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McCulloch, C. J.
Appellants instituted this action in the circuit court of Woodruff County to recover the sum of $300, the price of three mares, sold and delivered to appellee, who defended on the ground that the purchase of the mares was induced by fraudulent misrepresentations made by appellants. The cause was tried before a jury and the trial resulted in a verdict in favor of appellee, from which an appeal has been prosecuted to this court.
Appellee was a farmer living near Hunter, Woodruff County, and appellants were engaged in the sale of horses at Brinkley. Appellee purchased three mares from appellants for the aggregate price of $300, and the mares were sent to Hunter for delivery to appellee, who after trying to work the animals, claimed that they were unfit for work and offered to return them. Appellants refused to take the mares back, and sued for the price.
Appellee testified that he went to appellants to purchase stock because he had known them first in this country, and they had been instrumental in his buying the farm on which he lived. He stated that he told appellants he wanted g'ood work stock and -preferred brood mares; that he told appellants that he wanted stock that would work single or double, “and to anything that I put them, and horses that will not balk.” He testified further, that Mr. Castleman assured him that the mares would work anywhere, and offered to hitch them up to try them, but that he (appellee) told him that was unnecessary, and that he would take Castleman’s word for that.
The testimony tends to show that two of the mares . were balky, and would not work at all. Castleman denied that he made any misrepresentations to appellee concerning this stock, and said that he told appellee that one of the mares was “cold-collared,” and that he would have to be careful with her, but made no further representations, and, on the contrary, insisted on appellee exercising his own judgment, and trying the mares before he bought them. There was other testimony adduced by each of the parties tending to support their several contentions with respect to the condition of the mares and the representations made concerning them.
The testimony was, we think, sufficient to warrant the jury in finding that the qualities of the animals were misrepresented by the appellants for the purpose of deceiving the appellee, and that the appellee bought on the faith of those representations without first testing the qualities of the animals. That issue was submitted to the jury on correct instructions.
It is insisted, however, by counsel for appellants, that the defense of false representations is not available because appellee had the opportunity to test the qualities of the mares. This would be true if the defects were open and obvious, but if appellee was induced by the false statements to forego a test of the qualities of the animals he is not precluded on the doctrine of caveat emptor from setting up the fraudulent misrepresentations as a defense. This subject was reviewed in the case of Hunt v. Davis, 98 Ark. 44, where we said:
“Although a purchaser must act with prudence and diligence in seeking the avaliable means of ascertaining the truth, yet if the seller having peculiar knowledge of the matter, by any misrepresentation or artifice, induces the buyer to rely on his false statement, then the seller will not be heard to say that the buyer could have ascertained the truth. The very representations relied upon may have caused the purchaser to forbear from making further inquiry. If the false representations are made with the intent to induce the other party to act thereon, ordinary prudence does not require the party to test the truth of such representations where they are within the knowledge of the party making them or where they are made to induce the other party to refrain from seeking further information.” For further discussion on the subject, see opinion in Boren v. Bettis, decided today, infra, page 457.
. Appellee admits that appellants suggested to him to hitch up the mares and test their qualities, but he told appellants that he did not care to do so, because he would take the latter’s word. This tended to show that appellee relied upon the representations made by appellants. The suggestion made by Castleman to appellee tended to show good faith on the part of the former, and that the representations, if made, were not with the intent to deceive, but that was a question for the jury, and we must treat the issue as settled.l?y the verdict. The evidence was sufficient, not only to show that the false representations were made, but also, that they were made with intent to deceive.
Counsel for appellants earnestly insist that the court erred in refusing to give instruction No. 1, which they requested, but that instruction was in conflict with the views we have expressed concerning the law of the case and the court was, therefore, correct in refusing to give it.
It is also contended that the first instruction requested by the appellee was incorrect, and that the court erred in giving it, but that instruction was in conformity with the law as here stated.
Judgment affirmed. | [
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Smith, J.
Appellant is the owner of certain bonds issued by the Marion Hotel Company on June 1, 1906, which contain the following clause:
“The Marion Hotel Company, for value received, hereby promises to pay to the bearer hereof, at the office of the Bank of Commerce, Little Rock, Ark., without deduction from either such principal or interest, for any tax or taxes, which the Marion Hotel Company may be required to pay or retain therefrom, under any present or future law, the Marion Hotel Company agreeing to pay such tax or taxes. ’ ’
The interest on these bonds was made payable at the Bank of Commerce, in the city of Little Bock, where appellant applied for the payment of matured coupons owned by her. Pursuant to the requirement of the Federal Income Tax Law, she filed her certificate, in which she declared that “I do not now claim exemption from having the normal tax of 1 per cent, withheld from said income by the debtor at the source,” but, notwithstanding this certificate, she demanded payment of the full amount of interest due, without deduction of the one per cent., the demand therefor being based upon the theory that the corporation, and not herself, was liable for the tax. It is argued that the very terms of the bond itself required the company to pay any tax, or taxes, which it (the company) might be required to retain. We are of the opinion, however, that the- provision of the Income Tax Law- requiring the withholding of the tax at its source is a mere provision intended only to facilitate the more convenient and certain collection of the tax upon income. That the tax in question is not levied upon the bonds, nor primarily upon the interest accumulating thereon. The thing taxed is the income of the holder of the bond, and it may, or may not, be true that the income from a particular bond will be subject to the tax. ' The condition governing the taxability of the accumulated interest represented by any particular coupon, depends, not upon the recitals in the bond contract, but upon the amount of income of the particular holder. And the provision of the law, for the collection of this tax at its source, rather than from the income taxpayer after the receipt of his dividend, will not change the contractual rights of the parties.
We are cited to no case where the exact question here involved has been decided; but the view we have expressed comports with the construction of such contracts expressed in Black on Income Taxes (2 ed., 1915), section 860. That learned writer there says:
“Sec. 360. Bonds of many corporations are issued under a contract by which they are made ‘ tax free, ’ that is, a contract by which the obligor undertakes to pay all taxes which may be assessed on the bonds. But apparently such a covenant does not bind the obligor to pay the income tax on the interest, unless it includes the income tax by name. Under a similar statute enacted by Congress at an earlier day, it was held that a provision in a corporation mortgage requiring the company to pay the debt and interest ‘without any deduction, defalcation, or abatement to be made of anything for or in respect of any taxes, charges, or assessments whatsoever,’ relates to taxes on the property mortgaged or on the mortgage debt, and does not refer to the periodical interest payments regarded as income of the bondholder, and hence, does not require the company to pay the interest clear of the income tax (levied in 1864), which tax companiesi were ‘authorized to deduct and withhold from all payments on account of any interest or coupons due and payable.’ On the contrary, it was held, the company complies' with its contract when it pays the interest less the tax, and retains the tax for the Government.” In support of this text he cites: Haight v. Railroad Co., 6 Wall. 15, 18 L. Ed. 818; Baltimore v. Baltimore Railroad, 30 Wall. 543, 19 L. Ed. 1043.
It was there further said: “The position of the treasury department on this question is one of indifference as between the bondholder and the corporation. It will exact payment of the income tax on corporate interest, in the usual manner, without regard to the existence of such a contract or covenant, leaving the question of ultimate responsibility to be settled by the parties themselves. The regulation declares that ‘the stipulation in bonds whereby the tax which may be assessed against them or the income therefrom is guaranteed, is a contract wholly between the corporation and the bondholder, and in so far as the income tax law applies, the Government will not differentiate between coupons from bonds of this character and. those from bonds carrying no such guaranty. The debtor corporation, or its duly authorized withholding agent, will be held responsible for the normal tax due on the coupons on which no tax has been withheld in cases wherein no exemption is claimed.’ ”
We conclude that the tax in question is the personal obligation of Mrs. Urquhart^ arising out of her possession of an income in excess of her exemptions, and that the provision of the law for the collection of this tax (thereby discharging this obligation) at its source, makes it none the less her obligation, and that the purpose and legal effect of the language quoted from the bond, was only to impose upon the hotel company the duty of paying all taxes, of any character, imposed upon the property mortgaged to secure the payment of the bonds, and to. pay the taxes upon the bonds and coupons as such.
It follows, therefore, that the judgment of the court below, refusing to render, judgment against the hotel company, for the amount of the tax so withheld, was a proper one, and it is affirmed.
McCulloch, C. J., and Hart, J., dissent. | [
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McCulloch, C. J.
This is an action instituted by appellant against appellee to recover balance due under alleged contract of employment. The court sustained a demurrer to the complaint and dismissed it, appellant having declined to plead further.
It appears from the allegations of the complaint that appellee, an insurance corporation, employed appellant as its special agent in the State of Arkansas at a monthly salary of $150, and that appellant worked in that capacity from January 1, 1912, to May 31, 1914, when he was discharged from appellee’s service. The theory of appellant is that he was employed by the year at a salary of $150 per month for the year 1912; that the contract continued from year to year under the same terms, and that he was wrongfully discharged during the third year of service, and is entitled to recover his salary for the re mainder of the year. Appellees filed a general demurrer predicated on the theory that the alleged contract was not in writing, and, not being one to be performed within a year from the date it was entered into, was within the statute of frauds, and void. In the original complaint, appellant stated that in the month of December, 1911, “the plaintiff entered into a contract with the defendant, under the terms of which the plaintiff was to be the special agent for the defendant in the State of Arkansas, for one year, ” at a salary of $125 per month, and subsequently his salary was raised to $150 per month. There was an amendment to' the complaint in which it was stated that on the 28th day of December, 1911, an oral contract was entered into “under the terms of which the plaintiff was to be special agent for the defendant during the year 1912, and was to receive a salary commencing at the rate of $125 per month, and said salary was to be increased, if the services of the plaintiff were satisfactory to the defendant, to the sum of $150 per month.” »
The complaint then sets forth a letter written by appellees to appellant dated January 2, in part as follows:
“Confirmatory of our conversation in Memphis last Friday, it is our understanding that you are to enter the service of the Connecticut Fire Insurance Company as special agent, commencing on the first of this year, and at a compensation of $125 per month and necessary traveling expenses.”
(1-2) It is observed from the consideration of the allegations of the complaint that it sets forth an oral contract entered into during the month of December, 1911, for services to be rendered throughout the year 1912, and it fell within that provision of the statute of frauds which requires that in order to charge any person upon any contract, promise or agreement not to be performed within one year from the making thereof, the contract must be in writing. Kirby’s Digest, § 3654, subdiv. 6. The letter written subsequently was not sufficient memoran dum to take the case out of the operation of the statute of frauds, for it did not specify the terms of the employment for one year. So far as the writing evidenced the contract, it merely tended to show an agreement for services by the month. Moline Lumber Co. v. Harrison, 128 Ark. 260. The contract can not rest partly in writing and partly in parol, for unless the writing is complete on its face, the undertaking is dependent upon the terms of the oral contract, although statements in writing may be admissible to prove the oral contract. -The substance of the allegation in the complaint, taking it as a whole, is that an oral contract was made in December to begin in the future, and the writing incorporated in the complaint is only evidence in part of the oral contract alleged to have been previously made, so it is after all an oral contract which the complaint attempts to set forth, and that contract is within the statute of frauds. The writing set forth in the complaint was not sufficient to take it out of the operation of the statute.
(3) Where a complaint sets forth the character of the contract, whether in writing or oral, as is required by our statute on the subject of pleadings, the statute of frauds may be raised by general demurrer to the complaint if the allegations disclose a contract which falls within the terms of the statute. Browne on Statute of Frauds, § 509; 10 Standard Encyclopedia of Procedure, p. 73; 20 Encylopedia of Law, p. 312; White v. Levy, 93 Ala. 484; Putnam v. Grace, 161 Mass. 237; Linn-Boyd Tobacco Warehouse Co. v. Terrill, 13 Bush (Ky.) 463.
(4) The original contract set forth in the complaint being within the statute of frauds, there is no presumption that the- employment continued under the terms specified with respect to length of service, and the contract b«came one of service during the will of the parties. Appellant does not rely on the letter set forth in the complaint as an employment by the month so as to entitle him to recover a month’s wages on account of discharge without notice, and it is conceded in the complaint that ap pellant is indebted to plaintiff on items growing out of the contract for amounts largely in excess of a month’s salary.
The judgment of the circuit court was correct, and the same is affirmed. | [
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Sam Robinson, Associate Justice.
This is a petition for a writ of certiorari. The petitioner was charged with the offense of possession of an unlawful amount of intoxicating liquor in a dry county. The information filed by the prosecuting attorney is as follows: “I, A. James Linder, Prosecuting Attorney within and for the Tenth Judicial Circuit of the State of Arkansas, of which Ashley County is a part, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant Clarence Johnson of the crime of possession of unlawful amount of intoxicating liquor, 5th offense, committed as follows, to-wit: The said defendant on the 30 day of April, 1955, in Ashley County, Arkansas, did unlawfully possess over the legal amount of intoxicating liquor, which was his fifth offense against the peace and dignity of the State of Arkansas.” The information was filed on October 17, 1955, and three days later, on October 20, the defendant entered a plea of guilty and was sentenced by the court to serve five years in the penitentiary, two years of the sentence being suspended pending good behavior.
Ark. Stats., § 48-918, is as follows: ‘ ‘ From and after the passage and approval of this act it shall be unlawful for any person, firm or corporation to possess in any County or part thereof in this State in which it is unlawful to manufacture, sell, barter, loan or give away intoxicating liquors, more than one [1] gallon of spirituous, vinous or malt liquors. And that such liquor or liquors so found in the possession of any person shall be confiscated by an Order of the Court of a competent jurisdiction. The provisions of this act shall not apply to common carriers in transit through such county providing further that the provisions of this act shall not apply to licensed bonded dealers or individuals in transit, when said individuals are not residents of said dry County.” Ark. Stats., § 48-919, provides: "Any person, firm, or corporation violating the provisions of this act shall be guilty of a misdemeanor and shall be fined not less than fifty dollars [$50.00], nor more than five hundred dollars [$500.00].”
It will be seen that the unlawful possession of intoxicating liquor in a dry county is a misdemeanor, and even though it may be the fifth offense, it is still not a felony. Petitioner is not charged with the offense of possessing liquor for sale. The court exceeded its jurisdiction in sentencing the defendant to the penitentiary on his plea of guilty of a misdemeanor. Certiorari is the proper remedy. Reese v. Gannon, 73 Ark. 604, 84 S. W. 793; Ex Parte Goldsmith, 87 Ark. 519, 113 S. W. 799; Switzer v. Golden, 224 Ark. 543, 274 S. W. 2d 769.
Since the punishment assessed by the trial court is greater than that provided by law the judgment will be quashed and a judgment entered for the maximum penalty provided by statute for the offense with which the defendant is charged. Ark. Stats., § 43-2308. The maximum penalty which may be assessed on the charge of possessing more than the legal amount of intoxicating liquor in a dry county is a fine of $500.00. Apparently the petitioner has been sent to the State Penitentiary and he should be given credit on the fine for any time he has served in prison. The mandate shall be issued immediately. | [
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Kirby, J.,
(after stating the facts). It is contended that the circuit court was without authority to punish the petitioner for a criminal contempt, not committed in its immediate view and presence, without an affidavit or information bringing the facts to its knowledge first made.
Courts of record and general jurisdiction have inherent power to punish for contempts and the conferment of the power by statute upon a superior court of record is deemed no more than declaratory of the common law. Such court may go beyond the powers given by statute in order to preserve and enforce its constitutional powers when acts in contempt invade them. Rapalje on Contempts, § 1; art. 7, § 26, Constitution 1874; State v. Morrill, 16 Ark. 384.
This charge was of criminal contempt, being directed against the dignity, integrity and authority of the court, and constructive, not having been committed in its immediate presence.
In Brown on Jurisdiction, § 116, it is said: “In constructive contempts, the court can only act upon a showing of the facts invoking jurisdiction, and time should be given the accused to resist the charge.”
Our statute provides “contempts committed in the immediate view and presence of the court may be punished summarily; in other cases, the party charged shall be notified of the accusation and have a reasonable time to make his defense.” Section 722, Kirby’s Digest.
In York v. State, 89 Ark. 76, the court said: “As to the mode of procedure in cases of contempt not committed in the immediate view and presence of the court, the authorities are well agreed that the contempt must be brought before the court on affidavits of persons who witnessed it, or have knowledge of it.” Citing and quoting from State v. Henthorne, 26 Pac. 937.
But that proceeding was to punish as for contempt the violation of an injunction issued by the court, and the statute provides that it shall be done upon affidavit of breach of the injunction against the party committing the same. Section 3989, Kirby’s Digest.
Nevertheless, it is contended that that case was for a civil contempt, growing out of conduct in disobedience of process for the protection of the rights of a party to a judicial proceeding, and that the rule as to procedure therein does not control here.
The authorities all agree that in cases of criminal contempt of this kind the accused is entitled to a distinct notice of the accusation against him and must be given a reasonable opportunity to present his defense, or, as expressed in our statute, “shall be notified of the accusation and have a reasonable time to make his defense.”
There was no affidavit filed in this cause, setting out the publication and charge against the petitioner before the citation was issued, neither was there any statement of the facts constituting the charge made of record and signed by the judge in vacation, nor any order of the court, while in session, reciting that it had come to its knowledge that such publication had been made, setting it out, .and directing a citation to issue against the petitioner to show cause why he should not be punished for contempt for causing the publication and, if any such procedure was necessary, the petitioner did- not waive it, having objected to the jurisdiction of the court specifically on that account.
In the case of State v. Morrill, 16 Ark. 386, the publication made was in a newspaper in Arkansas County, reflecting upon the Supreme Court in relation to a decision made by it. An attorney of the court, living there, called the court’s attention to the publication, sending it a copy thereof and expressing an opinion that the court should take some notice of it. The court concluded that it was due to the honor and dignity of the State, and its own usefulness, not to pass the matter by without some official action, and to institute an inquiry as to whether its constitutional privilege had not been invaded by the publication and, “accordingly, an order was made, reciting the publication, and directing that the defendant be summoned to appear before the court at its present term to show cause why proceedings should not be had against him as for criminal contempt. No attachment, but a mere summons was issued in the outset, because the constitutional power of the court to punish as for contempt in such cases had not been determined, and was supposed to be not altogether free from doubt.” Such was the statement of the procedure therein. A like course was pursued by the Supreme Court of California, In re Shay, 117 Pac. 442.
A great many of the authorities hold that it is necessary to decide whether the charge constitutes a civil or criminal contempt in order to determine the procedure for its punishment, and many of them seem to hold that if the contempt arises in disobedience of a judgment or order in a civil suit for the protection of the rights of one of the parties therein in a judicial proceeding it is a civil contempt, and that the ¿ccused can not be proceeded against without an affidavit of the charge first filed.
It appears to us, however, and especially in this State, when the punishment is inflicted for disobedience to the order of, and to compel a proper regard for, the dignity and authority of the court making it, and the proceeding is in the name of the State against the accused, as in other criminal offenses and the fine and imprisonment are paid and discharged in the same way as fines and imprisonment inflicted in misdemeanor cases are satisfied, that there is in effect no difference.
The York case, supra, seems to be authority for this conclusion, and the United States Supreme Court appears to hold the same view. Gompers v. Buck Stove & Range Co., 221 U. S. 448.
The spectacle of a court of record and general jurisdiction being without power to initiate a proceeding to punish for contempt the author of publications in the press of the State reflecting upon the dignity, integrity and honor of the court and judges, and calculated to bring it and them into public disfavor and contempt, without an affidavit of some third person first made setting out the charge, would be pitiful in the extreme, and was not contemplated by our statutes and under our Constitution. The court would thus be rendered impotent, powerless to protect its authority and enforce its mandates and retain the respect and confidence of the people, for whose benefit it was organized and exists, except by the grace of some third-person.
Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto — his day in court. The different kinds of procedure have been outlined for the punishment of other offenses, but the statute, as to this one, says only that he shall be notified of the accusation and have a reasonable opportunity to make his defense.
There must be an accusation before the accused can be notified of it, and there is no reason why the court in session can not recite that the matter offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause. This was done by the Supreme Court in the case of the State v. Morrill, supra, and was as effectual notice of the charge or accusation as an affidavit or information would have been. The summons and warrant of arrest are but to notify and bring the accused into court to answer the charges there made against him and the citation in this case, although it contains the whole matter constituting the offense with which the petitioner was attempted to be charged, was not a charge of record for him to answer, or an accusation within the meaning of the statute, the notice having been issued in vacation, by authority of the clerk alone, so far as the record shows, there being no order of the court authorizing the issuance of the citation, and without an order of the court first made setting out the charge, or a statement thereof made of record and signed by the judge of the court in vacation.
The petitioner could have waived this irregularity in the procedure by appearing in court and making his defense, without objecting thereto, but he did not do this; he raised the objection and insisted upon it throughout.
It may be said that, since he could have waived the affidavit, certificate or order of record constituting the charge or accusation, having been in court and exercised his right to defend, he thereby did do so, and that no prejudice resulted to him on that account. This is the view held by Chief Justice McCulloch and Justice Wood. But there is no difference between this and the case of a prisoner appearing and defending against a charge upon an insufficient indictment, when by objecting to it properly he may have it quashed, while, if no objection is made, he may be convicted and punished thereunder; and since objection was here made duly and in due time, the objection should have been sustained, and the court erred in overruling the motion to dismiss.
Hart and Frauenthal, JJ.,
are of the opinion that the court was without power to initiate the contempt proceeding as attempted, and that it was necessary that an affidavit or information setting out the charge should have been first filed, within the doctrine announced in the case of State v. York, supra.
This opinion is, therefore, only authoritative as to the power of the court to initiate the proceeding; the Chief Justice, Mr. Justice Wood and the writer concurring in this view.
It follows, however, since the other two Justices are of opinion that the court was without power to proceed without an affidavit first made, and the writer that the court erred in refusing to dismiss the proceeding upon the grounds set out for the reasons as already expressed, that the judgment must be quashed. It is so ordered. | [
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Minor W. Millwee, Justice.
Appellant instituted this action against appellees, directors of Bast Side School District No. 5 of Conway County, to recover dam ages for the breach of an alleged contract of employment as superintendent of schools of said district. This appeal is from the action of the trial court in directing a verdict in favor of appellees at the conclusion of the testimony on behalf of the appellant.
According to the evidence appellant had been employed as superintendent by the district under written contract which was to espire June 30,1953. At a regular meeting of the five-member board of directors on Friday night, February 27, 1953, a motion was made to re-hire appellant as superintendent for a period of two years. After discussion for two hours the motion carried by a vote of three to one with Directors Lee Wert, Carl Odom and Samuel Criswell voting in the affirmative and E. L. Brewer voting in the negative. Rupert Hemphill, president of the board, did not vote. Appellant was not present during the discussion and nothing was said about salary or other contract provisions except there was some objection about appellant’s failure to visit the Ward schools and talk of placing a clause in the contract to make him “do right.” After the vote was taken appellant was notified and he thanked the board for their action on the motion.
On Saturday night, February 28, Director Criswell went to appellant and asked him to resign. He told appellant that the patrons of the district were “on him” about his vote the night before and that he could not stay with appellant. On Sunday, March 1, Criswell together with his father and another patron again talked to appellant and asked him to resign but appellant declined. On Monday, March 2, appellant went by the office of the County School Supervisor and had a secretary in the office prepare a contract on a regular form prescribed by the State Board of Education and which contained blank spaces for the signature of appellant and the president and secretary of the board of directors. The proposed contract provided a salary of $325 per month for the new two-year term and other provisions similar to the former contract except that the following clause in the old contract was omitted: “Other Conditions: It is understood if the work is not satisfactory, this contract may be cancelled on 30 days notice by the board.” Appellant signed the proposed contract and took it to the home of Carl Odom, secretary of the board, about 7 p. m. and obtained Odom’s signature. He did not advise Odom of Criswell’s request that he resign and he knew that Brewer and Hemphill were opposed to his reemployment as superintendent.
On March 3, 1953, Hemphill, Brewer and Criswell signed and mailed notices to the other two directors of a call meeting of the board to be held March 6 to reconsider the election of the superintendent. At said meeting attended by all members and appellant the minutes of the previous meeting were read and disapproved as to the rehiring of appellant. On motion by Criswell, duly seconded, to rescind the board’s action of February 27, Criswell and Brewer voted in favor of the motion and Wert and Odom against it. President Hemphill then broke the tie by voting for the motion. Prior to taking the vote there was considerable discussion by interested patrons and board members. When Criswell was questioned about his change of position he stated that this had been explained to appellant, that, politics was involved in the schools as in other matters, and that there was nothing either he or the appellant could do about it. There was also some discussion concerning the objection by certain patrons to the nature of certain teachings in a course taught by appellant on health or sex.
President Hemphill refused to sign the contract and appellant never presented it to.him until several weeks after the board meeting on March 6. Pursuant to action taken at a regular board meeting on March 28, the president and secretary mailed to appellant a notice of the action taken on March 6, and that his services would not be needed after June 30, 1953. Appellant presented the contract to the board on April 27,1953, when its execution was again declined. Hemphill, Criswell and Brewer were reelected directors in the school election on March 15, 1953, and Wert was defeated. Odom resigned and did not seek reélection.
Ill sustaining appellees’ motion for a directed verdict on the ground that the testimony offered by appellant was insufficient to establish a valid contract of employment between the parties, the trial court said:
“The evidence in this case shows that at a meeting had on February 27, 1953, the Board at that time by a majority vote announced to the plaintiff, Johnson, that it had reelected him for the position as superintendent of East Side School District No. 5 for a period of two years. His school year for which he had already been elected would have expired at the end of June 1953. Under the law in effect in this state, it is required that all contracts of employment of teachers be in writing. So, the court would hold that the action of the Board on February 27, 1953, in which by a majority vote they stated to Johnson they would employ him for a period of two years, did not of itself constitute a valid contract, in that subsequent to that time there must have been entered between the parties by mutual consent and understanding a written contract of employment, because the law requires that it be done.”
The court further found that the action of the board on February 27, 1953, was only tentative and ineffective to bind it in the absence of proper' authority in Odom to do so alone; and that on March 6, 1953,' the board rescinded its original action prior to the execution of a binding contract in conformity with the law.
Appellant contends that under the testimony a jury question was made as to whether a valid written contract of employment was fully executed by the board’s action on February 27, 1953; that such action amounted to a substantial compliance with the statutory requirement of a written contract; and that the validity of the agreement entered into on February 27 was unaffected by the subsequent refusal of the president or a majority of the board members to sign or approve such agreement. We cannot agree with these contentions. Most of the cases cited by appellant involve the elements of ratification or estoppel where a contract, invalid in its inception, is subsequently ratified by the district accepting the benefits of the teacher’s services. These elements are not present here. In other cases cited either a majority of the board or its president and secretary joined in the actual execution of the written contract.
The discretion of school boards in respect to the making of employment contracts with teachers is very broad. ^Ordinarily the board has the absolute right to decline to employ or reemploy any applicant for any reason whatever or for no reason at all. 47 Am. Jur., Schools, § 114. Under Ark. Stats., § 80-509(d), the board of directors is empowered to make written contracts with teachers and other employees, “in the form prescribed by the State Board of Education.” Section 80-1304(b) provides that every teacher in the state, “shall be employed by written contract.” Section 80-1306(a) provides that if the board does not make contracts in accordance with this and other statutory requirements, the County Superintendent shall notify the County Treasurer of the invalidity of such contracts and the latter shall refuse payment of any warrants issued thereon. In Bald Knob Special School Dist. v. McDonald, 171 Ark. 72, 283 S. W. 22, we held the requirement of a .similar statute that employment be by written contract to be mandatory and not merely directory as appellant contends. This holding conforms to the general rule that compliance with the formal requisites prescribed by statute is essential to the validity of a teacher’s or superintendent’s contract except insofar as the statutory requirements are directory only. 78 C. J. S., Schools and School Districts, § 189.
It is also well settled that in order to be entitled to recover compensation, a teacher must have been appointed or elected to the position for which it is sought, and have a valid contract for his services. 78 C. J. S., Schools and School Districts, § 218c. The second requirement of a valid contract was never consummated in the case at bar. The election of appellant for a new two-year term on February 27, 1953, was merely preliminary to the further requirement that a valid written contract in the form prescribed by the State Board of Education be executed. Under the undisputed evidence this second and final step essential to support a recovery of compensation was never met, and the trial court correctly directed a verdict in favor of appellees.
The judgment is affirmed.
Chief Justice Seamster not participating. | [
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Sam Robinson, Associate Justice.
The principal issues here are the validity of a divorce granted by a court in the State of Nevada, and the wife’s interest in funds received on a fire insurance policy for the loss of a house owned as an estate by the entirety. Appellant and appellee were married on August 29, 1950, in Columbia County, Arkansas, where they had lived all their lives. A son was born in January, 1952. On May 21, 1951, they purchased two acres of land as an estate by the entirety and built a house on the property. The house was insured for $2,500.00 against fire; later it burned and the loss was settled for $2,250.00 which was paid to appellant, J. W. Cooper. The parties also purchased an automobile on which appellee, Dorothy Cooper, paid $30.00 a month for several months.
On April 10,1952, appellant, J. W. Cooper, filed suit for divorce in the Columbia Chancery Court. Dorothy appeared in the case and the plaintiff took a nonsuit on June 29, 1952. A few days later, on July 2, he filed a suit for divorce in the Pulaski Chancery Court and after Dorothy appeared in that case he again took a nonsuit. On August 18, 1952, he again filed a divorce suit in the Columbia Chancery Court and, after Dorothy appeared, he took his third nonsuit on January 26, 1953. A short time later, he departed for the State of Nevada where it appears that he again filed suit for divorce. Dorothy was not notified, and he obtained a decree of divorce on March 26,1953. Two days after this divorce ivas granted he returned to Arkansas and immediately married another person.
Appellee, Dorothy Cooper, then filed this suit in which she alleges that she is the wife of appellant and asks for maintenance for herself and support for the child. She further asks that appellant be required to account to her for one-half of the proceeds from the insurance policy, and that he also be required to account to her as to her interest in the automobile. Cooper answered, alleging that he had been granted a valid divorce in the State of Nevada. Dorothy replied, denying the validity of the Nevada divorce and stating that it was invalid because proper service was not obtained and further alleging that the Nevada court did not have jurisdiction to grant a divorce because the plaintiff, Cooper, was not domiciled there.
The Chancellor made a finding that the Nevada court was without jurisdiction to grant a divorce to Cooper, and ordered appellant to pay $12.50 a week for support of his child. The court also rendered a judgment against appellant for one-half of the proceeds of the insurance policy and for the amount that Dorothy had paid on the car, making a total of $1,432.46.
If Cooper did not have a bona fide domicile in Nevada, a court of that State had no jurisdiction to grant a valid divorce. And, the jurisdiction of the Nevada court may be impeached in a court of Arkansas. Williams, et al. v. North Carolina, 325 U. S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092, 157 A. L. R. 1366; Esenwein v. Commonwealth ex rel. Esenwein, 325 U. S. 279, 65 S. Ct. 1118, 89 L. Ed. 1608. But, if the defendant appears in the cause and thus has an opportunity to contest the issue of domicile, the decision of the court of the State where the trial is held is controlling. Sherrer v. Sherrer, 334 U. S. 343, 92 L. Ed. 1429, 68 S. Ct. 1087, 1 A. L. R. 2d 1355; Anderson v. Anderson, 223 Ark. 571, 267 S. W. 2d 316. Here, Mrs. Cooper had no knowledge of the pendency of the suit in Nevada and of course did not appear therein.
The evidence that Cooper did not have a bona fide domicile in the State of Nevada is overwhelming. It is clear that he went to that State merely to get a divorce and not to establish a domicile there. He intended to stay there just long enough to meet the technical residential requirements of the divorce laws of Nevada. In the first place, he filed three suits in the State of Arkansas within a comparatively short time before leaving for Nevada. He was teaching school in this State and had another person to substitute for him until his return, which he stated would be in about six weeks. (Nevada requires a six weeks’ residence in divorce cases.) Two days after the decree of divorce was rendered in Nevada, he came back to Arkansas, immediately married another person and returned to his old job as teacher. In these circumstances, it is hard to see how it could be seriously contended that Cooper ever had a bona fide domicile in Nevada.
Next is the question of the ownership of the proceeds of a policy of fire insurance. The house owned by the parties was destroyed by fire and Cooper collected and kept the insurance money. He had taken out the policy of insurance in his own name, but in doing so he was acting as agent for his wife as well as for himself.
The husband is not an agent for the wife solely by reason of the marital relationship. ‘ ‘ But slight evidence of actual authority is sufficient proof of the agency of the husband for the wife in matters of domestic nature. ’ ’ 41 C. J. S. 549. Agency may be established by circumstantial evidence. Williams v. O’Dwyer & Ahern Company, 127 Ark. 530, 192 S. W. 899; Sidle v. Kaufman, 345 Pa. 549, 29 A. 2d 77. In the Sidle case, the court said: “ ‘The relationship of agency cannot be inferred from mere relationship or family ties unattended by conditions, acts, or conduct clearly implying an agency’ . . .; but such relation is competent evidence when considered with other circumstances as tending to establish the facts of agency and where there has been other competent evidence tending to the same end.” And, it is said in Restatement of Agency, § 22: “Neither husband nor wife by virtue of the relationship has power to act as agent for the other. The relationship is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority or apparent authority may indicate it in the case of husband or wife.” In the case at bar, the husband secured a policy of fire insurance in Ms name only on property which is an estate by the entirety. In these circumstances, the fact that the husband was acting as agent for his wife in addition to acting for himself is established if any reasonable inference to be deduced from the evidence leads to that conclusion.
In the case at bar, the circumstantial evidence proves that at the time Cooper obtained the policy of insurance not only was he acting for himself but he was also acting as an agent for his wife. At the trial, instead of standing-on the proposition that the policy of insurance was personal as between him and the insurance company and that his wife had no interest in the proceeds of the policy, he undertook to justify his failure to divide the insurance money with his wife on the ground that he had used the money to pay debts owed by both of them. But it appears that of the debts he claims to have paid, his wife Avas liable only on one $200.00 note. His attempt to explain his conduct in failing to divide the money with his wife on the ground that her part was used in the payment of her debts is somewhat of an admission that she Avas entitled to part of the proceeds from the fire insurance policy.
As evidence of the fact that Cooper Avas acting as agent for his Avife, she testified that she knew he had taken out the fire insurance policy, but she did not know that he had taken it out in his name only. She Avas present in the insurance company office, along Avith Cooper, when the settlement Avas agreed on, but she was not present when the check Avas delivered to him. In fact, she did not know that he had received the check. She testified: “And I asked him several times about the check and he said they hadn’t paid it off because they said they had to do some more checking before they could pay it.” She further testified on cross-examination: “Q: You knew it was settled in November? A: I didn’t know it was settled in November. Q: You said a while ago it Avas in November? A: Sometime later I went to the insurance office to find out about the check. I found out that it Avas paid in November. Q: When were you in Mr. Lindsey’s [the insurance agent’s] office? A: It was — I don’t know actually when it was. It was in April. Q: You mean to say he didn’t get the check until April? A: I don’t know when he got it. I still don’t know. Q: You say you were in the insurance office in April? A: That’s right. Q:Is that when the discussion was about the check? A: That’s when I inquired about the insurance check. ’ ’
Cooper testified that the insurance company paid him $2,750.00. (This figure included $500.00 for personal property.) He further said: “I told her, I says, 'Well, I have the money now; I might as well get started paying on bills; we won’t have any money, as I want to pay the bills.’ And that’s what I did.” On direct examination he was asked this question: “How much did you pay out of that on indebtedness you and Dorothy already owed? ’ ’ Cooper then testified as to a long list of items which he claims that both owed and which he paid from the insurance money. He also said that he paid an old account of Dorothy’s on which he personally was not liable at all. From the above testimony, it can be inferred that Cooper was acting as agent for his wife when he secured the policy of fire insurance.
The house that was destroyed by fire, and on which Cooper collected and kept the insurance money, was part of an estate by the entirety. It is said in 26 Am. Jur. 702: “In jurisdictions which recognize a tenancy by entirety in personal property, there is no question that an estate by the entireties exists in the proceeds or derivatives of real property held by entirety.” Undoubtedly in this State an estate by the entirety can exist in personal property. Chicago, Rock Island & Pacific Railroad Company v. Reeves, 217 Ark. 33, 231 S. W. 2d 103. The question of ownership of personal property as an estate by the entirety is thoroughly discussed in Union & Mercantile Trust Company v. Hudson, 147 Ark. 7, 227 S. W. 1. There it was held that where a man and wife owning realty as tenants by the entireties mortgaged it, and where the husband deposited the proceeds in his own name without his wife’s knowledge, the nature of the wife’s interest in the deposit is the same as her interest in the real property from which the monies on deposit were derived; that according to the great weight of authority tenancies by the entireties exist in all kinds of personal estates. It was further held in the Hudson case that the husband and the bank where the proceeds of the mortgage were deposited held the funds as trustees of Mrs. Hudson’s interest.
In the case at bar the evidence is convincing that Mrs. Cooper did not know that her husband had collected the insurance money, although there is some evidence to the contrary. Cooper held his wife’s interest in the funds as trustee, and the court correctly found that he was indebted to Mrs. Cooper for one-half of the amount of the insurance he had collected on the house, plus Mrs. Cooper’s interest in the automobile.
If there was a misjoinder of causes of action, it was waived by the appellant in failing to file a motion to strike out of the complaint any causes of action improperly joined. Ark. Stats., §§ 27-1302, 27-1303.
The decree is affirmed. | [
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J. Seaborn Holt, Associate Justice.
Appellee as administratrix in succession, on October 4, 1954, obtained a judgment for $3,500 in a tort action against appellant, Catherine Burns, and caused execution to issue. A levy was made on Lots 5 and 6, Block 21, Brack’s Addition to the City of Little Rock, which property appellant scheduled as exempt claiming it to be her homestead. A traverse was entered by appellee and on a hearing the trial court, March 16, .1955, denied appellant’s schedule on the ground that at the time she purchased the property levied on, she was not the head of a family and that the homestead that she had held in other property, — Lot 6, Block 28, Brack’s Addition to Little Rock, — she had voluntarily sold and had been abandoned by her. From the judgment is this appeal.
For reversal appellant relies on two points: “(1) Under Arkansas law one possessing a homestead may sell the same and acquire a valid homestead in another tract with the proceeds thereof, provided the sale of the original homestead is not accompanied by circumstances constituting abandonment. (2) There was no evidence before the court in this cause upon which the court could predicate a finding that the sale of appellant’s original homestead was accompanied by circumstances constituting an abandonment of same. ’ ’
These points will be considered together. The material facts appear not to be in dispute and are to the following effect. Catherine Burns, acquired a homestead in Lot 6, Block 28, Brack’s Addition to the City of Little Rock in 1914, which property is not involved in this action, and continued to live on said property until about August 9, 1943, when she voluntarily sold said property. On September 27, 1943, appellant purchased Lots 5, 6, 7 and 8, Block 21, Brack’s Addition to the City of Little Rock and constructed a residence on the property, which she has occupied for several years. At the time appellant purchased this property, which is the property involved here, she was divorced from her husband (said divorce having been granted in 1930) and both of her children were of age, married and lived separate and apart from her.
