered that Samuel Anthony’s deed to Kate and Edgar and their bodily heirs provided that if either should die without issue his life estate, or the remainder thereof, should vest in the survivor. It is the appellants’ theory that, with respect to the 120 acres now in issue, Kate’s rights as surviving life tenant passed to Edgar and his grantees as a result of the 1924 partition deed.
Such a construction would violate the principles that apply uniquely to partition deeds. The law sensibly holds that when cotenants simply agree upon a division of the common property, with no independent consideration being paid, their purpose is taken to be the severance of the unity of possession rather than the creation of a new estate in either party. “It is generally held that a partition of land creates no new title to the shares set off to the parties to be held in severalty, whether the partition be made by act of the parties or by a judgment or decree of the court. While its effect is to allocate the share of each in his allotted parcel of the land, and extinguish his interest in all of the others, the title by which he holds his divided share is the same as that by which his undivided interest in the estate in common was held. ” Wofford v. Jackson, 194 Ark. 1049, 111 S. W. 2d 542.
This court has often recognized and applied the rule. For example, in Webb v. Nease, 66 Ark. 155, 49 S. W. 1081, a mother and son owned 200 acres together, the son owning an undivided three-fourths and the mother own ing the other one-fourth, with rights of dower and homestead in the whole. By oral agreement, confirmed by possession, they partitioned the land so that each took about 100 acres. It was held that the mother did not thereby acquire the fee to her allotted acreage. "When it is ascertained that she had certain interests in this land, then the oral agreement of partition made with the other party interested in the land should, in the absence of evidence to the contrary, be attributed to a recognition and allotment of the interests ‘that she actually owned, and not be allowed to create a new estate in her.” Other applications of the principle may be found in Liberty Central Trust Co. v. Vaughan, 167 Ark. 219, 267 S. W. 361, and Bowen v. Frank, 179 Ark. 1004, 18 S. W. 2d 1037. The Supreme Court of Illinois summarized the matter by saying: "A decree or judgment in partition has no other effect than to sever the unity of possession, and does not vest in either of the cotenants any new or different title. After the partition each party has precisely the same title which he had before, but that which was before a joint possession is turned into a several one. The same is true of a voluntary partition. Each party transfers or releases the interest which he had in all the land for an exclusive and fixed possession in a part, and he does not derive title or interest from his cotenant by such transfer so that either can be said to hold under the other.” Cole v. Cole, 292 Ill. 154, 126 N. E. 752, 38 A. L. R. 719.
When Kate and Edgar Anthony voluntarily divided 240 acres in 1924 they declared in the preamble to their conveyance that they were "the owners for life as tenants in common,” that they had acquired “a life estate” from Samuel Anthony, and that the partition had been agreed upon so that each might "hold his or her interest therein in severalty.” Manifestly the only estate that Kate and Edgar held in common was the joint life tenancy that would exist only so long as both were living. This was likewise the only estate as to which unity of possession existed. By the rules of construction already mentioned, they are not deemed to have intended any thing more than a severance of their common right of possession.
It is true that each of the cotenants also had an estate in the land that was not held in common. That is, if either should die without issue the survivor would be entitled, under the terms of Samuel Anthony’s 1914 deed, to a life estate in the whole rather than in an undivided half. But this right of survivorship was obviously not held in common; to the contrary, the distinct rights of survivorship were mutually exclusive, in that there could be only one survivor. Since there could never he a joint possession under the survivorship clause, there was no occasion to divide it so that each might hold his interest in severalty. Hence to construe the partition deed as transferring Kate’s rights of survivorship (in this 120 acres) to Edgar would result in the creation of a new title in Edgar. He would then hold not of the common grantor but of his cotenant. As the law does not put this interpretation upon a simple partition deed, the appellants’ claim to Mrs. Sheppard’s right of survivorship must be denied.
There remains the question of improvements. The appellants’ proof tends to show that the improvements are worth some $2,600. It is now contended that the chancellor’s allowance of $1,000 is demonstrably inadequate. The appellees insist that the appellants knew all along that their tenure was limited, so that they could not in good faith have believed themselves to be the owners of the land. Ark. Stats., § 34-1423.
Inasmuch as the appeal and cross appeal bring this entire issue to us de novo, we must attempt to determine from the record what amount, if any, should be allowed for the improvements. In approaching this issue we are confronted at the outset by an insurmountable defect of proof in the record. That is, it is not shown whether Samuel Anthony was still alive when Edgar sold his 120 acres in 1927, nor, if Samuel was then dead, whether he had died testate or intestate.
The importance of this information is easily understood. When Samuel Anthony conveyed to Kate and Edgar for life, with remainder to their bodily heirs, there remained in the grantor a divestable reversion, by which the fee would revert to him if the grantees should die without bodily heirs. Such a. reversion may be transferred by deed or by will and is a subject of inheritance upon the reversioner’s death intestate. Davis v. Davis, 219 Ark. 623, 243 S. W. 2d 739; Core, Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111, 136.
Although the record is silent, it seems quite likely that Samuel Anthony died before 1927. It is alleged that part of the property described in the complaint was acquired by Samuel Anthony in 1866. If he was then as much as thirty years old he would, if alive, have been past ninety in 1927. But if he had died intestate his reversionary interest would have descended by the laws of descent and distribution, with Edgar inheriting a one-fourth interest.
In 1927 Edgar, by the third deed involved, conveyed his “entire interest” in the land now in question and warranted “the title to my interest” in the land. Although this deed does not purport to .convey the fee or any given lesser estate, within the operation of the after-acquired title statute, Ark. Stats., § 50-404, Wells v. Chase, 76 Ark. 417, 88 S. W. 1030, it was clearly effective to transfer whatever alienable interest Edgar had in the land. If, therefore, he had received by will or by intestacy a share in the reversionary estate, that interest now belongs to the appellants. Since Edgar died without issue and since Mrs. Sheppard, the other life tenant, is about seventy years old and childless, it is a practical certainty that the ’reversion will become a fee simple estate upon Mrs. Sheppard’s death.
These circumstances may bear upon the issue of improvements in at least two ways. First, if the appellants had not only an estate pur autre vie but also an interest in the' reversion, even though they were not aware of the latter, this fact may affect their legal right to improve the property — a question upon which we need not speculate in the absence of definite proof. Second, if the appellants have, for ezample, a vested one-fourth interest which will become an estate in possession upon Mrs. Sheppard’s death, it would be inequitable to reimburse them in full for improvements which are partly theirs.
This question of the reversion seems to have been overlooked by the parties in both courts and of course was not called to the chancellor’s attention. In this situation, where by common inadvertence an issue is not fully developed, it is our practice in equity cases to remand the case for further proof. Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728. We therefore set aside the award of improvements and remand the cause upon that issue.