We hold that the finding of the trial court was correct in the circumstances. At the time appellant sold Lot 6 in Block 28 above, she was unmarried, her children were of age, married and had moved away. She was then not the head of a family. The property involved here and levied on was acquired by her September 27, 1943, when she was neither married nor head of a family, and after she had voluntarily abandoned her homestead. The principles of law announced in the case of Beeson v. Byars, 187 Ark. 966, 63 S. W. 2d 540, control here. In that case the facts were that: “The land in question had been for many years the homestead of John Beeson, hut his son had moved away and his wife had died, and for some years John Beeson had lived alone on the land. It is insisted — and correctly so — that John Beeson’s homestead right was not lost by the removal of his son from the homestead |nd the death of Mrs. Beeson. . . .
“The land ceased to he the homestead of John Bee-son on November 19, 1929, at which time he sold and conveyed it to D. C. Cathey. Notes given by Cathey for the purchase money were not paid, and in January, 1931, Cathey reconveyed the land to John Beeson. The testimony established the fact very clearly that, when Beeson sold the land to Cathey, he surrendered possession thereof and removed therefrom, and went to the home of D. C. Cathey about 2% miles away, in fact he had removed from the farm upon the death of his wife and after living with D. C. and Jack Cathey for something over two years he returned to live with Arthur Clements on the land in suit. . . .
“While, as we have said, John Beeson did not lose his right of homestead because he had been left without family, he did lose his homestead right when he sold and surrendered possession thereof. Wooten v. Farmers’ & Merchants’ Bank, 158 Ark. 179, 249 S. W. 569; Gray v. Bank of Hartford, 137 Ark. 232, 208 S. W. 302.
“Having abandoned the homestead, that right was not reacquired when Beeson returned to the land to live in the home of his tenant. To reimpress the homestead right upon the land it was essential that Beeson be then a married man or the head of a family. Section 3, article 9, Constitution.
“In other words, while Beeson might have retained his homestead right, even after he had ceased to be a married man or the head of a family, yet, when he aban cloned Ms homestead right by the sale thereof and the removal therefrom, he could not thereafter, without being a married man or the head of a family, reacquire that right.” See also Stone v. Bowling, 191 Ark. 671, 87 S. W. 2d 49.
Affirmed.
Mr. Justice RobiNSON not participating. | [
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Paul Ward, Associate Justice.
On March 21, 1953, appellee, Arthur Wheeler, purchased a 1940 Chevrolet automobile from W. T. Matlock [also an appellee] for the purchase price of $225 on credit, with Matlock retaining title to the automobile. Also on said date the appellant insurance company issued its policy to Wheeler covering the actual value of the car with $50 deductible. This policy contained the following clause: “Loss Payee: Any loss hereunder is payable as interest may appear to the insured and W. T. Matlock. . . .”
On April 19, 1953, while the above mentioned policy was in force and when Wheeler was still indebted to Matlock in the full amount, the automobile was damaged to the extent of $200, fixing the liability of appellant [after deducting $50] at $150. Upon notice to appellant its adjuster went to see Matlock, and Matlock in turn sent the adjuster to Wheeler. Pursuant to an agreement between Wheeler and the adjuster [the exact terms of which are in question] Wheeler agreed that he could take $75 and repair the automobile himself. Thereupon the adjuster filled out a “Proof of Loss” which Wheeler signed. After describing the car and the insurance provisions in general terms this instrument stated that the actual cash value of the car was $225; that the actual loss and damage was $125, and; the amount due Wheeler was $75. On June 4, 1953, appellant, through its general agent, issued its check for $75, made out to Arthur Wheeler and W. T. Matlock, and mailed the same to Mat-lock. Matlock refused to accept the check, and he and Wheeler instituted this action against appellant on the policy to collect $150.
The complaint alleges that the automobile had a cash value of $225 and that its salvage value was only $25 and the prayer was for judgment in the amount of $150. Appellant’s answer stated “that Arthur Wheeler, the named assured, agreed to accept the damaged automobile and the sum of $75 as full settlement . . that an accord and satisfaction had been reached, and “that the rights of W. T. Matlock, under the open loss payable clause in the policy, are derivative and subordinate to the rights of the named assured.”
After hearing all the testimony on both sides, the trial judge, sitting as a jury, found in favor of appellees. In a “Memorandum Opinion” the trial judge gave as the reason for his decision that there never was any actual meeting of the minds of Wheeler and the adjuster. He also found that Wheeler never received the check because it was made jointly to him and Matlock and mailed to Matlock, and that the check was never cashed and was eventually returned. The trial judge further found that the undisputed evidence showed that the car was worth $225 before the wreck and that it was worth only $25 after the wreck, and that appellant was therefore indebted to appellees in the sum of $150.
We are convinced that the judgment of the trial court must be affirmed. We are not called upon to decide whether there was substantial evidence to support the trial judge in the finding of fact which he made because the ground upon which we rest our decision makes it unnecessary to do so.
Under the authority of Insurance Underwriters’ Agency v. Pride, 173 Ark. 1016, 294 S. W. 19, Wheeler in this instance had no right to make a settlement with appellant insurance company without the consent and approval of Matlock. In the cited case, at page 1021 of the Arkansas Reports, this court said: “We think a mortgagee or lienholder acquires a vested and enforceable right under an ordinary loss-payable clause as his interest may appear in an insurance policy which cannot be destroyed by a settlement or adjustment between the insurer and the insured. ’ ’ This case was cited with approval in Cash v. The Home Insurance Company of New York, 197 Ark. 670, 125 S. W. 2d 99. In Vol. 5 of Apple- man’s Insurance Law and Practice, Section 3406, at page 578, it is stated:
“The most confusing question has probably arisen where a settlement has been worked out between the insured and the company, by which they attempt to bind the mortgagee, and in which settlement he has had no opportunity to participate. The general rule has been, under both open loss payable clauses and under the standard and union clauses that this cannot be done; those courts considering that the mortgagee’s rights cannot be concluded by the acts of those parties.”
An annotation in 38 A. L. R., at page 383, contains this statement:
‘ ‘ The weight of authority is to the effect that a mortgagee entitled to the proceeds of an insurance policy by virtue of a simple loss-payable clause in the policy is not affected or bound by an adjustment of the loss, whether by arbitration or agreement, by the insured and the insurer, without his knowledge or consent. ’ ’
In Vol. 46 C. J. S., at page 28, among other things, it is stated that “under a standard mortgage clause the rights of the mortgagee are not affected by any act done by the insured.” In Detroit Fire & Marine Ins. Co. v. Helms, 184 Ark. 308, 42 S. W. 2d 394, the court in discussing a similar question, stated, at page 311 of the Arkansas Reports: “But the court correctly held that the association could recover to the extent of its mortgage, as it is well settled that a mortgagee, under a standard mortgage clause, is not affected by the acts or omissions of the insured that would avoid the policy as to him. ’ ’
We note of course that the rule announced above presupposes that the mortgagee or lien holder does not authorize the settlement made by the insured. In this case the adjuster testified that Matlock told him “to go on and work it out with the named insured — to make the adjustment on the claim with Mr. Wheeler — that anything we worked out would be satisfactory to him. ’ ’ Mat- lock emphatically denied that he made any such statement. So we are faced with the situation that this testimony raised a fact issue which the trial judge did not pass upon. We think however that this is immaterial for the reason that there was no consideration for Matlock making the statement attributed to him, if he in fact did make it. It is undenied that when the check for $75 was mailed to Matlock he refused to accept it and returned it to appellant’s attorney. Under these circumstances Mat-lock had a right to refuse the settlement attempted by Wheeler. Matlock, as shown heretofore, had a vested right in the entire amount due under the policy. It cannot be said that appellant relied on Matlock’s alleged agreement to bind itself to pay $75, because appellant had not bound itself to pay anything. No one on behalf of appellant signed the “Proof of Loss” which contained the alleged agreement with Wheeler. , In fact the instrument expressly stated it “is not a waiver of any rights of the said insurer.” To hold otherwise than we do would be to hold that Matlock was bound by an agreement which did not bind appellant.
It should be pointed out that we do not indicate what our holding would be if the “Proof of Loss” had not contained the non-waiver clause quoted above.
Affirmed. | [
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G-eorge Rose Smith, Associate Justice.
This is a suit hy the appellant for damages for malicious prosecution. The only question at issue is whether the trial court acted correctly in directing a verdict for the defendant.
The relevant facts, stated most favorably to the appellant, are these: In 1951 the appellant bought a cedar chest at the appellee’s furniture store and signed a purchase contract by which the appellee retained title to the property until it was paid for. In making the purchase the appellant informed the appellee that she intended to give the chest to her daughter as a graduation present. The gift was made immediately after delivery of the chattel. Some months later the daughter married and took the cedar chest to Arizona.
Upon the appellant’s becoming delinquent in her payments on the debt the appellee had her arrested on a charge of wrongful disposal of title-retained property. Ark. Stats. 1947, § 41-1928. At a trial in the North Little Rock municipal court the appellant was convicted and sentenced to a fine and imprisonment. Upon appeal to the circuit court, however, the charge was dismissed on a point of law — apparently bn account of the appellee’s knowledge that the chest was to be given away.
Upon this proof the court was right in instructing a verdict for the defendant. It was incumbent on; the plaintiff to show, as an essential element of her cause of action, that the defendant acted without probable cause in having her arrested. Price v. Morris, 122 Ark. 382, 183 S. W. 180. That element of the appellant’s case is necessarily lacking, for it is settled that a judgment of conviction by a court of competent jurisdiction is conclusive evidence of the existence of probable cause, even though the judgment is later reversed. Freeman v. Allen, 193 Ark. 432, 100 S. W. 2d 679. In the case at bar the appellant, in an effort to escape the legal effect of her conviction, sought to introduce a transcript of the testimony taken before the municipal court, for the purpose of showing that the evidence did not support that court’s finding of guilt. This offer of proof was properly rejected. Since the municipal court’s judgment, in the absence of fraud in its procurement, was conclusive evidence of the existence of probable cause, the appellant was not entitled to retry an issue already determined.
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Lee Seamster, Chief Justice.
This is an appeal by the appellants, from a decree of the Garland Chancery Court, whereby appellee, B. W. Thomas, Administrator of the Estate of A. W. Petersohn, deceased, recovered a judgment against appellants in the sum of $27,000. This judgment was declared a specific lien against the property of the Health Betterment Foundation, appellants herein, and based on a lis pendens filed by the appellee on March 31, 1953.
In early September of 1951, A. W. Petersohn and certain of the appellants became acquainted while attending a medical institute meeting in Michigan. A. W. Petersohn, a man 77 years old, subsequently came to Hot Springs, Arkansas, for a three week visit. Immediately thereafter, he went to Kansas for a two week visit. He returned to Hot Springs on or about October 4, 1951, and entered the New Park Hospital for treatment of an asthmatic heart condition. Dr. Petersohn remained a patient in the New Park Hospital until the date of his death, October 16, 1951. He reportedly signed two deeds on October 12, 1951, in which he conveyed certain properties in Michigan and Kansas, to the appellants. The appellants operated the New Park Hospital. These deeds were recorded on the day of the decedent’s death, and shortly thereafter, the appellants sold the property.
B. W. Thomas was appointed as Administrator of the Estate of Dr. A. W. Petersohn, by the Garland Probate Court on May 14, 1952. On the same day, the court ordered and directed the administrator to prosecute the instant suit against the appellants, for the benefit of the estate.
The appellee instituted this suit in the Garland Chancery Court on May 17, 1952, alleging that the appellants entered into a conspiracy to induce Dr. Petersohn to deed his property to the Health Betterment Foundation, a mutual benevolent corporation, domiciled in Hot Springs, Arkansas. It was further alleged that Dr. Petersohn executed and delivered to the appellants, deeds to properties lie owned in the States of Kansas and Michigan; that said deeds were procured by means of confidential relationship, undue influence, coercion, duress, misrepresentation, fraud, and while the decedent was mentally incompetent. The appellants, all directors and officers of the Health Betterment Foundation, are: Cora Thomson, J. Clay Holmes, Yerna Noble Pape, Campbell E. Holmes and M. Charlotte Holmes.
Evidence was presented by way of depositions, oral testimony and exhibits; the case being continued from time to time for the purpose of procuring further testimony.
On October 20, 1954, the trial court entered judgment upon the complaint for the appellee, and decreed that appellee, as administrator of the estate, was entitled to have judgment against the appellants, jointly and' severally, for the sum of $27,000. This sum represented the proceeds derived by the appellants, from the sale, conveyance and transfer of the decedent’s property. This judgment was declared a specific lien against the property of the Health Betterment Foundation.
The appellants list four points on appeal, for reversal of the trial court’s decree, they are: (1) the decree is against the weight of the testimony, there being little substantial evidence upon which to predicate a finding of duress, lack of consideration, or fraud; (2) the Chancery Court erred in not sustaining appellant’s motion to dismiss; the heirs of Petersohn, deceased, being the real parties in interest; (3) Petersohn’s mental capacity to dispose of his property as he saw fit was established by the great weight of the testimony; and, (4) the Chancery Court erred in impressing a specific lien against appellant’s property in G-arland County, Arkansas.
Initially, we will take up point 2 of appellant’s contentions for reversal of the trial court’s decree, which involves the question of whether the administrator had a right to institute this suit. The instant case does not come within the previous holdings of this court, as handed down in the cases of Jones v. Jones, 107 Ark. 402, 115 S. W. 117, and Cranna, Administrator v. Long, 225 Ark. 153, 279 S. W. 2d 828.
We find the probate court was empowered to order and direct the administrator to prosecute the instant suit, for the benefit of the estate. Full authority for the court’s action is found in Section 94 of Act 140, Acts of 1949; Ark. Stats., 1947, Section 62-2401, pocket supplement. Under the direction of the probate court, the administrator has the right to maintain the suit, whether its object is to recover real estate or the proceeds derived from the sale of real estate, when it has been ascertained that said property has been wrongfully obtained from the decedent. We cannot agree with appellant’s contention, that the probate court had no right to direct the administrator to bring the instant suit.
The appellants have' insisted that the chancellor’s decree is against the weight of the testimony, there being little substantial evidence upon which to predicate a finding of duress, lack of consideration or fraud. They earnestly insist that at the time of the conveyance, Dr. Petersohn possessed sufficient mental capacity to dispose of his property as he saw fit. We cannot say that this finding of the chancellor is against the preponderance of the evidence.
In Hightower v. Nuber, 26 Ark. 604, 611, we said: “And in a court of equity, where bad faith and unconscionable acts can have no allowance or favor, the strength of mental capacity of the parties, the circumstances surrounding them, their relationship, etc., make up the grounds upon which the court can find the real influences that produced the conveyance. And when it is discovered that the party in whose favor the conveyance was made possessed an undue advantage over the grantor, and in person, or by agent, exercised an improper influence over such one, and to advantage of the grantee, it is an act against conscience and within the cognizance of a court of equity.” See, also, West v. Whittle, 84 Ark. 490, 106 S. W. 955; Thiel, Special Adm’r. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507.
This court has said: “When a will is written, or proved to be written by a person benefiting by it, or by one standing in the relation of attorney or counsel, and who is also benefited by it,- — these are circumstances to excite stricter scrutiny and require stricter proof of volition and agency.” The court then quotes with approval from Breed v. Pratt, 18 Pick. R. 115, as follows: “It is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid.” McDaniel v. Crosby et al., 19 Ark. 533.
The record reveals that the deceased was in a dying condition at the time he signed the deeds to convey his property to the appellants. The medical records show that appellants administered drugs and narcotics to the deceased, in order to ease his pain, during the last few days of his life. The medical records also reveal that deceased was irrational, complained of weakness, refused to sign checks and expressed a desire to leave the hospital and return to Battle Creek, Michigan. There was strong indication of physical and mental deterioration.
The deeds were prepared by the secretary of the appellant corporation and were kept readily available at all times, in Dr. Petersohn’s hospital room. The decedent consistently refused to sign these deeds. Testimony of record shows several attempts by appellants to obtain Dr. Petersohn’s signature to the deeds; on the pretense that he was signing a check or giving them his name. After considerable deception and relentless pressure, the appellants were finally successful in getting Dr. Petersohn’s signature to the two deeds; which conveyed to the appellants certain properties located in Kansas and Michigan. Elizabeth Hollenbeck, a niece of the deceased, was instrumental in procuring Dr. Petersohn’s signature to these two deeds; and, on the same date, she obtained his signature to another deed which conveyed to her certain properties located in Battle Creek, Michigan. Shortly thereafter, the appellants disposed of the properties that they had obtained from Dr. Petersohn. The appellants gave Elizabeth Hollenbeck the sum of $2,500, in addition to a deed to 18 acres of land that had been obtained from Dr. Petersohn.
We think the preponderance of the evidence shows the chancellor reached the correct decision on these points.
Finally, we think the chancellor erred in declaring a specific lien on the property of appellants, as described in the lis pendens. Our lis pendens statute (Ark. Stats. Sec. 27-501) is not applicable to an action seeking only a money judgment, since, by its terms, it applies only to actions affecting “title or any lien on real estate or personal property.” Tolley v. Wilson, 212 Ark. 163, 205 S. W. 2d 177. The filing of the lis pendens notice in this action, seeking a money judgment, did not constitute any lien on appellant’s property, since, the appellee has failed to show that appellants have applied the proceeds derived from the sale of Dr. Petersohn’s property, to the acquisition of the property set out in the lis pendens notice.
That portion of the trial court’s decree, assessing judgment against appellants in the sum of $27,000, is affirmed. The portion of the decree declaring a specific lien on appellant’s property, as set out in the lis pendens notice, is reversed. | [
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Kirby, J.,
(after stating the facts). Appellants insist that the court erred in not instructing a verdict in its favor and in refusing to give its requested instruction No. 3. The undisputed testimony shows that the driver of the truck, in delivering the gasoline to appellees’ filling station, connected the discharge hose on the truck with the intake pipe of the underground tank, “propped the lever down” so the flow of gasoline would continue, and went away, leaving it unattended while discharging the gasoline, knowing at the time that it was a dangerous thing to do, but having no thought of any danger at the time. He knew that the lever was so arranged that it would shut the gasoline off from the discharge hose if it was not continuously held by the operator to keep it open, and propped it accordingly when he went into the restaurant. If the lever had been released, the flow of gasoline would have been shut off, and if he had been operating the lever as he was supposed to do, he might easily have put out the fire caused by the match thrown down, before it gained headway, and certainly he could have shut off the flow of gasoline by releasing the lever, had he been operating it.
When the condition was discovered by the owner of the filling station and the driver of the truck, who were coming out of the building, the owner immediately shouted to the operator of the truck to cut off the gasoline and drive the truck out of the station, and, rushing to the discharge hose, jerked it out of the intake pipe so that the truck would be disconnected. The evidence is in conflict as to the time expiring before Haskett jerked the discharge hose out of the intake pipe, but the .jury could well have found that it was some minutes, giving ample time to shut off the flow of gasoline and move the truck, had the operator been engaged in doing this as Haskett ' thought was the case. It is true the driver testified that he warned Haskett against disconnecting the discharge hose, but Haskett denied this, and the gasoline, not having been shut off when the discharge hose was jerked out of the intake pipe, ran freely, and the flames spread rapidly, finally reaching the building and destroying it. The driver also claimed that jerking the hose from the intake pipe spread the gasoline and the fire so as to prevent him from reaching the truck and shutting off the flow of gasoline and driving it out of the station. The owner of the station was confronted with an emergency in trying to protect his property in disconnecting the discharge hose so that the truck might be moved, and the jury could have found that he did not disconnect the hose from the intake pipe until after he directed the driver of the truck to move it and gave him time enough to shut off the gasoline and start the truck. But for the negligence of the driver of the truck in leaving the hose unattended with the lever thereon “propped down” so that the gasoline would continue to flow concurring with the negligence of Hayden in throwing the lighted match to the ground, the injury would not have occurred. Bennett v. Bell, 176 Ark. 690, 3 S. W. (2d) 996; Jonesboro L. C. & E. R. Co. v. Wright, 170 Ark. 815, 281 S. W. 374. The jury was also warranted in finding that the conduct of Haskett, the owner of the station, under the circumstances and in the emergency, was not such contributory negligence, if contributory negligence at all, as would bar his right to recovery. The negligence of the operator of ' the truck in connecting the discharge hose with the intake pipe, “propping down” the lever and releasing the flow of gasoline which would otherwise have closed the discharge hose if it had not been so fixed, and leaving it unattended with the gasoline flowing, concurring with the negligent act of the third person, Hayden, in throwing the lighted match down near enough to the waste gasoline to ignite it, was the proximate canse of the injury and damage, as the jury, whose province it was to determine the question, found. Pulaski Gas Co. v. McClintock, 97 Ark. 576, 134 S. W. 1199; Commonwealth Public Service Co. v. Lindsay, 139 Ark. 283, 214 S. W. 9; Morgan v. Cockrill, 173 Ark. 910, 294 S. W. 44.
Instruction No. 3 was properly refused, since in effect it took away from the jury entirely the question of whether the conduct of Haskett in pulling the hose out of the intake pipe amounted to contributory negligence such as would bar recovery, only submitting the question of whether his conduct and the effect of it constituted the proximate cause of the spread of the fire.
Instruction No. 8, given by the court, was more favorable to appellants than they were entitled to. It told the .jury that, if they should find Eiley, the employee of appellants, was negligent in the premises at the time of the fire, and that such negligence was one of the causes of the fire, “hut further find that the negligence of the plaintiff, C. C. Haskett, was one of the contributing causes of the fire, or that he failed to exercise that degree of care which an ordinarily prudent man would exercise under like circumstances,” then they were instructed to find for the defendant as against both of the plaintiffs, “because the contributory negligence, if any, of the plaintiff, C. C. Haskett, is a complete bar in this case, regardless of whether or not there was some negligence on the part of the defendants through their employee.” The instruction-states, “but further find that the negligence of the plaintiff, C. 0. Haskett, was one of the contributing causes of the fire,” clearly assuming that the plaintiff was negligent, and the attempt to define negligence in connection with this did not relieve against the error in assuming that the plaintiff was negligent, and was not remedied by stating that the jury should render a verdict against both plaintiffs because “the contributory negligence, if any, of the plaintiff, O. C. Haskett, is a complete bar in this case.”
The jury were warranted-in finding that the negligence of appellants, concurring with the conduct of Hayden in carelessly throwing the lighted match where it ignited the gasoline, was the proximate cause of the injury ; and the testimony is amply sufficient to warrant the verdict. The jury did not find that appellees were guilty of contributory negligence that would bar recovery, notwithstanding the instruction of the court that was so confusing as to he more favorable to appellants than they were entitled to.
On the whole case we do not find any reversible error, and the judgment is accordingly affirmed. | [
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Kirby, J.,
(after stating the facts). It is insisted for reversal that the verdict is not supported by the testimony, there being no proof of publication of the alleged slanderous1 statements, which it was claimed was semi-privileged, and that the court should have directed a verdict in its favor; that appellant company could not be held liable for the slanderous statements made by its employees without authority; and that the verdict is excessive.
Appellee testified that Mr. G-reen, who made the first statement, tapped her on the shoulder at the front door and told her to come back to the back thereof, that “she had stolen a can of pineapple,” and that the others, who continued the conference or investigation and who were also clerks in the store and whose business it was to collect for goods sold, also accused her of stealing the can of pineapple.
It appears from the connection in which the charge was made, and, under the circumstances attending its utterance, that it was intended and understood to impute the crime of larcenv — it so expressly stated it — and must be regarded as actionable per se. Dean v. Black & White Stores, Inc., ante p. 667; 36 C. J. 1208; § 2396, Crawford & Moses ’ Digest.
The jury found from substantial testimony that numerous persons were present when the slanderous statement was made, in a position to bear it, and it will be assumed, unless the contrary is made to appear, that those present both heard and understood the words; and, although the burden is upon the plaintiff to prove the publication by a fair preponderance of the testimony, many persons were shown to have been present when the words were spoken, and it was a question for the jury to say whether such persons did or did not hear them. Only one of the persons present stated she did not hear the statement as first made at the door of the store when appellee was stopped by the manager and requested, “I want to see you in the back, lady you have stolen a can of pineapple.” Townshend on Libel and Slander, page 555; Newell on Slander and Libel, page 725.
If the statements were made in the tone of voice as testified to, they could have been heard by a number of the many people in the store at the time, and certainly, when Mrs. Jennings returned to the store for appellee, who had not followed her out, the statement was made by Mrs. Rogers, it is true,' explanatory of the delay that they had accused her of stealing a can of pineapple. This statement was made in the presence of the investigators, to whom she was turned over by the manager, and who were insisting that she did steal the can of pineapple and must pay $5 before she would be released from custody, otherwise she should be turned over to the sheriff. Under such circumstances, it cannot be said that the publication of the slander was invited or procured by appellee; and it was also shown that Worrell had charged her at that time with stealing the can. of pineapple in the presence of Mrs. Jennings.
The court did not err in giving appellee’s requested instruction No. 6, specially objected to as containing the clause, “that these statements were made in furtherance of the company’s business.” This language was approved as correct in Waters-Pierce Oil Co. v. Bridwell, 107 Ark. 310, 155 S. W. 126.
There was no testimony warranting the giving of appellant’s requested instructions Nos. 10 and 11, and the court did not err in refusing them.
The majority of the court has concluded that the verdict is excessive. It is true that no great amount of actual damages suffered was proved, hut appellee was greatly humiliated and embarrassed at the store and suffered from nervous excitement and did not sleep well on the night the incident occurred or for several nights thereafter. The words being actionable per se however, appellee was entitled as a matter of law to compensatory damages, and was not required to introduce evidence of actual damages, it being necessary in such cases to prove special damages, which under the circumstances of this case the court has concluded should not be more than $2,500. The damages were probably aggravated by proof of the fact that the employees required the payment by appellee of $5 for a 10-cent can of pineapple, although the jury was instructed to disregard this fact, which the jury evidently believed she had no intention of stealing, and their action in forcing her to make a written statement that she had stolen the can of pineapple during the investigation of the matter when the slanderous statement was made.
If appellee will 'enter a remittitur reducing the amount of the judgment to said amount of $2,500, it will be affirmed; otherwise it will be reversed and remanded for a new trial. It is so ordered.
Humphreys, J., dissents from modification. | [
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H'ümphReys, J.
This is a continuation of a foreclosure proceeding brought and tried in the chancery court of Faulkner County, and is the second appeal of the cause by appellant. Eeference is made to the case of Dent v. Adkisson, 184 Ark. 869, 43 S. W. (2d) 739, for a full statement of the cause of action and all the proceedings had and done therein, including the directions of this court to the trial court upon a reversal of the original decree of confirmation of sale. On remand of the cause, the trial court set aside the confirmation of the sale and overruled the demurrer to the petition; whereupon appellee filed an answer to the petition denying each material allegation thereof and tried the cause upon the testimony adduced by the parties responsive to the issues joined, resulting in a denial of the petition and a rendition of a decree confirming the sale, from which is this appeal.
Appellants are not tendering the amount of the judgment, interest and costs but are standing upon the allegations of their petition in an effort to set aside the sale in order that the lands may be sold again, and that too, without any assurance that it will sell for more than it did at the first sale.
After a very careful reading of the testimony, we are unable to say that the lands sold for a grossly inadequate sum or that appellants were prevented from paying off the judgment through the fraudulent practices of appellee. In fact, there is no substantial evidence in the record tending to sustain these allegations in the petition. The decided weight- of the testimony is to the contrary. It would extend this opinion to unusual length should we set out herein the substance of the evidence of each witness, and no useful purpose could be served by doing so, as each subsequent case must be governed by its own peculiar facts.
No error appearing, the decree is affirmed. | [
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McCulloch, C. J.
This is an action instituted in the chancery court of Union county by appellant John G. Rucker to confirm, under Kirby’s Digest, sec. 649, et seq., the title to numerous tracts of land, and to cancel the tax title under which appellees hold a tract described as the Frl. of NWUt> sec. 18, tp. 16 south, range 14 west. Appellees were made defendants to the suit and the complaint was dismissed for want of equity as to the above described tract of land. This appeal only brings into review the ruling of the court concerning the title to that tract. It is alleged in the complaint that appellees had claimed title under a tax sale in the year 1895 for the taxes of 1894; that said sale was void on account of the description of the land sold being too indefinite to identify it and that appellees had, subsequent to the sale, secured a decree of confirmation under the same description, which decree was also void for the same reason. Other questions are argued in the brief, but the record is not sufficiently abstracted to call for a review of any other question, save the one mentioned above concerning the identity of the tract of land involved as described on the tax books. The' description on the tax book is as follows: “Frl. of NWM 18-16-14, 53 acres.” The contention is that the abbreviation “Frl.” for the word “Fractional” is synonymous with the word “part” and merely indicates an unidentified portion of the subdivision mentioned, which renders the description void for uncertainty. This is an incorrect interpretation of the meaning of the abbreviation, for it has reference to a term commonly used indicating a section or part of a section according to the government surveys. A description used on tax books, like a description used elsewhere, has reference to government surveys and a mere specification of the section or subdivision thereof is sufficient. If it is in fact a fractional section or subdivision it is so indicated on the government survey and it is unnecessary to use the word “fractional” as a descriptive word, and, on the other hand, the improper use of the word, when the section is not fractional, does not invalidate the description. The fact that the acreage is stated incorrectly does not lessen the certainty of the description. In the case of Chestnut v. Harris, 64 Ark. 580, Judge Battle, speaking for the court, said: “The statutes of this State provide that each tract or lot of real property shall be so described in the assessment thereof for taxation as to identify and distinguish it from any other tracts or parts of tracts; and the same shall be described, if practicable, according to section, or subdivisions thereof, and congressional townships. They recognize the survey of the United States, and the division of lands, according thereto, into townships and ranges, and sections and parts of sections, and tha^ a description according to such survey will be good and sufficient. For this reason it has been held that a description of land for assessment by the abbreviations commonly used to designate government subdivisions would be sufficient.” In the case of Little Rock & Fort Smith Railway Co. v. Evins, 76 Ark. 261, there was involved the question of validity of a tax sale of lands described very much the same as in the present case by the use of the abbreviation “Fr.” indicating the word “fractional” and the court held that it was a good description. In the opinion it was said: “We understand from this description that the land meant is the northeast fractional quarter of the northeast quarter of section twenty-two, in township eight north, and in range twenty-two west, situated in the county of Johnson, in the State of Arkansas. This description is sufficient.” The word “fractional” used in a description cannot be construed to indicate a part of a subdivision without specifying more definitely the particular part to be described, for when so construed it would mean no more than the use of the word “part,” but where it is used as in the present case, it would merely indicate that the subdivision is a fractional subdivision of a section. Our conclusion, therefore, is that the description was sufficient and that the attack upon the validity of the sale is unfounded.
Decree affirmed. | [
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Smith, J.
This appeal questions only the sufficiency of the evidence to support the verdict returned in appellees ’ favor to compensate the damages sustained as the result of the burning of a tenant house alleged to have been set on fire by the emission of sparks from a dredge-boat operated by appellant’s employees. It is conceded that the instructions correctly declared the law, and they were as favorable to appellant as he could have asked. It is only contended that the jury disregarded these instructions in their application to the facts of the case. In testing the sufficiency of the evidence to support the verdict, we, of course, give it the highest probative value of which it is susceptible for that purpose, together with all inferences reasonably deducible therefrom.
■ It is said that the undisputed proof shows that appellant had been a builder of engines and was an experienced operator of dredge boats, and that he had used an engine of the kind in use ,on the dredge boat in question for twenty years without having ever set out a fire, and that the exhaust from the engine was so slight that the draft in the smokestack was insufficient to throw off sparks, and it had been found unnecessary prior to this fire to use a spark arrester, although it was shown, without objection, that one was placed over the top of the stack immediately after the fire. In support of the judgment, however, it was shown that the house was burned about noon, and that no one had been in the house since early in the morning and that there had been no fire in the house- after the departure of the occupants. That the wind was blowing from the direction of the dredge boat towards the house, and that the fire was first discovered on the corner of the porch on the side next to the dredge boat. A witness testified that before the spark arrester was put in use, he had seen sparks flying from the stack, and the dredge boat was shown to have been only seventy-five feet from the house when the house burned.
While no witness testified that he saw any sparks flying from the smokestack which fell on the roof of the house, we think the circumstances recited above warranted the inference that the fire had originated in this manner. And proof of setting out fires may be; and frequently is, -made by the proof of circumstances from the existence of which the origin of the fire may be reasonably inferred. Chicago Mill & Lbr. Co. v. Ross, 99 Ark. 597, and cases cited.
The judgment is, therefore, affirmed. | [
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Wood, J.
This suit was instituted by the appellee as administratrix of the estate of Joseph C. Bradshaw against the appellant to recover damages as administratrix and in her own right for the death of her son, alleged to have been caused through the negligence of appellant.
The complaint duly alleged that the appellant was a corporation, and that Joseph C. Bradshaw was, at the time of the alleged injury, in its employ as a feeder to a certain rip-saw connected with the machinery of the company; that the company was negligent in the following particulars: That it had assigned Bradshaw to the duty of feeding the rip-saw, which required him to place timber and lumber in the rip-saw to be resawed; that the dial or mandrel that operated the said saw was entirely too short between the saw and the belt, which caused said saw to heat and kink; that this construction was negligent and the defect was known to the appellant; that the appellant failed to warn Bradshaw of the dangers incident to his employment; that the saw was entirely too small, being 15 inches in diameter when it should have been two feet or more; that sufficient boxing was not provided between the belt that operated the saw and the saw, which caused the saw to get hot and kink, and this caused the timber to fly back and inflict the injury upon Bradshaw; that the appellant failed to take the piece of timber which Bradshaw was running through the saw from the other side thereof, which contributed to cause his death; that there was no protection over the saw, and between the saw and where Bradshaw was required to stand; that the saws in use by the appellant were old, worn out and second-hand; that the boxing on the mandrel was old, second-hand and had been burned, which caused the saw to heat and kink; that the place in which Bradshaw was required to perform his duties was unsafe: that all the above defects and tbe acts of negligence alleged on tbe part of the corporation were unknown to Bradshaw, but were known to the company, or by the exercise of ordinary care could have been discovered; that the negligent acts thus alleged caused the injury to Bradshaw, from which he suffered great mental and physical pain and anguish and from which injuries he died. The appellee asked for judgment in the sum of $1,000 for the pain and suffering, and in the sum of $20,000 for the benefit of the next of kin.
The answer denied specifically all the allegations of negligence and set up the defenses of assumed risk and contributory negligence.
The testimony showed that the machine at which Bradshaw was working consisted of a saw, extending through a table, and that the saw was driven by a belt attached to a pulley or mandrel. The boxings on the mandrel were too narrow, that is, too short, and the bolt on the pulley was too tight, which caused a friction, and that caused the mandrel to get hot, and the heating of the mandrel would heat the saw. When the saw got hot, it would not run straight and would throw the timber out,' that is, it would have the effect to kick back the timber. The superintendent of the mill had knowledge of this defective condition.
Several witnesses testified that the saw did not run properly; that when it got hot it would turn first one way and then the other; that when it got hot, it would kink and would not run through the timber right. One witness testified “that he worked at this saw for two or three months. His idea was that the boxing on the shaft was not big enough for the mandrel. It was a three-inch boxing and it ought to have been six inches. The saw would run hot and kink and would not go through the timber right. It would wabble and not cut through. Witness got kicked back as a result of this several times. It knocked witness down twice. This witness saw the piece of timber that hit Bradshaw and the marks on it where the saw had kicked it back. It was splintered there where the top of the teeth canght it. ’ ’
There was testimony on behalf of the appellant tending to show that the rigging of the saw was patterned after approved construction in other mills, and that it was properly constructed, and that there was no defect about the mandrel or the saw.
There was a decided conflict in the testimony as to the condition of the machinery, and this conflict in the evidence was sufficient to warrant the court in submitting to the jury the issue as to whether or not appellant was negligent in failing to exercise ordinary care to provide reasonably safe appliances to its employee with which to do his work. This issue was submitted on instructions of which appellant does not here complain, and there was testimony to support the verdict of .the jury on the issue of negligence.
The appellant contends that under the undisputed testimony Bradshaw assumed the risk of the danger to which he was exposed and therefore can not recover.
It was shown that Bradshaw was about 19 years old. His mother, the appellee, testified that he had been working about sawmills ever since he was a little tot—commenced when he was about 11 or 12 years old; that he was a bright boy, and was thoroughly familiar with sawmill work; could do most any kind of work around sawmills, and was considered a handy man at such work.
The superintendent of the mill plant testified that Bradshaw “was a handy man in every place you would put him in a sawmill;” that he had operated this saw frequently before that day; that he was a bright boy and familiar with every part of the sawmill business.
One witness testified that some days the saw would get hot and some days it would not; sometimes it would run good and sometimes not. It had been running bad off and on ever since he had been working there, some two or three months. Bradshaw had been working at the mill about a year or over. Part of the time he trucked timber, and part of the time pulled up logs; then he went to work on the carrier, and set blocks, and did most everything around the mill. Witness was asked if he or any one else told young Bradshaw that the saw was not running well or was out of fix, and witness answered, “No, sir. ’ ’
While this testimony shows that Bradshaw was a bright young man and familiar generally with the work about sawmills and had worked frequently at this saw before, it does not show, and there is no testimony in the record to show, that he had any knowledge at the time of his injury of the defective construction of the mandrel, or that he had knowledge that the saw was in a defective condition, or that it was not running properly. The work of feeding the saw was not his regular job, and for aught that appears to the contrary, during the days before when he was frequently working about the saw the same way, the saw, as one of the witnesses expressed it, may have been “running good.” At any rate there is nothing in the record to show that anything occurred previous to the injury to Bradshaw that should have caused him to make any investigation as to any structural defects about the rigging of the saw or the saw itself. It can not be said that the defect of the mandrel as disclosed by the testimony of witnesses on behalf of the appellee was an obvious one. On the contrary, the defect was structural and of a latent character, rather than patent. It was such a defect that, when the attention of the superintendent of appellant was directed to it, it became appellant’s duty to correct the same, and since there was evidence that the attention of the superintendent was called to the defective condition, the jury were warranted in finding that the appellant was negligent in not exercising ordinary care to remedy the defect. But it was not one of those obvious defects that an employee would be bound to take notice of in doing the work required about the saw; nor was it a danger ordinarily incident to the employment. But, on the contrary, it was a danger brought about by the negli gence of the employer, and, since the same was not an obvious danger, the employee did not assume it. At any rate, under the testimony it was at least a question of fact for the jury to determine from the evidence as to whether or not Bradshaw assumed the risk, and this issue the' court submitted to the jury under instructions given at the instance of the appellant, and which declared the law in conformity with well established principles governing the doctrine of assumed risk that have been time and time again declared by this court.
(1) In one of our late cases we announced the familiar doctrine that “such dangers as are normally and necessarily incident to the employment are assumed by the employee, but that such risks as arise out of the failure of the employer to exercise due care to provide a safe place of work and safe appliances for his employees are not risks assumed by the employee, unless he is aware of the defect and risk, and unless such defect and danger are plainly observable, and knowledge of such defect and danger is not to be presumed.” St. Louis, I. M. & S. Ry. Co. v. Howard, 124 Ark. 588, 595.
The rule above announced is applicable to the facts of this record.
(2) Appellant further contends that Bradshaw assumed the risk because he had been directed by the superintendent to take timbers from this saw, and instead, at the request of a co-worker who was employed as feeder for the saw, he had taken the latter’s position, and thus at the time of the injury was working at a place not assigned him by his employer, and therefore was a volunteer in this service and assumed the risk of the danger connected therewith.
The testimony tended to prove that Bradshaw had no regular or set job about the mill, but that, to use the language of the superintendent “he was a handy man in any place you put him in a sawmill.” On the day the accident occurred Bradshaw was setting blocks in the carriage that carried the logs to the main saw. The su perintendent was asked how he happened to change his work that afternoon, and answered, “We were loading cars. Mr. Bradshaw was familiar with any part of the sawmill business, and I sent him over to tail the bolts for Bill Hurley and put part of the crew to loading cars. ’ ’ Witness ‘ ‘ sent him there to tail, and did not know why he took the other side of the table and shoved the bolts in instead of tailing them. ’ ’ Witness did not request him to do that work, and Hurley, who was feeding the saw, had no authority over him. The testimony shows that he had frequently operated the saw before and was a competent man to do so.
Hurley testified that he (Bradshaw) came back there and “I asked him if he did not want to push awhile, and he said he did, or would. I then asked him to push awhile, and he commenced pushing blocks through the saw, and I went around behind there to take the pieces off, and I don’t suppose he had been there over a half an hour when the injury occurred.”
Learned counsel for appellant, to sustain their contention, rely upon the doctrine of our court and the authorities generally, and quote from case note to Pioneer Mining & Mfg. Co. v. Melvin M. Tally, 12 L. R. A. (N. S.) 861, as follows: “The cases very generally hold that where a servant leaves his working place, and goes to another portion of the plant for his own purposes, and is injured while so away from his proper place, the master is not liable for such injuries. ” And they cite also several of our own cases, among them the case of St. Louis, I. M. & S. Ry. Co. v. Schultz, 115 Ark. 350, where we said: “But where the servant adopts methods for his own convenience, contrary to the methods expressly prescribed by his employer, and where the servant occupies places about the premises in the performance of his duties that the master could not reasonably anticipate that the servant would occupy, then the master owes the servant no -duty to make those places or methods safe, and his failure to do so is not actionable negligence.” We have examined all the eases cited, and they are clearly differentiated from the instant case on the facts. In the cases cited from our own court, where the doctrine above relied upon is announced, there was evidence tending to prove that • the servant was injured while violating the rules and doing something contrary to the directions of the master, and was not engaged in the duty which the master had assigned to him. But that doctrine has no application to the facts of this record for the reason that here the testimony tended to show that Bradshaw’s employment did not contemplate that he should work in any particular place or at any special job. The testimony tends to prove, and the jury were warranted in finding, that he was in the line of his employment when he was working at any place that the appellant saw fit to assign him about the mill. He was a “handy man” in any place where appellant might put him. Bradshaw, knowing that such was the character of his employment, could not be said to be a volunteer, even though, after he had been directed to tail the bolts, he exchanged places at the request of a coworker at the saw.
Since the nature of his employment was general for any job about the mill, Bradshaw, at the time of his injury, was not disobeying any rule of the company, or acting contrary to any method prescribed by his employer for the performance of his duties.
The lumber company, on the contrary, under the proof, must be held to have contemplated that Bradshaw might occupy any place incident to the mill work in which appellant was engaged. The testimony tends to prove that Bradshaw lost his life while in the line of the duty for which he was employed, and as a result of his employer’s negligence.
The verdict and judgment in favor of the appellee were therefore correct. Let the judgment be affirmed. | [
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Smith, J.
A decision of tbe question of tbe sufficiency of tbe testimony to support tbe conviction of appellant upon a charge of possessing intoxicating liquor for tbe purpose of sale is decisive of tbis appeal, and we consider no other question.
Tbe testimony, competent or otherwise, tending to support tbe conviction of tbe appellant is to tbe following effect.
W. E. Archer testified that be went to appellant’s borne to search it for liquor. Appellant was not at borne, and bis wife objected to a search of tbe bouse in her husband’s absence. Witness went to a back porch and found that some one bad poured out some liquor, which was running- through a crack in the floor. Witness called for appellant, and they returned together to the house. Appellant admitted he had five gallons of grape juice, which he said he had made for his own use.
William Buchanan, the marshal of the city of Walnut Ridge, testified that he had had quite a bit of complaint about appellant as a “king” bootlegger. He and witness Archer went to the house together. When they were denied the right to search the home in the absence of appellant, witness went to town in his car and returned with appellant. Upon his return to the house he found that something had been poured out on the back porch which smelled like whiskey. They found nothing except a five-gallon glass jar filled with grape wine. Witness supposed appellant’s wife destroyed something on the back porch which smelled like whiskey.
■Cliff Wilkerson went with the officers to appellant’s home, and he saw appellant’s wife pour out something-on the back porch which witness thought was whiskey. This witness also saw the wine.
The testimony did not show the kind or the capacity of the container out of which the whiskey was poured, whether a bottle, or a jug, or what not, and no witness testified that appellant had, at any time, ever sold any intoxicating liquor at his home or elsewhere.
The Supreme Court of the United States, in the very recent case of Grau v. United States, 287 U. S. 124, 53 S. Ct. 38, said that: “While a dwelling used as a manu-factory or headquarters for merchandising may well be and doubtless often is the place of sale, its use for those purposes is not alone probable cause for believing- that actual sales are there made.”
This was a liquor case, and it will be observed that the Supreme Court of the United States said that the use of a dwelling as a manufactory or headquarters for merchandising was not even probable cause for believing that actual sales are there made, upon which an affidavit might be predicated to obtain a search warrant.
We are not required to go to this .extent to reach the conclusion that there was no sufficient testimony to sustain the conviction of appellant for possessing liquor for the purpose of sale.
The testimony recited raises a serious suspicion that appellant had intoxicating liquor at his home for the purpose of sale; but convictions cannot be sustained upon suspicion merely. There must be testimony which, when given its highest probative value, proves that the accused had committed the offense charged. As was said in the case of Reed v. State, 97 Ark. 156, 133 S. W. 604, (to quote the headnote in that case): “Mere circumstances of suspicion are not sufficient to support a conviction of crime, which must be established by substantia, evidence to the exclusion of a reasonable doubt.”
Having reached the conclusion that the testimony is insufficient to sustain the verdict, the judgment must be reversed, and the cause will be dismissed. | [
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Humphreys, J.
Ben D. Schaad Machinery Company, a firm composed of Ben D. Schaad and Oscar Schaad, sold B. W. Stainback, under his business name of Batesville Ice & Cold Storage Company, supplies on open account. The account was reduced to $200 by payments, and then put in the form of a note dated August 16, 1912, and due in thirty days. Stainback had bought the plant known as the “Batesville Ice & Cold Storage Company,” from Al-bright & Ramsey in 1909, who took a mortgage from Stainback on the plant for the payment of the balance of the purchase money. Stainback managed the plant and had possession of the entire property during the years 1909, 1910, 1911, 1912, and until February 1, 1913. An engine and some pumps covered by this mortgage were sent from tbe plant at Batesville to Ben D. Schaad Machinery Company in Little Rock. On the 27th day of September, 1912, the engine was shipped by the Ben D. Schaad Machinery Company from Little Rock to Bates-ville, over appellee’s railroad, with directions to notify the Batesville Ice & Cold Storage Company, but not to deliver the engine unless the original bill of lading was delivered to appellee. Appellant attached the $200 note aforesaid to the bill of lading and transmitted it to the Central Bank & Trust Company at Batesville, with instructions not to deliver the bill of lading until the note was paid. Contrary to instructions, the appellees delivered the engine to the Batesville Ice & Cold Storage Company. On January 12, 1913, the Batesville Ice & Cold Storage Company became bankrupt and failed and refused to pay the note. Albright & Ramsey foreclosed the mortgage and obtained possession of the property, including the engine, on February 1, 1913.
Appellant brought this suit against appellee in the Pulaski Circuit Court, Third Division, on April 3, 1915, to recover the amount due on said note, alleging that appellee had delivered the engine to the Batesville Ice & Cold Storage Company contrary to shipping instructions. An answer was filed by appellee denying liabilty. The cause was heard upon the pleadings and evidence, and the trial court, sitting by agreement as a jury, found for appellee. The necessary steps were taken and the cause is here on appeal.
Appellants contend that the engine was_ pledged to secure the indebtedness represented by the note attached to the bill of lading. Appellee asserts that the engine, fixtures and pumps were deposited with appellants for sale; and not pledged as security for the payment of said $200 note. There is a sharp conflict in the testimony on the point. This question of fact has been settled adversely to appellants, and there is sufficient legal evidence in the record to. support the verdict.
Tlie undisputed evidence in the case shows that appellee delivered the engine to the Batesville Ice & Cold Storage Company in violation of the shipping order. The order was to deliver the engine upon the presentation of the bill of lading properly indorsed. Appellee permitted the Batesville Ice & Cold- Storage Company to take the engine without presenting the bill of lading. At the time the engine was delivered, the bill of lading was in the bank with the $200 note attached thereto. It has been determined by the verdict in this case that the Batesville Ice & Cold Storage Company was the true owner of the engine at the time of delivery, and entitled to the possession thereof. A common carrier can not be mulcted in damages for a misdelivery of goods where it is shown that the delivery was made to the true owner, who was at the time entitled to the possession thereof. The Idaho, 93 U. S. 575; Biddle v. Bond, 6 Best & Smith, 225; The Western Transportation Co. v. Barber, 56 N. Y. 544.
Under this view of the law, it is unnecessary to consider the other questions presented and splendidly argued by learned counsel for appellants and appellee.
The judgment is affirmed. | [
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Humphreys, J.
Appellee brought suit against appellant before J. B. Nichols, a justice of. the peace in Jonesboro township, Craighead County, Arkansas, to recover the sum of $28.50, an alleged penalty due him under Act 210 of the Acts of Arkansas, 1905. Judgment was rendered in favor of appellee, from which an appeal was prosecuted to the Craighead Circuit Court, Jonesboro District, First Division, where the case was tried'by the court sitting as a jury, upon the following statement of facts:
Appellee was regularly and legally employed by the officers of appellant, as a pumper at the station at Jonesboro, Arkansas, at the rate of $1.50 per day, or night, and on the 14th day of December, 1915, W. M. Bailey, the water service man, discharged him and refused to give him an identification, or pay check, or any other check, or money for his time wages then due him, he calling upon said company’s office in the city of Jonesboro, Arkansas, every day or two for his money, and said pay check did not arrive, and was not delivered to him until on the 1st day of January, 1916; that said appellee did not notify his foreman ór timekeeper where to send his pay check, but his foreman knew that plaintiff had received his pay checks, previously, through the agent at Jonesboro.
The circuit court found as a matter of law, under the above statement of facts, that appellee should recover the amount of $28.50, together with his costs, from the appellant, and rendered a judgment in accordance with that finding. Proper steps were taken and an appeal from that judgment has been lodged in this court.
The only question presented by this appeal is whether appellee brought himself within section 6649 of Kirby’s Digest as amended by Act 210 of the Acts of the Legislature of 1905, supra, which provides that laborers may recover a penalty upon discharge in case the employee “requests of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station where a regular agent is kept; and if the money aforesaid, or a valid check therefor, does not reach said station within seven days of the date it is so requested, then as a' penalty for such nonpayment the wages of such servant or employee shall continue from the date of discharge or refusal to further employ, at the same rate until paid.” This section has been before this court for construction frequently. In the case of St. L., I. M. & S. R. Co. v. Bailey, 87 Ark. 132, Mr. Justice Battle, in rendering the opinion of the court in referring to the act, said: “Under this act the wages of the discharged servant becomes due when he is discharged, and no penalty accrues unless he requests his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to a specified station where a regular agent is kept, and the money or check does not reach such station within seven days of the date it is requested. ’ ’
In the case of St. L., I. M. & S. R. Co. v. McClerkin, 88 Ark. 277, handed down by this court November 30, 1908, in construing the statute in question, the court said: “Before appellee can recover the penalty claimed by him under the statute quoted above, he must show that he has strictly complied with the terms, for the statute is highly penal. The appellee does not show that he made a request of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station where a regular agent is kept.”
Appellee insists that because he demanded his past due wages from his employer on the date of his discharge, and because he called at the railroad office in Jonesboro every day or two for his pay that he fully complied with the requirements of the statute. This contention is opposed to the construction placed upon this statute in the cases above referred to. In order for an employee of a railroad company to avail himself of the penalty provided in this statute, he is required to request his foreman or timekeeper to send his money or check therefor to some station where a regular agent is kept; else, after the expiration of seven days from the date of his discharge, he is required to demand his money from some one authorized to pay the wages due him. The record is silent as to whether the local agent had any authority to pay appellee his wages. We can not presume that the local agent at Jonesboro had such authority.
Appellee failed to bring himself within this statute by notifying his foreman to send his money, or check, to a station where a regular agent was kept; or by failing to demand his pay after the expiration of seven days from the date of his discharge from an officer or agent of the railroad authorized to pay his wages.
But appellee further insists that because his foreman or timekeeper knew that he had been receiving his pay check at the Jonesboro station it was unnecessary for him to give the notice required by the statute. The court adheres to its former construction that in order for an employee of a railroad to avail himself of the penalty, he must comply strictly with the statute.
It appearing from the agreed statement of facts that the case has been fully developed, the cause is reversed and dismissed. | [
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McHaNey, J.
Appellees are the beneficiaries in a policy of life insurance or beneficiary certificate issued by appellant on the life of George C. Condry, January 20, 1928, in the sum of $1,000. Appellant is a fraternal beneficiary association with a sovereign camp and local camps. Members are initiated into- the local camps by a ritualistic form. On or about said date George C. Condry made application to and became a member of England local camp No. 37, and a beneficiary certificate was issued to him by appellant. He paid his monthly dues and assessments to the Sovereign Camp for about three months, when he was stricken with influenza, which later developed into tuberculosis, and from which he died on July 15, 1931. After he was taken ill the local lodge at England paid all his dues and assessments to appellant with its knowledge, consent and approval up to and including October, 1930. Monthly assessments became due the first of each month, and, if not paid before the last of the month, the policy, under the constitution and by-laws, was .suspended and could be reinstated only by payment of delinquent assessments and furnishing a certificate of the applicant’s then good health. The monthly assessment for November, 1930, was not paid either by the local camp or by said Condry, and in mailing his report about December 1, 1930, to appellant, the clerk of the local camp returned Condry as delinquent and his policy stood suspended.
On February 20, 1929, the clerk of the local camp wrote Condry the following letter: “At a meeting of the camp Monday night, a collection was taken for your benefit and the sum of $5 was collected, which I inclose. Tt was also motioned and carried that the camp pay your dues for you until you get able to work and take care of them yourself.”
According to appellees’ testimony the clerk promised to notify Condry in ample time, if the camp decided to discontinue payments for his account, to permit him to continue them and keep his insurance in force; also that tbe above letter was sent to appellant at its borne office and its receipt was acknowledged.
On December 11, 1930, tbe clerk of the camp wrote Condry that tbe charity fund was exhausted, and that they would not be able to keep up his insurance longer. In this letter he said: “I would suggest that you do not let this lapse. It is $0.85 per month.” This letter was misdirected to Condry at Vallier, Arkansas, whereas his known address was Humphrey, and as a result he did not get it until the latter part of January. Thereupon, his wife caused to be sent appellant at its home office money order for $1.70 covering two months dues. Appellant returned same on the ground that it required a certificate of good health from a physician. Later she sent another money order for $0.85, but this was also refused. When Mr. Condry died July 15, appellees thereafter in apt time made proof of death, demanded payment, which was refused, and this suit followed, resulting in a verdict and judgment for appellees.
For a reversal of the judgment against it, appellant first insists that the court should have directed a verdict in its favor at its request. We do not agree with appellant in this regard. Of course, the application, the constitution, the by-laws and the certificate constitute the contract. And it is provided that failure of the member to comply with the laws of the society makes his beneficiary certificate void. He is required to pay his assessments at a certain time, that is, before the end of the month, and, as we understand it, appellant defended on this ground alone that he failed to pay his dues for November, 1930, and failed to furnish a certificate of good health when he did send in his dues, so that the policy remained lapsed and so continued to his death. These are valid requirements, and no officer is permitted to waive them. Even so-, it does not prevent appellant from pursuing such a course of conduct as to mislead the insured to his detriment and thereby estop itself from insisting on a forfeiture. At least from January, 1929, (and perhaps sooner) the local camp at England paid all of Condry’s assessments to keep his policy in force np^ to November 30, 1930, under a written promise to continue to do so “until you get'able to work and take care of them yourself.” And under the further verbal agreement that, if the camp should at any time discontinue such payments, he would be notified in time to continue them himself before the certificate or policy had lapsed or been forfeited. This latter promise or agreement is corroborated by the letter of the clerk of December 11,1930, to him in which he said: “I would suggest that you do not let this lapse. It. is $0.85 per month.” Why would' the clerk suggest that he not let it lapse, if it had already lapsed? Evidently the clerk was under the impression at that time that the November assessment had been paid, and that he was notifying him in time to pay the December assessment in accordance with his promise to do so. Of course, the local camp was under no binding obligation to perform a gratuitous service such as payment of the member’s dues for any definite time. It could have discontinued to do so at any time, but it could not do so without giving the insured reasonable notice so that he might prevent a forfeiture of his policy. For a period of nearly two years the local camp paid the dues from its charity or home camp funds with the knowledge of appellant and with full knowledge of the fact that the insured was afflicted with tuberculosis. Having adopted and consented to this manner of paying Condry’s assessments, and for such a length of time, it would be unconscionable to permit it suddenly to change such conduct without reasonable notice to him in an effort to avoid liability. No notice of any kind was given him until after the policy had been declared forfeited or lapsed, and that upon the report of its own agent. In Sovereign Camp W. O. W. v. Newsom, 142 Ark. 158, 219 S. W. 759, we held that the local camps or councils in associations such as appellant, and its officers to whom it committed the duty of making col lections and remittances, are to be considered as the agents of the governing body, and that such agency is subject to the ordinary rules applicable to agencies of the same general character in the ordinary life insurance business. And to the same effect see Sovereign Camp, W. O. W., v. Pearson, 155 Ark 328, 244 S. W. 344. In the latter case we said: “There was established a course of conduct on the part of the local clerk which was acquiesced in and approved by the Sovereign Camp, which was calculated to mislead Pearson and cause him to believe that the Sovereign Camp was not insisting on the certificate of good health; and to cause him to make his payments believing that he was in good standing with the society. This conduct was such as to estop the appellant from insisting, under the doctrine of the Newsom case, supra, on the forfeiture of the policy because of the non-compliance with the by-laws as to reinstatement. See also Sov. Camp v. Richardson, 151 Ark. 231, 236 S. W. 278; A. O. U. W. v. Davidson, 127 Ark. 133, 191 S. W. 961. Cases from other jurisdictions are cited to the same effect and relied on in appellee’s brief, but it is unnecessary to cite these, as the case is controlled by the doctrine of estoppel announced in Sov. Camp W. O. W. v. Newsom, supra.”
So here appellant’s agent adopted a course of conduct which was acquiesced in and approved by it, which was not only calculated to deceive and mislead Condry, but which did actually do so, by causing him to believe that they would pay his dues, but, if not, would notify him in ample time to pay them himself and prevent a forfeiture. Such conduct was sufficient to estop appellant from insisting on a forfeiture for his failure to pay his November assessment. Nor was it incumbent on Con-dry to continue from month to month to make tender, as the law does not require the doing of a vain or useless thing. Refusal of appellant to accept on two different offers to- pay was sufficient to show that further tenders would be useless.
Complaint is also made of action of the court in giving appellee’s instruction No. 2 over its objections, and of the court’s refusal to give its requested instruction No’. 2. Appellant does not set out in its abstract all the instructions given and refused. We cannot know what they are without going to the record. It may be that its requested instruction No. 2 was covered by other instructions given, and we will so presume in their absence from the abstract. The instruction objected to is a correct declaration of the law as applied to the facts in this case, and is in accordance with what we have heretofore stated.
We find no error. Judgment affirmed. | [
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McHaNey, J.
Appellee recovered judgment against the appellant in the Clark Circuit Court for damages in the sum of $30,000 for injury and death of Oliver D. Hol-liday, while he was employed by the appellant in its oil mill in Arkadelphia, alleged to have been caused by the negligence of appellant, its servants and employees. The Temple Cotton Oil Company prosecuted an appeal to this court, and the judgment of the Clark Circuit Court was affirmed. On motion for rehearing, this court reduced the judgment to $17,500. After the adjournment of the term of the Clark Circuit Court, and after the judgment had been affirmed in this court as modified, appellant filed in the circuit court of Clark County its motion for a new trial, on the ground of newly-discovered evidence. The motion for new trial on the ground of newly-discovered evidence alleged the trial of the case in the circuit court, the verdict and judgment, and the affirmance by this court on January 18, 1932. It was alleged that Oliver Knapp was the witness in the original trial who testified as to any negligence and as to Holliday’s injuries. Knapp had testified that he was present when the negro, Phillips, and the deceased, Holliday, were at the linters. Appellant sets out at length the testimony of Knapp in the trial in the circuit court, and alleges that it has discovered evidence which was unknown to it and not available before the time of trial nor at any time prior to the January term, 1932, and that it could not have been discovered by the exercise of reasonable diligence until after the adjournment of the term of the Clark Circuit Court at which the case was tried; that the newly-discovered evidence was material in the trial of said cause. The petition then sets forth in substance the newly-discovered evidence and the names of the witnesses. It alleged that these witnesses would testify that Knapp made admissions going to show and showing that he was not present when Holliday received his injuries, and that all of said admissions except those made to Saurie and Keisler were made after the case had been tried, and that they therefore did not exist at the time of the trial; that the admissions made to Saurie and Keisler were made shortly after the accident, but were not disclosed to petitioner until after January, 1932. Affidavits were filed in support of the petition for a new trial. It was also alleged in the petition that its counsel and manager exercised all reasonable diligence to ascertain and produce the testimony of witnesses to sustain the defenses of petitioner; that at the time of the accident petitioner had many employees engaged in the operation of the Arkadelphia mill, and the evidence of none of them was known or disclosed to the petitioner or its attorneys or employees until after the case had been tried and after January, 1932, and after .iudgment had been affirmed by this court. It alleged that none of said witnesses were present or participated in the trial or bad any connection whatever with the trial, or knew anything of the testimony of Knapp until they heard the matter ’discussed after judgment. It also alleged that, if the newly-discovered evidence had been available upon the hearing of the original motion for new trial, it is probable that the circuit judge would have granted the motion. But that it was not available and could not have been discovered and produced at the hearing of said motion with reasonable diligence. Petitioner thereafter filed an amendment to its petition and attached certain affidavits, and alleged that this newly-discovered evidence had come to the knowledge of the petitioner since filing its original petition. Still later petitioner filed a second amendment and offered to prove by other witnesses that Knapp was not present when Holliday was injured. A response was filed'to the petition to which was annexed certain affidavits. There was a specific denial of all the material allegations in the motion. The response also stated that the newly-discovered evidence could only be cumulative, and that it was for the sole purpose of impeaching Knapp and discrediting his testimony. The response also alleged that the petition did not comply with the law which provides that the party asking for a new trial for newly-discovered evidence should not only state in his motion that he did not know of the existence of his testimony, but also should show facts' from which it will appear that he could not have ascertained or obtained such evidence by reasonable diligence, and that neither the petition nor affidavits show any diligence. The response also alleged that the appellant was duly notified that Knapp was present and would testify, and the servants of the company tried to procure from Knapp a written statement before the trial with a full knowledge that he would be a witness; that it knew this five months before the trial. Numbers of the witnesses who testified for the petitioner were at the time of the injury, and still are, employees of the company. The petitioner filed a reply to the response, denying the allegations. A number of witnesses testified, some of tfiem to statements made by Knapp, and others that Knapp was not present at the time of the accident. A number of witnesses were also introduced by appellee, and they contradicted the witnesses of appellant. It would serve no useful purpose and would make this opinion entirely too long to set forth the evidence.
Appellant introduced several witnesses who testified in support of its motion for new trial on the ground of newly-discovered evidence. The appellee also introduced several witnesses who testified, and the evidence is in irreconcilable conflict.
The trial court found, first, that the appellant had failed to exercise reasonable diligence to procure the newly-discovered evidence; second that the evidence set out in appellant’s motion and introduced on the trial of said motion was merely cumulative; and, third, that the newly-discovered evidence would not probably have changed the result.
We find it necessary to consider only the first finding- of the trial court; that the appellant failed to exercise reasonable diligence to procure the newly-discovered evidence. Practically all the evidence upon which appellant bases its right to a new trial is to the effect that Oliver Knapp, who had testified at the trial that he was present when Holliday was injured and testified as to the accident and injury, was not present, and that Knapp had made certain admissions since the trial. A number of witnesses testified that Knapp was not present, and that he had made the admissions since the trial. Knapp himself, and a number of other witnesses, testified that he was present, and the evidence that he had made certain admissions was contradicted. In addition to this, appellant says in its brief in this case that the original complaint which was filed by appellee on October 9, 1930, alleged that “deceased, Holliday, and Oliver Knapp went downstairs and returned to the linter room; that the machinery was not in operation when they left, but was when they returned. ’ ’ The case was not tried until March 2, 1931, nearly five months after the complaint was filed. On March 2, 1931, when the case was tried, Knapp testified to statements in the complaint that they went downstairs and came back, and the machinery was not running when they went downstairs and was running when they came hack np; and he also testified that Mr. Thompson, the superintendent, was upstairs part of the time. Mr. Thompson was present at the trial and testified, but did not contradict Knapp. Mr. Thompson was called as a witness twice on the trial of the motion for new trial, but he never contradicted this testimony of Knapp at any time. Appellant therefore knew when the complaint was filed that Knapp was a witness, and knew, according to its own statement from the statements in the complaint, something of what Knapp would testify. In addition to this, the record shows that the trial was on March 2,1931, and appellant was given until March 23, 1931, to file its motion for new trial. It appears therefore that, by the exercise of any diligence at all, appellant could have discovered the evidence that it produced at the trial of the motion. Appellant says that it tried to get a statement from Knapp as to what his testimony would be, but that Knapp refused to give a statement. This certainly should not have caused appellant to be less diligent in the preparation of its case and the ascertainment of the facts.
Appellant cites numerous cases in support of its contention, but the question has been decided many times by this court. “It has been well settled by this court that applications for new trial on the ground of newly-discovered evidence are to be received with caution, and are to be left largely within the sound legal discretion of the trial court. Unless such discretion has been manifestly abused, the appellate court will not disturb the action of the trial court. An application on account of newly-discovered evidence should be corroborated by the affidavits of other persons than the accused, and, if it can be done, by. those of the newly-discovered witnesses themselves. It is not sufficient that the applicant should state that he did not know of the existence of the testimony in time to have brought it forward at the trial, but it is necessary that be should show facts from which it must appear that he could not have ascertained or obtained such newly-discovered testimony by reasonable diligence. ’’ Rynes v. State, 99 Ark. 121, 137 S. W. 800 ; Freo Valley R. R. Co. v. Rowland, 164 Ark. 613, 262 S. W. 660; Little v. State, 161 Ark. 245, 255 S. W. 892; Northwest Ark. F. M. T. Ins. Co. v. Osborn, 180 Ark. 757, 22 S. W. (2d) 387; Conner v. Bowers, 184 Ark. 102, 41 S. W. (2d) 977; Kearns v. Steinkamp, 184 Ark. 1177, 45 S. W. (2d) 519; Forsgren v. Massey, 185 Ark. 90, 46 S. W. (2d) 20; State use, Calhoun County v. Poole, 185 Ark. 370, 47 S. W. (2d) 590; Citrus Products Co., Inc., v. Tankersley, 185 Ark. 965, 50 S. W. (2d) 582.
It is the well-settled rule of this court that a new trial on the ground of newly-discovered evidence will not be granted unless the applicant has shown reasonable diligence. Whether he has shown diligence is.a question in the sound legal discretion of the trial court, and, unless there is manifestly an abuse of discretion, the finding’ of the trial court will not be disturbed. There was no abuse of discretion in this case, and the judgment is affirmed. | [
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Mehaffy, J.
The appellant, School District No. 28 of Lawrence County, purchased from Charles A. Wood, doing business as Wood School Supply Company, certain school furniture. Wood ordered the school furniture from the E. H. Stafford Manufacturing Company in Chicago, whose business was manufacturing school furniture.
On April 3, 1928, the school district issued its warrant, payable to Wood School Supply Company, for $655, the purchase price of the furniture. On April 23, 1928, the warrant was indorsed by Wood and delivered to the E. H. Stafford Manufacturing Company.
On May 8,1928, the warrant was presented for payment to the county treasurer of Lawrence County, and was not paid because the treasurer did not have sufficient funds on hand at the time it was presented, and the warrant was registered by the treasurer as No. 1.
On May 9, 1928, the E. H. Stafford Manufacturing Company sold the warrant to the E. H. Stafford Trust, a common-law trust. The warrant was duly indorsed to the order of E. H. Stafford Trust by E. H. Stafford Manufacturing Company.
The warrant was presented to the treasurer for payment at intervals, but it was never paid. There were many occasions, however, when there were sufficient funds in the treasury to the credit of the district for the payment of the warrant. The warrant was at all times, after the transfer by the manufacturing company, in the possession of the E. H. Stafford Trust.
On December 28, 1928, Wood, who had sold the warrant to the E. H. Stafford Manufacturing Company, represented to the school district and the county treasurer that he was still the owner of the warrant, and requested that a new warrant be issued for the amount with interest, stating that, if this were done, he would procure the old warrant, the one dated April 3, 1928, and return it to them. He gave a receipt to this effect.
At the time the new warrant was issued in December, 1928, Wood was not the owner of the warrant, but had sold and transferred it to the E. H. Stafford Manufacturing Company, who had in turn sold and transferred it to E. H. Stafford Trust.
Wood did not have possession of the warrant issued on April 3d at the time the new warrant was issued for $698.67, the amount of the original warrant with interest, and this last warrant was issued without any consideration, Wood simply agreeing that he would get possession of the original warrant and deliver it to the treasurer.
The -warrant issued December 28, 1928, was registered on the same day it was issued, as warrant No. 4, and was paid to J. M. Whitlow, to whom Wood had transferred it.
On August 29, 1930, E. H. Stafford Trust and E. H. Stafford, Mrs. Florence Stafford and Russell Stafford, trustees of the E. H. Stafford Trust, filed suit in the Lawrence Chancery Court against School District No. 28 of Lawrence County, Arkansas, W. Phillips, Arthur Jones and Jess Blackshear, directors of School District No. 28; Charles A. Wood, doing business under the trade name of Wood School Supply Company; C. W. Webb, treasurer of Lawrence County, Arkansas, and the American Surety Company of New York.
Pleadings were filed by the parties, and the court found and decreed that the appellees were the owners and holders, in due course of business, for a valuable consideration of the school warrant issued on April 3, 1928, the warrant sued on here, and that the warrant was payable out of the general school fund of School District No. 28; that the warrant was issued to Wood School Supply Company, which was the trade name of Charles A. Wood, for school furniture, and for value and in due course transferred by Wood School Supply Company to E. H. Stafford Manuf acturng Company, and by it for value, and in due course of business, transferred and delivered to E. H. Stafford Trust, the appellee.
The court further found that on May 8, 1928, said warrant was duly presented to C. W. Webb, county treas.-urer, and by him registered as warrant No. 1; that from the date of the registration of the warrant up until September 13, 1930, when suit was filed, payment of said school warrant was continuously demanded by appellees, and that, although there was sufficient funds on hand with the treasurer to pay said warrant, payment was by the treasurer refused, although payment was due as the first and prior claim out of the funds of said district, in the hands of the county treasurer, and should have been paid; that on or about December 28, 1928, Charles A. Wood, having theretofore transferred, delivered and assigned said warrant and not being the owner thereof, fraudulently procured the school district through its directors, and Webb, the treasurer, to mark the warrant canceled of date April 3, 1928, and to mark “canceled” upon the register of school warrants, the record of the registration of said warrant, all of which was without the knowledge, authority or consent of appellees, who were then the owners and holders of said warrant; that this action and conduct on their part was fraudulent, unlawful, void and of no effect, and did not in any way affect the validity of the warrant or appellees’ right to payment.
The court also held that the warrant should be reformed and corrected so as to show registration as warrant No. 1 under the date of May 8, 1928, and that all marks, erasures or cancellations and all notations relative to the cancellation should be in all respects canceled and held for naught, and entered judgment ag’ainst Wood, Webb and American Surety Company of New York in the sum of $655, the amount of the warrant.
The court further held that-O. T. Massey, the present treasurer, should pay the amount of said warrant out of any funds in his hands, or that hereafter come into his hands, belonging to said district, and issued mandamus directed to said treasurer, requiring him to make such payment.
The appellant contends for a reversal of the case, first, because he says the school warrant was not a negotiable instrument, and that there could therefore be no innocent holder. - •
The only case cited and relied on by appellants is the case of First National Bank of Waldron v. Whisenhunt, 94 Ark. 583, 127 S. W. 963. The court in-that case held that the directors were without power to make a valid contract for the purchase of charts, and the warrant, having been given in payment of that, was void. In other words, when a school district gives a warrant or order in payment of a thing they had no power to purchase, the warrant is void; and also, if it is void as beyond scope of their powers, it could not be ratified. The court further held that the warrants of school districts are not negotiable instruments in the sense of the law merchant, and that there could therefore be no innocent holder of a school warrant issued without power or contrary to law.
This question is not involved in the instant case. The school district had the power to purchase the school supplies, and to issue its warrant to pay for them.
The directors were expressly authorized by law to purchase supplies of the kind purchased by the appellant, for the district, and, since it had the authority to purchase the supplies, did purchase them, and gave the warrant signed by the directors in payment therefor, the warrant issued in payment for such supplies, is a valid obligation of the district.
This court, in discussing school warrants, said: “The school warrants were orders upon the county treasurer to pay out of the school funds in his hands the amounts specified; and, although the warrants are negotiable in form, and transferable by delivery, they are not negotiable instruments in the sense of the law merchant.” Dubard v. Nevin, 178 Ark. 436, 10 S. W. (2d) 875.
In the above case it was insisted that the writ of mandamus should not be issued against the county treasurer because the officers of the bank did not present the warrants to the treasurer for payment during the first three days they were in the hands of the bank for collection, for the reason that the officers of the bank knew that the treasurer would pay the warrants, and that this might result in hastening the insolvency of the bank, but it was held that, if this were true, it would not defeat the action. The holders of the warrants had, in good faith, sent them to’ the bank for collection; they could not be held liable in any sense for misconduct of their collecting agent.
School warrants do not have to be presented for collection like a check drawn on a bank. They are orders drawn on the county treasurer to pay out of the school funds, and the warrant in the instant ease was registered according to law, and the undisputed proof shows that, after it had been issued and delivered to the present holders, there were ample funds in the treasury belonging to the district to pay it.
There is no dispute about the purchase of the school supplies and the issuance of the warrant, and it therefore is immaterial whether the warrant was negotiable or not. The school supplies were purchased, received by the district and have not been paid for. This being true, the fact that the warrant was payable on demand, and therefore past due when it was transferred, would not deprive the holders of the warrant of the right to collect same from funds in the treasury belonging to the district.
Long after the supplies had been purchased, and after the warrant involved in this suit had been acquired by the appellees, Wood went to the directors of the district' and told them that the warrant had been misplaced and got them to issue another warrant for the amount and interest, although the evidence shows that the warrant was at the time in the possession of appellees, had been sold by Mr. Wood, and he knew it had not been misplaced.
The directors, without the return of warrant No. 1, issued another warrant to Wood, and secured the cancellation of the registration of the original warrant by the treasurer, and this was' done by the treasurer without the original warrant being presented, and Wood transferred this warrant to Whitlow, and it was paid to him.
The court held that the cancellation of the original warrant and the cancellation of the registration of such warrant was all without the knowledge, authority or consent of the appellees, who were then the owners and holders of said warrant, and was fraudulent, unlawful and void, and did not affect the validity of the warrant held by appellees, and that they were entitled to receive payment therefor out of the funds of the district in order of its registration as warrant No. 1; that said warrant should be reformed and corrected, and rendered judgment against Wood, Webb and the American Surety Company of New York, and ordered O. T. Massey, the present treasurer, to pay said warrant.
The question is purely one of fact, and the chancellor’s finding of facts will be upheld unless clearly against the preponderance of the testimony. Kelly Trust Co. v. Paving Imp. Dist. No. 47, 185 Ark. 397, 47 S. W. (2d) 369, Smith v. Thomas, 185 Ark. 613, 48 S. W. (2d) 561 Jolley v. Meek, 185 Ark. 393, 47 (2d) 43, Gravette Const. Co. v. Gregory 184 Ark. 1193, 42 S. W. (2d) 087, Greer v. Stilwell, 184 Ark. 1102, 44 S. W. (2d) 1082.
We do not deem it necessary to set out the evidence in detail. The finding of the chancellor is sustained by the evidence, and the decree is therefore affirmed. | [
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Butler, J.
Action for personal injury — verdict and judgment for plaintiff.
On appeal the defendant raises only two questions: (1) That the evidence fails to show any actionable negligence on the part of the defendant, and (2) That the court should have declared as a matter of law that appel-lee Jones was guilty of negligence which directly occasioned or contributed to the casualty causing his injury.
The injury involved in this suit was caused by ap-pellee’s Ford coupe striking the rear of appellant’s truck. This happened about ten or ten-thirty p. m. about fifteen miles out from Little Rock while appellees were journeying from that city along the highway in the direction of Hot Springs. The highway is one of the principal thoroughfares of the State, and is paved with concrete. The truck belonged to the appellant, and was operated by two of its servants making daily trips between Little Rock and Hot Springs transporting freight. It had left Little Rock on the"night in question, and, at the time of the collision, was standing on the highway without any lights being displayed thereon. The claim is made by the appellant that the uncontroverted evidence establishes the fact that the stopping of the truck was unavoidable, and that the collision occurred under circumstances which made it impossible for appellants’ servants, in the exercise of ordinary care, to prevent it, and therefore no actionable negligence was proved.