MoFaddin, J., is of the opinion that the entire suit is premature so long as Kate Anthony Sheppard is living.
Seamstek, C. J., not participating. | [
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Paul Ward, Associate Justice.
On May 2, 1955, appellant, for the benefit of himself as a taxpayer and for all taxpayers of Arkansas, instituted in the Chancery Court of Pulaski- County Suit No. 102404 against Dr. E. H. Crawfis, Superintendent of the Arkansas State Hospital, K. W. Newman and W. E. Lester, as disbursing officers of the Hospital, and the Standard Accident Insurance Company, as surety for Newman and Lester. The charges against the appellees, as gathered from the pleadings and the admitted facts, may be stated as set out below. Crawfis, as Superintendent of the Hospital, unlawfully drew, and Newman and Lester unlawfully paid to him, money out of the cash funds of the Hospital and the State -Treasury, in excess of his salary as prescribed by the Legislature. The prayer was that the defendants (appellees) be required to return the excess payments to the source from which it came and that they be restrained from similar activities in the future.
The excessive payments complained of are of three different kinds, viz:
.1. The sum of $1,552.48 paid out of cash funds for moving Dr. Crawfis’ household belongings from Cali fornia to Little Rock; 2. The sum of $1,947.30 paid out of cash funds for furniture and carpet for the house assigned to Dr. Crawfis by the Hospital [The complaint alleges that Dr. Crawfis has converted said furniture to his own use, but it conclusively appears that he has not and that it belongs to the State], and; 3. The sum of $1,447.67 being the amount paid out of money appropriated by the Legislature for the service of a maid assigned to Dr. Crawfis’ home.
For answer to the above charges, the defendants (appellees) admit the above expenditures, but claim they were lawfully made under the provisions of Act 501 of 1953.
The Chairman and Members of the Hospital Board filed an intervention, adopting the defendants’ answer, and stating that all said expenditures had been by them first duly considered and then approved.
We will for convenience hereafter refer to the above suit as the “First Case.”
On April 18, 1955, a similar suit, No. 102296, had been filed in like manner by appellant against the same Mr. Newman and Mr. Lester. This suit, which we will hereafter refer to as the “Second Case,” was by the trial court consolidated and heard with the First Case. The charges in the Second Case, as taken from the pleadings and admitted facts, are hereinafter set out.
1. In 1953 Newman held the position of Assistant Hospital Administrator which the 1953 Legislature created and fixed the salary of $6,500. Later the Hospital Board abolished this office and created a new position, designated as Director of Administration, and fixed the salary at $8,500. Newman entered upon the duties of the new position in February 1954 and held it until some time in October 1954 at the salary of $8,500 — an excess of $1,250 over the salary fixed by the Legislature as stated above. This excess of $1,250 was paid out of the cash funds of the Hospital. The prayer was for judgment against Newman for $1,250, and that he be restrained from drawing further excess salary.
2. Lester began working for the Hospital in January of 1954 as Chief Accountant at a salary of $4,500 as provided by the 1953 Legislature. On June 29, 1953 the Hospital Board created the office of Procurement and Disbursing Officer, and fixed the salary at $5,700. Lester drew this salary as Procurement and Disbursing Officer for one year prior to the filing of this suit, and has therefore drawn an excess in salary of $1,200. This excess was also paid out of the Hospital cash fund. The prayer was the same as in the Newman case.
By way of answer to the charges against him Newman admits drawing the salary of $8,500 for the time alleged but states: the office of Director of Administration was created by specific resolution of the Hospital Board, fixing the salary; that said office contained new and separate duties from any office or position theretofore existing, and; that it was all authorized by Act 127 of 1939. Lester admits drawing the salary of $5,700 as Procurement and Disbursing Officer for the alleged time, but states that the new position and salary were authorized by the Board, all of which was regular and proper.
The Hospital Board intervened in behalf of Newman and Lester, adopting their answers and exhibiting resolutions creating the two new positions or offices and fixing the salaries.
After hearing the testimony the chancellor dismissed appellant’s complaint in both cases, and this appeal follows.
There is no material conflict in the testimony introduced in either of the cases, so instead of summarizing it separately we shall refer to it hereafter in the discussion that follows.
FIRST CASE. Appellant’s argument for a reversal may be stated as follows: When the Legislature creates an office or position in any state institution, just as Act 501 of 1953 designated the office of Superintendent of the State Hospital and fixed the salary at $12,000, the governing body of that institution has no power to pay or authorize the payment of a larger salary, and; The payments mentioned heretofore for the benefit of Dr. Crawfis amounted to an increase in his salary. In support of this argument appellant relies on Article 16 Section 4 of the Constitution and on the pronouncements in Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595. It is unnecessary to discuss the authorities above mentioned because we agree with appellant that when the Legislature designated the office or position of Superintendent of the State Hospital and fixed the salary, the Hospital Board had no right to increase his salary. We do not however agree that the three items complained of above amounted to an increase in Dr. Crawfis’ salary. This being true it makes no difference therefore whether some of the items were paid for out of cash funds belonging to the Hospital. The status of an institution’s cash fund was clearly stated in the Ingram case, supra, which held that such funds need not be paid into the State Treasury and thereafter appropriated by the legislature before they can be expended.
After careful consideration we have concluded that the Hospital Board had the right under the Appropriation Act 501 of 1953 to make the expenditure in each of the three items complained of. Section 2(3) of said Act appropriated $1,143,000 per year for maintenance. Section 3 of the Act states that “maintenance” is limited to include food and housing for the superintendent [along with numerous other employees]. We think the word “housing” must be interpreted to include household furniture and that the word “food” must be interpreted to include prepared food and not merely groceries. Therefore it clearly appears to us that the Board had authority to buy the furniture and carpet for Dr. Crawfis’ house which was furnished to him. It is not quite so clear that this could include paying for moving Dr. Crawfis’ household effects from California to Little Rock. It seems to follow however that if this had not been done then the Board would have been faced with the necessity of buying additional furnishings for the house. The mere fact that the Legislature entrusted to the Board the responsibility of spending over a million dollars for maintenance compels the conclusion that it was the intention of the Legislature that the Board would have the right and duty of exercising wide discretion. The record leaves no doubt that the Board wisely exercised said discretion in employing Dr. Crawfis and we think they had considerable discretion in doing what they thought necessary to secure his services. Said Act 501 of 1953 provided for 74 waitresses and fixed the salary of each. The Act did not provide for any “maids.” This seems to be the title which appellant has assigned to Ova Young who, it is admitted, was assigned to Dr. Crawfis’ home. Undoubtedly she was one of the waitresses provided by the Legislature. Again, we think the Board did not abuse its discretion in assigning Ova Young to Dr. Crawfis’ home, since he and his family were entitled to have their food prepared and served. It would be unreasonable to hold that the Legislature, in such instances, has the sole right to specify the exact duties to be performed by each of the numerous employees. That this assignment of Ova Young was not merely a subterfuge to increase Dr. Crawfis’ salary is conclusively shown by the fact that she had previously served other superintendents in the same capacity.
Having concluded as we do that the Board was justified, in the exercise of its discretion, in classifying the first two items mentioned above as items of maintenance there can be no question but that the Board could have paid for these items out of the maintenance appropriation. Instead of doing this however they paid said items out of cash funds belonging to the Hospital, and it is contended that they had no right tq do so. Support for this contention is sought to be found in the Ingram case, supra. We are unable however to find in the Ingram case any inhibition against such use of cash funds. The one definite holding in that case, as above stated, was that cash funds could not be used to pay an increase in salaries fixed by the Legislature, and, as heretofore stated, we are in thorough agreement with that holding. Except for this one limitation on the use of cash funds, the Ingram case placed no other limitation on the use of such funds. On the other hand the language in that opinion indicates that the cash fund of any institution may he used for almost unlimited purposes aside from increasing salaries. On page 814 of the Arkansas Reports it shows that Gipson alleged “that the state agencies and institutions are expending cash funds as the governing boards see fit, and without legislative appropriation; . . .” With knowledge of the above allegation the court stated: “There is only one allegation that anything is being done in violation of what the legislature has permitted, and that allegation is that some portions of the cash funds are being used to supplement the salaries . . .” Again this court, in the Ingram case, in noting the absence of any provision in our present constitution requiring cash funds to be placed in the State Treasury, said: “Certainly, such omission leaves the legislature of this state free to provide that public money derived as in this case may be deposited as cash funds, for the use of the state agencies and institutions.”
In the face of the above clear declarations by this court in regard to the use of cash funds of institutions we think it would lead to a confused situation for us to now hold that such funds could not be used for the two items mentioned above. If we should so hold it would be hard to understand how the governing board of any institution would ever know for what items it could expend cash funds. What rule could the board use to distinguish between what is for maintenance and what is not or when it is safe to use cash funds? As stated in the Ingram case, supra, the Legislature has the power to say what disposition shall be made of cash funds belonging to the state institutions, but up until now it has not done so. Until it does it seems to us that much must be left to the discretion of the governing board.
We therefore conclude that the trial court was right in dismissing appellant’s complaint in this case and his action in so doing is hereby affirmed.
SECOND CASE. In the case of Newman we may fairly conclude from the record that the Hospital Board acted in all good faith and apparently with good sound business judgment when it abolished two of the positions created by the Legislature in 1953 carrying a total of $11,000 in salaries and in lieu thereof created the position of Director of Administration with a salary of $8,500. In the case of Lester we are also convinced from the record that the Hospital Board thought it had the legal authority and thought they were acting for the best interest of the institution when it created the new position designated as Procurement and Disbursing Officer and fixed the salary at $5,700. In 1953 the Legislature passed Act 41 sometimes called the Fiscal Code Act. Among other things this Act set up a central purchasing agency for the state. Article 7 Section 3 of that Act no doubt led the Hospital Board to believe that it had the right to designate the purchasing agent for the Hospital.
Notwithstanding the above however we are forced to the conclusion that the Hospital Board did not have the power and authority to establish these positions or offices and designate the salaries. An examination of our Constitution as well as the former decisions of this court compels this conclusion.
Article 16, Section 4, of the Constitution reads as follows :
“The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law. ’ ’
It seems that it would be sufficient in this connection merely to rely on the last sentence of the section above quoted. It says “the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law.” It is admitted of course that the salaries of Newman and Lester were not in this instance fixed by law. The first part of the quoted section explains the meaning of “fixed by law.” It says that the General Assembly shall fix the salaries and fees. Also, as we shall later see, this power of the Legislature to create offices or positions and fix salaries cannot be delegated to any person or board.
The portion of the Constitution quoted above has heretofore been construed by this court in harmony with and support of the conclusion we have reached.
In the case of Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, this court declared unconstitutional portions of Act 264 of 1921 which, among other things, purported to give the Circuit, Chancery and County Judges the power to appoint deputies to certain county offices and fix their compensation. In reaching its conclusion the court quoted Article 16 Section 4 of the Constitution and then made this statement: ‘ ‘ The power to fix the salaries and fees of all officers in the State and the number of their clerks and employees and their salaries, is a function, which, within the limits of the constitution, is lodged in the supreme law-making power of the State — the Legislature.” After citing authorities the court also said: ‘ ‘ The General Assembly cannot delegate this legislative power to any individual, officer, or board.” In this same case the court very clearly stated the reason for such a constitutional provision. The court said that it was “. . . intended by the framers of our organic law to forestall, if possible, any extortion, extravagance, or corruption on the part of those entrusted with the administration of public office, and to promote the general welfare by protecting the people from exorbitant taxation in order to meet the necessary burdens of government. ’ ’
The Nixon case, supra, was followed and quoted extensively in the case of Director of Bureau of Legislative Research v. Mackrell, 212 Ark. 40, 204 S. W. 2d 893. The court there was dealing with an Act of the 1947 Legislature which created the Legislative Council but failed to appropriate money to pay the employees provided for in the Act. It was alleged that the State Board of Fiscal Control was attempting to allocate funds to the Legislative Council to pay the salaries of the employees of that board. Belying largely upon the decision in the Nixon case, supra, the court held that the payment of salaries in this manner would he in violation of Article 16 Section 4 of the Constitution. In speaking of this constitutional provision the court stated that its purpose was “. . . to prevent the expenditure of the people’s tax money without having first procured their consent, expressed in legislative enactments . . .”
Under the views above expressed, there is no merit in appellees’ contention that the Hospital Board had the right under Act 127 of 1939 and Act 240 of 1933 to create new positions for Newman and Lester and fix their salaries. The pertinent parts of said Act 127 relied on by appellees are now Ark. Stats. Sections 59-226 and 59-227, and the pertinent part of Act 240 is now Ark. Stats. Section 59-208. The first cited section provides that cash funds shall be deposited in a bank designated by the Hospital Board, and the second cited section authorizes the Board to use the cash funds for “maintenance, support and expenses of the State Hospital . . .” The last cited section authorizes the Board to employ “. . . such persons, guards, nurses, physicians, officers, assistants and attendants as may be necessary . . . and fix their compensation . . .”
We do not interpret the above sections as giving the Hospital Board authority to create new positions as was done here. If, however, they should be so interpreted then they would be, as heretofore shown, in conflict with Article 16 Section 4 of the Constitution.
The only remaining question is: Should Newman and Lester be compelled to repay the money received for excess salaries, being $1,250 in the case of Newman and $1,200 in the case of Lester? Our opinion is that this question must be answered in the affirmative.