On the evening of the accident there were two of appellants’ servants on the truck, the driver and his helper. The testimony of these two is relied upon to establish appellant’s contention, and it is insisted that this evidence stands undisputed.
The driver testified that they were going to Hot Spring's, the truck being loaded with furniture and other commodities, and the load weighing about 4,000 pounds; that, while driving at the rate of about thirty miles an hour, the lights on the truck suddenly went out, and because of this the truck was brought to an immediate stop. It was a dark misty night. There was no flash light or lantern or other means of making a light except matches. As soon as possible after stopping, witness got out of the truck from the left, or driver’s side, on the highway and struck a match to locate the position of the truck thereon, and as he did so he saw two cars coming, one meeting him from the direction of Hot Springs and the other, which proved to be appellee’s coupe, coming from the direction of Little Rock behind him; that at this time, and when first observed, the car approaching from the rear of the witness was about 200 yards distant and coming at a rapid speed. The car approaching from the front had stopped, and witness stepped upon the running board of the truck expecting the car coming from the rear to pass on his left, but, instead of doing so, it crashed into the back end of the truck. He was corroborated by his companion as to the interval of time between the stopping of the truck and the collision and that the truck was stopped because its lights had suddenly gone out. The testimony of this witness was to the effect that, when the truck stopped and the driver got out on the left, witness got out on the right with one foot on the pavement and the other on the fender, and in this position raised the seat in order to look for a pair of pliers; that at this time the coupe struck the rear end of the truck, but that he had not seen it or any other car before the collision.
The inference to he drawn from the above testimony is that the stopping of the truck was necessary, and that the collision occurred practically simultaneously with the stopping of the truck. Under settled rules of law, this testimony could not arbitrarily he disregarded by the jury, and, if reasonable and not inconsistent with other testimony, must be accepted and would warrant the contention of the appellant. If however there were other circumstances in evidence from which a contrary inference might be drawn, then it could not be said to be undisputed, and a question would arise for the determination of the jury. In our opinion such is the state of the case raised by other testimony adduced. The evidence is clear that the truck was stopped and suffered to remain with its left wheels within one and a half or two feet of the center line of the highway. The truck was about eight feet wide and virtually blocked that part of the road intended for and used by those traveling in the same direction; also, that beyond the pavement and to the right was a space about four feet wide, a part of the highway called the shoulder, and within eighty feet of the point where the truck was stopped and on the same side of the road was an ample and convenient place where it might be parked. It is also certain that no lights were displayed or any other care taken to warn approaching cars of the presence of the unlighted truck. The appellants, in effect, say that their servants had no time to maneuver the truck to the side or to the open space nearby or to warn those approaching of danger. But on this question there was evidence warranting the conclusion that a greater interval of time elapsed between the stopping of the truck and the collision than is to be inferred from the testimony of appellant’s servants, and that they had time by the nse of dne care and circumspection to have taken the precautions suggested, but they negligently delayed with the intention of repairing the lighting system on the truck at the place where it was standing rather than to take the trouble to move it to a safer place or the precaution of signalling those who might approach.
These are the implications to be found in the testimony of the servants regarding the search for the pliers, a tool which then could have no use except to repair the wires of the lig’hts, and from the testimony of a witness who was in bed but awake in an upper room not over one hundred feet distant and overlooking .the highway where the collision occurred. This witness stated that, just after having gone to bed, he heard the truck approach and-stop. He heard voices in conversation, and arising he went to the window and looked in the direction-where he had heard the truck stop and the voices. Because of the darkness he was unable to see either the truck or the persons who were doing the talking, and retired to bed with his curiosity unsatisfied. Sometime after this — which he estimated at about three or four minutes — he heard -what he judged to be a Ford car approaching and a crash, which he afterward learned was the noise of the Ford striking the rear of the truck standing where he had before heard a vehicle stop and from whence had come the voices he had heard.
On the question of the conduct of the appellee, Jones, who was the driver of the Ford coupe, and as to whether or not he was negligent in its operation, there was some evidence that the impact of the car moved the truck along the highway about ten feet and that at the time the truck was in low gear with its -brakes set. Appellant argues that the proof of this physical fact and the estimates of witnesses as to the rate of speed at which Jones was driving is sufficient to show an excessive speed and a failure to keep a proper lookout ahead. We discover no evidence tending to establish-the distance a truck of the kind and situated as was this one would be moved by the impact of a Ford coupe traveling at any given rate of speed. That matter therefore must have been purely speculative with the jury as it is with us. Some of the witnesses estimated the speed of the coupe a quarter of a mile or further away from the scene of the collision at from fifty to sixty miles per hour. The estimate of another witness was thirty-five miles an hour and both of the appellees testified, one of whom was an experienced driver, that the rate at which they were traveling was from twenty-five to thirty miles per hour. Here was a direct and substantial conflict in the testimony of the witnesses of whose credibility the jury was the sole judge. On the question of keeping a lookout, it seems to us the evidence is such that different conclusions might reasonably be drawn. The witnesses all agree that the night was unusually dark, and the obscurity increased by a fine rain or mist; also that the truck had over it a dark covering and was stopped in a depression or valley, and that the appellees were on the proper side of the road. They testified that they were looking- ahead and explained that the truck was stopped, as one expressed it, so as to show no “sky-line” and that, because of this and the peculiar contour of the terrain, their lights did not shine upon and disclose the presence of the truck until they were nearly to it, when, as they said, “it suddenly loomed up” before them, and then so close that they had neither opportunity nor time to avoid striking* it.
In determining what is or is not negligence in any given case, the test is always what in the light of all the circumstances and in situations similar to that of the person under inquiry, one of ordinary prudence would or would not do, and where men of ordinary intelligence might differ in their honest judgment, the question of negligence is one for the jury. This is the state of case the record before us presents, and the trial court by correct instructions fairly presented the issues to the jury, which by its verdict, resolved the conflict in favor of the appellees. Its judgment is conclusive upon us.
The judgment of the trial court is therefore affirmed. | [
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McHaNEY, J.
Appellant sued appellee on a bond executed by him and U. G-. Fletcher as sureties for one Grinn, which guaranteed the payment of any balance that might be due and owing to it by Grinn, for goods sold and delivered by it to the latter. The bond contained the following provision: “It is agreed that there are no conditions or limitations to this undertaking except those written or printed hereon at the date the same was signed by us, and that no alterations, changes or modifications hereto shall be binding or effective upon the W. T. Raw-leigh Company, unless executed in writing and signed by ourselves and the said the W. T. Rawleigh company, and the corporate seal of the said company thereto affixed. Provided, however, that the liability of the sureties shall not exceed one hundred dollars.” Liability was limited to $100 by typewritten addition to the bond. Appellee defended on the ground that, although he signed the bond at the solicitation of G-inn and one Jackson, agent of appellant, he did so on the express condition that one E. B. Fletcher would sign the bond with him and agree to share whatever liability there might be on said bond up to $100. Appellee was permitted to testify, over appellant’s objections, that Jackson solicited him to sign the bond, and that he told Jackson he would do so if he would get E. B. Fletcher to sign also, and that he would not agree to be bound unless this was done.
The trial court submitted the question to the jury on an instruction that told the jury to find for appellant unless they found that at the time appellee signed it he notified the agent of appellant that he would not be liable thereon until Mr. E. B. Fletcher signed it. And further: “If you find from a preponderance of the evidence that Mr. Moore told the agent of the company he wouldn’t be liable on the bond until Mr. E. B. Fletcher signed it, then the agent should not have sent the bond to the company without getting his signature on it, and, if he did, then the company would be bound by the acts of its agent, and it would not make Mr. Moore liable.” The jury returned a verdict for appellee, on which judgment was rendered, and this appeal followed.
The court correctly permitted the testimony, and instructed the jury, and this question is ruled by the following cases: Halliburton v. Cannon, 160 Ark. 428, 254 S. W. 687; Taylor v. Deese, 179 Ark. 39, 14 S. W. (2d) 255; Taylor v. Viner, 185 Ark. 285, 47 S. W. (2d) 6. Many other cases might be cited. The undisputed testimony is that appellee told appellant’s agent that he would not be bound unless E. B. Fletcher also signed. Instead of ■ getting E. B. Fletcher to sign, U. G. Fletcher was induced to do so. Judgment was rendered against him and Ginn, as they did not defend or appeal. Notice was therefore given to appellant’s agent, and notice to the agent is notice to it.
The judgment is therefore affirmed. | [
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Battle, J.
Appellees fail to show in their complaint any cause of action against the appellant. They show that appellee, S. R. McNutt, had acquired a lien on the planer, the property attached, prior to that claimed -by . the appellant. ' The planer was seized by the sheriff under the order of attachment in favor of McNutt, and was in the possession of that officer before the constable undertook to levy upon it under the order in favor of the Arkadelphia Lumber Company. This being true, the lien acquired by McNutt was prior and superior to any that could have been claimed by the lumber company. Derrick v. Cole, 60 Ark. 394. The fact that the debt the appellant sought to recover by his action was for the purchase money for which the planer sold did not create a lien. It only excepts it from exemption from seizure and sale under an execution in favor of the vendor or his assigns upon a. judgment for the purchase money, and enables the vendor or assigns in a suit for the purchase money to seize the planer at once, if in the control of the vendee, without alleging the ordinary grounds for an attachment. Bridgeford v. Adams, 45 Ark. 136. The action instituted for the purchase money, the issue of an order under section 4728 of Sandels & Hill’s Digest, and seizure under such order do not give to a lien thereby acquired precedence over that created by the levy of an order of attachment prior in time to such seizure. The lien in the action for the purchase money is subject to that of the order of attachment. Swanger v. Godwin, 49 Ark. 290; Fox v. Arkansas Industrial Company, 52 Ark. 450.
Appellees fail to show any canse of action in favor of any of them. All they allege as to any of the co-appellees of McNutt is as follows: “That after said levy was made (that is, the levy of the order of attachment in favor of McNutt) the plaintiffs, J. C. Wallis, Dave Graves, and J. M. Gordon, each having instituted suits in justice-of-the-peace courts against said Edgarton, caused said suits to be transferred to said court of common pleas, where by proper orders said causes were consolidated with the case of S. R. McNutt versus H. J. Edgarton, and thereafter prosecuted under the name and style of S. R. McNutt et al. versus H. J. Edgarton.” The co-appellees do not show a cause of action against any one — simply show that they instituted suits.
No one has a right to complain of a lien which does not injuriously affect him. He has no right to constitute himself guardian of another, and interpose a defense in an action against such person, or have a judgment in such action set aside “on the ground that the defendant had defenses which he might have asserted, or that, in the transaction between the plaintiff and the defendant out of which the judgment grew, the former overreached the latter.” Unless he is injuriously affected, he has no right to institute an action to set aside a lien, sale or judgment. Glaser v. First National Bank, 62 Ark. 175. In the case before us the appellees did not show that they were affected by any lien claimed by the appellant. The demurrer to their complaint should have been sustained.
The judgment of the circuit court is therefore reversed, and the cause is remanded, with instructions to the court to sustain the demurrer, and allow the appellees to amend their complaint, so as to show a cause of action, if they can, and so desire.
Wood, J., dissents. | [
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-McHaNey, J.
Appellee brought this action against R. JEL Whitlow, now deceased, in which his administrators have been substituted as appellants, to recover the value of certain merchandise sold and delivered to the Sleepy Yalley Hotel, at Monte Ne, near Rogers, Arkansas. Prior to the sale of the merchandise, Whitlow had conveyed the property to his son, but continued to handle it as if he owned it, and contracted" with one Charles Fredericks to operate the hotel, together with a golf course and swimming pool, for one-half the net earnings. Fredericks entered into possession, made certain repairs on the hotel, named it the Sleepy Yalley Hotel, and opened the account with appellee May 2,1930. The account continued to August 26, 1930, during which time numerous purchases were made by Fredericks and five credits given for payments made by him, leaving a balance due, exclusive of interest, of $207.19. It is shown that credit was extended on the credit rating of Mr. Whitlow, but there is no evidence in this record that either he or Fredericks suggested to appellee any connection of Whitlow with the operation of the hotel. Appellee made no inquiry of either as to whether Whitlow would he responsible for the goods, but simply assumed such to be the fact because it was well known that he was the owner of the hotel property.. Liability of Whitlow was and is asserted on the ground that he permitted Fred-ericks to hold him out to the public as principal and that Fredericks was Ms agent in the operation of the property. This claim is based on the fact that the latter was put in possession, operated the property for a time under the name “Sleepy Yalley Hotel, E. H. Whitlow Estate. C. Fredericks, Manager.” One or more signs were placed along’ the highway reading in the upper part, “E. H. Whitlow, Estate. Charles Fredericks, Manager, ’ ’ and underneath ‘ ‘ Sleepy Valley Hotel. ’ ’ Advertisements were placed in the Eogers paper to the same or similar effect. A trial resulted in a verdict and judgment against Whitlow for the amount of the account with interest.
For a reversal of the case, it is insisted by counsel that the court erred in refusing to direct a verdict in Whitlow’s favor because there was no substantial evidence to support it. In this we think counsel are correct. The trial court permitted 'the case to go to the jury on the theory that Whitlow held Charles Fredericks out to the public, or permitted Fredericks to hold himself out as the agent of Whitlow to incur debts. The fact that Whitlow owned the property and that Fredericks operated it would not of itself be sufficient to establish the relation of principal and agent. With reference to the signs and advertisements in which Whitlow’s name appeared in connection the word “Estate” and with “Charles Fredericks, Manager” was not sufficient of itself to show this relationship. Whitlow denied that he had anything to do with the signs or advertisements, knew nothing about them, did not authorize Fredericks to put them out or to use his name in connection therewith; that he did not see the advertisements nor au thorize their publication; that he had nothing to do with the operation or conduct of the hotel. This evidence is undisputed, but it is insisted that the above matters were sufficient to take the case to the jury on the question of whether he permitted Fredericks to hold himself out as his agent. The testimony relating to the signs and advertisements was admitted over Whitlow’s objections and exceptions, and it is now urged that it is incompetent in the absence of a showing of knowledge by Whitlow. We pass that question by as we have reached the conclusion that, even though it be competent, it is insufficient to establish a holding out of Fredericks as his agent. It would have been a simple matter for appellee to have made inquiry of either of the parties as to Whitlow’s connection, if any, with the operation of the hotel. This was not done. A reasonable construction of the signs and advertisements is that the property was known as the R. H. Whitlow Estate, and that Fredericks was the manager. With only such information, we think it would be the duty of those seeking to hold the former for the debts of the latter to make further inquiry as to the actual relationship existing between them. In U. S. Bedding Co. v. Andre, 105 Ark. 111, 150 S. W. 413, this court held that one who deals with an agent is put upon notice of the limitations of his authority, must ascertain what that authority is, and, if he fails to do so, he deals ivith the agent at his peril. In that case they were dealing with an agent, a traveling salesman. Here the effort is to show agency by estoppel. For a distinguishment of the difference between implied agency or implied authority of a known agent and agency by estoppel, see 2 C. J. p. 444. Fredericks at no time represented to appellee that he was Whitlow’s agent, nor did Whitlow so state, but the relation was assumed from the facts stated.
We have reached the conclusion the evidence was insufficient, and that the court erred in refusing Whit-low’s request for a directed verdict.
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Butler, J.
Alice Booth became a member of the United Friends of America, a fraternal benefit association, which was operated by means of a lodge system. There is no question as to whether or not she paid lier dues regularly until July, 1929. On the 28th of that month she died. Proof of death was made in the month of August, and the appellant insurance company denied liability, claiming that the dues of the deceased were not paid in the month of July, 1929, within the time prescribed by the by-laws.
A jury was waived, and the case submitted to the court sitting as a jury, which, after having heard the testimony in the case, found that at the time of the death of the deceased the certificate was in full force and effect, and rendered judgment in favor of the plaintiff, the beneficiary named in the policy, for the sum prayed. From that judgment is this appeal.
The testimony adduced for the appellee tended to show that the local council, domiciled at Searcy, had no regular place of meeting and no regular lodge room. The meetings were usually held at the home of Lulu Heard, the local secretary. It was the custom of the members of the local council to pay their monthly dues to the said Lulu Heard. When the dues were paid to her, she kept an account of the same, made a report of the moneys received, and forwarded this report to the ' supreme council at Little Rock.
The testimony of the witnesses on behalf of the appel-lee tended further to show that on the 15th day of July, 1929, the dues of the assured for that month were sent to the home of Lulu Heard to he paid to her as was the custom. Lulu Heard had left home on or about the 13th of July, for a trip to Chicago, and was absent on the 15th when the money was brought to her house. She intended to remain away from home, and did so remain, until about the first of August, 1929, and had directed her daughter, Mary Heard, and her stepmother, Lucy Freeman, who lived with her, to receive the dues of the members of the council. The money for the payment of the dues of Alice Booth was received, and Lucy Freeman gave a receipt therefor, which read as follows: “Received of Lillian Phillips, July 15, 1929, $1 for Alice Booth endowment. [Signed] Lucy Freeman.”
Mary Heard testified that the money received on the 15th of July was not sent off immediately because at that time the $1 paid for Alice Booth was all the money received, and they were waiting until the other members paid before sending it in to the general council. After the death of Alice Booth, on the 2i8th of July, and before the 5th of August the other members of the local council came in and paid their dues, and on the last mentioned- date Lulu Heard, who had in the meantime returned to Searcy, made report of and remitted the collections, amounting in all to $10.30, to the supreme council at Little Rock. The supreme council retained the ' money until it received notice later in August of the death of Alice Booth, and thereupon the $1 paid by her was tendered by the supreme council to Lulu Heard, who-refused to receive it.
Counsel for the appellant calls attention to certain discrepancies and contradictions in the testimony of the witnesses for the appellee which, he contends, cast doubt upon the credibility of the witnesses if it does not indicate the falsity of all their testimony. But these were questions for the court, and, the court having accepted the testimony of these witnesses as true, we are bound by its decision.
The only question presented for our determination is whether or not the evidence is sufficient to support the finding and judgment of the court below, sitting as a jury, counsel recognizing the rule that the finding of the court is entitled to the same weight as the verdict of a jury, and will not be disturbed where there is legally sufficient evidence to sustain it, even though such finding might appear to this court to be contrary to the preponderance of the evidence. Counsel contends that Lulu Heard was powerless to delegate her authority to collect dues and issue receipts, and therefore the payment of dues to Lucy Freeman was unauthorized and not binding on the appellant. In the absence of Lulu Heard, the secretary, the payments of dues should have been made, it is claimed, to the assistant secretary, “who is clothed with the duty of collecting dues and giving official receipts in the absence of the secretary by the express provisions of the by-laws.” Counsel introduced that part of the by-laws deemed pertinent to the issues involved in the ease which was incorporated in the bill of exceptions and copied in his brief, but by an examination of the by-laws to which he referred (section 8, article 22) it seems that he was in error as to the authority of the assistant secretary. The by-laws do not prescribe any specific person or officer to whom dues shall be paid, but there is a provision that “all members will see to it that their dues are paid to their local council in time for the local council to remit same to the general office on or before and not later than the 20th of each and every month;” and there is the further provision that, if any member fails to pay the dues “to his council” in time to get it to the general office on or before the 20th of each month, he shall be delinquent and suspended from all benefits of the order.
Section 2'of article 2 provides for the organization of the local conncil. Section 4 names the officers, and the remaining sections of that article prescribe .the duties of each. The duties of the secretary and assistant secretary are as follows:
“Section 7. The secretary shall 'keep a correct account of all moneys collected by the council and keep a correct account between the council and the members, forward to the supreme office, one report for each month’s dues paid by members, make out and together with the commander sign all orders drawn on the treasurer.
“Section 8. The assistant secretary shall assist the secretary in keeping a correct account of the council’s business, and in the keeping of the correct minutes of every meeting held by the council; make record of all new members joining, and of everything transacted by the council, and perform such other duties as the law may require.”
It will therefore be seen that the only authority for the secretary to collect the dues would arise from custom, and the assistant secretary is delegated no authority by the by-laws except to assist the secretary in keeping the records. In the absence of the secretary therefore the assistant secretary would have no more authority to collect the dues than any other member of the council. Furthermore there is no testimony0 to show who the assistant secretary was and whether or not he was available for the payment of dues on the 15th day of July, 1929.
Section 9 of the by-laws requires that the dues be paid in the lodge room or place appointed for meeting, and that they be marked on the official card furnished by the order and that this card is the “only official receipt authorized by the grand lodge and the lodge room the only authorized place for receiving and paying dues, the organization shall not be liable or responsible for any dues paid by any one to any officer or council unless said dues are paid in the lodge room as herein described and marked on the official card.”
The evidence does not disclose whether or not the dues of the members as paid were noted on the official card except the testimony of one witness who, in referring to the payment of dues by the members, stated that “they didn’t have any cards or books.”
We infer from the testimony that the business of the local council was conducted in rather an informal way, and that Lulu Heard was the principal functionary, although there were other officers who might be said to rank her in authority and who possessed higher sounding titles. Another one of the by-laws provided for the forwarding by local council to the supreme office $1.25 each month for every member, and that this payment should be forwarded so as to reach the supreme office by the '20th of the month, and that, should any council fail to comply with this provision within the time named, “the entire council shall be delinquent and shall stand suspended from all the benefits of the order until said report is made by the council, received and accepted by the general office.” It was further provided that where the dues were sent in after the due date the grand lodge might either accept or reject°the report, and in case the report was rejected should not be liable to the council or any of its members.
The secretary of the grand lodge testified to the effect that in the report received of the payment of dues July 1st, twelve members were shown to have paid their dues, the sixth in order being Alicq Booth. But so far as the evidence of this witness, or any other, discloses the report was not rejected except as to the item of the $1 for Alice Booth, although received long after the time limit named in the by-laws. The effect of this was to retain the premiums of the members who continued in life and to repudiate the payment by the one who had died.
The evidence as accepted by the trial court makes it clear that there was a bona fide attempt made by the assured to pay her dues in July within the time prescribed ; that such payment was offered at the only place under the by-laws where it could be lawfully accepted, and that it was not paid to the person accustomed to collect the dues for the order was no' fault of the assured. Whether or not Lucy Freeman and Mary Heard, the stepmother and daughter of the secretary, who lived-in the same home with her, could have been lawfully authorized by Lulu Heard to accept the payment of dues in her absence is beside the mark, for there can be no doubt that it was carried to and paid at the proper place as designated in the by-laws, and she actually received the money on her return and transmitted it to the supreme lodge, which accepted it without demur, although the time limit had expired, until it learned of the death of Alice Booth. It then elected not to reject the dues of any of the delinquent members who were living but only that of the member who had died. Such being the state of the record, we are of the opinion that the trial court correctly held that the policy or certificate involved a valid and binding obligation.
In Crites v. Capital Fire Ins. Co., 91 Neb. 771, 137 N. W. 847, the premium on the policy was payable at the home office of the company, but the insurer sent the premium note to a •'bank in another State for collection. Being notified of this, the maker of the note, on the day of its maturity, went to the bank at the customary hour for opening to .pay the same and waited for a time. No one appearing, he went to his work. That night the property covered by the insurance was destroyed. In that state of case it was held thatfit was a question for the trial court ro determine whether the insured used reasonable diligence in endeavoring to pay the note ánd sustained a judgment in favor of the insured notwithstanding the premium note had not been paid.
In a New York case reported in 1 Hun at page 460, O’Reilly v. Guardian Mutual Life Ins. Co., a policy of life insurance had been issued which prescribed no place for the payment of premiums. An agent for the company called at the home of the insured semiannually, and collected two of the half yearly premiums, but did not call on the 7th of January, 1872, the due date for the third half-yearly premium. The agent’s connection with the insurer had been discontinued in August of the preceding year, but the insured had no notice of this and died on the 15th of May, 1872. In that case it was held a question of fact for the jury as to whether or not under, the facts above stated it was the duty of the insured to seek out some one to whom to pay the premium. The jury found for the plaintiff, „ the beneficiary under the policy, and the judgment of the trial court on appeal was affirmed.
It will be noted that the secretary in the instant case actually received the dues paid for Alice Booth. Therefore, the payment was sufficient, although first paid to one who might not have been authorized to receive it. Weisman v. Commercial Fire Ins. Co., (Del.) 50 Atl. 92; Mauck v. M. & M. Fire Ins. Co., 4 Pennewill (Del.) 54 Atl. 952.
It is our opinion that the principles announced in the cases above cited are applicable to the facts in the case at bar and support the view we have taken. Affirmed. | [
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Wood, J.
The appellee brought suit against the appellants, and alleged in its complaint that on September 9, 1915, appellants obtained a judgment by default against the appellee for $250.00; that when summons was served on the appellee it notified its regular attorney, Scipio A. Jones, and instructed him to defend the suit, which it believed he was doing when the case was called for trial, and that it did not know of the rendition of the judgment by default until after the expiration of the term at which the same was rendered; that it had been informed and verily believed that its attorney was sick and unable to attend court when the case was called for trial, and that it had no knowledge of such fact at the time of the trial; that the complaint upon which judgment was rendered against it by default was for services said to have been rendered one F. J. Betton and appellee, and that it had a valid defense to said suit. The appellee prayed that the judgment be' set aside and that it be permitted to file answer and try the case on its merits. A copy of the default judgment and of the complaint on which the same was rendered and defendant’s answer thereto were attached and made a part of the complaint herein.
The appellants answered, denying the material allegations of the complaint.
Jones testified that he was an attorney and had been the regular attorney for the appellee for seven or eight years; that he was employed to represent it in all suits. He did not appear when the case against the appellee was set for trial because he was sick at the time. He called over the phone for other attorneys and failed to get them and finally, late at night, called the judge and asked him to continue the case and the judge said that he would do it. He did not learn that a judgment had been rendered against the appellee until execution was issued on the same, when he engaged counsel to bring the present suit. The case was docketed against Betton and others, and that was probably how the mistake occurred, as there was another suit against the appellee and it was continued.
On cross-examination he stated that he talked to the judge he thought the day before court adjourned. He was sick two or three days before he talked to the judge. He had malaria; was up a little and able to talk over the telephone. There was not any great deal of preparation to make for the defense of the suit. He talked with some witnesses and Mr. Betton about it. All witness had to do was to go there and try it. No witnesses were subpoenaed and no answer was filed. The reason he did not mail his answer to the clerk, or have some one file the same by noon the first day of the term, was because he was sick at the time, and thought he was given until the third day to file the answer. Doctor Robinson attended him in his sickness. He called up the judge the day before default day.
The appellants introduced certified copies of the court orders, showing that ,the court met September 6 and adjourned September 14; also summons showing that service was had May 15, all in the year 1915, and that the judgment in question was rendered September 9.
One of the appellants testified that he did not ask for judgment until the 4th day of the term as a courtesy to any attorney living away that might be representing the defendant. On that day, his business at court being through, he asked for the judgment. The court stated that he had gotten a ’phone from Jones. Witness did not know what Jones it was; and the court said he would grant the judgment, but if the attorney appeared before court adjourned and filed an answer, the judgment would be set aside and the party given a trial. Witness is sure the judge said nothing about Jones being sick. As witness understood, Jones wanted the case set down for a day and the court was not willing to do that.
This suit was brought under section 4433 of Kirby’s Digest, authorizing suits to be instituted by complaint for the purpose of vacating a judgment after the expiration of the term at which the judgment was rendered for certain causes, which are specified in section 4431 of the Digest, and one of the causes that are specified is “Seventh. For unavoidable casualty or misfortune preventing the party from appearing or defending.”
A court will be justified, under the authority of the above statute, in setting aside á judgment taken by default against a defendant where the only attorney of the defendant at the time of the rendition of such judgment is unable to be in attendance upon the court on account of sickness. Sickness that prevents an attorney from being in attendance upon the court is an unavoidable casualty. Learning v. McMillan, 59 Ark. 162; Capital Fire Ins. Co. v. Davis, 85 Ark. 385.
Moreover, what was said by the court while considering the ease and in- explanation of its ruling in vacating the judgment shows that the court was misled and misled counsel for the appellee, and that the judgment by default was rendered through a misapprehension on the part of the court that Jones was not the attorney for the appellee in the ease in which judgment was rendered against it by default. It appears that the court was of the impression that Jones, the attorney for the appellee, was not in the case, and the court understood one of the appellants to say at the time the ease was called for a default judgment that Jones was not an attorney in the ease. The court frankly stated, “I did not know he was referring to this case at the time I let him take judgment by default. It seems that this is the case and I reckon I am to blame and probably was misled.”
It thus appears that the reason the court allowed the judgment taken by default was that the court was under the impression, obtained by answer to an inquiry addressed to one of the appellants, that Jones was not the attorney in the case in which judgment by default was asked, the court being of the impression that the case in which Jones was the attorney had been continued.
“An Act of the court shall prejudice no man, isa maxim founded,” says Mr. Broom, “upon justice and good sense.” Broom’s Legal Maxims, p. 99. And while the facts may not bring the present case tech nieally within this ancient maxim, the principle it announces should, by analogy at least, be and is applied here to sustain the judgment of the court, which is accordingly affirmed. | [
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Smith, J.
This case involves a contest over the' will of J. D. Corley, which was executed on September 20, 1895. This will was duly admitted to probate, and Mrs. Rawlings prosecuted an appeal to the circuit court from that order. Upon the trial anew in the circuit court, evidence was offered tending to show that, in the latter part of 1910 or the early part of 1911, Corley executed another will, thereby revoking his former will, but that this subsequent will had been lost or destroyed. On behalf of the proponents of the 1895 will, it was denied that any subsequent will was ever executed, and there was testimony to the effect that Corley was not of sound mind and disposing memory at the time of the alleged execution of the last will. Appropriate instructions submitted to the jury the tests of testamentary capacity.
On behalf of the contestant, Mrs. Rawlings, it is insisted that prejudicial error was committed in defining the quantum of proof necessary to establish a lost will. In one of the instructions on this subject, the jury was told that the will must be established by “clear, positive and satisfactory testimony,” and, in another instruction, that it must be by “ clear, strong and positive testimony. ’ ’
It is also strongly insisted that error was committed in the refusal to give, at contestant’s request, an instruction numbered 6, which reads as follows:
“If Mr. Corley properly executed a will relied on by Mrs. Rawlings, and it revoked the will relied on by Mr. and Mrs. Berry, and afterward destroyed the will relied on by Mrs. Rawlings, then such destruction of the Rawlings will will not revive the will relied on by Mr. and Mrs. Berry, no matter what the purposes of Mr. Corley may have been. In such case the Berry will can only be revived by re-execution of the Berry will.”
We will discuss these assignments of error in their order.
(1) We think no error was committed in defining the quantum of proof necessary to establish and prove a lost will. In the case of Nunn v. Lynch, 73 Ark. 20, Chief Justice Hill, speaking for the court, quoted with approval from the case of Rhodes v. Vinson, 9 Grill. (Md.) 169, 52 Am. Dec. 685, the following statement of the law:
‘ ‘ The policy of the law has thrown around last wills and testaments as many, if not more, shields to protect them from frauds, impositions and undue influence than any mode of conveyance known to the law. Can there be a doubt that in cases like the present, where the object is to establish the contents of a paper which has been destroyed, as and for a last will, that policy does require the contents of such paper to be established by the clearest, the most conclusive and satisfactory proof? We think not.” See, also, Underhill on the Law of Wills, vol. 1, sec. 275, and 14 Ency. of Ev., p. 465.
We are also of the opinion that no prejudicial error was committed in the refusal to give the instruction numbered 6, because the court gave an instruction numbered 5, which reads as follows: “If you believe from the evidence that J. D. Corley made a will, as contended by Mrs. Rawlings, but that, at the time he was for any reason, incompetent to make a will, or that he made it from intimidation-or fear, you will find against said contestant. If you believe from the evidence that J. D. Corley made a will to Mrs. Rawlings, with an intelligent purpose and desire that she should have all of his property as against Mrs. Berry, his own niece, and other blood relatives, you will find for contestant, Mrs. Rawlings; otherwise, you will find for proponent, Mrs. Berry.”
This instruction, in effect, tells the jury that, if the Rawlings, or second will, was executed, to find for con- . testant, and, under this instruction, it became immaterial •to instruct the jury on the effect of its subsequent loss or destruction, as, under this instruction numbered 5, the jury was required only to find that Corley made this last will, before finding for contestant.
Other questions are discussed in the briefs, but they have become immaterial in view of our decision upon what we regard as the controlling questions in the case.
The judgment is, therefore, affirmed. | [
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Smith, J.
Appellee recovered judgment in the court below for the sum of $150, and, for its reversal, it is insisted that the court erred in giving instructions numbered 1 and 3 at the request of the plaintiff. It is insisted also that the verdict of the jury and the judgment thereon are not supported by any substantial evidence.
The nature of the case appears from these instructions,- to which reference has been made, and which read as follows:
“No. 1. If you find from a preponderance of the evidence in this case that the defendant warranted the seed sold to plaintiff to be orange sorghum seed and seeded ribbon cane seed, and that the plaintiff, in reliance on said warranty, bought and planted said seed and cultivated the crop raised therefrom,' and, if you further find that the seed sold to plaintiff was not orange sorghum seed and seeded ribbon cane seed and was unfit for growing cane to make molasses, you are told that the plaintiff is entitled to recover from defendant a sum equal to the value of the crop at maturity which would have been raised from orange sorghum seed and seeded ribbon cane seed less the value of the crop actually raised and the cost of cutting the same and having it made into molasses.”
“No. 3. You are instructed that a sale of seed by name raises an implied warranty that it is true to name; and the fact, if a fact, that the buyer did not inspect the seed before purchasing is immaterial where its character, if shown, cannot ordinarily be ascertained by reasonable inspection.”
It appears that instruction numbered 1 was drawn to conform to the law as declared in the case of Earle v. Boyer, 172 Ark. 534, 289 S. W. 490, whereas instruction numbered 3 appears to be based upon the case of Kefauver v. Price, 136 Ark. 342, 206 S. W. 664.
It‘is insisted that the plaintiff should have been required to recover, if at all, upon either an express or an implied warranty, and that it was error to submit the question whether, if there was an express warranty, there may not also have been an implied one, for the reason that there could not be both an express and an implied warranty.
It was held in the case of Earle v. Boyer, supra, that an express warranty in a sale of seed excludes an implied warranty* but it .was said in that case that the allegations of the complaint were broad enough to support a recovery upon either an express or an implied warranty.
In the later case of Reed v. Rea-Patterson Milling Co., ante p. 595, it was said: “Appellants cannot therefore base their action on implied warranty. The only warranty attempted to be proved was an express one, as already stated, and, of course, there could not be both an express warranty and an implied warranty of fitness or satisfaction in the sale of the flour. ‘The reason is,’ said this court in J. S. Elder Grocery Co. v. Applegate, 151 Ark. 565, 237 S. W. 92, ‘that, if there was an express warranty upon this subject, it would govern as being the contract between the parties. There would be no room for an implied warranty if there was an express warranty on the same subject.’ ”
We are of opinion that no error was committed in giving these instructions, when the testimony in the case is reviewed. Plaintiff testified that he told defendant he wanted “seeded ribbon cane” and “orange cane,” and the defendant said he had it. Plaintiff was accompanied to defendant’s place of business by one McKinney, who examined the seed and expressed the opinion that they appeared to be mixed, and defendant’s salesman spoke up and said, “No, they ain’t.” Plaintiff did not examine the seed, as he did not have his glasses and could not see without them. Plaintiff testified that, when the seed came up, there was cane of several kinds, maize, Kaffir corn, and Egyptian wheat, and “some other stuff I could not pronounce, a various mixture of various kinds.”
The testimony of the defendant was to the effect that there was no representation as to the kind or quality of the seed, and that they were bought after inspection by the plaintiff and the plaintiff’s friend who accompanied him.
Under these conflicts in the testimony, there was no error in giving the instructions set out above. The first instruction declared the law of a case where the seller had warranted the seed sold to be orange sorghum seed and seed ribbon cane and suitable for raising sorghum cane for making molasses. If there was such an express warranty, and breach thereof, the plaintiff would be entitled to recover upon that theory. It is also the law that, if planting seed be sold by a name known to the trade, there is an implied warranty that seed so sold are true to the name. The instruction numbered 3 not only presents this view of the law, but declares the law as favorably as defendant could ask in regard to inspection, this statement being to the effect that the purchaser’s right to recover is not to be defeated by a failure to inspect if the character of the seed could not be ascertained by reasonable inspection.
These conflicts arose in the testimony of the different witnesses called in the case, and are concluded by the - verdict of the jury in the plaintiff’s favor.
The law appears to have been correctly declared as applicable to the different theories of the case; and, as there is sufficient testimony to support the verdict, it must be affirmed, and it is so ordered. | [
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Hughes, J.
On January 11, 1900, Louis Miller caused a warrant to be issued before a justice of the peace of Phillips county against Will Billingsley, charging him with carrying a pistol. When the cause came on for hearing before the magistrate, Billingsley filed a motion to require the prosecuting witness to give a bond for costs. Before the motion was acted upon, the prosecuting attorney filed his information in due form, charging Billingsley with carrying a pistol, and thereupon the eourt overruled Billingsley’s motion. Upon trial Billingsley was found guilty, his fine assessed at $50, and he appealed to the circuit court. In the circuit court Billingsley again filed his motion to dismiss the proceedings against him for want of a bond for costs, which motion was by the eourt sustained, and he was ordered discharged, and thereupon the prosecuting attorney, in behalf of the state, prayed an appeal to the supreme court, which was granted.
Section 2332, Sand. & H. Digest, provides that in all cases of prosecution less than a felony in courts of justices of the peace, the prosecutor shall enter into a bond with sufficient security for the payment of all costs which may accrue in said prosecution. This statute was a part of the act of March 23, 1871. On March 13, 1893, the legislature passed an act providing that wherever the prosecuting attorney shall file a written information or accusation before a magistrate that a criminal offense has been committed, it shall be the duty of the magistrate forthwith to issue a warrant for the arrest of such offenders, and such case shall proceed to trial without requirement of a bond for costs of such prosecution. This statute was further broadened by the act of April 8, 1895, which authorized deputy prosecuting attorneys to have the power to file with any justice of the peace in his county information charging any person with carrying weapons unlawfully, and whereupon it became the duty of the justice of the peace to issue a warrant for .the arrest of the offender, and no bond should be required for costs of the prosecution.
There is a section of the digest, being a part of the act of April 1, 1881, (Sand. & H. Dig., § 1502), that settles this question in this case. That section of the digest provides: “Any justice of the peace in this state who, from his own knowledge or from legal information, knows, or has reasonable grounds to believe, any person guilty of a violation of the pro visions of this act [act against carrying weapons unlawfully], and shall fail or refuse to proceed against such person, shall be deemed guilty of a non-feasance in office, and, upon conviction thereof, shall be punished by the same fine and penalty provided in section 1501, and shall be removed from office.” Section 1501 provides for a penalty of not less than $50 nor more than $200 for violation of the act. Without regard to a bond for costs, the justice of the peace was bound, under this section, to proceed in this case upon the legal information given him by the affidavit of the prosecuting witness. This section seems to have escaped the attention of the court below, and of the attorney general.