As heretofore shown the excess payment in each instance was a violation of Article 16 Section 4 of the Constitution. In such cases this court has uniformly held that repayment can be enforced. One of the landmark cases is Tallman v. Lewis, 124 Ark. 6, 186 S. W. 296. This case was cited with approval and commented on extensively in the ease of Vick Consolidated School Dist. No. 21 v. New, 208 Ark. 874, 187 S. W. 2d 948. In the latter case the school district had paid New who had tanght without a license contrary to the provisions of the law, and it was held that he had to repay the amount so received. At page 880 and 881 of the Arkansas Reports the court set forth three classifications where repayments in such instances could or could not be enforced. Under the third classification the court said:
“There are those cases in which an individual has dealt with the district, council, board, or other governmental subdivision in plain violation of the letter of the statute, and has received public money under a course of dealings forbidden by statute. In those cases the courts have not only refused the individual the quantum meruit for his services rendered, but have also allowed recovery by the governmental subdivision of any moneys paid the individual on a contract forbidden by statute.” Citing the Tollman case, supra, and other cases.
The case of Barber v. Edwards, 200 Ark. 940, 141 S. W. 2d 831, dealt with a fencing district which had been enlarged and the Board of Assessors sought to increase the salary of the pound keeper due to the additional duties which he was forced to perform. In speaking of the legislative act which fixed the original salary the court said: ‘ ‘ Section 1 of said Act 290 of 1905 fixed his salary at ‘not exceeding $30.00 per month in addition to his fee as now provided by law.’ Perhaps his duties were largely increased by reason of the annexation of the new territory in 1936, but his salary is still fixed by said act and may not now be increased by the board without authority of law.”
In the Second Case since it appears that Newman’s and Lester’s excess salaries were paid out of the Hospital cash fund, Newman should be directed by the trial court upon remand to repay into the said fund $1,250, and Lester should be likewise directed to repay the sum of $1,200.
Accordingly the decree of the trial court in the First Case is affirmed, and the decree in the Second Case is reversed and remanded for further action as directed by this opinion.
Chief Justice Seamster and Justices Holt and Robinson dissent in Second case. | [
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George Rose Smith, J.
By this suit the appellant, Tom Harris, who has record title to an undivided seven-eighths interest in the forty-acre tract in controversy, seeks to quiet his title to the whole as against his brother John, the appellee, who is the apparent owner of the other one-eighth interest. The chancellor rejected Tom’s claim of complete ownership and granted John’s request for partition, the decree correctly directing that John’s share be allotted to him from the unimproved portion of the property.
These litigants and the other six children of R. P. Harris, inherited this tract, then unimproved, from their father. In 1933 Tom obtained from his seven brothers and sisters a written contract by which he agreed to purchase their interest in the land for $140, the money to be paid a year later. Tom immediately took possession of the land, built a house and other improvements thereon, and has lived on the property ever since. In 1937 the other six children executed a deed to Tom, but John refused to join in the conveyance and told Tom that he was claiming his interest as an heir.
In the trial court the appellant seems to have contended that he had acquired John’s one-eighth interest by adverse possession. The proof does not support this contention. In order for the possession of a tenant in common to be adverse to his cotenant knowledge of the hostile claim must be brought home to the cotenant, either directly or by acts so notorious that notice may be presumed. Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809. Here it is doubtful if Tom intended to hold adversely to John, but even if he did the evidence falls short of showing that the required notice of a hostile claim was ever brought home to John.
In this court the appellant has abandoned his assertion of adverse possession and insists instead that the chancellor should have granted specific performance of the contract that John signed in 1933. Assuming that the record permits this question to be raised by the appellant, we find the contention to be without merit.
It is argued in the brief that Tom paid John his share of the purchase money, but the weight of the evidence is to the contrary. Tom did not testify that the money was ever paid to John; he merely says in substance that he was willing to offset the purchase money against a debt which he testified was owed to him by his brother. But John says that the debt had already been paid and that his reason for not signing the deed was Tom’s failure to make payment. In our opinion John’s point-blank refusal to execute the deed persuasively corroborates his version of the transaction.
In these circumstances the appellant has been guilty of laches in delaying the assertion of his claim for some seventeen years. He relies strongly upon cases like Hargis v. Edrington, 113 Ark. 433, 168 S. W. 1095, where it was said that “a vendee in possession is not barred from suing for specific performance by delay for any period in bringing his action, his possession being the continuous assertion of his claim. He may rest in security until his title or right of possession is attacked.” In the cases cited, however, the vendee’s only claim to the land lay in his contract of purchase; his possession was therefore unequivocally referable to that contract.
Here the situation is different. Inasmuch as Tom has been through the years a tenant in common owning a seven-eighths interest in the land his possession cannot be attributed solely to his executory agreement to buy J ohn’s one-eighth. More nearly in point than the cases cited by the appellant is the holding in Haines v. McGlone, 44 Ark. 79, where a tenant in common relied upon his possession as part performance of an oral contract for the purchase of his cotenant’s interest. "We held that since the possession could not be referred exclusively to the contract it failed to satisfy the statute of frauds. For the same reason Tom’s possession, already rightful, cannot be regarded as such an assertion of his rights under the contract as to absolve him from the charge of laches. It was incumbent upon Tom to assert his claim promptly when his brother unqualifiedly refused to honor the agreement in 1937.
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.1^ Seaborn Holt, J.
De Soto Life Insurance Company of Little Rock issued its “Non-cancellable Health and Accident Policy” to Dr. W. P. Jeffett, appellant, December 1, 1943. Dr. Jeffett became disabled within the provisions of the policy, and disability payments of $200.00 per month were made to him at intervals beginning November 15, 1944, (De Soto Life Insurance Co. v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243), until October 15, 1949, when it was found that De Soto was in effect insolvent and owing $20,258.75 disability claims in excess of its assets. At this junction De Soto reinsured its members (or policyholders) with appellee, American Insurance Company of Texas, a Texas Corporation, pursuant to Ark. Stats., §§ 66-254 to 66-256, by written agreement duly approved by the insurance commissioners of Arkansas and Texas. The re-insurance agreement contains this provision:
“Receipt by the Insured or the legal holder of such policy of any company Certificate of Assumption issued in pursuance to the provisions of this agreement, shall be deemed acceptance and ratification of this agreement and the insurance of such Insured’s Association Policy by the Company Certificate in accordance with the terms of this agreement unless each Insured or the legal holder of any Association policy shall within sixty (60) days after the effective date of this agreement, return such Company Certificate to the company at its Home Office together with notice of his refusal to accept the company policy and make request for the payment of the actuarial portion of the net Mortuary and Disability Funds of Association, as hereinafter defined, apportionable to such member who refuses to accept the Certificate of Assumption offered him. In the event of such refusal and request, the Company will remit to any such insured or legal holder of said policy such actuarial portion.”
This agreement was embodied in an Assumption Certificate, No. 1081, issued to Dr. Jeffett by appellee, American. Under the terms of this Certificate (1081) Dr. Jeffett was given a choice of proceeding against De Soto, taking his actuarial portion of the resources of this insolvent company, or of accepting Certificate No. 1081, under which appellee, American Insurance Company of Texas, assumed the obligations of De Soto Life Insurance Company of Little Rock to the extent stipulated in the re-insurance agreement and appearing in the certificate, but not to exceed $5,000 in the aggregate for any and all benefits, claims and indemnities of every kind.
Dr. Jeffett admitted that he received and accepted the Assumption Certificate No. 1081 knowing that Amer icau’s (appellee) maximum liability was $5,000.00, and further that he filed a claim with appellee each month for $200.00 for a period of 24 months, for a total of $4,800.00, and that appellee paid him this amount ($4,800.00). Each of the drafts were identical except as to date, total previous payments, and balance due; for example, the May 2, 1950 draft was as follows:
“American Insurance Company of Texas
Dallas, Texas May 2, 1950
“Pay To The Order of Dr. W. F. Jeffett - - $200.00
American Ins. Co. of Tex. $200 and 00 Cts. Dollars
For Value Received and Charge the Same to Account of
Claim for one month’s disability certificate No. 1081 with original coverage of $5000.00 Maximum less this payment and previous payments of $1000.00 reducing balance of benefits on said certificate to a maximum of $3800.00 in the aggregate. ”
When American sent to appellant its twenty-fifth and last draft for $200.00, dated December 3, 1951, it was refused by appellant because it contained the following words: “In full and final settlement of any and all claims of any kind and character against the;American Insurance Company of Texas under Certificate No. 1081.” It is conceded that Dr. Jeffett had overpaid his insurance premiums in the amount of $20.00.
The present suit was filed July 25, 1953, by appellant against American Insurance Company of Texas for alleged monthly benefits claimed to be due. The complaint contained this recital:
“That the defendant now is in arrears in the payment of its monthly benefits under the terms of the policy for the period of twenty (20) months and is now indebted to the plaintiff in the sum of Four Thousand Dollars ($4,000.00), by reason of such default less the sum of One Hundred Eighty Dollars ($180.00) which is the amount required to have been paid by the plaintiff as the premium to maintain said policy of insurance in full force and effect.
“WHEREFORE PREMISES CONSIDERED, the plaintiff prays judgment against the defendant for the said sum of Three Thousand Eight Hundred Twenty Dollars ($3,820.00) together with the statutory penalty of 12% and a reasonable attorney’s fee, together with all costs herein expended.”
Appellee answered denying liability and in a cross complaint sought to recover the $4,800.00 paid appellant. On a trial before the court (jury “having been waived) the court found:
“That plaintiff overpaid the amount of premiums due defendant over the period of twenty-five months in the sum of $20.00 which amount defendant tendered to plaintiff at the trial of this cause. Defendant also tendered to plaintiff at the trial the sum of $200.00 representing the last of 25th monthly payment under the assumption certificate. That defendant owes to plaintiff the sum of $220.00.
“And the Court makes the following conclusions of laAV:
“That the actions of plaintiff amounted to a legal acceptance of the Certificate of Assumption issued by the American Insurance Company of Texas and is bound by the terms thereof. A party to a contract cannot accept the benefits of a contract and at the same time repudiate it nor can he accept a part of the contract and repudiate a part, but he must accept or reject the whole contract.
‘ ‘ That defendant, having approved and paid monthly claims for benefits to plaintiff is now estopped from claiming that plaintiff was not permanently disabled during the period of time for Avhich it paid him and should take nothing by their cross action.
“IT IS THEREFORE considered, ordered and adjudged that plaintiff have and recover of and from the defendant the sum of $220.00 which has been tendered to plaintiff by defendant and that defendant take nothing by its cross action which is hereby dismissed.”
This appeal followed. There is no cross appeal. We hold that the findings of the trial court are supported by the evidence and that the judgment is correct.
For reversal appellant contends in effect that appellee, American Insurance Company of Texas, when it took over De Soto, as above pointed out, became liable for all matured and outstanding claims then owing by De Soto and had no right to limit the amount it would pay in satisfaction of such matured claims and that appellant was not estopped in any manner. In a situation similar in effect to the present case the Supreme Court of Iowa, Garretson v. Western Life Indemnity Co., 175 Iowa 172, 157 N. W. 160, announced the general rule in this language :
‘ ‘ The general rule as to reinsurance contracts is that the reinsurer is to be held liable either under its reinsurance contract or upon a subsequent agreement made between it and the assured, and that assured has the right to accept the reinsurance offered him, or to sue the original company for damages. If he accepts the reinsurance contract and pays premiums to the reinsurance company, he is bound by the terms of the reinsurance contract, and cannot recover of the reinsuring company on the old policy unless the reinsurance contract in terms, or by necessary implication, contains an agreement to assume or be responsible on the policy reinsured.” See Central States Life Ins. Co. v. Morris, 202 Ark. 969, 155 S. W. 2d 333.
Here it is undisputed that appellant accepted the Assumption Certificate No. 1081, regularly paid all premiums to American, accepted the benefits under said certificate for a period of twenty-four (24) months. He thus made his choice and is bound thereby. In Northwestern Nat. Life Ins. Co. v. Gray, 161 Fed. 488, (Eighth Circuit Court of Appeals) it was held in effect that a policyholder, in a similar situation such as here, when two insurance companies entered into a re-insurance contract under which one transfers its assets to the other and ceases business, while the other assumes such contract upon terms agreed upon, if the policyholder accepts the re-insurance offer he is bound by the terms of the contract between the two companies. In the opinion we find the rule stated in this language:
“Without hesitation, so far as this record discloses, and presumably with full knowledge of the provision made for him in the event he concluded not to accept the proposition, and with like full knowledge of the remedies available to him for the breach of his contract, Gray elected to accept and did accept the terms offered to him by the new company. He entered upon the performance and continued in the performance of the terms agreed upon for a period of four and one-half years, until his certificate matured. This amounted to a novation, a new contract voluntarily entered into by Gray, and he cannot now repudiate -it. His election was final and conclusive. ’ ’
Finding no error, the judgment is affirmed. | [
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George Rose Smith, J.
At a local option election held on August 7, 1954, Bradley County apparently approved prohibition by a vote of 2,001 to 1,673. Certain wets unsuccessfully contested the election in the county court and were also unsuccessful upon appeal to the circuit court. The circuit court’s order of affirmance, entered February 22, 1955, permitted the judgment to be superseded pending an appeal to this court. That appeal was recently lodged here but is not yet ready for submission.