The judgment is reversed, and the cause is remanded, with directions to overrule the motion to dismiss, and to proceed to try the case.
Battle, J., did not participate. | [
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Kirby, J.,
(after stating the facts). It is insisted that the court erred in instructing the jury that if they found “that there was no valuable consideration moving to the plaintiff from the defendant for the execution of the release,” it should be disregarded. This instruction was erroneous, misleading and prejudicial. It cannot be said there was no valuable consideration for the execution of the release, whether it was moving to the plaintiff from the defendant or not. The testimony on appellant’s part conduced to show that the plaintiff herself received no consideration for the execution of said release, although she virtually admitted or at least did not deny that the things agreed to be done by the defendant in the release had all been done. The consideration could be a valuable one, whether it moved to her or not, as it might be of benefit to the party promising or a loss or detriment to the party to whom the promise was made; it does not have to he both; it may be either. The court said in Phoenix Sidewalk Co. v. Russellville Water & Light Co., 101 Ark. 22, 140 S. W. 996, “that a consideration was a benefit moving to the promisor or a detriment agreed to be suffered by the promisee. ’ ’ The consideration does not have to move to the party promising, but may move from a promisor to a third person.
■ “As has been noted, the consideration need not move to the mortgagor. Hence the debt may be the debt of another and the consideration, for example, may consist in a loan to a third person, or a satisfaction of a debt due the mortgagee from a third person or. in the release of a mortgage of a third person, or forbearance or extension to a third person debtor.” 41 C. J. 387. See also 13 C. J. 324-25; Jonesboro Hardware Co. v. Western Tie & Timber Co., 134 Ark. 543, 204 S. W. 418; Rockafellow v. Peay, 40 Ark. 69; Reynolds v. Winship, 175 Ark. 352, 299 S. W. 16; Margruder v. State Bank, 18 Ark. 9.
The compromise of a disputed claim furnishes sufficient consideration to uphold a settlement, even though the asserted claim is without merit. Gerdner v. Ward, 99 Ark. 588, 138 S. W. 981; Lee v. Swilling, 68 Ark. 82, 56 S. W. 447; Texas Co. v. Williams, 178 Ark. 1110, 13 S. W. (2d) 309.
The release purported to be in settlement of all claims between the parties, and, as already said, the testimony tended strongly to show its terms were performed by the parties to the release.
It follows from what we have said that the court erred in giving the instruction complained about, and it was apparent from the testimony introduced that the erroneous instruction was prejudicial, and the judgment must be reversed on account of same. Under this view it is unnecessary to determine whether the verdict is excessive. For the error designated the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.
Mehafey, J., dissents. | [
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Hart, J.,
(after stating the facts). Counsel for the plaintiff assigns as error the action of the court in giving instruction No. 1 at the request of the defendants. The instruction is as follows:
•‘1. You are instructed that although you should find from the testimony that L. B. Brackin was not in fact the agent of the plaintiff to sell the property sued for, yet, if you should further find from the evidence that the plaintiff permitted the said Brackin to hold possession of this property and other property of a similar character, and permitted him to hold and sell, from time to time, property of a similar character, and to hold same out for sale, to any one who should offer to purchase, and that the defendant purchased the property without knowledge of the contract between the plaintiff and Brackin, your verdict will be for the defendants.”
(1-2) The general rule is that no man can get a title to personal property from a person who himself has no title to it. There are, however, certain exceptions to the general rule. One of these exceptions is that a bona fide purchaser will be protected where the owner has conferred upon the seller the apparent right of property as owner or for disposal as his agent. Jetton v. Tobey, 62 Ark. 84. See, also, Andrews v. Cox, 42 Ark. 473, and case note to 25 L. R. A. (N. S.) 761 and 770. The question of whether Rogers, by his acts and conduct, so clothed Brackin with the indicia of ownership and the right to dispose of the rails that he was estopped from asserting his actual ownership against an innocent purchaser for value was submitted to the jury under proper instructions to which no objection has been urged by the plaintiff.
Counsel for the plaintiff insists, however, that instruction No. 1 went further than this, and in effect directed the jury to find for the defendants. In this contention we think counsel are correct. The instruction tells the jury that if Rogers permitted Brackin to hold possession of the steel rails and other property of a similar character, and permit him to hold and sell from time to time property of a similar character, that its verdict should be for the defendant. There was a conflict between the testimony of Rogers and of Brackin as to whether the former gave the latter the authority to take possession of and sell the steel rails in controversy. Rogers asserted that he did not give Brackin such authority, and Brackin on the other hand said that Rogers did give him such authority. It was proper that the jury should consider that during the same interval of time, Rogers did deliver to Brackin other property of a similar character to sell for him as tending to show that he gave such authority to Brackin as to the property in question; but it was wrong to instruct the jury that if Rogers permitted Brackin to hold property of similar character, and sell it for him, that its verdict should be for the defendants, for this would .invade the province of the jury. The question was whether Brackin did possess such authority, and that question can not be determined alone by what authority was given him in other cases in regard to similar property. Rogers being the owner of the property, could at his own pleasure give such authority in one case, and withhold it in another.
Again, it is urged that the judgment should be reversed because the court improperly admitted evidence of the first contract between Rogers and Brackin as to the machinery and other property at Cleora. Louisiana. We do not agree with counsel in this contention. In the first place it may be said that Rogers himself first testified as to the Louisiana contract, and introduced it in evidence. In the second place it was competent for the defendants to introduce it as tending to show the course of dealing between Rogers and Brackin, and tbns to show the apparent authority of Brackin to dispose of the property in question.
For the error in giving instruction No. 1 at the request of the defendants, the judgment will be reversed and the cause remanded for a new trial. | [
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Hart, C. J.
Chester Cooper prosecutes this appeal to reverse a judgment of conviction against him for grand larceny rendered upon the verdict of a jury.
The principal assignment of error is that the evidence is not legally sufficient to support the verdict. According to the testimony of B. L. Hodges, he lived in Van Burén, Crawford County, Arkansas, for forty-one years, and was in business there. On January 4, 1932, he purchased a license tag for an A model four-door Ford sedan, and paid $20 for the tags. The tags or plates were taken from his car and later recovered. He first missed them from his car in Van Burén, where it was parked in front of his store. He frequently drove his car from Van Burén to the city of Fort Smith, and missed his license tags or plates about the first of February, 1932. He had washed his car a few days before and did not miss the license plates then. He thinks he would have missed them if they had not been on the oar.
According to the testimony of the sheriff and one of his deputies, they found the license plates or tags in the car of Chester Cooper in Van Burén, Arkansas, soon after they had been stolen. There was a Texas license on the car in which they were found. He examined the car because he went to it to arrest Cooper on another charge. According to the testimony of Raymon Irvin, he sold the car to appellant about January 10, 1932, and there were no license tags or plates for that year on it. The sheriff also testified that he saw appellant’s car before he left there on the first of February, 1932, and it did not have any license plates on it. The appellant told him when arrested that the Texas plate was on the ear when he bought it. The trial of the cáse was had on the 24th of March, 1932, and the sheriff and his deputy both testified that they had found the license tags in the appellant’s car in the city of Van Burén, Crawford County, Arkansas, about four or six weeks before. No evidence was offered in behalf of the appellant.
The evidence was legally sufficient to support the verdict. This court has held that unexplained possession of recently stolen property is a fact from which an inference of guilt may be drawn, and constitutes legally sufficient evidence of guilt, although it is improper for the trial court to give an instruction as to its sufficiency. Yelvington v. State, 169 Ark. 359, 275 S. W. 701; and Howard v. State, 185 Ark. 132, 46 S. W. (2d) 31.
But it is insisted that the venue was not proved because the prosecuting witness admitted that he frequently drove his car over to Fort Smith, and the license plates might have been stolen there. In the first place, the evidence of the prosecuting witness shows that he first missed the license plates in front of his place of business in Van Burén, Crawford County, Arkansas, and that he had washed his car a few days before, and that he would have noticed then that the license plates were missing if such had been the case. Then, too, the jury might have inferred that, if the license plates had been stolen in the city of Fort Smith, highway officers would have noticed that he was driving a car without license plates when he went home. Hence we are of the opinion that the evidence was legally sufficient to warrant the jury in finding that the license plates were taken from the car in Van Burén.
However, it would not have made any difference had they been stolen in Sebastian County. The reason is that 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, and Harris v. State, ante p. 6. The theft of automobile license plates costing more than $10 is grand larceny. Cowan v. State, 171 Ark. 1018, 287 S. W. 201.
It is next insisted that the court erred in giving on its own motion instruction No. 5. The court gave to the jury, on its own motion, five instructions, and instruction No. 5 contains five paragraphs. It instructs the jury upon the questions of presumption of innocence, reasonable doubt, and credibility of the witnesses. It is earnestly insisted that the giving of the instruction constitutes reversible error because it is framed in five paragraphs, and that each of them should be considered a separate instruction, and that, when this is done, the last paragraph constitutes reversible error because it does not instruct the jury on the question of reasonable doubt. We do not agree with counsel in this contention. The issue in this case was simple. In another paragraph of instruction No. 5, the court fully instructed the jury on the questions of the presumption of innocence and reasonable doubt. There could be no grounds for thinking that the mind of any reasonable man would be misled by the instruction.
It is next insisted that the court erred in refusing to give, at the request of the defendant, instruction No. 3, which reads as follows: “You are instructed that the defendant is not charged with receiving stolen property, and, even though you find the tags were stolen by some person and later received by the defendant^ it will be your duty to acquit the defendant under this indictment. ’ ’
We do not think there was any error in this regard. No evidence whatever was introduced by appellant. The sole question presented to the jury was whether the evidence adduced by the Staté was legally sufficient to warrant the jury in convicting appellant of larceny. There was no evidence in the case whatever upon which an instruction as to receiving stolen property could be predicated. The instruction was wholly abstract, and was warranted to mislead the jury. For the reasons given, the case of Thomas v. State, 175 Ark. 279, 298 S. W. 1021, relied upon by counsel for appellant, is not in point, and has no application to the facts in the case at bar.
Therefore the judgment will he affirmed. | [
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Wood, J.
The appellant sued the appellees to recover the sum of $25 alleged to be due it on account of a special engine and train furnished appellees. The suit was instituted in the justice court, where judgment was rendered in favor of the appellees. An appeal was taken to the circuit court, where the cause was tried by the court, sitting as a jury, upon an agreed statement of facts. For the purpose of this appeal these facts are sufficiently reflected in the findings and judgment of the trial court, which are as follows:
‘ ‘ The court finds the facts to be that on February 27, 1915, the St. Louis, Iron Mountain & Southern Bailway Company, at the request and for the use of the defendants, furnished a special train and engine from Harrisburg, Poinsett County, Arkansas, to Wynne, Cross County, Arkansas, and the said defendants and others were transported on said special train between the stations mentioned.
“Thereafter the agent of the St. Louis, Iron Mountain & Southern Bailway Company, at Harrisburg, presented to the defendant, W. D. Tillory, a bill for $50 for such train service, and the defendant, W. D. Tillory, paid such amount, believing and intending the same to be in full for such service.
‘ ‘ On February 27, the date such equipment and service were furnished, the charge for special trains between such stations, as fixed in the published tariff sheet, was, according to the plaintiff’s contention, a minimum of $75, and, according to the defendant’s contention, a minimum rate of $50.
“The paragraphs of the tariff sheets covering the service were as follows:
“charges fob special trains.
“Section 7. (a) In emergency, special passenger trains may be run for the exclusive accommodation of individual or special parties, subject to the company’s ability to furnish the necessary power and equipment, on the following terms:
‘ ‘ One hundred full fares or the equivalent thereof as shown in current interstate commerce commission tariffs, for a party of 100 persons or less and one additional adult for each person in excess of 100 (two half fares counting one adult fare). The total collection in no case to be less than $75. See Exceptions 1 and 2.
“Exception 1. Intrastate between stations in Illinois ; between St. Louis, Mo., and stations in Illinois; between St. Louis, Mo., and Memphis, Tenn.; between St. Louis, Mo., iand Helena, Ark.; between St. Louis, Mo., .and Natchez, Miss.; between Memphis, Tenn., and Natchez, Miss.; bétween Helena, Ark., and Natchez, Miss.; the minimum charge for special train movements will be seventy-five adult one-way fares, or the equivalent, for parties of seventy-five persons or less, additional fares or fare, whole or half, as the case may be for each person in excess of seventy-five. Minimum collection, $50.
“Exception 2. Intrastate between stations in Louisiana the minimum charge will be fifty adult fares as shown, in the current interstate commerce commission tariffs for a party of fifty persons or less, one additional adult fare for each person in excess of fifty persons (two half fares counting as one adult fare) charge of not less than $1.50 per train mile or fraction thereof for distance traveled. The total collection in no case to be less than $50.
“The court finds that the above tariff sheets control the question of charge for services rendered, and that the act of the agent in collecting any amount is without effect in law.
“The court further finds that the service involved in this case is covered by and is included in exception No. 1, above quoted, and that the minimum charge of $50 was the amount properly payable, and that this amount has been paid by the defendants to the plaintiff.”
The court thereupon rendered judgment dismissing the appellant’s complaint. The court was correct in holding that the act of the agent of appellant in accepting $50 in full settlement of the tariff due appellant for the service rendered did not hind the appellant nor preclude it from suing for the amount due according to the schedule of rates governing the charges for such service, as shown by the published tariff sheets approved'by the Interstate Commerce Commission. But the court erred in holding that the service, and charges for which suit was brought, are controlled by Exception No. 1, and in holding that the minimum charge of $50 was the correct amount to be paid appellant.
The rate to be charged for the services herein rendered is fixed by the general provisions of section 7 (a), set out in the findings of the court. Under this section the minimum charge required for such service is $75. The minimum charge of $50 specified in Exception 1, so far as intrastate stations are concerned, only applies between intrastate stations in the State of Illinois. If it had been the purpose of the Interstate Commerce Commission to make the minimum collection of $50, specified in section 1, apply between intrastate stations in Arkansas this intention doubtless would have been expressed just as it was between intrastate stations in Illinois and in Louisiana. The fact that these States were singled out, and the rates specified in Exceptions 1 and 2 made to apply between intrastate stations in Illinois in Exception 1. and between intrastate stations in Louisiana in Exception 2, shows that the commission had intrastate stations in the States named in mind, and as the tariff sheet does not plainly express that a minimum charge of $50 is authorized between intrastate stations in Arkansas, the court has no right to give it such construction. To do so would be usurping the functions of the Interstate Commerce Commission. Exception No. 1 plainly expresses that a minimum collection of $50 is authorized between St. Louis, Mo., and Memphis, Tenn., and between St. Louis, Mo., and Helena, Ark. "While it is true that the stations of Harrisburg and Wynne are on the railway line between St. Louis and Memphis, and St. Louis and Helena, there is nothing in the tariff sheets to indicate that the railway company, in furnishing special train service between these stations, could be required to do so for less than $75, the rate specified in section 7, subdivision (a).
Under the provisions of section 7, subdivision (a) and exception 1, the total collection in no case is to be less than $75, unless the service is rendered between intrastate stations in Illinois, and between St. Louis, Mo., and stations in Illinois, and between the other interstate division points or terminal stations expressly named in exception 1. Intrastate stations in Arkansas are not so named in exception 1, and therefore it does not apply.
It is unimportant to enter upon a discussion of the reasons that actuated the commission in allowing a $50 minimum collection between the stations mentioned in exception 1, but which does not apply to stations in Arkansas lying between the terminal stations or division points mentioned in exception 1. The reason that might have actuated the commission is very well expressed in the brief of counsel for the appellant, as follows:
“If a railway company is called upon to furnish a special train out of some small station along its line, in order to comply it must run empty cars from some terminal or division point to the station making the call, and this equipment will earn no revenue until after it has reached the point where it is to be put into service. On the other hand, such service out of terminals and division points, or out of points in the vicinity of such, begins to earn revenue as soon as the equipment is set in motion. Furthermore, special train service between small towns or stations along the line involves an empty haul back to the terminal at the end of the service, as well as the empty haul above mentioned at the beginning of the service. ’ ’ But, whatever may have been the reason, it suffices to say that the rate is so expressly fixed, and it is not within the province of the court to change it.
The court therefore erred in dismissing appellant's complaint, and for this error the judgment is reversed, and judgment will he entered here in favor of the appellant for the sum of $25, as prayed in its complaint. | [
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Butler, J.
The appellant was indicted, tried and convicted of the crime of rape committed on a thirteen-year-old girl. He was represented by counsel as eminent as any in the State who conducted his defense in a courageous and able manner. During the trial timely objections were made and proper exceptions saved to the action of the court, and these were preserved in a motion for a new trial in which a number of assignments of error were made. "We have carefully reviewed the evidence in the case, and find that it is ample to sustain the verdict and judgment of the trial court.
The prosecuting witness, a child of about thirteen years of age, gave a circumstantial account of how she was ravished, stating that her assailant was a stranger to her, hut that she observed certain peculiarities about him which she described immediately after she reached her home. She said that he was a young negro man; that he had two scars on the side of his neck, one tooth missing and a deformity of one eye. A negro answering this description had been seen a few hours preceding the commission of the crime in that vicinity, and appellant was taken in charge on the following day because he answered that description. An examination of the tracks at the scene of the crime showed that they were made by a shoe having a- rubber heel with a hole in it and when these were compared with the shoes of appellant it was ascertained that they matched. After appellant was taken into custody he was delivered to the deputy sheriff and was allowed to talk with a negro minister. After some conversation the appellant admitted the crime, and when placed on the witness stand in Ms own behalf be did not deny baying made tbe assault and stated that be bad admitted it because bis preacher told him it would be best to plead guilty; that be was frightened, and that was tbe reason be bad made tbe confession. When testifying as a witness however, be stated that be did not remember where be was or what he did on tbe afternoon of tbe assault because be bad found a quart jar of whiskey in tbe woods and bad drunk about a pint of it and became so drunk that be did not remember whether be met tbe little girl or not and only remembered when be awoke in tbe woods late in tbe evening.
Tbe witnesses who bad seen appellant in tbe vicinity of tbe crime testified that he bad no appearance of being under tbe influence of liquor, and one witness stated that appellant drew water from witness ’ well and made some inquiries as to where Bill Perry lived and told the witness bis name.
Tbe testimony, without tbe admission of tbe appellant, was ample to establish bis identity, and it was also ample to establish tbe fact that tbe child bad been ravished, and that tbe appellant bad committed tbe crime. This, together with tbe admissions of tbe appellant and bis testimony on tbe witness stand, was enough to lead to tbe conclusion of bis guilt beyond a reasonable doubt.
Tbe appellant was indicted in tbe name of Freeling Daniels. He and bis father testified that bis name was Frelorn Daniels, but a witness upon whose place appellant and bis father bad lived, and who was well acquainted with tbe appellant, testified that appellant’s name was Freeling Daniels. One of tbe assignments'of error was that tbe court erred “in refusing to bold that tbe name of tbe defendant was not Freeling Daniels and that bis name was not idem, sonans with tbe name of the defendant mentioned in tbe indictment.” Tbe court did not err in this regard because there was a conflict in tbe testimony as to whether appellant’s name was Fre-lom or Freeling Daniels, and for tbe further reason that there was no question as to tbe identity of tbe appellant. The mere fact that his name was incorrectly spelled in the indictment is not ground for reversal, as all the proof shows that he was the person intended to be charged with the crime. Joiner v. State, 113 Ark. 112, 167 S. W. 492; Bridger v. State, 122 Ark. 395, 183 S. W. 962; § 3017, Crawford & Moses ’ Digest.
Complaint is made of the court’s action in refusing' certain instructions asked by the appellant and to those given by the court at the request of the State. Some of the instructions requested by the appellant were covered by instructions given, and therefore were not improperly refused. In one of the instructions requested the court struck from it the sentence: “If any reasonable view of the evidence is or can be adopted which admits of a reasonable doubt of the guilt of the defendant, then it is your duty to adopt such view and acquit.”
Another instruction was refused which told the jury they could not convict unless the offense had been established to the exclusion of every other reasonable hypothesis of the defendant’s innocence. The court gave at the request of the appellant correct instructions on the presumption of innocence and reasonable doubt, and, as the State did not rely entirely upon circumstantial evidence, it was not error to modify the instruction in the particular mentioned above or to refuse to grant the other. Osburn v. State, 181 Ark. 661, 27 S. W. (2d) 783, and cases therein cited.
Complaint is made of the action of the court in refusing to give an instruction which in effect told the jury that it was prosecuting witness’ duty to make outcry at the time she alleged the appellant assaulted her, and that failure to do so might be considered in determining whether appellant did in fact commit rape upon her. This instruction was properly refused; first, because there was no evidence at all tending to show that rape had not in fact been committed, and, second, because the evidence showed she feared, because of appellant’s threats, to cry out or resist, and because any outcry would have been unavailing since the scene of the crime was re mote from human habitation. Jackson v. State, 92 Ark. 71, 122 S. W. 101; Meisenheimer v. State, 73 Ark. 407, 84 S. W. 494.
One of the defenses interposed was that of insanity, and the court correctly instructed the jury on that defense. The court refused request for instruction No. 10 which would have told the jury that in considering the degree of punishment in the event the defendant should be found guilty that they might take into consideration whether or not the defendant’s mind was undeveloped and not the mind of a normal person. A number of witnesses testified regarding the mentality of the defendant, including a number of physicians. All of them testified that defendant was sane, and some of them testified that he was an uneducated young negro with the mind of about a fifteen-year-old person. The court gave the proper test by which the accountability of the defendant might be measured, and told the jury that, if they found the defendant innocent under the rule given, they should acquit him. The court’s instruction on this question was a correct declaration of law, but it might properly have refused to so instruct, as all of the testimony showed that the defendant was sane. All courts agree that mere mental weakness does not exempt from responsibility, nor can one with a mind below normal be exempted from punishment, any more than a person with normal mind.
There are other instructions complained of, but which we find it unnecessary to comment upon because from a comparison of all of the instructions given we find no error.
In assignments of error Nos. 26, 27, 28 and 29 in the motion for a new trial it was alleged that the verdict of the jury was influenced by a large assembly of enraged persons present at the trial; that a lynching had been anticipated before the trial, and, in order to prevent the same, the sheriff had caused to be present in and about the court room a number of soldiers armed and in uniform, and these remained throughout the trial and until the jury had returned their verdict; that the presence of the soldiers and the great crowd of people coerced the jury.
The evidence taken at the hearing on the motion for a new trial disclosed that, while there was a large crowd in and about the court room, it was orderly; that no threats were made by any of its members, nor was there any demonstration indicating any rage or resentment upon its part toward the appellant. The soldiers were in attendance at the request of the court as a precautionary measure, and it was shown that counsel for the defendant acquiesced in the presence of the soldiers, and that these performed only such duties as were assigned to them in a respectful manner. The trial was orderly throughout its entire course, and the verdict of the jury is not shown to have been influenced by anything except the evidence, which, as we have said, was ample to sustain it.
Finding no prejudicial errors in the admission or rejection of testimony or in the instructions given by the court, the judgment is affirmed. | [
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Mehaffy, J.
On June 28,1926, the appellants sold to the Morrilton Ice & Fuel Company, Charles Daugherty and James Daugherty certain material for $2,020, who paid cash with the order $510, leaving a balance of $1,510. This sum was not paid, and on September 30,1926, appellants filed suit in the Conway Chancery Court against the Morrilton Ice & Fuel Company and the Daughertys for the balance due and prayed judgment for the debt, interest and costs, and that a lien be declared, and the property described be sold to pay the indebtedness, interest and costs.
A decree was entered in favor of appellants for the indebtedness, a lien was declared, and the property was ordered sold. An appeal was taken to this court, and the case was affirmed here. Morrilton Ice & Fuel Co. v. Montgomery, 181 Ark. 180, 25 S. W. (2d) 15. The Morrilton Ice & Fuel Company was a partnership, composed of J ames Daugherty and W. Charles Daugherty.
Before the above case was determined, a corporation was organized by the Daughertys under the name of Morrilton Ice Company, and the property of the partnership was conveyed to this corporation in November, 1927. About December 5, 1925, W. Charles Daugherty and James Daugherty executed and delivered to the Bank of Morrilton a note for the sum of $10,000. The note became due and payable December 12, 1925, and bore interest at the rate of 10 per cent, per annum until paid. The mortgage was properly recorded, and it contained the following clause:
“This mortgage is also given to secure any other indebtedness that we, or either of ns, may be due the said Bank of Morrilton at any time prior to a foreclosure of this instrument.”
Thereafter, in February, 1926, the Bank of Morril-ton made another loan of $12,000 which became due in February, 1927. This note also bore interest at the rate of 10 per cent, per annum until paid. There was still another loan made July 29,1926, for $4,216, and this note also bore interest at the rate of 10 per cent, per annum until paid.
The Bank of Morrilton thereafter became insolvent, and the Bank Commissioner took charge and sold the assets of the Bank of Morrilton to the First State Bank of Morrilton. In October, 1927, the First State Bank of Morrilton assigned and delivered the notes above mentioned, together with the mortgage securing the payment of said notes, to the Bankers’ Trust Company of Little Rock, Arkansas, and thereafter the Bankers’ Trust Company transferred and assigned said notes and mortgage to the Southwest Public Service Corporation.
It is alleged by the intervener, Southwest Public Service Corporation, that there is still due $37,607.80, with interest at the rate of 10 per cent, per annum from November 1, 1930, until paid.
The assignment to the Bankers ’ Trust Company was as follows: “For value received, this note, together with all mortgage liens securing the payment of same, is hereby transferred and assigned to the Bankers’ Trust Company without recourse on the First State Bank.”
This suit was begun by appellants in the Conway Chancery Court, who alleged the indebtedness of $1,510 with interest, for which they had a materialman’s lien; that the lien had been foreclosed, the property ordered sold, and appeal taken to this court, where the judgment was affirmed. They also alleged the indebtedness claimed by the interveners and their mortgage were fraudulent and void, and that the transfers were fraudulent and void, and it was further alleged that the debt to the Bank of Morrilton had been paid.
The defendants in the action, Morrilton Ice & Fuel Company and the Danghertys, filed answer denying the material allegations of the complaint. The Southwest Public Service Corporation filed an intervention alleging the indebtedness above set out, and the case was tried on the evidence of witnesses and the notes and mortgage and assignments thereof.
There is some conflict in the evidence, and the chancellor entered a decree in favor of the appellees, thereby holding that the intervener’s lien was superior to appellants’ lien. There were some charges of fraud in the transfer of certain property to Daisy Hines Daugherty, wife of W. Charles Daugherty, but these questions are not argued by appellants, and we will not discuss them. The only question for our consideration is, whether the ap-pellees’ lien is prior to the mechanic’s lien established by appellants.
As we have already said, there is some conflict in the evidence, and there is no question about the priority of appellees’ lien, unless appellants have established fraud.
It is contended by the appellants that, at the time the Morrilton Ice Company was organized as a corporation and issued shares, the appellants had a valid, subsisting lien on the new ice plant, and they contend that the pen-dency of their suit is constructive notice of the matters involved in the suit.
This is true, but the mortgage now held by appellees was executed to the Bank of Morrilton prior to the time of the bringing of the suit, and also prior to the time that appellants purchased the property for which they claim and have established a lien, and, unless there was some fraud, either in the debt, notes and mortgage, or the transfers, then unquestionably the mortgage lien would be prior to appellants’ lien, so that, after all, it is a question of fraud.
If the transactions described by appellants were in good faith, and such transactions took place prior to the rights of the appellants, the appellants would have no right to complain, and appellees’ mortgage would have priority.
Appellants call attention to many authorities which we do not deem it necessary to discuss, because there is no dispute about the law. We do not deem it necessary to set forth the evidence, because, as we have already said, there was some conflict, and the only question is whether or not the evidence established fraud. Fraud is never presumed, but must be affirmatively proved, and the burden of proving fraud is upon the party who alleges it and relies on it. 27 C. J. 44 et seq.
Whether or not there has been fraud in any case is usually a question of fact. Fraud is a question of law only when the facts are undisputed and but one reasonable conclusion can be reached from the evidence, or where there is an entire failure to sustain the issue. 12 R. C. L. 444-445.
The rule is well established in this court that the finding of the chancellor on questions of fact will not be set aside by this court unless we can say that the finding of the chancellor is against the preponderance of the evidence.
We have very carefully examined the evidence, and have reached the conclusion that the finding of the chancellor is not against the preponderance of the evidence, and the decree is therefore affirmed. | [
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Kirby, J.,
(after stating the facts). The reformation of deeds and other instruments. of writing upon allegations of fraud or mistake is a matter for the exclusive exercise of equity jurisdiction, and the court committed no error in transferring the cause to equity.
The testimony was virtually undisputed that the land sold to appellant by appellee was, by mistake, not correctly described in the deed to him and also disclosed a correct description of the land intended to be conveyed as set out in the amendment to the complaint, and the motion to transfer the cause and the court erred in not reforming the deed accordingly.
Appellee, Alice Bell, recognized appellant’s right to the possession of the lands conveyed to him, and immediately brought suit against her codefendants, the other appellees, who are not affected by this appéal, for such possession, that she might deliver it to him. He relied upon her doing so, and refrained from proceeding until after she recovered judgment for the possession of the lands and damages for the detention and accepted payment thereof and agreed to thq further continuance of possession by said codefendants, and refused to execute the judgment for possession for his benefit.
The relief granted to her should have inured to his benefit, and she was bound to him for the payment of the damages recovered and other moneys, for rent of the lands, received from her said codefendants for unlawfully holding over and depriving her grantee of the possession of the premises.
The decree is reversed and the case is remanded with directions to reform the deed in accordance with the opinion and to ascertain, by permitting the introduction of additional testimony if necessary for that purpose, the amount of damages recovered by appellee against said codefendants for the deten tion of the possession of these lands, as well as any money paid her by them for a further holding until possession was delivered to appellant under his writ of possession, and render judgment therefor for appellant against appellee, Alice Bell.
It is so ordered. | [
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Kirby, J.,
(after stating the facts). The undisputed testimony shows that the two policies of insurance applied for were ■ written, delivered to and receipted for by Stone and his wife, and the note sued on executed in payment of the premium. That neither of said policies was ever returned or offered to be returned by appellee to the agent of the company or to the company itself, and that he in fact refused to return the policies or either of them and kept them; neither did he make complaint to the company or to the agent at all until after his note became due, and then only as to his own policy, contending that his age was incorrectly set out therein. This complaint was made more than six months after the application was made and long after the delivery of the policies.
The insured should examine his policy upon its delivery to him, and is bound to do so within at least a reasonable time thereafter and to reject it if it is not what he contracted for; and if he fails to do this, he will be deemed to have accepted it, and can not avoid liability for payment of the premium note. Remmel v. Griffin, 81 Ark. 269; Smith v. Smith, 86 Ark. 285.
He made no objection to this form of policy issued to his wife, nor did he offer, until long after the premium note was due, to surrender or return this policy, and he declined and refused, he says himself, to return the policy issued upon his own life, after he discovered and notified the company of a mistake made therein as to his correct age.
It is also undisputed that appellant paid to the insurance company the amount of money required for its first premium on the policy, that they were duly issued and delivered, and the company, not having offered to return the premium and cancel the policy after it was notified of the incorrect agemontained therein, was bound by the terms of the policy to its payment without regard to the correctness of the age. Minneapolis F. & M. Ins. Co. v. Norman, 74 Ark. 190, 193; Bloom v. Home Ins. Agency, 91 Ark. 367.
If appellee told the agent, at the time of making his application for insurance, his correct age, as he claims to have done, and it was written by the agent in the application, by mistake or otherwise, incorrectly, the company would, nevertheless, be bound to the payment of the policy issued and delivered thereon, the knowledge of its agent, authorized to solicit insurance and fill blanks, being regarded the knowledge of the company. Insurance Co. v. Brodie, 52 Ark. 11; Franklin Life Ins. Co. v. Galligan, 71 Ark. 295; Mutual Reserve Fund Ins. Co. v. Farmer, 65 Ark. 581.
In any event, appellee had the right to pay the premium upon any sort of a policy upon the life of his wife that she would accept herself, and, not having returned nor offered to return the policy, which was delivered to her and accepted by her with his knowledge, after ascertaining that same was not payable to him as beneficiary as he understood it should be he can not avoid payment of the premium note for failure of consideration.
The court erred in refusing to give appellant’s requested peremptory instruction. The judgment is reversed, and the cause remanded with directions to enter a judgment for the amount of the note sued on. | [
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McCulloch, C. J.
Appellee sued appellant on a promissory note before a justice of the peace, and recovered a judgment, from which an appeal was taken to the circuit court. At the first term of the circuit court there were no proceedings in the cause, except that on application of appellant the cause was continued to the next term; and at the next term appellee moved for dismissal of the appeal on the ground that no affidavit for appeal had been filed. Appellant offered to file a substituted affidavit, but the court denied the request on the ground that no affidavit had been filed with the justice of the peace, and dismissed the appeal. From that judgment an appeal to this court has been prosecuted.
The evidence heard by the court is not abstracted. There fore, we must indulge the presumption that the court’s finding that no affidavit for appeal had ever been filed with the justice is sustained by sufficient evidence. The filing of an affidavit is prescribed by statute as a prerequisite to an appeal, and unless waived is ground for dismissal. Merrill v. Manees, 19 Ark. 647.
Appellee did not take any substantive steps in the case before moving for the dismissal of the appeal; and mere delay from one term to another, where appellant’s rights were not prejudiced by the delay, did not constitute a waiver of the omission to file the affidavit. When the appeal was dismissed for want of an affidavit, it was error to render judgment on the appeal bond. The judgment of the court in dismissing the appeal is affirmed, but the judgment on the bond is reversed and quashed. | [
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Kirby, J.,
(after stating the facts). There are several assignments of error, but such only will be noticed as we regard necessary to consider in the determination of the cause.
It is insisted strongly that the court erred in not directing a verdict for the appellant, and we agree with this contention. The damages proved in this case and resulting, aside and separate from mental anguish, amounted to about $40, and the remainder of the verdict must have been allowed on account of mental anguish. If it be conceded that such damages would have resulted from the failure to deliver the telegram, which is not altogether certain, since theundertaker having the bodyfor interment stated that he would not have forwarded it for the amount mentioned in the telegram nor for the larger amount he would have charged until it was secured by being put up with the express company, all of which presupposes that negotiations would have continued from the receipt of the telegram by Sinclair until satisfactorily concluded by the depositing by appellee of the amount necessary to procure a shipment of the body with the express company; but we do not deem it necessary to pass upon this question. The testimony is undisputed, however that the undertaker, to whom the telegram was intended to be sent, and who had the body in charge, after the telegram was sent from Hot Springs, called the appellee over the long distance ’phone at Hot Springs, having been advised by Hickman, who had previously been called up on the ’phone by appellee and inquired of concerning the body of his son, about which he had telegraphed to Terre Haute, and also sent the’phone message. That he declined to answer the call and talk with the undertaker, giving as his reason that he did not have the $4.00 to expend in payment for the call, and that he relied upon the telegram that he had already sent.
It is further undisputed that Sinclair instructed the telephone operator at Hot Springs, upon being advised that appellee had no money to pay for the message, that he would pay for it, and that she then advised him, Sinclair, that appellee refused to come to the ’phone. Appellee does not deny that he talked over Mrs. Parvin’s ’phone to the central office, after being notified of the long distance call from Terre” Haute for him after his telegram was sent, and told the operator, “I haven’t any more to do with it. I have turned it over to Mc-Gafferty. ” Although he did say that he had no notice that the person desiring to talk with him would pay the expense of the message.
It can not be doubted that appellee could have secured all the information he desired by answering the telephone call of Sinclair, and have had ample opportunity to make any arrangement within his power to procure the shipment of the body of his son for burial or interment in the family burying grounds, and thus prevented all damage resulting from the failure of the delivery of his telegram by so doing. A slight exertion on his part in merely answering the ’phone, and in any event a trifling expenditure of $4.00, and remaining a little while at the ’phone, over which he declined to receive the long distance message from the central office at Hot Springs, would have prevented all but nominal damages. It was clearly his duty to use reasonable effort to lessen any damage that might result from defendant’s breach of its contract and negligence in failing to deliver the telegram.
The rule is: “That where a party is entitled to the benefit of a contract and can save himself from a loss arising from the breach of it, at a trifling expense or with reasonable exertions, it is his duty to do it, and he can charge the delinquent with such damages only as with reasonable endeavors and expense he could not prevent.” Warren v. Stoddard 105 U. S. 224, 26 L. Ed. 1117; St. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371.
And it makes no difference whether this case be regarded as one arising out of contract or tort, since the principle that the injured'party must reasonably exert himself to prevent damage applies alike to cases of both kinds. Sutherland on Damages, § 90.
Appellee insists, however, that the jury was properly instructed as to contributory negligence, and that it was a question for them, and, having found in his favor, the judgment should be affirmed.
As already stated, the evidence is undisputed, and we do not think it can be said that the minds of reasonable men would differ as to the duty of appellee to answer the long distance call which could have been in reply to his telegram, and which he knew was about the same matter, and receive information of everything he desired to know, and which was necessary to securing the shipment of the body of his" son for burial and thereby prevent any but nominal damages resulting from plaintiff's failure to deliver the telegram, and, such being the case, it was not a question for the jury.
Plaintiff, having failed to perform this simple duty, is not entitled to recover more than nominal damages, and the judgment is reversed, and judgment will be entered here for such damages.
It is so ordered. | [
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Mehaeey, J.
The appellant brought suit against the appellee in the Pulaski 'Circuit Court alleging that appellant was a corporation operating under the laws of the State of Arkansas, and that on May 2, 1931, said defendant, through its agents, servants and employees, unlawfully, forcibly, and falsely restrained the plaintiff of her liberty, and imprisoned her against her will at 308 West 5th Street, Little Rock, Pulaski County, Arkansas. She alleged that she was greatly injured, and prayed for damages in the sum of $1,000.
The second count of her complaint alleged that on May 2, 1931, in the city of Little Rock, Pulaski County, Arkansas, and in the presence of divers persons, the defendant, through its agents, servants and employees, falsely and maliciously spoke of and concerning the plaintiff the following false, malicious, and defamatory words: “Hey, you,” addressing Mrs. Leonard Dean, “you took a pound of butter from us which you did not pay for,” charging plaintiff with the crime of stealing a pound of butter from the Black & White Stores, Inc., the defendant; that said words were spoken and published with the malicious intent of impeaching plaintiff’s honesty, integrity, veracity and reputation, and to expose her to public hate, contempt, and ridicule; damaged plaintiff in her reputation and caused and occasioned her personal injuries and injury to her feelings; that, by reason of said false arrest, imprisonment, slanderous and false accusation, __ and by reason of the shock and fright caused thereby, plaintiff suffered a severe heart attack, and was confined to her bed under the care of doctors for several days.