The case at bar is an allied proceeding by which several drys sought in the circuit court a writ of mandamus to compel the county court to enter an order declaring the result of the election and terminating the sale of intoxicants within the county. The circuit court, on the same day that it decided the election contest, denied the petition for mandamus.
On the merits the question is whether the filing of a contest can suspend the effect of a local option election until the contest is decided. It cannot be doubted that such a suspension was contemplated by the Thorn Liquor Law of 1935. By that act the county board of election commissioners was required to certify the election result to the county clerk. The clerk was directed to keep the certificate until the next regular term of the county court, when it became the duty of the county judge to have the certificate spread of record in his court. Ark. Stats. 1947, § 48-809. Ordinarily the dry law then became effective at the expiration of sixty days from the recording of the certificate. § 48-810. If, however, a contest were filed the law directed that the certificate not be recorded. § 48-820. It was also declared that contests should be governed by the laws applicable to the contest of any election of county officers. Ibid. The statutes so referred to permit appeals to be taken with or without supersedeas. § 3-1204. Thus under the procedure adopted in the Thorn Liquor Law the institution of a contest suspended the effective operation of the election, not only by the withholding of the certificate from the public records but also by the authorization of writs of supersedeas on appeal.
The appellants contend that the cited provisions of the 1935 statute have been repealed by Initiated Act No. 1 of 1942, which contains this sentence: “The County Court within twenty days after said election shall make and have entered of record its order declaring the result of said election.” Ark. Stats., § 48-802. It is urged by ,the appellants that this sentence fixes a maximum period of twenty days within which the outcome of the election must be given effect, whether or not a contest is pending.
We are not willing to say that the 1942 initiated measure repealed by implication the plain terms of the 1935 law. In addition to the settled rule that repeals by implication are disfavored, the initiated act itself declares that it shall be cumulative to the liquor laws already in force. Ark. Stats., § 48-806. A conclusion of implied repeal would require either a finding that the later statute had covered the entire subject anew or a finding of irreconcilable conflict between the two statutes.
Neither finding can fairly be made in this instance. The Thorn law, by its own provisions and by its reference to other statutes, laid down a complete procedure for the conduct of local option election contests. By contrast the initiated act does not even mention such contests, much less undertake to re-cover that field in its entirety.
Nor does there exist such a conflict that both acts cannot be given their proper effect. Under the older law even if no contest were filed the newly adopted dry law did not go into effect until sixty days after the opening of the next term of court, which might involve altogether a delay of several months. The sentence in the initiated act now relied upon by the appellants reduced this period, in the absence of a contest, to a maximum of twenty days. To that extent the new law certainly supplants the old. But there is no compelling reason to think that this clause was intended to extend also to the matter of election contests — a subject which the initiated act does not purport to touch. In a closely contested contest, where the margin of victory consists of only a few votes, the appellants’ construction of the statutes might result in a county alternating between a wet and dry status as the case progressed in four stages from the county board to this court. “It is contrary to public policy that the incumbency of a public office should be changed by the decision of the intermediate courts, so long as an appeal is being diligently prosecuted in good faith to a final hearing in the Supreme Court.” Williams v. Buchanan, 84 Ark. 404, 106 S. W. 202. Here the asserted repugnancy between the two statutes is not sufficiently clear-cut to require a finding of implied repeal.
Affirmed. | [
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JOHNSON, Circuit Justice.
This is a writ of error coram nobis, sued out by the plaintiff, to reverse a judgment and quash an execution thereon for error in fact, which judgment was obtained by the defendant against the plaintiff in this court. Upon application for one of the judges of this court in vacation, an order was made by the judge, commanding the clerk to issue a writ of error, with a supersedeas as to the execution. The clerk, upon the application of the plaintiff, issued a writ of error co-ram nobis, with a supersedeas to the judgment, as well as the execution. We have no doubt that the execution was erroneous and illegal, and that the order of the judge for a super-sedeas to quash it, was correct. This has not been controverted in the argument, and the only inquiry now is, whether the plaintiff or the defendant shall pay the costs of this proceeding. The plaintiff undoubtedly had a right to the writ of error, with a supersedeas to set aside and quash the erroneous execution. This is well settled by the most approved authorities. Serjeant Williams, in his notes to 2 Saund. 101, says: “Error may be brought in the same court where judgment was given, when the error assigned is not for any fault in the court, but for some defect in the execution of the process, or through the default of the clerks.” 2 Tidd, Prac. 1056. In 2 Sell. Prac. 484, the doctrine is thus laid down: “Error lies either in the same court where judgment was obtained, or in a superior court It lies in the same court where judgment was given, when the error was not for any fault in the court, but for some defect in the process of the cause, other than in the judgment, or for default in adjudging execution, or for misprision of the clerk, or for error in fact.” Dewitt v. Post, 11 Johns. 460; 1 Bibb, 351; 2 Bibb, 569; 3 Bibb, 291; 2 A. K. Marsh. 319; 3 A. K. Marsh. 561; 2 Litt. [Ky.] 163; 3 Litt. [Ky.] 1; 5 Litt. [Ky.] 56.
From these authorities it is clear that a writ of error coram nobis lies in cases like' the present; and if the plaintiff had not sued out a writ of error, with a supersedeas to the judgment, but had limited and restricted it to the execution, as ordered by the judge, he would unquestionably be entitled to recover the costs; but instead of conforming to the order of the judge, he has sued out a writ, of error, with a supersedeas to the judgment, as well as the execution. Here was manifest error, and the supersedeas to the judgment has, during the present term, been set aside and discharged. Upon a proceeding so manifestly erroneous, on the part of the plaintiff, wo think it only reasonable that he should be subjected to the costs.
It has been attempted to separate and distinguish the supersedeas from the writ of error; but they cannot be so separated or distinguished, for in truth tlie latter was a mere nullity without the former, and at common law the writ of error, from the time of its allowance, operated as a supersedeas. 2 Tidd, Prac. 1071; 2 East, 439; 1 Salk. 321. Execution quashed, and defendant to recover his costs; but the clerk is directed to tax no costs in his own favor against either party, as all the errors complained of originated with himself. Adjudged accordingly.
As to this subject, see, also, 2 Dunl. AdmPrac. 1123: 2 Paine & D. Prac. 446 ; 2 Tidd, Prac. 1191; 3 Bac. Abr. tit. “Error” (I) 6, p. 866: 3 How. Prac. 259; 6 Wend. 50; Tidd, Prac. Append. 346. | [
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Smith, J.
Suits were brought by the Bank Commissioner (who alleged that he was liquidating the assets of the Federal Bank & Trust Company) against J. K. Poch, Jr., and E. O. Manees, Sr., to enforce an assessment against them as stockholders in said bank. The cases were consolidated and tried together.
Poch filed an answer, in which he denied all the material allegations of the complaint, and alleged that all of the assets of the insolvent bank had been sold and assigned before the Bank Commissioner had taken charge of said bank, and that the assets of said bank were being liquidated by trustees for said assignees before the plaintiff Bank Commissioner attempted to take charge of the affairs of said bank, and that said trustees have, since that date, continued to manage and liquidate said bank. Manees filed a similar answer, and alleged, in addition, that he had sold his stock in the bank and the same had been transferred upon the books of that corporation before the Bank Commissioner had taken charge thereof. It is undisputed that prior to December 1, 1930, Poch owned stock in the bank of the par value of $2,000, and Manees owned stock of the par value of $8,000.
On November 18, 1930, an agreement was entered into between the directors of the Federal Bank & Trust Company, as parties of the first part, and the other banks in the cities of Little Bock and North Little Bock, comprising the Little Bock Clearing House Association, as parties of the second part, to the following effect: It was recited that the Federal Bank was experiencing a heavy withdrawal of deposits, which endangered its ability to continue in business, and that it had applied to the clearing house for assistance to enable it to remain open.
In consideration of the terms recited, it was agreed that:
‘ ‘ (1) First parties will cause Federal Bank & Trust Company to pledge to second parties all of its assets for the security of second parties’ undertakings herein.
“(2) Second parties hereby severally guarantee and promise each in the proportion hereinafter set out, to advance to Federal Bank & Trust Company sufficient funds as a loan, if necessary, so that each depositor of said company, as of the close of business on November 18, 1930, (except depositors of public funds or other deposits now secured as provided by law) may be paid upon demand.”
The third paragraph names the proportionate parts of the advances which each of the member banks of the clearing house agreed to make.
“ (4) The loans herein provided for to be made to Federal Bank & Trust Company by second parties will be evidenced by notes of Federal Bank & Trust Company executed to T. W. Kirkwood, as trustee, payable upon demand, at six per cent. (6%) interest, and specially secured by collateral from the general assets, acceptable to second parties. The collection of the proceeds of such collateral will be held in a separate account to the credit of T. W. Kirkwood, trustee, and applied as payment to second parties or loaned as approved by second parties for their account. Second parties will nominate an agent to serve with the executive committee of Federal Bank & Trust Company for that purpose.
“ (5) This guarantee and promise shall continue in force as to such deposits, as of the close of business on November 18,1930, for a period of ninety days (90) from this date. Each of first parties hereby guarantees second parties, up to the amount set opposite his signature, against any loss on account of such loans. It is expressly agreed, however, that the amount of the respective guarantees of the parties of the first part hereto is for the use and benefit of all of said parties of the second part collectively, to be prorated among them in proportion to the amount that each of said second parties shall loan to Federal Bank & Trust Company, as provided for herein.
“ (6) It is further agreed that, if said Federal Bank & Trust Company shall be forced to suspend business and liquidate its affairs, such liquidation shall taire place according to the laws of Arkansas, and that the parties of the second part shall be paid, first, out of the assets so pledged; second, out of the general assets of said bank; third, out of the statutory liability of all of its stockholders, including the first parties; and fourth, by recourse upon this guaranty of the signers hereto and according to its terms.
“(7) First parties agree that all due proceedings will be taken at all times by the board of directors of the Federal Bank & Trust Company for the due authority for such loans and for securing second parties according to the terms hereof.
“(8) It is agreed that this document is prepared in an emergency, and the first parties hereto agree to execute such supplements, additions and redrafts hereof as may be required by second parties as necessary to more fully express and carry out the intentions of the parties hereto, and execute such instruments in such number as may be necessary to supply each of second parties with a signed copy hereof. ’ ’
This eighth paragraph contains the names of the directors and stockholders contracting as parties of the first part, and opposite each name was written: “Amount of the respective guaranties of the parties of the first part hereto.” Opposite the name of Manees was written $2,500, while $2,000 was written opposite that of Poch. Both were directors of the Federal Bank & Trust Company.
Upon the execution of this agreement the lending-banks made the advances contemplated therein. The “run” on the Federal Bank & Trust Company continued in increasing volume until finally its officers decided to close its doors and to pay all depositors in full. This was done on or about January 15, 1931, and all depositors were invited to withdraw their deposits, and the lending banks furnished the money required for that purpose. Practically all of the deposits were withdrawn.
In order to secure the advances made by the lending banks, the assets of the Federal Bank & Trust Company were pledged to five trustees, two being named by the parties of the first part, two by the parties of the second part, and these fonr trustees selected the fifth.
Although the Federal Bank & Trust Company ceased to function as a bank- after January 15, 1931, it proceeded to liquidate its affairs through the five trustees. This method of liquidation continued until August 10, 1931, at which time the State Bank Commissioner took over its'assets for the purpose of liquidation, and levied the assessment against the stockholders which culminated in this lawsuit.
Judgment was rendered against both Poch and Manees for the amounts sued for. For the reversal of this judgment, it is first insisted that the suit is, in effect, one by the assignees of the assigned liability of the stockholders, and that such suits cannot be maintained, as such suits can be maintained- only by the State Bank Commissioner/and cases are cited to that effect.
We think, however, that the undisputed testimony shows that there was no sale of any of the assets of the insolvent bank. The transaction was not a sale, but a loan of money, with a pledge, as security therefor, of the bank’s assets, including the respective' amounts guaranteed by the directors and stockholders who signed the original contract pledging the assets.
No one questions the good faith of the transaction. It was an attempt to keep afloat a sinking corporation, and there is nothing about the transaction which operated to discharge the stockholders from the liability imposed upon them by law. Depositors appear to have been paid, but they were paid with borrowed money, and there appears to be other creditors. In any event it is definitely settled that the action of the Bank Commissioner in levying an assessment against the stockholders is conclusive as to the necessity for the call and the amount to "be assessed against the stockholders. Davis v. Moore, 130 Ark. 128, 197 S. W. 295; Aber v. Maxwell, 140 Ark. 203, 215 S. W. 389.
The liability of stockholders is not- confined to re- ' compensing depositors. By § 702, Crawford & Moses’ Digest, it is provided that “the stockholders»of every bank doing business in this State shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such bank to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock.”
It is our opinion that, under the facts stated, the lending banks were not purchasers, but were creditors. The greatest advantage promised the lending banks under the contract was the return of their money, with six per cent, for its use, and as creditors they are entitled to participate in the proceeds of any money derived from the stockholders under the Bank Commissioner’s assessments.
It appears that on December 15, 1930, E. O. Manees transferred $7,500 worth of his stock to his son, E. 0. Manees, Jr., and that new stock was issued by the officers of the Federal Bank & Trust Company to the transferee, and the. bank paid a dividend to him in January, 1931. In support of the validity of this transaction, Manees offered to prove that Solon Humphreys, as his representative, discussed with a Deputy Bank Commissioner the question whether the Banking Department would approve the transfer of stock owned by Manees to his son, and was assured by the Deputy Bank Commissioner that such transfer would be approved by the State Banking Department. This proffered testimony was excluded, for the reason, no doubt, that, although the Commissioner or his deputy had stated the transfer would be approved, it had not been approved, certainly not in the manner provided by law.