She alleged that she had suffered actual damages in the sum; of $5,000; that she should recover compensatory-damages in the sum of $3,000, and punitive damages in the sum of $1,000.
Defendant filed answer denying that its agents, servants and employees, unlawfully, forcibly and falsely restrained the plaintiff of her liberty, and defendant denied that, through its agents, servants and employees, it falsely and maliciously spoke and published of and concerning the plaintiff the words complained of, or any other words, or imputed to her the stealing of a pound of butter or the crime of petit larceny, or said or did anything with the intent of impeaching the honesty of the plaintiff; denied that plaintiff was caused to be confined to her bed, or that she suffered a nervous shock or fright, or any other damages.
A jury was impaneled to try the case, and the appellant testified substantially that she was married, living with her husband, and had two children; that she did all the house work and the shopping; that on May 2, 1931, in the afternoon, she and her two children went into Woolworth’s Store and purchased some small articles and placed them in her personal shopping bag; that they then went down the street to the Black & White Store where she had traded many different times.
When she went in, she picked up a basket that they use in there, and had her shopping bag and purse and the basket in one hand. She spoke to Mr. Ford about the kind of butter, and he told her which was the best seller, and she put the bos of butter in the basket, not her shopping bag, and walked right out by Mr. Ford where the eggs were, put two dozen of them in her basket, and went to the meat counter, where she purchased some meat, and put this in the basket, not in her bag. She then went to the cashier’s desk where the things she purchased were checked, paid for the articles purchased, and received the change to which she was entitled.
After she had checked the groceries, the sack boy put everything that she bought there in a brown paper sack. She did not pnt any of the groceries in her shopping hag.
After she had walked ont of the store and was almost to the Spot Cash Store, suddenly some one came up behind her and grabbed her shopping bag, and said: “Hey, you took a pound of butter you did not pay for,” and jerked the bag completely out of her hand, and she told him he was mistaken. The man that ran up behind her was Mr. Ford, out of the Black & White Store.
When he made the statement above quoted, she was with her two little children. She stated to Mr. Ford: “Here are the groceries. What was in my shopping bag when I went into the store came from Woolworth’s store.” Ford said he did not want her groceries; that he meant her personal shopping bag, and when he saw there was nothing in that, he said she could go.
There is considerably more testimony, but it is unnecessary to set it out here. • Some other witnesses testified corroborating appellant, and at the close of appellant’s testimony the court directed the jury to return a verdict in favor of the defendant, which was done, and judgment was entered accordingly. The case is here on appeal.
The court, in directing a verdict for defendant, stated: “The proof shows that a representative of the Black & White Stores, Inc., told Mrs. Dean that she had butter, or had taken butter for which she had not paid. Now, before a recovery can be had for slander, the words spoken must of themselves charge a crime; and, as the court sees, the words: ‘You have butter for which you have not paid,’ does not charge a crime of stealing.”
The court then states that, before recovery Gan be had, the person charged must be charged with the crime of stealing or of some other crime.
We think the trial court was in error. Under our statute it is slander to charge one with a crime, but in addition to that the statute provides: “ Or to charge any person with having been guilty of any dishonest business", * * * the effect of which charge would be to injure the credit or business standing, or the good name or character of such person so slandered. Crawford & Moses’ Digest, § 2396.
But where the charge is a crime, the words themselves do not necessarily have to show that a crime is charged. “But if it appears from the connection in which the charge was made, or the circumstances attending its utterance, that it was intended or understood to impute the crime of larceny, it will be regarded as actionable per se.” 36 C. J. 1208.
The allegation in the complaint is that the employee of appellant overtook appellee on the street after she had left the store, and stated that she had taken a pound of butter that she had not paid for.
Appellee testified that she had purchased the articles, went right :by Mr. Ford, the employee who made the charge, and that the purchases at the Black & White Store were, by another employee, placed in a paper bag. Ford must have known this, because, when he overtook appellee, he told her that it was not the paper bag which he wanted to see, but her personal shopping bag, and that he jerked this personal bag from her hand.
Whether the charge he made, together with the attending circumstances, amounted to charging the crime of larceny, was a question of fact for the jury, and not the court.
In this case the allegation was made that appellee was charged with a crime, and the facts proved tended to show that appellee was charged with the crime of stealing a pound of bntter, because the charge was that she had taken a pound of butter that she had not paid for, and the employee stated he did not want her paper bag, but her personal shopping bag, which would indicate that she had purposely taken a pound of butter and put it in her personal bag, and, of course, if she did this, she was intending to steal it.
The words do not have to be actionable in themselves, but, if the words, together with the attendant circumstances, amount to a charge of larceny, this is suffi cient. Hays v. Mitchell, 7 Ind. 117; Morgan v. Livingston, 2 Richardson's Reports, 573.
This court has held that, under our statute, charging a white man with being a negro is actionable, although, of course, it does not charge a crime. Morris v. State, 109 Ark. 530, 160 S. W. 387; Flood v. News & Courier Co., 4 A. & E. Ann. Cases 685; Spotorno v. Fourichon, 40 La. 423.
Where the words, together with the attendant circumstances, are alleged to charge a crime, they are actionable, and whether the words charged, together with the attendant circumstances in this case, amounted to the charge of crime was a question of fact for the jury.
We said in'a recent case: “That a grandfather was educating a grandson is a thing so common that such a statement considered by itself is apparently innocuous. But the testimony in Thompson’s behalf is to the effect that this is not the meaning appellant meant to convey, and did convey. The innuendo was that the young man was being educated with money stolen by Thompson from the young man’s grandfather, and this charge was actionable.” Collier v. Thompson, 180 Ark. 695, 22 S. W. (2d) 562.
So in-this case the testimony in behalf of appellee is to the effect that the words spoken by the employee of the appellee meant to convey, and did convey, that appellant was guilty of larceny.
The judgment of the circuit court is reversed, and the cause remanded for a new trial. | [
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McHaney, J.
Appellee brought this action against appellant to recover damages for personal injuries sustained by him while an employee in appellant’s sawmill. On November 19, 1930, while working in the plant of appellant as oiler and while engaged in greasing bevel gears which drive the ‘Give rollers” on one of the edger tables in the sawmill, appellee’s right hand was caught in the cog wheel, brought in contact with the hood or covering over the top part of the gear and was injured— four fingers of his right hand being broken and crushed to such an extent that it became necessary to amputate three of them. A trial resulted in a verdict and judgment in favor of appellee in the sum of $1,000.
Several errors are assigned for a reversal of the judgment, the most serious assignment being the alleged error of the court in refusing to direct a verdict for appellant. This challenges the sufficiency of the evidence to support the verdict, and this necessitates a brief review of the evidence in the light most favorable to ap-pellee. It is the settled rule of this court that a judgment will not he reversed on account of the insufficiency of the evidence where there is any substantial evidence to support it, viewing the evidence in the light most favorable to the party in whose favor the judgment is rendered. Viewed in this light, the evidence establishes that appellee, a colored man, at the time of the injury was just past twenty-one years old; that he had been working for appellant in different capacities for about three and one-half or four years; that he had been performing the duties of oiler a very short time, substituting for the regular oiler, who had received an injury in the same manner a little less than thirty days prior to appel-lee’s injury; that he had never greased the gears on the edger table prior to the time he was injured, except perhaps once a year or so previous; that he was instructed by the mill foreman on the morning of the accident to grease said gears by applying the grease to the outer cog wheel with a paddle while the machinery was in operation, but no other instructions were given him as to how the work was to be done; that he was injured on the first gear that he attempted to grease, there being a number of similar gears on the edger table; and that he had previously worked around and about the edger table at different times, but paid no particular attention to the gears or how they were greased. It is further shown that the gears were covered by a guard over the top part which came down half way to the bottom, leaving the under side exposed, which was standard equipment; that the cog wheels had become worn on the gear at which he was injured, having sharp edges, and that this caused the cogs to catch the stick or paddle, pulling his hand into the machinery. Appellee did not know of this condition. Under this state of facts we are unwilling to say as a matter of law that appellee assumed the risk, and that the court should have directed a verdict against him. On the contrary, we think the facts make a question for the jury, especially when his youth and inexperience are taken into consideration. The general rule is that the question whether an employ assumes the risk is one for the jury and not for the .court-unless the danger is so open and obvious that a person of reasonable prudence would not perform the particular service. This is always true where the servant is acting under the immediate direction of his superior unless he knows and appreciates the danger of obeying the orders or the danger is so open and qbvious that a person of reasonable prudence wonld refuse to do so. Owosso Mfg. Co. v. Drennen, 182 Ark. 389, 31 S. W. (2d) 762. Here the servant was not only acting by direction of his superior, hut there was some evidence of -negligence on the master’s part of a defective condition of the cog wheel which was or could have been known to the master by an inspection and was unknown to the servant. Furthermore the servant, although twenty-one years of age, was young and inexperienced, and it is well settled that the law imposes the duty of instructing and warning such a one regarding the duties to be performed and the dangers incident thereto. Ward Furniture Mfg. Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002.
Error is assigned on many grounds to the giving of instruction number one for appellee. This is a lengthy instruction and no useful purpose could be served by setting it out and commenting on the alleged errors separately. Exceptions were saved to it, both general and specific, all of which we have carefully examined and find them without merit. Complaint is also made of the refusal of the court to give appellee’s requested instruction number seven. We have carefully read all of the instructions given by the court as well as those refused, and are of the opinion that the court fully and fairly instructed the jury on every phase of the case. "We therefore overrule these assignments.
Another assignment is that the court erred in allowing Fred Elliott, a witness for appellee, to testify over its objections that appellant had other cog gears on a casing table which were larger than those on the edger table, hut serving a similar purpose, which were entirely covered or protected by a guard and were greased in a different way, and that appellee would not have been hurt if the gears on the edger table had been encased and greased like those on the casing table. Ap-pellee responds to this statement by saying that no such testimony was given by the witness, and quotes the transcript of his testimony which shows that he did not. Whether he did or not we think unimportant, as the testimony in no way could have prejudiced appellant. The gears on the casing table were entirely enclosed with a guard or hood, both above and below, and the grease was poured in at the top in a receptacle provided for that purpose. Of course, had the gears on the edger table been so encased and greased, appellee could not have been hurt, and the witness’ statement to that effect was a simple statement of fact which the jury and everybody else would know as well as the witness.
Complaint is also made of the action of the court in permitting the witness, Quimby, to testify over its objections that there was danger in greasing the cog gears on the edger table, and that it was more dangerous to do so than putting grease in the grease boxes along the line shaft. This was another simple statement of fact which every person knows to be true, and moreover the witness was a millwright of twenty-five years’ experience and was testifying as an expert. -We think no prejudicial error occurred in the admission of this testimony.
Another assignment of error relates to the testimony of Isom Brewer, who testified as a millwright of long experience, which we have examined and found unobjectionable, at least not prejudicial to appellant. Three farmers were permitted to testify as to the extent of the impairment of appellee by reason of the loss of the fingers on his right hand. Inasmuch as it is not claimed that the verdict in this case is excessive, which it manifestly is not, we fail to see wherein the testimony of these witnesses prejudiced appellant in any manner. Their testimony was to the effect that his impairment as a farm hand or common laborer, such as appellee’s education and training fitted him for only, was, in their judgment, from fifty to seventy-five per cent. Of course, the jury was as capable of judging this matter as were the witnesses, but, conceding it to be erroneous, it was harmless.
The smallness of the verdict and judgment in ap-pellee’s favor shows that the jury probably considered that his injury was the result, in part, of his own negligence, and that they reduced the amount to which he would have otherwise been entitled under the comparative negligence statute as instructed by the court. "We find no reversible error, and the judgment must be affirmed. It is so ordered. | [
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Butler, J.
James Thompson, a negro, executed the-mortgage sued on covering 100 acres of land in sections 14, 16 and 23 in township 9 south, range 29 west, on October 20, 1921. The mortgage was made to the Conservative Loan Company, and regularly assigned to the appellants.
There was no dispute about the mortgage or about the right of appellants to a .judgment against the mortgagor, James Thompson.
The Bank of Lockesburg held a third mortgage also executed by James Thompson against the same lands, and 120 acres in section 8, to secure the payment of a note for $2,160. This note and mortgage were executed June 7, 1922, and were due October 2, 1922. Thompson made payments on the indebtedness to the Conservative Loan Company, and also on the indebtedness to the Bank of Lockesburg. In. 1928 his indebtedness to the bank had been reduced to $1,000, and he executed a note for this amount.
In February, 1929, Thompson paid to the bank $400, leaving an indebtedness of $600, and on that date executed a note for $600 secured by chattel mortgage, and this mortgage was to secure all indebtedness due the Bank of Lockesburg.
All the lands in the mortgages became delinquent for nonpayment of road taxes due for the years 1921 and 1922, and in 1924 the road improvement district filed suit and a decree was entered in the chancery court and a commissioner’s deed executed in October, .1926. The land was thereafter conveyed to Dell Dritt, who conveyed the same to the Bank of Lockesburg on March 1, 1927.
The appellants, assignees of the Conservative Loan Company, brought suit to foreclose the mortgage executed on October 20,1921. The appellee, Bank of Lockes-burg, filed answer and cross-complaint denying all the material allegations in the complaint and alleging that •it was the owner of the lands described, free from any lien of plaintiffs, and alleged that plaintiff’s mortgages constituted a cloud upon its title and asked that they be set aside.
It was further alleged that the lands described in the complaint are embraced in Road Improvement District No. 3, and were sold for the assessments levied against the lands for the years 1921 and 1922; that suit was brought and a decree entered in April, 1924; the lands were sold to the district, and deed was 'made to the road improvement district in October, 1926; that in December, 1926, the road improvement district sold and conveyed said lands to Dell Dritt, and on the first day of March, 1927, Dell Dritt conveyed the lands to the Bank of Lockesburg.
The appellants filed answer to the cross-complaint alleging the mortgage made to the bank and certain payments thereon, and that said mortgage had never been satisfied; that the purchase of said land by Dell Dritt and the Bank of Lockesburg was for the purpose of redeeming the lands from the improvement district taxes. They further alleged that James Thompson, the defendant, had repaid the Bank of Lockesburg, and that it continued to permit Thompson to remain in possession; that the Bank of Lockesburg was estopped from asserting and claiming the title thereto.
James Thompson and Henrietta Thompson, appel-lees, filed an answer and cross-complaint denying the allegations of the Bank of Lockesburg that it had any deed from the improvement district. Thompson further alleged that he was an ignorant negro farmer, and had been a customer of the Bank of Lockesburg, and had sought its assistance in paying taxes and buying and selling land. It was further alleged in Thompson’s answer that the debt to the bank had been reduced to $600, which was secured by chattel mortgage and that that represented all of Thompson’s indebtedness to the bank. They alleged that in the fall of 1929 they paid the Bank of Lockesburg* the proceeds from the sale of their crop, the amount of which was unknown. They further alleged that they paid the taxes due for 1930 and all former years, and that the bank had never demanded possession; that Thompson was advised by the cashier of the bank not to pay the improvement district taxes.
The hank filed a reply to the answer of Thompsons, denying all the allegations made by them.
There is practically no dispute about the facts at between the appellants and the Bank of Lockesburg, and Thompson did not appeal.
The court entered judgment in favor of appellant, Poole, for $989.79 and E. L. Carter, trustee for $59.81. These judgments were against James Thompson. The court also found that the indebtedness from Thompson to the’ Bank of Lockesburg was $600, and that, as to Thompson, the purchase of the land amounted to a redemption, and that the bank had paid $100 in redeeming the land from the road improvement district, and that Thompson could redeem by the payment of the $100 and the $600 secured by the mortgage, and gave Thompson six months in which to pay said sums.
It was further decreed that, if Thompson failed to pay within six months, the rights of the Bank of Lockes-burg in and to said lands be quieted and confirmed against all the parties. The decree further provided that, if Thompson redeemed the land, Poole and Carter should have the right to have the lands sold for the payment of their respective judgments.
The appellants contend for a reversal of the decree because: (1) The court allowed the Bank of Lockesburg a prior lien of $100; (2) the decree provided that only Thompson had the right to redeem; (3) for the reason that the decree required not only the payment of $100, but the $600 that Thompson owed the bank; (4) for failure to require the bank to exhaust its security against the chattels' embraced in the mortgage, and against the 80 acres of land upon which the bank had a first lien; 5, the court erred in permitting the introduction of the deed from the improvement district.
It will be seen from the statement that there is no controversy about the amount of indebtedness, and there is, as we have already said, practically no dispute as to the facts.
Since Thompson has not appealed, the only question for our consideration is whether the appellants have any rights as against the Bank of Lockesburg.
The mortgages owned by appellant, and which they sought to foreclose, were executed October 20, 1921. The road improvement district taxes were delinquent for the years 1921 and 1922, and suit was brought in 1924 by the road improvement district to foreclose its lien. A decree was entered in its favor in April, 1924, and the lands were sold in May, 1924, and purchased by the road improvement district.
A commissioner’s deed was made to the district in October, 1926, and in December, 1926, the Bank of Lockesburg purchased the lands. The appellant could have, at any time from 1921 up to the time the bank purchased the property, paid the taxes and redeemed the land. They could have protected themselves in this manner, or they could have paid the taxes before they became delinquent. They, however, did not do this. They made no effort to protect their lien, and began no proceedings until July, 1931.
As to the rights of the Bank of Lockesburg and the appellants, the authorities are not in harmony. But the questions-here involved have already been settled by the decisions of this court, and it As therefore unnecessary to discuss other authorities.
In a recent case we said: “The holder of the second mortgage was under no obligation to the holder of the first mortgage to redeem the lands in possession of the mortgagor from their sale for delinquent taxes, notwithstanding the owner was bound to the payment of such taxes by the terms of the first mortgage. The appellant, under his mortgage, could have paid the taxes before the lands were sold as delinquent, and charged them against the mortgagor, and it could have redeemed the lands in the manner provided by the act from the tax sale within the time allowed therefor after such sale. “Appellant makes no showing of having been prevented from either paying the taxes or redeeming the lands by any conduct of the holder of the second mortgage calculated to lull him into security in the belief that such taxes would be paid or redemption would be made for his benefit.” Security Mtg. Co. v. Herron, 174 Ark. 698, 296 S. W. 363. The same principle was announced in the case of Security Mtg. Co. v. Harrison, 176 Ark. 423, 3 S. W. (2d) 59.
The decisions in the above cases settle this case. It is, however, contended by appellant that these cases are overruled by the case of Bartel v. Ingram, 178 Ark. 699, 11 S. W. (2d) 488. There is, however, nothing in that case in conflict with the principles announced in the two cases above mentioned. The facts in Bartel v. Ingram case were wholly different. The case is controlled by the principles announced in the above cases, and the decree of the chancery court is affirmed. | [
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McHaNey, J.
This litigation arose out of an automobile accident which occurred in the city of Benton in Saline County on March 20, 1931. Appellant Howe is a resident of that city, and is the owner of a truck driven by Ms employee, one Cabe, which collided with a car owned and driven by appellant Belford at the intersection of Main and Conway streets in said city. Belford is a citizen of Bandolph County.
Mrs. Hatley, the wife of appellee, an invited guest in appellant’s car, was instantly Mlled as a result of said collision. Appellee brought this action against both appellants, charging that their joint and concurrent negligence caused the death of his wife. Howe denied any negligence on the part of Cabe, pleaded contributory negligence of Mrs. Hatley and that the accident was caused by the negligence of appellant Belford.
Belford denied any concurrent negligence or any negligence on his part, alleged that the accident was caused wholly by the negligence of the driver of Howe’s truck, and filed a cross-complaint against Howe seeMng to recover damages for personal injuries sustained by him as a result of the wreck.
Trial resulted in a verdict and judgment against both appellants in the sum of $10,000.
The first assignment of error made by appellant Bel-ford, that the court committed reversible error in telling the jury, in effect, that there could be no recovery against Howe unless there was also a recovery against Belford, must be sustained. The court gave an instruction number 30 on its own motion reading as follows: “You are further instructed that under the law in this case you will have to find that both the driver of the truck, Fletcher Cabe, and the defendant Belford, were negligent before you could find a verdict in favor of the plaintiff, and if either one of them were not negligent, you should find for the defendants.” This instruction was objected to by appellant Belford only. It was an erroneous instruction and prejudicial to appellant Belford. While it is true that the complaint charged the joint and concurrent negligence of the drivers of both cars, under well-settled principles of law, there were three possibilities of recovery in the case: first, if both were negligent, there might he a recovery against both; second, if Belford was negligent and the driver of the Howe truck was not, a recovery could he had against Belford alone; and third, if the driver of the Howe truck were negligent and Belford was not, there could he a recovery against Howe only, provided he “failed to object before the judgment to its proceeding against him.” Section 1178, Crawford & Moses’ Dig’est. The judgment of the court recites that, “after the introduction of all the evidence in the case on-the part of the plaintiff and the defendant, F. E. Belford, the defendant J. E. Howe filed his motion objecting to the jurisdiction of this court, under § 1178 of Crawford & Moses’ Digest, which motion is by the court overruled, thereupon defendant excepted and asked that his exceptions be noted of record. ’ ’ The court correctly overruled this motion, as it had jurisdiction of both the subject-matter and the parties at that stage of. the proceeding. Had there been a verdict against Howe alone, he could have again objected to its proceeding against him at any time prior to the judgment. Stiewel v. Borman, 63 Ark. 30, 37 S. W. 404; Wood v. Stewart, 81 Ark. 41, 98 S. W. 711; Seelbinder v. Witherspoon, 124 Ark. 331, 187 S. W. 325.
Prior to giving instruction number 30, the court gave instruction number 16 at Howe’s request reading as follows: “Defendant Howe’s No. 1 — Given: You are .instructed, in so far as the defendant, J. E. Howe, is concerned, that the burden is on the plaintiff, J. R. Hatley, in this case to prove by a preponderance or greater weight of evidence that the accident resulting in the damages complained of was attributable to the negligence of Fletcher Cabe, who at the time of the alleged accident was driving the truck of the defendant Howe, and if he has failed to show this by a preponderance of the evidence, then you are told that it is your duty and you are instructed to return a verdict for the said defendant, J. E. Howe, in this action.” The court also gave at the request of appellant Howe instruction- number 17 which is along the same line as number 16 and relating solely to the liability of Howe.
• The court also gave its instructions number 21 and 26 at the request of appellant Belford, relating to his liability alone, which provided in substance that if he were not negligent they could not find against him. The latter part of 26 provides: “If you find that the defendant, Belford, acted as an ordinary prudent person would have acted under the same or similar circumstances, then your verdict would be for the defendant, F. E. Belford.” These individual instructions were entirely proper, but they are in irreconcilable conflict with instruction number 30, given by the court on its own motion. The court first tells the jury, in effect, they can find only against the defendant that is negligent. It then tells the jury that it has to find against both of them to find against either of them. It is said that this is not prejudicial because it is more favorable to appellant Belford than he is entitled to have given. We cannot agree with appellee in this regard. While it is a fact that one of the defendants was a non-resident and there could be no judgment against him over his objections unless there was also a judgment against his co-defendant who was a resident of the county, still it was not the duty of the court to so instruct the jury and was therefore prejudicial to the resident defendant. The evidence of negligence on the part of appellant Belford, if any at all, is very meager, and it might have been possible that the jury would not have returned any verdict against him at all if they had not been told that in order to find against Howe they must also find against Belford. It is also contended that Belford invited this error on the part of the court by requesting an instruction of similar import, which was given by the court as number 23. We cannot agree with this contention, however, as this instruction was in response to appellee’s theory of joint and concurrent negligence.
Other assignments of error are argued in the briefs of appellants, but, since the case must he reversed for the error indicated, we think it unnecessary to discuss them. Appellant Howe did not object to the erroneous instruction nor has he assigned any such error in his motion for a new trial. But, since there can be no judgment against him, over his timely objection, unless there is also a judgment against Belford, we reverse and remand the case for a new trial as to both appellants. | [
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Humphbeys, J.
Appellant was indicted, tried and convicted in the Pulaski County Circuit Court, First Division, for the crime of subornation of perjury for procuring Lee Weber to swear falsely on May 15, 1931, to an affidavit substantiating- an account against said county in the sum of $4,034.33 for supplies sold to said county for its hospital, and, as a punishment therefor, was adjudged to serve a term of one year in the State Penitentiary, from which is this appeal.
Two alleged errors are urged by learned counsel for a reversal of the judgment.
First, it is argued that there is no legal evidence in the record to sustain the judgment of conviction, and, second, that the testimony introduced relative to other crimes was inadmissible and prejudicial to the rights of appellant.
(1) The record made by the State reflects that appellant, county judge, appointed Ralph Thomas county comptroller, Henry Hilliard, purchasing agent, and Mrs. Harrell as receiving agent for supplies sold for use in the county hospital; that appellant directed Hilliard to buy the major portion of meats and groceries for the hospital from Lee Weber; that, pursuant to the direction, supplies for the hospital during the months of April, May and June, 1931, were ordered from Lee Weber, who ran a small grocery store and meat market, to the amount of $12,204.17, out of a total of $15,096.04 purchased therefor ; that during the month of April, 1931, supplies were ordered from him in the sum of $4,034.33, out of a total of $5,149.68 purchased therefor; that the total ordered for the use of the patients and employees therein was much more than they could have consumed; that in the month of April, Lee Weber signed the name of the purchasing agent to the requisitions made upon him for the supplies, and likewise signed the name of Mrs. Harrell to many of the receiving slips for supplies; that items for milk were carried on Weber’s account as beans to cover up the source from which the milk was obtained; that Weber was a contributor of $4,000 or more to appellant’s campaign fund and a fund to influence legislation; that in July, 1931, the State auditorial department, pursuant to law, audited the accounts of Pulaski County, which disclosed the fact that appellant had allowed claims filed against the county by 555, Inc., and Kern-Limerick Company for large amounts of merchandise which had never been delivered to the county, and that, out of the amount received for the goods which had not been delivered 555, Inc., had contributed four or five thousand dollars to appellant’s campaign fund and legislative fund, and that Kern-Limerick Company had contributed either to said funds or to appellant as secretary of a county court fund, $2,500; that, after this discovery was made, 555, Inc., refunded to the county $15,400 and Kern-Limerick Company refunded $2,500; that the campaign and legislative funds derived by appellant in this manner amounted to more than $20,000.
We think, from the facts detailed above, the jury might have reasonably concluded that appellant adopted this plan or scheme to raise campaign or legislative funds by padding orders or requisitions issued on behalf of the county for merchandise; and to reasonably infer that Lee Weber falsified his April, 1931, account by including groceries and meats therein which he never delivered, by and with the approval and consent of appellant.
There is ample testimony in the record to sustain the verdict and judgment.
(2) The insistence that the testimony relative to' the transactions with 555, Inc., and Kern-Limerick Company was erroneously admitted in evidence because separate and distinct offenses is not sound. The testimony relative to these offenses tended to show a system adopted by appellant and his friends to defraud the county and to prove the scienter laid in the indictment. The offenses were similar in nature, all involving appellant and covering a reasonably short period of time, and were admissible under the rule announced in the case of Howard v. State, 72 Ark. 586, 82 S. W. 196, and reiterated in the case of Wilson v. State, 184 Ark. 119, 41 S. W. (2d) 764.
No error appearing, the judgment is affirmed. | [
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Mehaefy, J.
This is a suit in replevin brought by the appellee against Browne-Brun Wholesale Grocery Company. The appellee alleged that it was the owner and entitled to the immediate possession of 259 cases of baking powder, and four nose trucks. It was alleged that the goods were placed with the appellant on consignment.
The following is the instrument under which the Browne-Brun Wholesale Grocery Company acquired possession of the goods:
“Ship. Date Snow King
Jobber Agency Plan
“Browne-Brun Who. Gro. Co. Nov. 12, 1931.
“Ft. Smith, Ark. Advertising Premiums
“Cases Size Cans Price Chain-10
50 10e 48 3.70 Pana-5
250 20 25c 24 4.60 Truck-5
25 Introductory Free
12/15/31 1/3 Billed 30 days — less 2%
1/15/32 1/3 Billed 60 days — less 2%
2/15/32 1/3 Billed 30 days — less 2% Less 17% and 2%
(Stamped on face: Nov. 16, 1931. 22647)
“CONDITIONS AND AGREEMENT
“1. All orders on Snow King Baking Powder are to be shipped from jobber’s stock, including all orders for advertising premiums taken by the Snow King salesman, or the jobber’s salesman.
“2. The Snow King Baking Powder Company agrees to supply the jobber with advertising premiums free of charge. As these advertising premiums offers change from time to time, only a limited supply of these premiums are sent along with this order, but the premiums are sent to the jobber, without any cost to him, whenever new deals are put into effect and whenever new premiums are offered to the trade as long as this arrangement is in effect.
“3. Only jobbers operating under this plan are privileged to fill Snow King orders from their stocks. Jobbers’ salesmen are notified of new deals and new premium offers from time to time when they are brought out by the Snow King Baking Powder Company.
“4. The Snow King Baking Powder Company reserves the right to withdraw this agreement, if it is impossible to effect savings by not shipping into this territory in either pool car shipments, or solid cars, because this extra profit to the jobber is only possible due to the savings in freight which the Snow King Baking Powder Company can make.
. (In pencil as follows): “If any of the above payments become due before same being sold, payments to be deferred 30 or 60 days or longer if necessary or until this stock is sold by the jobber.
“Signed:
“Bowling
“The Snow King Baking ‘‘Signed:
Powder Co. “Browne-Brun Gro. Co.
“Cincinnati, Ohio. “Fred Browne.”
The Browne-Brun Wholesale Grocery Compány was adjudicated a bankrupt after suit was brought, and Henry Sternberg, trustee in bankruptcy, was substituted as defendant. The case was tried before the circuit judge sitting as a jury, and, after hearing the evidence, the court took the case under advisement, and afterwards rendered judgment' in favor of the appellee. The case is here on appeal.
At the time of the hearing, appellee. offered certain evidence which was excluded, some of which the court afterwards considered. The appellant requested the court to find as follows :
. “(a) That the baking powder involved in the suit was sold to the grocery company, and'title-passed upon delivery;
“ (b.) That the contract in this case is evidenced by a written instrument in the form of an order signed by both' parties, complete in its terms, not ambiguous and requires no explanation to enable one to understand its terms;
“ (c) That the order does not establish a conditional sale, nor does the order, together -with the invoice, show that same was on condition.
“Defendant requested the court to find as a conclusion of law that the title to the baking powder was vested in the grocery company, or its trustee in bankruptcy, and judgment should be for the defendant. These requests were denied.”
The court at the request of appellee, found as follows:
“(a) That the sheriff has in his possession merchandise described in the writ;
“(b) That the merchandise was shipped and delivered to the grocery company under and by virtue of a jobber’s agency plan, written-order, duly signed by Fred Browne, president of the Browne-Brun Wholesale Grocery Company, an authorized agent of the defendant, which order provided that goods were not to be paid for until sold and were placed in storage, goods to be withdrawn by defendant as needed; an additional commis sion being allowed by saving’ expense of storage, and that title to said goods to be in plaintiff until sold; defendant being an agent for sale on account of plaintiff. The court announced its conclusion of law to be, “that, upon the facts introduced by plaintiff, title to the baking powder remained in plaintiff, * * * and that the written order designated ‘jobber’s agency plan, not -to be paid for until sold,’ in connection with the undisputed testimony of plaintiff constitutes an agency agreement, and the goods in question were consigned by the plaintiff to the defendant, * * * and that the plaintiff is entitled to judgment for possession of the baking powder.”
It is first contended by the appellant that the evidence objected to and which the court afterwards considered was inadmissible, because he contends that the contract is plain and complete and contains no ambiguity.
The evidence was competent to explain certain provisions in the contract, and it was not prejudicial. The only purpose of it was to show the intention of the parties, and the trial court, believing that the contract was ambiguous, admitted the evidence for the purpose of showing the intention. Moreover, the evidence is practically undisputed.
The primary rule in the construction of contracts is that the court must, if possible, ascertain and give effect to the intention of the parties so far as this can be done consistent with legal principles. 13 C. J. 521; 6 R. C. L. 835.
And, in order to arrive at the intention of the parties, courts may acquaint themselves with the persons and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they view them, and so as to judge the meaning of the words and the correct application of the language to the things described. Inter-Southern Life Ins. Co. v. Shutt, 175 Ark. 1161, 1 S. W. (2d) 801; Coca-Cola Bottling Co. of Ark. v. Coca-Cola Bottling Co., 183 Ark. 288, 35 S. W. (2d) 579.
Evidence which tends to show the intention of the parties and does not contradict or vary the terms of the -written instrument is admissible for the purpose of showing the real meaning of the words used in the instrument and the intention of the parties.
It is contended, however, by the appellant that the sale was not conditional, and that the title passed to the purchaser. The last paragraph in the contract clearly shows that the Browne-Brun Grocery Company was not to pay for any of the goods until they were sold, and the instrument does not purport to he a contract of sale. It further appears that this clause, indicating that there was to be no payment made until the goods were sold by the jobber, was written into the contract by Mr. Browne himself. We must look at the whole contract in order to determine its meaning, and ascertain what the parties themselves did under the contract, and how they construed the contract.
Unless the Browne-Brun Grocery Company sold the goods, it was not to pay for them. Moreover, the evidence on the part of the appellee shows that he talked with the representative of the Browne Company, and stated to him that the appellee was carrying insurance on the goods. This is not denied by Browne, but he simply says he does not remember.
It is not necessary that the term “conditional sale” be used in a contract, nor that there be a reservation of title to make it a conditional sale. Such reservation may be implied from the contract. 55 C.‘ J. 1201. The facts that’ the appellee carried insurance on the goods, and that no payment was to be made to it until a sale by the jobber, together with the other competent evidence introduced, shoAV clearly the intention of the parties.
The finding of facts by a judge sitting as a jury is as conclusive here as the verdict of a jury. We do not pass on the weight to be given to the evidence, nor the credibility of the witnesses.
There was substantial evidence to sustain the finding of the court, and the judgment is affirmed. | [
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BtjtleR, J.
The appellant filed a complaint in the Miller Chancery Conrt alleging that W. A. Coleman died June 9, 1931, leaving surviving him no widow, and leaving "W. A. Coleman, Jr., a minor who is now abont eight or nine years of age, his sole surviving heir at law.
In October, 1927, the said ~W. A. Coleman made a will, by the terms of which the appellant was appointed as executor and also appointed as guardian of the estate of W. A. Coleman, Jr. The will was duly probated on June 23, 1931, letters issued to appellant both as the executor of the estate and as guardian of the minor. It made bond both as executor and guardian and is now acting as sncb.
All of tbe property of tbe decedent was devised in trust to tbe bank, and directions given to reduce personal property, except United States bonds, to cash, and to invest same in revenue-bearing investment. It was also directed to take charge of, improve, lease, sell and dispose of all real estate, and re-invest so much of tbe proceeds as is not required for tbe administration of said estate.
Tbe executor was also requested to bold tbe estate intact, if possible, until W. A. Coleman, Jr., arrives at tbe age of twenty-one years; to pay tbe expenses and legacies out of tbe income, if sufficient, and, if not, to use tbe principal for that purpose. Provision was also made for decedent’s mother, but she died before tbe testator.
Tbe will gave to testator’s sisters and brothers $1 each. It directed tbe appellant to superintend tbe manner of W. A. Coleman, Jr’s., living, and see to bis education, and deliver tbe remainder of tbe property to W. A. Coleman, Jr., when be arrived at twenty-one years of age. Tbe will also provided for tbe executors to receive such fees as are allowed administrators and executors and a reasonable compensation as guardian for W. A. Coleman, Jr.
Tbe plaintiff in tbe court below requested instructions and directions in many particulars. Mrs. N. R. Fisher, a sister of testator, was made defendant.
After bearing tbe evidence and considering tbe ease, tbe chancery court decreed as follows:
“(a) Tbe administration should be closed at tbe end of one year, tbe debts being paid;
“ (b) There was created by tbe will, at tbe end of tbe statutory period, a trust with tbe State National Bank acting as trustee;
“ (c) Said bank as executor should file its final settlement at tbe end of tbe statutory period, there being no debts and then transfer to itself as trustee the remaining assets;
“(d) That such assets were vested by the will in the bank as trustee, with full authority to handle, administer, sell, dispose of, invest and reinvest funds from the sale of any of the -property of the estate;
“(e) That under the will the bank is entitled, during the statutory period of administration, to those fees allowed to executors and administrators;
“ (f) At the expiration of the statutory period for administration, the bank should receive reasonable compensation as trustee;
“(g) Upon final settlement by the bank (at the end of the statutory period of administration) the trustee should take over the remaining property and continue the trust under the provisions of the will;
“(h) There being no present necessity for advice to the bank, or for interpretation of the will as to whether it was intended to vest a present estate in W. A. Coleman, Jr., a minor, in the residue of property, the court declines to interpret it in this respect.”
Section 97 of Crawford & Moses’ Digest provides among other things that: ‘ ‘ All demands not exhibited to the executor or administrator as required by this act before the end of one year from the granting of letters shall be forever barred.”
This section of the Digest was amended by act 211 of the Acts of 1931, but there is no change in the paragraph above quoted.
Section 1 of Crawford & Moses’ Digest, under administration, also provides that in certain cases no letters of administration shall be granted, or, if granted, the same shall be revoked.
It was the intention of the Legislature to close the administration within one year if there were no debts or claims against the estate. The court was therefore correct in holding that the administration should be closed at the end of one year, the debts being paid, and also in bolding that tbe will, at tbe end of tbe statutory period, created a trust with tbe State National Bank as trustee.
Paragraph 2 of the will conveys all of tbe testator’s property in trust for tbe purposes thereafter named.
Having held that tbe administration should be closed at tbe end of one year, it necessarily follows that tbe executor should file its final settlement at that time, and, since it was, by tbe terms of tbe will, made trustee, it would be its duty at tbe end of tbe administration to take charge of tbe property as trustee.
Paragraph 4 of tbe will expressly provides that tbe executor shall take charge of, improve, rent, lease, sell, convey and dispose of any and all real estate, and, if it sell tbe same, it is authorized to convey title thereto and reinvest tbe proceeds in some good revenue-bearing investment.
Paragraph 3 of tbe will directs tbe executor to reduce all personal property.to cash, except United States bonds and to invest tbe proceeds, not required for tbe purposes mentioned elsewhere in tbe will, in good revenue-bearing investment.
The court therefore correctly held that tbe assets were vested in tbe trustee, with full authority to handle, administer, sell, dispose, invest and reinvest funds from tbe sale of any of tbe property of tbe estate.
Tbe will itself provides that tbe executor shall be allowed such fees as are allowed by law to administrators and executors for its services, together with reasonable compensation for acting as guardian.