By § 2 of act 102 of the Acts of 1929 (Acts 1929, page 510), it is provided that “whenever any stockholder may wish to transfer his stock, certificates in duplicate of such transfer, signed by the president and cashier or secretary, and setting forth the name and residence of the transferrer and transferee, shall first be sent to the Bank Commissioner,” and that officer is required to in dorse thereon his approval or disapproval of the transfer, and to forward the certificate bearing his indorsement to the hank, and the bank files the certificate “with the clerk of the connty in which the bank is located” for record. The statute further provides that: “If a transfer is not approved by the Bank Commissioner as above provided, the transferrer’s liability as a stockholder under § 702 of Crawford & Moses’ Digest of the Statutes óf Arkansas shall continue for one year, notwithstanding the transfer; but a transfer may be effectual to transfer title to the stock (and may, if filed with the county clerk as aforesaid, be effectual as against creditors of the transferrer) notwithstanding the Commissioner’s disapproval of the transfer.”
As the excluded testimony did not propose to show a compliance with this statute, no error was committed in excluding it.
In a brief filed by amici curiae, it is insisted that so much of § 2 of act 102 of the Acts of 1929, above quoted, as extends for a period of one year the double liability of the holder of bank stock under § 702, Crawford & Moses’ Digest, who transfers such stock without the approval of the Bank Commissioner, is violative of § 23 of article 5 of the Constitution. This section reads as follows: “No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. ’ ’
The portion of § 2 of the act 102 of the Acts of 1929 which is said to offend against the section of the Constitution, above quoted, is set out above, and we do not think it is violative of the inhibition of the Constitution.
In the case of Farris v. Wright, 158 Ark. 519, 250 S. W. 889, it was said: “This court has often considered the application and effect of this provision of the Constitution, and in each instance has adhered to the rule that ‘when a new right is conferred or cause of action given, the provisions of the Constitution quoted require the whole law governing’ the remedy to he re-enacted in order to enable the court to effect its enforcement,’ hut that if the statute ‘is original in form, and by its own language grants some power, confers some right or creates some burden or obligation, it is not in conflict with the Constitution, although it may refer to some other existing statute for the purpose of pointing out the procedure in executing the power, enforcing the right, or discharging the burden.’ (Citing cases).” See also Grable v. Blackwood, 180 Ark. 311, 22 S. W. (2d) 41.
We have not copied § 2 of act 102 of the Acts of 1929 in full, but it suffices to say that it is original in form and prescribes the manner in which bank stock must be transferred and continues the burden or obligation of a stockholder upon one who sells his stock without complying with its provisions, this obligation being defined in an existing statute, to which reference was made. Section 702, Crawford & Moses’ Digest, was not affected by the act of 1929, except that the burden of double liability imposed by it was made to continue for a year against stockholders transferring their stock without complying with the act of 1929. Section 2 of act 102 of 1929 is therefore valid legislation. Davis v. Moore, supra; Karraken v. Ernest, 4 Fed. (2d) 404.
The judgment of the court below is correct, and it is therefore affirmed. | [
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Per Curiam.
The bill of exceptions in the instant case is identical with the one held insufficient in the case of Ward v. State, 135 Ark. 259, 204 S. W. 971. In this case, as in that the hill of exceptions was signed by the prosecuting attorney and counsel for appellant, but had not been submitted to nor approved by the trial judge. The appellant in each case had been convicted of a felony. It was there held that it is necessary that a bill of exceptions in a case where defendant has been convicted of a felony be signed by the trial judge, and that the bill of exceptions did not become a part of the record until it was so signed.
The errors complained of in the instant case, like those in the Ward case, supra, are such as must be brought into the record by a proper bill of exceptions, and, as no error appears in the absence of a bill of exceptions, the judgment must be affirmed, and it is so ordered. | [
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McHaNey, J.
On the 10th day of January, 1925, J. T. Grayson and his son, H. P. Grayson, executed and delivered their promissory note to C. ¡Bauschlicher in the sum of $225 for money borrowed by H. P. Grayson from the latter, with interest at 10 per cent, from date, payable annually, and due one year after date. J. T. Grayson died before the maturity date of the note, and early in 1929 said note was placed in the hands of Mr. C. 0. Raley for collection. After trying’ to collect the note from the heirs without success, he proceeded to take out letters of administration in his own name, probated the claim and allowed it, and took the necessary statutory steps in order to sell certain land owned by J. T. Grayson at the time of his death, there being no personal property out of which to pay same. Thereafter, on August 17, 1929, the land was sold by the administrator to the creditor. Thereafter the appellees filed exceptions to the procedure and sale, objected to the appointment of Raley as administrator, asked that his letters of administration be revoked, and that all of his proceedings in the premises be declared* void. The probate court overruled his exceptions, and an appeal was prosecuted to the circuit court, with the result that the court held that the administration was void and that the sale of the land and all proceedings had and done by the administrator were likewise void. The administrator has appealed.
We think the court correctly so held. Mr. Bau-schlicher testified as follows: “After Mr. Grayson’s— J. T. Grayson’s — death, I told them it was all right with me that they should take charge of the place and the personal property of Mr. Grayson. I didn’t want no letters taken out. I tried to collect the money from Perry. I agreed to let the heirs take control and manage the property, without administrator.” This clearly shows an agreement that the heirs might handle the estate of their father without administration. The proof conclusively shows that the heirs were all of age, and that Bauschlicher was the only creditor of the estate. In such cases § 1, Crawford & Moses’ Digest, is controlling. It reads as follows: “When all the heirs of any deceased intestate and all persons interested as distributees in the estate of such intestate are of full age, it shall be lawful for them to sue for, recover and collect all demands and property left by the intestate, and to manage, control and dispose of such estate without any administration being had thereon in all cases where the creditors of such estate consent or agree for them to do so, * * *; and in every such case, after they have taken such control and management of the estate, no letter of administration shall be granted thereon, or, if granted, the same shall, on their application, be revoked.”
Mr. Bauschlicher’s own testimony shows that he agreed for the heirs “to manage, control and dispose of such estate without any administration being had thereon,” and, he being the only creditor, had the right to make the binding agreement to this effect, and the statute is very clear that thereafter no letter of administration shall be granted, and, if granted, shall be revoked upon petition of the heirs.
The circuit court correctly revoked the letters of administration, and canceled as void all proceedings of the administrator, and the .judgment must accordingly be affirmed. It is so ordered.
Kibby, J., dissents.
See Adamson v. Parker, 74 Ark. 168 (Rep.). | [
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