If tbe will had made no provision for compensation to tbe executor, it would have been entitled to the statutory fees. There is no provision in tbe will naming tbe amount of fees that tbe trustee shall receive. Tbe will directs tbe trustee in tbe matter of tbe management of the estate, and names numbers of things that it is to perform, and it was evidently the intention of tbe testator not only that it should have tbe management of tlie estate, but that it should have a reasonable compensation for its services as trustee. The will fixed the fees that the executor should receive as such, but did not fix any fees for the bank as trustee, but it was manifestly the intention of the testator that the trustee should perform the duties indicated in the will, and that it should be paid a reasonable compensation. This compensation should be presented to and allowed by the probate court.
In the case of James v. Echols, 183 Ark. 826, 39 S. W. (2d) 290, it was said: “In this connection it may be stated that when the trustee accepts the trust, and qualifies and enters upon the discharge of his duties as such trustee, he accepts the trust upon the conditions named in it, and is entitled to no other or greater compensation than the will allows.”
Therefore if the testator had fixed the fees for the-trustee, it could not accept the trust and receive any other or greater compensation than that named in the will; but, since the will pointed out the duties of the trustee, and did not undertake to fix the compensation, it would be entitled, as the lower court held, to reasonable compensation.
The decree of the chancery court is correct, and is therefore affirmed. | [
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Smith, J.
Suit was brought by appellee to recover damages sustained by drinking a bottle of Coca-Cola in which there was a partly decomposed centipede. The suit was brought in the Pope Circuit Court against two defendants, who were residents of that county, and served with process therein. A third defendant was the Coca- Cola Bottling Company of Arkansas, a domestic corporation having its place of business'in Pulaski County. There was a verdict and judgment against all three defendants, from which is this appeal. It is stated in the brief of ap-pellee, the plaintiff below, that the suit was not brought upon the theory of implied warranty, but upon the theory of negligence on the part of R. Kelch and C. C. Sanders, the resident defendants, and upon the negligence also of the Coca-Cola Bottling Company.
Kelch, as a dealer, sold bottled Coca-Cola to the ultimate consumers, who drank the contents of the bottles in his place of business, as did the plaintiff in the instant case, and it was alleged that one of these bottles which plaintiff bought and drank contained a decomposed centipede.
The allegations of the amended complaint, upon which the cause was tried, as to plaintiff’s injuries, read as follows: “That said injuries to this plaintiff and the poisoning of the plaintiff’s system were brought about solely, wholly and alone by the carelessness and negligence of the defendants, the Coca-Cola Bottling Company, Morrilton, Arkansas, and the Coca-Cola Bottling Company of Arkansas, in bottling said drink and holding out and representing said drink to be fit for human consumption, and permitting their agent, C. C. Sanders, to be upon the road and selling said bottled products to merchants, and not properly protecting said bottles and syrup itself from foreign substances, and through the carelessness and negligence upon the part of these defendants, and that R. Kelch was careless and negligent in his manner of selling said Coca-Cola to this plaintiff, and through the carelessness and negligence of the defendant, the Coca-Cola Bottling Company, Morrilton, Arkansas, and the ‘Coca-Cola Bottling Company of Arkansas, their agents and employees, in their failure to make a proper investigation upon their part as to whether or not said Coca-Cola was fit for human consumption, before offering the same to the general public.”
Although there were allegations as to two Coca-Cola companies, it appears that there was only one corporation by that name, this being the Coca-Cola Bottling Company of Arkansas, domiciled in Pulaski County, and service was had on that corporation in that county.
Before trial or verdict, the Coca-Cola Company filed objection to the jurisdiction of the Pope Circuit Court, and moved that the cause be dismissed for lack of jurisdiction, for the reason that it was not served in Pope County, and for the further reason that no joint cause of action was stated against it and the other defendants. The motion to dismiss alleged that, even though a joint cause of action were stated, the plaintiff would not be entitled to a judgment against it unless judgment was also obtained against one or both of the other defendants who were served in Pope County. This objection to the jurisdiction was based upon § 1178, Crawford & Moses’ Digest.
It is conceded that the testimony was sufficient to support a finding that plaintiff bought from Kelch, the dealer, a bottle of Coca-Cola which contained a partially decomposed centipede which plaintiff drank, and that he sustained an actionable injury on that account.
The testimony as to the defendant, Sanders, was to the effect that he made delivery of bottled Coca-Cola to dealers in cases, each ease containing 24 bottles. He made delivery to many dealers every day, and in no instance made inspection of any bottles. It appears very clear that no cause of action was established against Sanders.
As to the defendant, Kelch, the testimony of the plaintiff himself was to the following effect: Plaintiff drank bottled Coca-Cola daily, usually from three to six bottles each day, and made purchases from numerous dealers. It was not customary for the dealer, upon selling a bottle of Coca-Cola, to inspect the bottle, as the drink was supposed to be put up in sterilized bottles, and all the dealer was expected to do, and all any dealer did in that vicinity, was just to take a bottle out of the receptacle in which it was contained, pnll the cap off., and hand it to the customer to drink. Neither Kelch nor the plaintiff made any inspection of the bottle in question. Had either done so, the presence of the centipede in the bottle wonld probably have been discovered. A careful inspection wonld certainly have revealed its presence.
Upon this testimony we are of the opinion that no case was made against Kelch. There was no occasion, nor was it usual or ordinary, for the dealer to inspect the bottle, which was an original package ready for delivery to the consumer, to be drunk by him. Both dealer and the consumer had the right to assume, and both apparently did assume, that the drink was contained in sterilized bottles, containing no deleterious substance, as neither made any inspection. The presence of the centipede was as easily discernible by the one as the other. The dealer was not selling a portion of a bulk product, but a drink contained in an original package, which was known to be sealed with a metal cap to prevent the waste of the content and to protect it from contamination. The case of Heinemann v. Barfield, 136 Ark. 456, 207 S. W. 58, cited and relied upon by the plaintiff, does not therefore apply.
The duty of the dealer in selling a portion of a bulk commodity, as distinguished from his duty in selling an article canned or sealed, both being intended for human consumption, is pointed out in § 29 of the chapter on Food in 11 R. C. L., page 1124. In the early history of the law on this subject sales of food or drink in canned or sealed containers was not common, and, as is said in the section of the chapter cited, the early rules of law were formulated upon the theory that the provision dealer having the opportunity to inspect the article sold was charged with knowledge of its unfitness. But it was there said also that, the reason for the rule having ceased when manufacturers began to prepare their products for sale in canned or sealed containers, a new rule should be •and is applied which more nearly harmonizes with what is rational and just, and that it “comports better with justice to hold that,- where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer, and the customer knows as much about the article as the dealer, and buys it without any representation from the dealer or reliance upon his judgment, knowing that there has been.no inspection of it by the dealer, there is no implied warranty, although the dealer knows that the customer buys it for food. ’ ’ It was there further said: “The situation of the retailer and consumer of packed products is properly governed by the rules of negligence law. The retailer owes to the consumer the duty to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of the care, skill and experience of dealers in such products generally. This is the measure of the retailer’s duty, and if he has discharged it he should not be mulcted in damages because injuries may be produced by unwholesomeness of the goods. As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter.” The annotated cases cited in the notes to the text quoted appear to sustain the text.
Now, as we have "said, it is not questioned that the testimony supports a finding of liability on the part of the mánufacturer of the Coca-Cola. The cases of Coca-Cola Bottling Co. v. McBride, 180 Ark. 193, 20 S. W. (2d) 862; Coca-Cola Bottling Co. v. Bennett, 184 Ark. 329, 42 S. W. (2d) 213, and Coca-Cola Bottling Co. v. Jordan, ante p. 1006, are to that effect. But, if it be true, as we have concluded, that there was no liability on the part of Kelch and Sanders, the question arises whether the Pope Circuit Court had the jurisdiction to ascertain whether the Coca-Cola Company was liable and to assess damages on that account.
Each defendant requested a separate instruction for a directed verdict declaring that there was no liability against the defendant asking the instruction, but each and all of these instructions were refused, and error was as signed in the motion for a new trial for refusing to give them.
The motion for a new trial did not specifically assign as error the action of the court in refusing to quash the service upon the Coca-Cola company and dismiss the cause for want of jurisdiction as to that defendant, hut at the time the motion for a new trial was filed a verdict had been returned and a judgment rendered against all three defendants, and, if either of the other defendants was liable, the service upon the Coca-Cola Company was good under § 1178, Crawford & Moses’ Digest. The motion for a new trial did, however, as we have said, assign as error the refusal of the court to direct a verdict for the Coca-Cola Company and each of the other defendants, and we think this was sufficient to raise the question of jurisdiction.
Upon this question, the case of Howe v. Hatley, ante p. 366, is very similar and controls here. In that case Belford, a resident of Randolph County, had been sued, in conjunction with Hatley, a nonresident of the county, upon allegations that their joint and concurrent negligence had caused the damages sued for, and it was upon these allegations that service was had upon the nonresident of Randolph County in the county of his residence. There was a verdict and judgment against both defendants. The opinion in that case recites that, after the introduction of all the evidence, the nonresident defendant filed his motion objecting to the jurisdiction of the court under § 1178, Crawford & Moses’ Digest. This motion was overruled, and, we said, correctly so, for the reason that the court had .jurisdiction of both the subject-matter and the parties at that stage of the proceeding, but it was said that, had there been a verdict against the nonresident defendant alone, he could have objected to the jurisdiction of the court at any time prior to the judgment. We there said there could be no judgment against the nonresident defendant served with process in another county unless .judgment was also rendered against the local defendant where timely objection, as required by the statute, was made.
In that case instructions were given on the question of joint liability, to which no objections were made and the giving of which was not assigned as error in the motion for a new trial. But, as we were there constrained to reverse the judgment against the resident defendant, we also reversed the judgment against the nonresident defendant, for the reason there stated, that there could be no judgment against a nonresident defendant unless there was also a judgment against the resident defendant, where objection to the jurisdiction had been made as required by the statute.
Section 1178, Crawford & Moses’ Digest, provides that, “Where any action embraced in § 1176 (which section provides that transitory actions may be brought in any county in which the defendant, or one of several defendants, resides or is summoned) is against several defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in any other county than that in which the action is brought, where no one of the defendants is summoned in that county or resided therein at the commencement of the action, or where, if any of them resided, or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him.”
Here instructions were requested by each defendant for a directed verdict, and refusal to give them was assigned as error in the motion for a new trial, declaring the law to be that no case had been made for the jury, and we are of the opinion that no negligence was shown as against Kelch and Sanders, the resident defendants, it follows that a verdict should have been rendered in favor of the defendant served in another county, it having, before judgment and within the time prescribed by law, objected to the proceeding against it.
The entire judgment must therefore be reversed, and, as the Pope Circuit Court is without jurisdiction to pro.- ceed for lack of proper service against the only defendant shown to be liable, the case must be dismissed, but without prejudice to - further proceedings against the Coca-Cola Company upon proper service. Fidelity Mutual Life Insurance Co. v. Price, 180 Ark. 214, 20 S. W. (2d) 874. | [
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Btttt.ee, J.
From a conviction of the crime of assault with intent to rape this appeal is prosecuted. The only question presented is that of the sufficiency of the evidence to warrant the conviction of the crime charged. The evidence adduced by the State, briefly stated, is as follows:
The prosecuting witness, a young girl about fifteen years of age, was walking alone on a road leading from a place where she had been attending a singing school to her home. She was met by the defendant, a man about twenty-eight years old, to whom she spoke. After he had passed her, he returned in a short time, overtaking her, and, over her protests and despite her resistance, forced her to go with him some distance from the road into the forest. He placed his hand over her month to prevent any outcry, and,, after he had reached a spot in the woods, and after some struggle, he threw her upon the ground and exposed her person by pulling down her underclothing. He got down on his knees over her, hut for some reason proceeded no further in the attempt to ravish her. During the time that he was taking her from the road to the forest, and while she was on the ground, he indulged in conversation, which the prosecuting witness repeated on the witness stand, and which the appellant urges negatives the contention of the State that it was. the defendant’s intention to ravish the girl. We do not think that this interpretation can be placed on the language used, and do not deem it necessary to state it here.
It is well settled that an assault with intent to rape is an effort to obtain sexual intercourse by force and against the will of the person assaulted, and the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault. The force actually used need be of no specific degree or character, but comes within the meaning of the law if it is reasonably calculated to subdue and overcome; nor need it be persisted in until the assailant’s design is accomplished; if the assault is actually begun and the intent can be inferred from the acts committed, the offense is complete, notwithstanding the fact that the assailant may, for some reason, relent and forbear from the consummation of his purpose. Anderson v. State, 77 Ark. 37, 90 S. W. 846; Tyra v. State, 120 Ark. 179, 179 S. W. 167; Loekett v. State, 136 Ark. 473, 207 S. W. 55; Snetser v. State, 170 Ark. 175, 279 S. W. 9; Begley v. State, 180 Ark. 267, 21 S. W. (2d) 172.
Drom the evidence we have related, it will be seen that it was of a substantive nature and brings the case within the rule announced, and warrants the jury in the verdict reached.
Judgment affirmed. | [
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Ed. F. McFaddin, Associate Justice.
Appellant brought this suit to have his warranty deed to appellee declared to be a mortgage. The Chancery Court refused the prayed relief; and there is this appeal.
In 1949 appellant’s wife obtained a divorce, and appellant was required to pay her $800.00 plus court costs. He obtained the money from appellee (acting at all times by her husband, C. M. Simon, Jr.). The payment, by appellee’s check, was made in the office of the late Honorable Fred Isgrig, who had represented the wife, Bertie Harris, in the divorce proceedings. The Notary Public, who took the acknowledgment of the warranty deed to appellee from appellant and his divorced wife, testified:
“When they gave me a deed to have signed and have notarized I said, ‘Will, this isn’t a mortgage; this is a deed’; and Mr. Simon said, ‘That is all right,’; and Will said, ‘I have confidence in Mr. Simon’; and I thought it was strange at the time they would do that.”
At all events, the deed was signed and acknowledged on September 16, 1949 by both Will Harris and his divorced wife, Bertie Harris; and Mr. Simon delivered the checks at the same time. The appellant, by monthly payments — claimed by him to be repayments and by appellee to be rent — continued to live on the conveyed prem ises until 1950 or 1951 when he moved because — as he says — of the threats of Mr. Simon. Appellant then consulted an attorney, who died before instituting this suit; and thereafter appellant employed his present counsel and this suit was filed in August, 1954, in which appellant claimed that all he ever borrowed from appellee was $800.00 and that the entire transaction was a mortgage instead of a deed.
But appellee established, by cancelled checks, documentary evidence, and the testimony of entirely disinterested witnesses: that on September 6, 1949 appellant listed the property in dispute with a local real estate agent for sale at a price of $2,300.00; that the real estate agent went to Mr. Simon and showed him the property and Simon made an offer of $1,700.00 to purchase the property with an abstract to be furnished; that such offer was transmitted by the real estate agent to the appellant; and that the offer was accepted by the appellant in writing. The originals of the instruments were introduced in evidence, as well as the original settlement statement of the real estate agency, as follows:
“Sept. 16th, 1949
SETTLEMENT STATEMENT
For Will Harris and Birdie Harris
Account sale of 1704 So. Cedar (All Lots 16 and 17, except N 20 ft Lot 17 in Block 62 Braddock’s Addition) to M. W. Simon, Trustee
Agreed sale price Cash $1,700.00
Disbursements and Adjustments
Abstract fee $ 44.00
Revenue stamps on deed 2.20
Balance of Court Costs Circuit Court case Birdie Harris v. H. C. West 11.00
Balance due, Universal CIT Corpn (new roof) 251.90
Sales commission (agreed) 100.00.
Total $ 409.10
Cash received 1,700.00
Expended 409.10
Balance due Will Harris and Birdie Harris $1,290.90”
Appellee introduced the cancelled checks totalling $1,700.00, corroborating the settlement statement, and including the checks for $1,290.90 balance due Will and Bertie Harris. The real estate agent testified that, at the time of the conveyance, the property was worth about $2,000.00, so there was no great disparity between the value of the property and the $1,700.00. Appellee has made substantial improvements to the property.
As to the significance of the conversation before the Notary Public, as previously copied, the appellee’s evidence disclosed that, either at the time of the deed or some six months thereafter, appellee gave appellant some sort of option to repurchase the property; and that when appellant defaulted on the payments due on that contract, appellee caused appellant to vacate the premises. But appellant denied any such repurchase option and did not ask that any repurchase instrument be considered as constituting the entire transaction to be a mortgage. In the light of appellant’s denial of the repurchase agreement, we do not have before us a situation where a deed was made with an option to repurchase, as existed in such cases as Oliver v. Watts, 194 Ark. 644, 109 S. W. 2d 111; Avera v. Reynolds, 203 Ark. 1060, 160 S. W. 2d 48; Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236; or Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240, 155 A. L. R. 1096, where there is also an annotation.
In the light- of all the evidence, we cannot say that the Chancellor was in error in dismissing appellant’s complaint. The burden was on the appellant to prove, by evidence that was clear, unequivocal and convincing, that the deed was a mortgage. Snell v. White, 132 Ark. 349, 200 S. W. 1023; Henry v. Henry, 143 Ark. 607, 221 S. W. 481; Hudgens v. Taylor, 206 Ark. 507, 176 S. W. 2d 244; Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240; and Landers v. Denton, 213 Ark. 86, 209 S. W. 2d 300. Appellant failed to discharge that burden.
Affirmed.
Justice Robinson not participating.
Justices Holt and Ward dissent.
In some places the name is spelled “Birdie”; but when she signed the deed she signed it “Bertie Harris.” | [
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Hart, J.
If the taking of the dollar in excess of the correct fare was a mere error or mistake on the part of the agent, the defendant was not liable for a penalty. Railway Company v. Clark, 58 Ark. 490; St. Louis, I. M. & S. Ry. Co. v. Waldrop, 93 Ark. 42.
Under proper instructions, the court submitted to the jury the question of whether in making the change the agent made an honest mistake without the intention of taking an amount greater than was allowed by the statute, and the verdict of the jury is conclusive on appeal.
It is next contended by counsel for defendant that the statute upon which this suit is based permits the railway company to charge three cents per mile, and that there is no testimony tending to show that it charged a greater rate than that. They insist that, while the agent testified on cross examination that the fare as published was sixty-nine cents, and was based on a rate of three cents per mile, his testimony on this point was explained on re-examination by his statement that the fare was so fixed to meet the competition of the Iron Mountain Railroad, which had a shorter line from Little Rock to Benton; but we think his testimony on re-examination was rather contradictory than explanatory of his testimony on cross examination, and the verdict of the jury shows that it believed the testimony given by him on cross examination on this point, and did not believe that given by him on re-examination.
Finally, it is claimed by counsel for defendant that in any event there was but one transaction, and that there can not be more than one overcharge nor more than one penalty. On the other hand, it is insisted by counsel for the plaintiffs that the judgments in both cases should be affirmed under the authority of St. Louis, I. M. & S. Ry. Co. v. Freeman, 95 Ark. 218, and St. Louis, I. M. & S. Ry. Co. v. Frisby, 95 Ark. 281. In those cases we held that the party aggrieved who may recover the penalty against a railroad company for charging excessive fare as provided by section 6620, Kirby’s Digest, is the person intending to become a passenger. But we do not regard the constru'ction placed upon the act in those cases as controlling the present appeal under the facts disclosed by the record. If the facts in the record showed that the agent had intended to charge seventy cents or any greater amount than sixty-nine cents for each ticket, then, under the authority of the Freeman and Frisby cases, both I. H. Young and his wife, N. A. Young, would be entitled to recover.
But the testimony, as it appears from the record, shows that the real substance of the transaction was that I. H. Young purchased two tickets for Benton; that the agent knew that the fare was sixty-nine cents, and either intentionally or by mistake kept one dollar of the amount tendered in payment of the tickets. The jury by its verdict found that the dollar was intentionally kept by the agent, but there is nothing in the record from which it can reasonably be inferred that he intended to apportion his wrongful act between the two tickets. He knew the fare was only sixty-nine cents, and says that he only intended to charge that amount for a ticket. His act in keeping the dollar then is referable only to his transaction with I. H. Young, and can not be extended to the purchase of the ticket for Mrs. Young without some testimony tending to show that he intended to make an excessive charge for her ticket. Counsel for plaintiff urge that, in as much as both tickets were purchased at the same time, and as there is nothing to show whether he intended to make an overcharge on one or both of the tickets, the presumption is that he intended to charge an excessive rate on both tickets. On the. other hand, we think that, in the absence of any proof upon which it could be reasonably inferred that the agent intended to make an overcharge on both tickets, the inference is that he intended the overcharge for the ticket of the person with whom the transaction was conducted. This is so because the party suing for the penalty under the statute must by proof bring himself within the terms of the statute before he can be allowed to recover the penalty.
It follows that the judgment in favor of I. H. Young will be affirmed; and the judgment in favor of N. A. Young will be reversed, and her cause of action dismissed. ' | [
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PHILLIP T. WHITEAKER, Judge.
11 This is an appeal from a determination by the Board of Review (“Board”) that appellant Clifton Services, Inc., was the employer of Jerome Allen and thus subject to the payment of unemployment-insurance taxes pursuant to Arkansas Code Annotated section ll-10-210(e) (Repl.2012). Clifton Services raises two arguments on appeal. It first contends that the Board erroneously determined that it was Allen’s employer. Second, it argues that the Board and the Director of the Department of Workforce Services improperly relied on an unpublished Board of Review decision in reaching their determinations. We find no error and affirm.
The appellate courts will affirm the decision of the Board of Review if it is supported by substantial evidence. Mamo Transp., Inc. v. Williams, 375 Ark. 97, 289 S.W.3d 79 (2008); W. Land Servs., Inc. v. Dir., 2012 Ark. App. 161, 2012 WL 559070. Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Mamo Transp., supra. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Even if the evidence could support a different decision, our review is limited to whether the Board could have reasonably reached its decision based on the evidence presented. Id.
The issue presented in this case involves a relationship between Clifton Services, truck driver Jerome Alen, and a third business entity named Builder’s Transportation Co. (“Builder’s”). Clifton Services, which is owned by Tommy Clifton, entered into a “lease purchase contract” with Allen whereby Alen agreed to purchase a truck tractor from Clifton Services. Under the terms of the contract, Alen would make 175 weekly lease payments of $375 until the purchase price of $65,625 was paid, at which time Clifton Services would transfer title of the truck to Alen. Alen was given possession of the truck, was responsible for the upkeep and maintenance of the truck, and had the right to determine “the means of performance to its lessee motor carrier,” including matters like travel routes and whether to accept a dispatch. Alen would remain in possession of the truck so long as he did not default on his payments. In the event of default, however, Clifton Services could repossess the truck.
Regarding payments and default, Alen agreed to “execute an assignment as to all' income derived from operation of the leased vehicle in favor of [Clifton Services]” and agreed that Clifton Services could “deduct all lease payments,” as well as amounts sufficient | ¡¡to cover license fees and highway-use taxes, from the income that Alen earned by operating the truck. The agreement also contained the following provision:
Purchaser [Alen] understands that the total earnings of the truck are covered by a lease to a motor carrier. Purchaser may lease the truck to a motor carrier chosen by Purchaser, but agrees to the requirement for an assignment of income-to Seller to protect Seller’s interest. In the event Purchaser leases the truck to a motor carrier which will not accept assignment of the income, Seller reserves the right to terminate this agreement upon the giving of two weeks’ notice to Purchaser.
At the time of signing the agreement, Builder’s was the only trucking company that would agree to the income-assignment requirement.
Alen thus leased the truck to Builder’s. Builder’s would send dispatches to Allen, who would then deliver the load to its destination in the truck that was the sub ject. of the lease-purchase agreement. When it came time to pay Allen, Builder’s would write a check to Clifton Services, and Clifton Services would withhold the lease payment on the truck and other expenses and remit the remainder to Allen. Of the payment made to Builder’s for any given load, Allen received 65%, Builder’s kept 20%, and Clifton Services kept 15%.
Allen’s lease agreement with Builder’s was terminated after he was involved in a wreck in which the truck was totaled. After termination, Allen sought unemployment benefits. In response, Clifton Services asserted that Allen was not an employee but rather was an independent contractor. After an investigation, the Department of Workforce Services determined that Clifton Services was, in fact, Allen’s employer and that it should have been | ¿paying unemployment-insurance taxes. Clifton Services requested a hearing for a determination of coverage. Following that hearing, the Director concluded that Clifton Services was Allen’s employer and was thus liable for unemployment-insurance taxes. Clifton Services appealed that decision to the Board of Review, which affirmed. Clifton Services now appeals the Board’s decision to this court.
On appeal, Clifton Services argues that the Board erred in finding that it was Allen’s employer. The determination of whether an individual is an employee is governed by Arkansas Code Annotated section ll-10-210(e), which provides as follows:
Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the director that:
(1) Such individual has been and will continue to be free from control and direction in connection with the performance of the service, both under his or her contract for the performance of service and in fact;
(2) The service is performed either outside the usual course of the business for which the service is performed or is performed outside all the places of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
In order to obtain the exemption contained in section ll-10-210(e), the employer must prove each of subsections (e)(1) through (3). Stepherson v. Dir., 49 Ark.App. 52, 895 S.W.2d 950 (1995); Am. Transp. Carp. v. Dir., 39 Ark.App. 104, 840 S.W.2d 198 (1992); Morris v. Everett, 7 Ark.App. 243, 245, 647 S.W.2d 476, 477 (1983) (noting the 1971 amendment to the statute that made the provisions conjunctive and commenting that, by the | ¿amendment, the General Assembly “obviously intended to make it more difficult to claim an exemption under our Employment Security Act”). If there is substantial evidence to support the fact-finder’s finding that any one of the three requirements is not met, the case must be affirmed. W. Land Servs., supra.
We hold that there is substantial evidence to support the Board of Review’s finding that Clifton Services exercised “significant control” over Allen under sec tion ll-10-210(e)(l) and that Clifton Services failed to rebut the statutory presumption. In theory, Allen was able to haul loads for whomever he wanted. In practice, however, Clifton Services was in control. Clifton Services would not sell Allen the tractor unless he leased it to a third-party trucking company that would agree to a wage assignment. As Builder’s was the only company that had agreed to that kind of assignment, Allen was limited to working only with Builder’s, a company with whom Clifton Services had a separate financial arrangement for the leasing of trailers. In essence, Clifton Services controlled and selected which motor carriers Allen could or could not use. Finally, Allen’s paycheck was directly controlled by Clifton Services: Clifton Services deducted payments for the truck and other expenses from Allen’s check, and if Allen did not earn a paycheck by working for Builder’s and thus missed payments on the truck, Clifton Services would repossess the vehicle.
This court has addressed a similar situation before. In Steinert v. Director, 64 Ark.App. 122, 979 S.W.2d 908 (1998), the trucking-company owner testified that it was “rare” for his drivers to drive for other trucking companies. The owner also entered into lease-purchase agreements with his drivers, and the drivers owed him 25% of the total load for each trailer. 1 Steinert, 64 Ark.App. at 125-26, 979 S.W.2d at 909-10. On those facts, this court held that there was evidence to support the Board’s finding that the trucking company was an employer due to its control and direction over its drivers. We reach the same conclusion here. Moreover, because the Board’s finding that Clifton Services failed to satisfy the first prong of section ll-10-210(e) is supported by substantial evidence, it is unnecessary to address the Board’s findings as to the other prongs of the test. See Stepherson, 49 Ark.App. at 55, 895 S.W.2d at 952.
In its second argument on appeal, Clifton Services maintains that the Director and the Board committed reversible error when they relied on an unpublished Board opinion in a previous case. We disagree. Based on Tommy Clifton’s testimony before the Board alone, there was substantial evidence to support the Board’s decision that Clifton Services was an employer pursuant to section ll-10-210(e). The Board’s reliance on the earlier case was thus not prejudicial, and Clifton Services’s arguments to the contrary are unavailing.
Affirmed.
GRUBER and VAUGHT, JJ., agree.
. The percentage retained by Clifton Services was for a separate lease agreement that it had with Builder’s concerning trailers, independent of the withholdings from Allen’s percentage for truck payments and other expenses.
. In the Director’s opinion, Appeal No. 88-BR-2 was mentioned in a footnote. In that case, the Board issued a determination of coverage as to "Clifton Trucking” and concluded that Clifton Trucking was an "employer” subject to the payment of unemployment-insurance taxes. In the instant case, the Director found that the previous appeal "should be considered as persuasive authority if not precedential.” Clifton Services argues that it was never provided with notice that the previous case would be relied on, let alone provided a copy of the decision, and was thus unfairly prejudiced by the Director's and the Board’s reliance on the earlier case. | [
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DAVID M. GLOVER, Judge.
| ¶ This workers’ compensation case is a companion case to Prock v. Bull Shoals Landing, 2012 Ark. App. 47, 390 S.W.3d 78, handed down this date. Appellant Matt Edmisten and Greg Proek were injured at work while Edmisten was holding the lid of a fifty-five-gallon drum as Proek opened the drum with a welding torch; the drum exploded, severely burning both Ed-misten and Proek. Drug tests showed the presence of marijuana metabolites in Ed-misten’s body.
The ALJ made several findings: the provisions of the Arkansas Workers’ Compensation Act that provide for the establishment of administrative law judges were constitutional; the presence of marijuana metabolites in Edmisten’s drug test triggered the statutory presumption that his injuries were substantially occasioned by the use of illegal |2drugs; and Edmisten failed to rebut that presumption and, therefore, failed to prove that his burn injuries were compensable. The Commission affirmed and adopted the ALJ’s opinion. Edmisten now appeals, arguing (1) that the Commission’s decision is based upon speculation and conjecture and (2) that the executive branch of the State of Arkansas and private interests have exerted pressure on ALJs and Commissioners that results in actual bias and the appearance of bias by violating the separation-of-powers doctrine and violates the procedural and substantive due-process rights of all injured workers in Arkansas. We affirm.
Sufficiency of the Evidence
An injury is not a compensable injury if the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of doctor’s orders. Ark.Code Ann. § ll-9-102(4)(B)(iv)(a) (Supp.2009). The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebutta-ble presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders. Ark.Code Ann. § 11—9—102(4)(B)(iv)(6). The question of whether an employee has overcome the rebuttable presumption is a question of fact for the Commission. Systems Contracting Corp. v. Reeves, 85 Ark.App. 286, 151 S.W.3d 18 (2004). A claimant’s testimony is never considered to be uncontroverted. Nix v. Wilson World Hotel, 46 Ark.App. 303, 879 S.W.2d 457 (1994).
|sOn appeal, we view the evidence in the light most favorable to the Commission’s decision and affirm if the decision is supported by substantial evidence. Telling Indus, v. Petty, 2010 Ark. App. 602, 378 S.W.3d 167. When the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief; substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Waldrip v. Graco Corp., 101 Ark.App. 101, 270 S.W.3d 891 (2008). It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony; once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Telling Indus., supra.
The parties stipulated that the testimony given by Edmisten, Proek, Roger Williams, Mike Didway, Steve Eastwold, and Greg Aaron in Prock’s hearing should be admitted at Edmisten’s hearing and accorded due weight. This testimony was set forth in Prock, supra. All of these witnesses offered additional testimony at Edmisten’s hearing.
Greg Prock testified that he had used acetylene torches to open the drums at least fifteen to twenty times before and that his boss, Steve Eastwold, had never objected to his opening the barrels that way. Prock testified that he never saw Edmisten come to work intoxicated and that Edmisten did not appear intoxicated on the morning of the accident. He denied that he and Edmisten had left the dock that day to smoke pot before the accident occurred. Prock admitted that before the accident he smoked pot frequently |4(three or four times per week) but never with Edmisten. Prock admitted that he did not take the cap off the barrel prior to cutting it but “figured it was empty” because he did not hear anything in it when he picked it up; he also admitted that he did not read the warning labels on the barrels before cutting them with the torch. He confirmed that neither he nor Edmisten wore any safety equipment.
Mike Didway, a co-worker of Edmisten and Prock, testified that he saw both men on the morning of the accident and that neither of them appeared to be intoxicated. However, he also stated that he and another employee were out on the water in a houseboat when the accident occurred, and he did not see what happened. Didway testified that the explosion engulfed a houseboat nearby. Didway said that he had seen Prock open barrels with a cutting torch two or three times before. Didway admitted on cross-examination that he had seen Prock and Edmisten around 7:00 a.m. that morning but did not see Edmisten again that day until after the explosion, and he had no idea what Edmisten had done in that time before the explosion occurred around 9:30 a.m.
Roger Williams, another co-worker of Edmisten and Prock, testified that he was with Didway on the water when the explosion occurred. He relayed that he had not seen or been around Prock or Edmisten prior to the explosion, and he had no idea what Edmisten did between when he clocked in at 6:40 a.m. and when the explosion occurred. He did not recall Edmisten ever coming to work intoxicated, and he testified that he had never seen Prock open a barrel with a cutting torch prior to the day of the explosion.
|fiGail Hostad testified that she lived by Edmisten’s girlfriend and had not seen him appear intoxicated during the evenings when he came to his girlfriend’s house; however, she admitted that she had no idea what Edmisten had done the morning of the explosion. Hostad said that she heard that Edmisten had stated after the accident that he could not pass a drug test, but that she had no personal knowledge of Edmisten’s drug use or what happened that morning. She explained that she heard that Steve Eastwold, Ed-misten’s employer, was alleging that Ed-misten was intoxicated when the explosion occurred. Hostad said that from what she heard from people in town, it was when Edmisten went back to the boat dock that he said that he could not pass a drug test at that time.
Edmisten testified that he was not intoxicated on the morning of the accident and had not ingested any illegal drug that day. He stated that he had used marijuana once before the date of the accident. He said that he had helped Prock cut the tops out of barrels maybe ten or fifteen times before that day; it was a regular occurrence. He denied that Eastwold had instructed them how to open the barrels. According to him, on that morning, Eastwold told Prock and him to get a couple of barrels, which they did; he did not hear or feel any sloshing in the barrels when he loaded them into the truck. Edmisten said that they cut the top off the first barrel without any problem, and they were seven to ten inches into the second barrel when it exploded.
Edmisten testified that he was released to return to work on December 11, 2007, and about a month later, he approached Eastwold about returning to work. He stated that Eastwold told him to take a drug test; that Eastwold called and told him that he passed the |fidrug test; and that he returned to work the next morning. Edmisten said that he worked for Eastwold for about a month and left to take another job setting up a hardware store. Edmisten stated that he worked at the hardware store until the owner, Jeff Schlote, told him that he needed to take a drug test from Wal-Mart. Edmisten testified that when he wanted to take a drug test at a doctor’s office and Schlote refused, he quit.
On cross-examination, Edmisten testified that he did not know if there was oil or gas in the barrels they were cutting, and he denied that Eastwold had told them to use a pneumatic air chisel to open the barrels. He did admit that they did not uncap the barrels that day before they cut into them or use any safety equipment. Edmisten denied that he was in Prock’s vehicle that morning. He said that retrieving the barrels was the first thing that he and Prock were told to do that morning. Edmisten also testified that he might have smoked marijuana once or twice around the time of the accident, but he did not recall stating in his deposition that he smoked pot in high school about once a year. He admitted that it was not true that he only smoked pot once in his entire life. He claimed that he did not know Prock smoked marijuana. Edmisten denied telling both Eastwold and Schlote that he could not pass a drug test.
Greg Aaron, another co-worker of Ed-misten and Prock, testified that he had heard Eastwold tell Prock and Edmisten to use an air chisel to take off the tops of the barrels; that Eastwold had shown them how to do it; and that he had never heard Eastwold say it was okay to use an acetylene torch to open the barrels. Aaron testified that regardless of |7how the barrel was opened, it was important to take the cap off and release any pressure inside the barrel.
Jeff Schlote testified that Edmisten’s employment with him ended when Edmis-ten refused to take a drug test; that when he asked Edmisten why, he told Schlote that he was “dirty.”
Steve Eastwold testified that on the day of the accident, Edmisten clocked in around 6:30 a.m., Prock arrived at 7:30 a.m., and the explosion occurred after 9:30 a.m. He said that when he first encountered Edmisten and Prock, they were coming down the hill in Prock’s Cherokee with Prock driving and Edmisten in the passenger seat. Eastwold said that he asked them to go get a couple of barrels, bring them to the shop, take the “bung holes” out, make sure they were clean, and take the tops off the barrels so they could be used for aluminum scrap. Eastwold recalled that he had specifically told Edmis-ten and Prock to use an air chisel.
Eastwold testified that when he stopped Prock’s vehicle, Edmisten and Prock would not look at him. He said that he did not get close enough to smell them or see the whites of their eyes. Eastwold said that when he and his wife visited Edmisten in the hospital, Edmisten told him that he did not know how he was going to pay for the medical bills, that he was not going to be able to pass the drug test, and that work ers’ compensation probably would not cover the bills. With regard to Edmisten coming back to work, Eastwold said that he told Edmisten that he would have to take a drug test before [scorning back to work and that Edmisten told him that he could not pass a drug test that day, that he would have to wait until after the first of the year when he was sure he could pass it. Eastwold said that on the day of the accident, he did not know if Edmisten or Prock were intoxicated, that he was not paying attention to them; he said that other than the fact they would not look at him, he did not think that they had been doing drugs.
Edmisten contends on appeal that the Commission erroneously rested its decision on “complete speculation” that the accident was substantially occasioned by his and Prock’s use of illegal drugs because there was no testimony from any witness that he was intoxicated or impaired prior to the explosion. He further contends that Steve Eastwold is an interested party and his testimony was not corroborated and should not be relied upon as a result. We disagree.
This argument is the same argument made in Prock, supra, and we adopt the same reasoning that is set forth in that case in affirming the case at bar.
Edmisten cites ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Ward v. Hickory Springs Mfg. Co., 97 Ark.App. 311, 248 S.W.3d 482 (2007); and Continental Express v. Harris, 61 Ark.App. 198, 965 S.W.2d 811 (1998), as examples in support of his argument that he rebutted the presumption that illegal drugs substantially occasioned his accident. However, in those cases, our appellate courts affirmed the Commission’s decisions finding that the presumption had been rebutted. In this case, Edmisten is asking us to reverse the Commission’s finding that the presumption was not. Rrebutted. The question of whether an employee has overcome the rebuttable presumption is a question of fact for the Commission. Systems Contracting Carp., supra. We cannot say that reasonable persons could not arrive at the Commission’s conclusion.
Constitutional Arguments
Edmisten also argues that the structure of the Commission is unconstitutional, because the “decisional independence” of the ALJs and the Commission has been infringed upon by the executive branch of the State of Arkansas and private interests to the point of actual bias, as well as the appearance of bias, thus violating the separation-of-powers doctrine and his procedural and substantive due-process rights. These arguments have been rejected by our court on numerous occasions. See Long v. Wal-Mart, 98 Ark.App. 70, 250 S.W.3d 263 (2007); see also Sykes v. King Ready Mix, 2011 Ark.App. 271, 2011 WL 1425033. However, Edmisten’s attorney neither acknowledges these precedents in his argument nor attempts to distinguish them.
Affirmed.
PITTMAN, ROBBINS, MARTIN, and BROWN, JJ., agree.
HART, J., concurs.
VAUGHT, C.J., ABRAMSON and HOOFMAN, JJ., agree in part and dissent in part.
. While there was also morphine in Edmis-ten's body at the time of the drug test, the AU found that no presumption applied to that drug because medical records indicated that Edmisten was administered that drug for his pain upon admission to the Baxter Regional Hospital over thirty minutes prior to the drug test. | [
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PHILLIP T. WHITEAKER, Judge
|, Mich elle Mullin appeals an Arkansas Workers’ Compensation ■ Commission (Commission) opinion that found she failed to prove entitlement to ongoing medical treatment for her compensable neck, shoulder, and back injuries and to temporary-total-disability (TTD) benefits. Mullin argues that there was insufficient evidence to support those findings. We affirm.
On appeal in workers’ compensation cases, we view the evidence and all reasonable inferences deducible'therefrom in the light most favorable to the Commission’s findings and will affirm if those findings are supported by substantial evidence. Myers v. City of Rockport, 2015 Ark. App. 710, 479 S.W.3d 33. Substantial' evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, 12we must affirm its decision. Id. Where a claim is denied, the substantial-evidence standard requires us to affirm the Commission if its opinion displays a substantial basis for the denial of relief. Id. With these standards in mind, we look to the evidence, before the Commission. . > ■ ,
■ The facts are these. Mullin has a history of shoulder and back problems (including two prior lumbar surgeries and an incident in March 2011 in which she injured her shoulder after being body-slammed to the floor by her developmentally disabled adult son). She also sustained two work-related injuries while employed with Aleo.- ■
The first injury occurred on April 11, 2011. Mullin injured her back, neck, and left shoulder while unloading freight from the back of a sefni-truck. Her injuries were deemed compensable, and she was provided with medical treatment for her shoulder following this incident, including surgery for a rotator-cuff tear. She was released to full duty as of December 8, 2011, with no impairment rating. Her treating physician at the time, Dr. Birk, refused to assign an impairment rating, noting that Mullin had been “very difficult and dishonest” about her condition and had “faked residual symptoms, faked a frozen shoulder and as a result took advantage of the- system for longer than necessary and received benefits beyond the actual time of injury and recovery.” Mullin was discharged by Dr. Birk with a “[z]ero rating.”
After being discharged by Dr. Birk, Mullin continued to seek treatment for her neck, back, and shoulder pain. At some unspecified point during her treatment, her employment was terminated. Eventually, Mullin was rehired by Aleo in February 2013.
The second injury occurred on May 3, 2013, approximately three months after she had been rehired, Mullin was injured while trying to load a trampoline ¡into a customer’s vehicle. |3She. again complained of shoulder, neck, and back pain, as well as headaches. ■ Her injuries were again deemed compensable by her employer. She was again provided with medical treatment. Her treating physician, Dr, Larey, diagnosed cervieothoracic and left-shóulder strain, tension headaches, and chronic back pain. She was treated conservatively and ultimately referred to Dr. Schlesinger, a neurosurgeon.
Dr. Schlesinger reviewed an MRI conducted on July 2, 2013, and recent X-rays. He noted moderately severe to severe degenerative changes in the cervical spine. Dr. Schlesinger gave Mullin the differential diagnoses of low back pain, neck pain and arm pain. He could not specify the exact cause of Mullin’s complaints, but opined that her pain could have many etiologies, including the degenerative changes noted in her MRÍ and x-rays. Despite the uncertain etiologies of Mullin’s complaints, Dr. Schlesinger proposed epidural steroid injections for her cervical-disc degeneration and neck pain, but did release her to light-duty work. At that point, Aleo contested her claim for additional medical treatment and benefits, and Mullin filed a claim with the Commission.
A hearing was held on November 20, 2014. Mullin testified, and her medical records were introduced.. On February 17, 2015, the Administrative Law Judge (ALJ) issued an opinion denying Mullin’s claim for additional medical treatment and TTD benefits. Mullin filed a timely appeal to the Full Commission, which affirmed and adopted the opinion of the ALJ. It is from this decision that Mullin now appeals.
|4On appeal, Mullin argues that the Commission erred in finding that the steroid injections prescribed by Dr. Sehlesin-ger were not reasonable, necessary, or causally related to her admittedly compen-sable injury because there had been no indication that the objective findings of injury had disappeared. She further argues that there was no evidence that her employer provided her with light-duty work within her restrictions. She claims that she has not reached maximum medical improvement, that she has ongoing treatment recommendations that have not been completed, and that she should be allowed to complete said treatment and receive further TTD benefits.
We first address Mullin’s arguments relating to her claim for additional medical treatment. Arkansas Code Annotated section 11 — 9—508(a) (Repl. 2012) requires an employer to provide an injured employee such medical services as may be reasonably necessary in connection with the injury received by the employee. When the primary injury is shown to have arisen out of and in the course of employment, the employer is responsible for any natural consequence that flows from that injury. Ingram v. Tyson Mexican Original, 2015 Ark. App. 519, at 5-6, 2015 WL 5770141. However, for this rule to apply, the basic test is whether there is a causal connection between the injury and the consequences of such. Id. The burden is on the employee to establish the necessary causal connection. Id. The determination of whether a causal connection exists between two episodes is a question of fact for the Commission. Id.
Here, Mullin’s medical records revealed that many of her complaints were chronic conditions that had existed over the past 10-15 years and clearly predated the May 2013 incident. The ALJ found that Mullin suffered from degenerative conditions and had a history |5of chronic back, neck, and shoulder problems with accompanying headaches. Admittedly, the employer initially accepted compensability for Mullin’s May 2013 injury, and medical treatment was provided. However, when Mullin was examined by Dr. Schlesinger, he diagnosed her injuries as cervical-disc degeneration, neck pain, headache, and low back pain and indicated that the precise etiology of those symptoms was unknown. These findings were noted by the ALJ. As a result, the ALJ determined that Mul-lin had failed to prove by a preponderance of the evidence that her need for medical treatment was causally related to her 2011 and 2013 work-related incidents. While Mullin testified that the conditions worsened after the May 2013 incident, her credibility was clearly in issue. It is the function of the Commission to determine the credibility of the witnesses and the weight given to their testimony. Myers v. City of Rockport, supra. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. In assessing credibility, the ALJ noted that Mullin had been released from care after her 2011 accident because her treating physician found her to be dishonest in her reporting and that she had been malingering. We hold that there is substantial evidence of record to support the denial of additional medical treatment as not related to her 2011 or 2013 work injuries. Her recent compensable strain injuries were deemed resolved after nearly five months of treatment. Therefore, we affirm the denial of additional medical treatment as not reasonably necessary in relation to her com-pensable injury.
| (¡Next, we address Mullin’s argument that she was entitled to TTD benefits. To be entitled to TTD benefits, the claimant must prove that he remains within his healing period and suffers a total incapacity to earn wages. RPC, Inc. v. Hargues, 2011 Ark. App. 264, 2011 WL 1319384. Disability means “incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury.” Ark. Code Ann. § 11-9-102(8). The healing period is “that period for healing of an injury resulting from an accident.” Ark. Code Aim. § 11-9-102(12). Mullin was released by Dr. Schlesinger to perform light-duty work, and there was no evidence presented that Mullin was totally incapable of earning wages. Thus, there was substantial evidence presented to support the Commission’s decision that she was not entitled to TTD benefits.
Affirmed.
Kinard and Hixson, JJ., agree.
. She informed her physician that she had had similar headaches prior, to her -back surgery. , ,.
. A previous MRI of the cervical spine conducted .on January 4, 2013, also revealed degenerative changes. The recommended treatment at that time was steroid injections. | [
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M. MICHAEL KINARD, Judge
1 íAppellant Matthew Burnside was convicted by a Faulkner County jury of two counts of rape and one count of second-degree sexual assault. On appeal, he challenges the sufficiency of the evidence to support the rape convictions. We affirm.
The victim, M.H., testified that appellant was her mother’s live-in boyfriend at the time of the alleged events in 2011 and 2012, when M.H. was twelve and thirteen years old. M.H. testified that appellant had sex with her in his truck, in their camper, and in their house a total of about five times. She described in greater detail the first time appellant touched her, which occurred after he pulled his truck over while the two were driving to the store, took her shorts off, and unzipped his pants. After the trial court sustained appellant’s objection to leading questions, M.H. testified that sex meant “the penis inserted in the [vagina].” M.H. testified that she could not remember everything from two years ago because she tried to block out the details, but she was one hundred percent sure that | ^appellant had sex with her in the truck, the camper, and their home.
M.H. eventually told friends and a school counselor the day after appellant had tried to touch her again. These individuals testified that M.H. feared that appellant was going to have sex with her again. A sexual-assault nurse examiner who examined M.H. at a child-advocacy center testified that, although about ninety-five percent of children with past-penetrating trauma have normal physical exams, M.H.’s exam revealed a finding that was consistent with the allegations.
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Price v. State, 2010 Ark. App. 111, 377 S.W.3d 324. We affirm a conviction if substantial evidence exists to support it. Id, Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. The duty of resolving conflicting testimony and determining the credibility of witnesses is left to the discretion of the jury. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009).
A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103(A)(3) (Repl. 2013). “Sexual intercourse” means penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(11) (Repl. 2013).
Appellant contends that M.H. was unable to give a full and detailed account of his actions and that the only details she provided without explicit prompting from the prosecutor |swere insufficient to establish rape. We disagree. A rape victim’s testimony may constitute substantial evidence to sustain a conviction for rape, even when the victim is a child. Kelley, supra. The testimony of the victim, standing alone, is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. Price, supra. The rape victim’s testimony need not be corroborated, nor is scientific evidence required, and the victim’s testimony describing penetration is enough for a conviction. Id. It is similarly not necessary for the State to prove specifically when and where each act of rape or sexual contact occurred, as time is not an essential element of the crimes. Id.
M.H. testified that appellant had sex with her in three locations and that by sex, she meant vaginal penetration by appellant’s penis. Thus, her testimony satisfied the statutory elements of two counts of rape with sufficient detail. We hold that substantial evidence supports appellant’s convictions.
Affirmed.
Gruber and Hixson, JJ., agree. | [
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PAUL E. DANIELSON, Associate Justice
| Appellant Deonte Edison appeals the sentencing order. entered, by the Pulaski County Circuit Court, reflecting his convictions and sentences for capital murder, attempted capital murder, and two counts of aggravated robbery. Each count was enhanced for employing a firearm, and Edison was sentenced to a total term of imprisonment of life without parole plus ten years. On appeal, Edison asserts three points of error: that the circuit court erred in (1) prohibiting him from inquiring into a victim’s potential civil lawsuit against him; (2) prohibiting him from cross-examining the victim concerning her medical records; and (3) fallowing the State to introduce statements against him under the dying-declaration exception to the hearsay rule. We affirm Edison’s convictions and sentences.
Because Edison does not challenge the sufficiency of the evidence against him, only a brief recitation of the facts is necessary. See, e.g., Fritts v. State, 2013 Ark. 505, 431 S.W.3d 227. On February 28, 2013, a robbery took place at the Sbarro Restaurant in the food court of Little Rock’s Park Plaza Mall. Christian Hayes, the manager, and DeShaunte Thomas, an employee, were closing up the store, when two men entered through the employee door located at the back of the store. Hayes was counting money' and' Thomas was mopping. Thomas immediately recognized Edison, also a Shiarro employee, and Tristan Bryant, when they entered. 'While Bryant stood near the employee door, Edison walked around the freezer that sat in the middle of the restaurant. Edison then brandished a gun, and he told Hayes, who had been counting money, to put the'money in a bag.
•Thomas, at that point,- walked to the front of the restaurant, where she-attempted to get some other food:court employees’ attention to seek help, but Bryant had followed her and proceeded .to tell her that they were going to let her go, but were going to kill Hayes. After Thomas walked back toward the employee entrance, however, Edison shot Hayes and then shot Thomas after she attempted to flee. Hayes died as a result of his injuries. Edison was subsequently arrested and charged with capital murder, attempted capital murder, two counts of aggravated robbery, and theft of property. After the State nolle-prossed the theft-of-property charge,. Edison was convicted and sentenced as already set forth. He now appeals.
|SI. Civil-Lawsuit Testimony
As his first point on appeal, Edison asserts that the circuit court erred in sustaining the State’s objection to his questions posed to Thomas during his trial regarding her hiring of' an attorney to pursue a civil suit against him and Sbarro. He contends that the colloquy he intended to engage in would have shown Thomas’s bias against him arid that he was prejh-diced by the circuit court’s ruling. The State counters that the circuit court only limited Edison’s cross-examination, on the State’s objection, after Edison’s defense counsel had elicited testimony from Thomas that she and her family had hired an attorney and that she was unsure if a lawsuit would be filed. It avers that the circuit court did not err in doing so when Thomas had already answered his questions, defense counsel repeated the same question for a third time, and the line of questioning was irrelevant.
This court has stressed the importance of .allowing wide latitude with resp'ect to the admission of'evidence relevant to the bias of the witness; by the same token, it has always given wide discretion to the circuit court in evidentiary rulings. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Further, the scope of cross-examination,'we have held, extends to matters of credibility. See Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). With respect to proof of bias, we have observed that it is “almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence |4which might bear on the accuracy and truth of a witness’s testimony.” Fowler v. State, 339 Ark. 207, 219, 5 S.W.3d 10, 16-17 (1999) (quoting United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)).
In the instant case, Edison asserts that he was precluded from pursuing his line of questioning regarding Thomas’s intentions to sue him civilly; however, our review of the recórd reveals that Edison was successful -in placing his allegations of bias in front'of the jury, as evidenced by the following colloquy:
Defense Counsel: But you hired an1 attorney, correct,. while you were in the hospital?
Thomas: Yes.
Defense Counsel: Did you hire an attorney or did your family?
Thomas: My family did.
Defense Counsel: Okay. But did you nevertalk to them about any of this, what happened?
Thomas: Talked to who?"
Defense Counsel: Your family.
Thomas: Afterwards, yes.
Defense Counsel: When you are in the hospital?
Thomas: Yes.
Defense Counsel: , And so, but you hired' an attorney and — correct?
Thomas: Yes.
| (¡Defense Counsel: And was this attorney, there — did you talk to [t]his attorney about what happened?
Thomas: My sister did.
Defense Counsel: Did you ever talk.to this attorney?.
Thomas: Yes.
Defense Counsel: About what happened?
Thomas: Yes.
Defense Counsel: And your attorney was 'there when the police came to talk to you?
Thomas: Yes.
Defense. Counsel: And the — was your .plan to file a lawsuit in this— in regard to this, what happened?
.Thomas: No, a- lawsuit hasn’t been filed.
Defense Counsel: But. is it — it is your plan to?
Thomas: I don’t know.
Defense Counsel: Is thab — was your plan—
[State’s objection.]
Thomas clearly admitted that she had an attorney, who had been present when she was questioned by police, and stated that she did not know if she planned to file a civil suit. Merely because one is allowed wide latitude to inquire as to bias does not mean that one is permitted to do so without limit. To the contrary, once the main " circumstances shovraig bias have been admitted, a circuit court does have the discretion to determine how far the | r,examiner may delve into the details. See Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994). When the evidence reaches this posture, the circuit court may impose reasonable limits bn cross-examination based on concerns about harassment, prejudice, waste of time, unnecessary duplication of testimony, confusion of issues, or interrogation that is repetitive or only marginally relevant. See Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70; Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). The circuit court’s discretion to. limit these details will not be reversed absent a showing of abuse. See Billett, 317 Ark. 346, 877 S.W.2d 913.
In light of the fact that Edison had. already put before the jury the possibility that Thomas might file a civil suit, we cannot say that Edison has made such a showing. It is not an abuse of discretion to interfere with or limit cross-examination of a witness when it appears the matter has been sufficiently developed and clearly presented to the jury. See Birchett v. State, 294 Ark. 176, 741 S.W,2d 267 (1987). Accordingly,, the circuit court’s ruling is affirmed.
II. State’s Motion in Limine
Edison next argues that the circuit court erred in granting the State’s motion in limine foreclosing him from asking Thomas about a notation that had been found in her medical records. Edison claims that the notation, which purportedly-referred to possible hypoxic brain injury, was relevant to her mental status at the time the robbery took place, at the time she gave her statements to police, and at the time she identified him from a photo lineup while she was in the hospital. The State responds that, because the information contained in the 17notation was not in evidence, it would have been improper for Edison to question Thomas about it.
Again, the circuit court is given wide discretion in evidentiary rulings, and we will not reverse unless the circuit court has abused its discretion. See Fowler, 339 Ark. 207, 5 S.W.3d 10. Nor will we reverse absent a showing of prejudice, as prejudice is not presumed. See McEwing v. State, 366 Ark. 456, 237 S.W.3d 43 (2006). In the instant case, Edison contends that he was prevented from challenging Thomas's credibility when the circuit court prohibited him from asking Thomas about a notation in her medical records, which he submits would have called into question her mental status when she identified him in a photo lineup viewed from her hospital bed and when she gave her statements to police. Edison neglected, however, to proffer any testimony by Thomas to the circuit court.
When challenging the exclusion of evidence, a party must make a proffer of the excluded evidence at trial so that this court can review the decision, unless the substance of the evidence is apparent from the context. See Riley v. State, 2012 Ark. 462, 2012 WL 6218479. While we know from the record that Edison wanted to ask Thomas about whether she suffered brain hypoxia after the shooting, there is simply nothing in the record from which we can determine what Thomas’s response would have been. Moreover, we have no way of knowing if Thomas even knew that the notation in her medical records existed. Absent such, we have no way of knowing whether Edison sustained prejudice, and we would only be speculating if we were to presume prejudice and reverse on this basis. See McEwing, 366 Ark. 456, 237 S.W.3d 43; Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). The failure to proffer evidence so that the | «appellate court can make a determination on prejudice precludes review of the issue on appeal. See Roe v. State, 310 Ark. 490, 837 S.W.2d 474 (1992). The issue is not preserved for our review.
III. Exception to Hearsay
For his final point on appeal, Edison argues that the circuit court erred in overruling his hearsay exception on the grounds that the testimony was admissible under the dying-declarations exception. He contends that because Thomas’s testimony did not demonstrate her belief that she was dying or was going to die following the robbery and shooting, any statement she made to'Little Rock Police Officer James Anderson when he asked her who had shot her was inadmissible hearsay. For this reason, he asserts, the circuit court’s admission óf the testimony was prejudicial and requires that this court reverse his convictions and sentences and remand to the circuit court. The State responds that, although it mistakenly relied on the dying-declaration exception before the circuit court, the challenged testimony was admissible under other exceptions to the hearsay rule.
Edison urges that the circuit court committed reversible error when it allowed Officer Anderson’s testimony under the dying-declaration exception to the hearsay rule in Arkansas Rule of Evidence 804 (2015). We need not address the merits of Edison’s argument relating to Officer Anderson’s testimony, however, “because we have said on numerous occasions that when hearsay is erroneously admitted, we will not reverse if it is cumulative of other evidence admitted without objection.” Dougan v. State, 330 Ark. 827, 832, 957 S.W.2d 182, 185 (1997); see also Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996).
|flHere, Officer Anderson, on direct examination by the State and over Edison’s objection, did testify that after arriving at Sbarro, he asked Thomas if she knew who had shot her. He stated that Thomas had responded that she did know the person, that he worked at Sbarro, and that his name was Deonte. But, Thomas herself also testified to the same without any objection by Edison. During her testimony, she stated that she knew Edison when she saw him, there was no mistake about that, and she was 100 percent sure of that fact. She testified that Edison worked at Sbarro with her, and that she was able to tell the police officer who had come to Sbarro that Edison had shot her. She was further able to identify Edison in court for the record.
Evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be prejudicial. See Wedgeworth v. State, 2012 Ark. 63, 2012 WL 503886. This court will not reverse an evidentiary decision by the circuit court in the absence of prejudice. See id. Even if the circuit court erred in admitting the testimony of Officer Anderson, that testimony was cumulative and any error would have been harmless. Accordingly, we affirm the circuit court’s ruling.
Pursuant to Arkansas Supreme Court Rule 4 — 3(i) (2015), the record has been reviewed for all objections, motions, and requests that were decided adversely to Edison, and no prejudicial error has been found.
Affirmed.
. Edison was sentenced to life imprisonment without parole for capital murder and twenty-five years' imprisonment on each of the remaining convictions, to be served concurrently. Edison’s firearm enhancements, however, were to be served consecutively to his life sentence but concurrent to each other.
. -While Edison’s brief also cites to questions posed to Thomas at a pretrial hearing, those questions were not posed to her by Edison’s counsel, but by counsel for his codefendant, Bryant. We therefore limit our review to the questioning and objections made at Edison’s trial. | [
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LARRY D. VAUGHT, Judge
|, Appellant Jeffery Brasuell was found guilty by a Crawford County jury of commercial burglary and theft of property. He was sentenced to the Arkansas Department of' Correction for twenty-five years for the commercial-burglary conviction and to the county jail for one year for the theft-of-property conviction, to be served concurrently. On appeal, he argues that the evidence is insufficient to support the commercial-burglary conviction and that the trial court abused its discretion in introducing evidence in violation of Arkansas Rule of Evidence 404(b). We affirm.
Brasuéll was charged with commercial burglary and theft of property for shoplifting at a Wal-Mart in Van Burén, Arkansas, on December 5, 2013. Brasuell moved in limine to exclude evidence of subsequent charges filed against him relating to four shoplifting incidents that occurred at the same Wal-Mart store in October and November 2014. At the pretrial hearing, Brasuell argued' that evidence of these subsequent four incidents was inadmissible character ^evidence pursuant to' Rule 404(a) of the Arkansas Rules of Evidence and that the evidence was not admissible for any other purpose outlined under Rule 404(b). He also argued that the evidence was not admissible because the October and November 2014 incidents occurred after the December 5, 2013 incident for which he was being prosecuted; they were not similar to the December 5 act; and there was too much time between the ocr currences. The trial court denied the motion in limine.
At trial, Jonathan Murphy, a Wal-Mart asset-protection employee, testified that he observed video surveillance from December 5, 2013, showing a man (later-identified as Brasuell) going into the store, buying two items, leaving the store, returning, concealing an air filter in his pants, and leaving the store without paying for the air filter and a container of oil. Murphy recorded the license-plate number of the man who had stolen the items and reported the incident to the police a couple of days later. Using the license-plate information, the police were led to Brasuell.
.Murphy also testified that on October 23, 2010, Brasuell had been banned from all Wal-Mart stores as evidenced by a document that Brasuell had signed on that date. Murphy said that Wal-Mart employees are not advised of, and cannot identify, those who have been banned from the store, and he said that it is possible— as it happened in this case — for someone who has been banned from the store to enter unlawfully and make purchases without being apprehended.
Joseph Cole, an asset-protection manager at Wal-Mart, testified-that on October 10,12, 25, and November 11, 2014, surveillance video showed Brasuell shoplifting. On the first three dates, Cole testified that Brasuell was seen at self-check stations bagging items, for' which he did | ¡¡not scan or pay, and leaving the store with those items. Cole testified that on November 11, 2014, he reviewed surveillance video of Brasuell placing a tool set in his cart and leaving the Wal-Mart store without paying fyr it. Another Wal-Mart employee, Nathan Jones, witnessed Brasuell placing the tool set into his cart and exiting the store without paying for it. ■ Colé testified that he filed police reports regarding these subsequent incidents.
At the conclusion of the State’s case, Brasuell moved for a directed verdict, arguing that there was insufficient evidence to support the commercial-burglary charge. Specifically, he argued that there was no evidence that he had been in the Wal-Mart unlawfully. He contended that the evidence demonstrated that he had been in and out of the Wal-Mart buying things; therefore, Wal-Mart had revoked the ban. He also argued that the State failed to prove.that he had the requisite intent to commit a crime when he entered the store. The trial court denied the motion. After Brasuell rested and renewed his motion, which was. denied, the. jury returned guilty verdicts for commercial burglary,and theft of property. . This appeal followed.
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Woodson v. State, 2009 Ark. App. 602, at 7, 374 S.W.3d 1, 5. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id., 374 S.W.3d at 5. Evidence is substantial if it is of sufficient force and character to. compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id., 374 S.W.3d at 5. On appeal, we view the evidence in the light most favorable to the State, consider ing only that evidence that supports the verdict. Id., 374 S.W.3d at 5.
| ¿Weighing the evidence and assessing the credibility of the witnesses are matters for the fact-finder. Id., 374 S.W.3d at 5. The jury is free to believe all or part of any witness’s testimony and resolves questions of conflicting testimony and inconsistent evidence. Id., 374 S.W.3d at 5. Reconciling conflicts.in the testimony and weighing the evidence are matters within the exclusive province of the jury. Id., 374 S.W.3d at 5.
Brasuell’s first point on appeal is that the trial court erred in denying his motions for directed verdict, contending that there was insufficient evidence to support the commercial-burglary conviction. Specifically, he argues that there was a lack of substantial evidence that he had been in Wal-Mart unlawfully.
A person commits commercial burglary if he enters or remains unlawfully in a commercial occupiable structure of another person with the purpose of committing in the commercial occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(b)(l) (Repl. 2013). To “enter or remain unlawfully” means “to enter or remain in or upon premises when not licensed or privileged to enter or remain in or upon the premises.” Ark.Code Ann. § 5-39-101(2)(A) (Repl. 2013).
In this case, Brasuéll signed a document entitled “Notification of Restriction from Property,” which provided as follows:
Wal-Mart can prohibit individuals from entering its property who interfere with its business, shoplift, destroy property, or otherwise behave in a manner that is unacceptable to Wal-Mart. Wal-Mart has determined you have engaged in conduct sufficient to necessitate limiting your access to Wal-Mart property. This document constitutes formal notice and warning that you are no longer allowed on, Wal-Mart property or in any area subject to Wal-Mart’s control. This restriction -on entry includes, but is not limited to, all | KWal-Mart retail locations. Should you elect to ignore this notice and enter Wal-Mart property, Wal-Mart may contact law enforcement and request you be charged with criminal trespass.
The acknowledgment of receipt, included in the notification, provided “I have read and understand this notice, or in the alternative, have had it read to me and understand and acknowledge that as of [October 23, 2010] I am prohibited from entering Wal-Mart property. I understand this notice will remain in effect until Wal-Mart rescinds it.” Brasuell, along with a Wal-Mart manager, signed the acknowledgment.
When Brasuell signed the notification, he acknowledged that he no longer had privilege or license to enter or remain on Wal-Mart property. Therefore, when he entered the Wal-Mart on December 5, 2013, he did so unlawfully. This is substantial evidence supporting the commercial-burglary conviction.
Brasuell dóes not contest that he was aware bf the notification restricting him from' all Wal-Mart stores or that he signed it; however, he claims that the notification was rescinded by Wal-Mart when its employees permitted him to enter the store and buy things despite the ban. We disagree. There is no evidence on this record that Wal-Mart rescinded the ban on Brasuell. And simply because Brasuell was able to enter the store and buy things is not evidence that Wal-Mart rescinded the ban. ■ Murphy testified that Wal-Mart cannot track every person who has been banned from Wal-Mart. He said that Wal-Mart does not train its em ployees to look out for those banned from the store. However, he added that Wal-Mart can—and did in this case—file charges against those who have been banned from the store by reviewing surveillance video and credit- and debit-card information. Because there is no evidence that Wal-Mart expressly or [fiimpliedly rescinded the notification banning Brasuell from its property, we hold that there was substantial evidence to demonstrate that Brasuell entered or remained unlawfully on Wal-Mart property and affirm the commercial-burglary conviction.
Brasuell next argues that the trial court abused its discretion in allowing, under Rule 404(b), evidence of the October and November 2014 shoplifting incidents. He contends that the incidents were subsequent to the December 5, 2013 incident; therefore, they could not be relevant to the issue of preparation, plan, motive, or knowledge of that incident. He also argues that the error was prejudicial because most of the evidence at trial revolved around the Rule 404(b) evidence.
Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith; however, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b) (2015). Rule 404(b) evidence is admissible if it has independent relevance. Smith v. State, 351 Ark. 468, 473, 95 S.W.3d 801, 804 (2003). Our supreme court has held that evidence is indisputably relevant if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Wells v. State, 2012 Ark. App. 596, at 13, 424 S.W.3d 378, 387. Rule 404(b) evidence of other crimes must be similar to the charged crime; the degree of similarity between the circumstances of prior crimes and the present crime required for admission of evidence under Rule 404(b) is a determination that affords considerable leeway to the trial judge and may vary with the purpose for which the evidence is admitted. Sasser v. State, 321 Ark. 438, 447, 902 S.W.2d 773, 778-79 (1995) (citations omitted). Finally, our supreme court has repeatedly ruled that trial courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence under Rule 404(b), and that those decisions will not be reversed absent an abuse of discretion. Id. at 447-48, 902 S.W.2d at 779.
Brasuell failed to show that the trial court abused its discretion in admitting the Rule 404(b) evidence because the evidence was independently relevant. This evidence, which occurred after the crime for which he had been convicted, demonstrated Brasuell’s intent, motive, opportunity, knowledge, and plan to shoplift from Wal-Mart. The evidence shows that he went to Wal-Mart to shoplift and that he knew it was illegal because he had been arrested and charged for the same conduct in December 2013. Also, the similarity between the Rule 404(b) evidence and the December 5, 2013 incident establishes the independently relevant matters of opportunity and plan. In both sets of circumstances, Brasuell entered the same Wal-Mart store, selected items, concealed them either in his pants, his cart, or his bags, did not pay for them, and left the store.
Brasuell argues that the Rule 404(b) evidence is inadmissible because it occurred after the December 5, 2013 incident; however, we have recognized that Rule 404(b) applies to evidence of subsequent bad acts by an appellant. Wells, 2012 Ark. App. 596, at 14, 424 S.W.3d at 388. Also, we note that on two occasions the trial court gave the jury cautionary instructions regarding the proper application of the Rule 404(b) evidence. On one of these occasions, the trial court stated,
^Members of.the jury, you are instructed that evidence of other crimes, wrongs, or acts of Jeffery Brasuell may not be considered by you' to prove the character of Jeffery Brasuell in order to show that he acted in conformity therewith. This evidence is not to be considered to.establish a particular trait or character that he may have, nor is it to be considered to show that he acted similarly or accordingly on the day of the incident. This evidence is merely offered as evidence of motive, opportunity, intent, preparation, plan, knowledge, and identity, or absence of mistake or accident.
And finally, -to the extent that Brasuell raises a Rule 403 argument — that the probative value of the Rule 404(b) evidence was substantially outweighed by prejudice — that argument was not raised below or ruled on by the. trial court; therefore, .it is not preserved for review. Hill v. State, 325 Ark. 419, 425, 931 S.W.2d 64, 67 (1996) (holding that Rule 403 issues neither raised nor .ruled upon at trial cannot be raised for the first time on appeal). For these reasons, we cannot say that the trial court abused its discretion in admitting evidence of the subsequent shoplifting events pursuant to Rule 404(b).
Affirmed.
-Virden and Glover, JJ., agree.
. Brasuell does not challenge the theft-of-property conviction. | [
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CLIFF HOOFMAN, Judge.
11 David Coombs appeals from a summary judgment in favor of appellees J.B. Hunt Transport, Inc. (JBH), Rich Allens-worth, and Mark Emerson, arguing that material issues of fact remain on his claims for invasion of privacy, outrage, negligent retention, and wrongful discharge. We agree that reversal is warranted on the invasion-of-privacy claim and on the question of whether JBH may be held vicariously liable for Allensworth’s and Emerson’s actions. We affirm the remainder of the summary-judgment order.
I. Facts
The following facts are derived from the pleadings, depositions, and other materials presented to the circuit court in connection with appellees’ motion for summary judgment. As required by our standard of review, we consider the facts in the light most favorable to Coombs as the party resisting the motion. Myers v. Cooper Clinic, 2011 Ark. App. 435, 384 S.WKd 622.
Coombs is a former employee of JBH. In May 2007, he and several other employees attended a “team-building” retreat in Kansas City, Missouri. The event was organized by JBH vice-presidents Allens-worth and Emerson, who were Coombs’s supervisors. Attendance was mandatory, and the JBH employees traveled to Kansas City in rented vans. According to Coombs, he rode in a van with Emerson, who provided beer for the trip. He was also assigned to share a hotel room with Allensworth.
During the event, the group attended a Kansas City Royals baseball game. After-wards, some attendees, including Coombs, went to local bars and clubs. Alcoholic beverages were consumed, and Coombs, by his own admission, had too much to drink. Sheila Savage, a fellow employee, said that, as her group was leaving one bar, Coombs walked to a wooded area just outside the parking lot to urinate. A police officer confronted Coombs and threatened to arrest him, but Savage defused the situation. The group then returned to the hotel.
Upon arriving at the hotel, Coombs went to his room, brushed his teeth, and laid down on the floor to sleep, taking off only his shoes. He closed the door to the room but did not place a privacy card on the door or employ any other means to restrict access to the room. Later, Allensworth came into the room with Emerson and saw Coombs either sleeping or “passed out” on the floor. According to them, Coombs was in his underwear, but Coombs later denied getting undressed. Allensworth used a pen to write “help me” on Coombs’s leg and possibly wrote another message on Coombs’s forehead. Emerson sprayed shaving cream Lon Coombs’s face and placed a cigarette in his mouth, then took photographs of Coombs with his cell phone. Emerson also called several other employees, including female employees, and asked them to come to the room. Once there, they saw Coombs on the floor. One employee said that Allensworth was tugging at Coombs’s underwear. Other employees tried to clean Coombs up, then left him on the floor.
Coombs awoke the next morning in bed with no clothes on. He remembered none of what had happened in the hotel room. According to Coombs, Emerson later showed him and other employees cellphone photographs depicting Coombs in various states of undress, down to his underwear. Upon returning to work the following Monday, Allensworth and Emerson instructed those who had attended the event to say nothing about what had happened.
Despite those instructions, the incident came to light around the end of 2007 when a JBH employee, Mike Rice, wrote a memo to a company executive about the Kansas City trip. JBH conducted an investigation, then terminated Allensworth and reprimanded Emerson. Coombs was also reprimanded, presumably for failing to report the incident, and his yearly salary was later reduced from $106,000 to $75,000. According to him, he was aware that salary cuts had been planned for some JBH employees but was initially told by Emerson not to worry about it.
In February 2008, Coombs left JBH and formed his own transportation company. This caused JBH to file a complaint against him (since dismissed) for violating a covenant not to compete. In response, Coombs counterclaimed against JBH and filed a third-party complaint 1 ¿against Al-lensworth and Emerson for invasion of privacy, outrage, negligent retention, and wrongful discharge, based on the events in Kansas City. JBH, Allensworth, and Emerson moved for summary judgment, which the circuit court granted. This appeal followed.
II. Invasion of Privacy
The tort designated as “invasion of privacy” embraces several causes of action. Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997). The particular action pled by Coombs was for invasion of privacy by “intrusion upon seclusion.” Intrusion upon seclusion may occur in a variety of contexts, such as an improper search of a person’s home, harassing telephone calls, improper photographing or videotaping of a person, opening another person’s mail, or eavesdropping on private conversations by wiretapping or electronic devices. See Wal-Mart Stores v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002); CBM of Cent. Ark v. Bemel) 274 Ark. 223, 623 S.W.2d 518 (1981); see also Huskey v. Nat’l Broadcasting Co., 632 F.Supp. 1282 (N.D.Ill.1986); J. Thomas McCarthy, The Rights of Publicity & Privacy § 1:20 (2d ed.2010). This form of privacy epitomizes the classic phrase “the right to be left alone.” McCarthy at § 5:89; David A. Elder, Privacy Torts § 2:1 (2002).
To prove intrusion upon seclusion, a plaintiff must establish the following elements:
First, that he sustained damages;
Second, that the defendant intentionally intruded physically or otherwise upon plaintiffs solitude or seclusion and believed or was substantially certain that he lacked the necessary legal authority or personal permission, invitation, or valid consent to commit the intrusive act;
| ¿¡Third, that the intrusion was of a kind that would be highly offensive to a reasonable person, as the result of conduct to which a reasonable person would strongly object;
Fourth, that the plaintiff conducted himself in a manner consistent with an actual expectation of privacy; and
Fifth, that the defendant’s intrusion was the proximate cause of the plaintiffs damages.
AMI CM 420 (2011).
The trial court ruled that Coombs did not meet these elements as a matter of law because he was not “in his own bed” when the incident occurred; he was aware that he was sharing the room with another person; and he voluntarily “drank to the point where he became intoxicated.” Coombs argues that he presented sufficient evidence to create genuine issues of material fact on these matters and thus avoid summary judgment. We agree.
Coombs clearly shared a room with a co-occupant, who had the right to enter the room and invite guests, but this does not end the inquiry. An intrusion may occur physically “or otherwise.” AMI Civil 420. Thus, protection is afforded not just for the physical realm but for a person’s emotional sanctum and to safeguard the notions of civility and personal dignity. See generally Carter v. Innisfree Hotel, 661 So.2d 1174 (Ala.1995); Shulman v. Group W Prods., 18 Cal.4th 200, 74 Cal. Rptr.2d 843, 955 P.2d 469 (1998); Hill v. Nat’l Collegiate Ath. Ass’n, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 (1994). Further, a person’s visibility to some does not necessarily strip him of the right to remain secluded from others. See Huskey, supra; Sanders v. Am. Broadcasting Cos., 20 Cal.4th 907, 85 Cal.Rptr.2d 909, 978 P.2d 67 (1999); In re Marriage of Tigges, 758 N.W.2d 824 (Iowa 2008); Stessman v. Am. Black Hawk Broadcasting, 416 N.W.2d 685 (Iowa 1987). The court in Sanders stated the following:
[Pjrivacy, for purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There are degrees and nuances to societal recognition of our | (¡expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. Although the intrusion tort is often defined in terms of “seclusion” ... the seclusion referred to need not be absolute. Like “privacy” the concept of “seclusion” is relative. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.
85 Cal.Rptr.2d 909, 978 P.2d at 72.
Here, Coombs produced evidence that Allensworth and his guest, Emerson, not only came into the hotel room but also invited others into the room for the purpose of looking at him in his debilitated state. They also wrote on his body, sprayed shaving cream on him, possibly removed some of his clothing, and took photographs of him and showed them to others. The alleged intrusion was therefore not limited to crossing the threshold of the hotel room. It encompassed acts that purportedly encroached upon Coombs’s physical self and personal dignity. Consequently, we cannot say as a matter of law that no intrusion occurred.
Nor do we agree with appellees that the intrusion, if any, would not be highly offensive to a reasonable person. A fact-finder could view the acts of Allensworth and Emerson as an invasion of Coombs’s bodily space during a time when he was unaware of his surroundings and as making him an object of ridicule among his co-workers.
A factual issue also exists on the issue of whether Coombs conducted himself in a manner consistent with an actual expectation of privacy. Appellees rely on the fact that Coombs did not hang a privacy tag on the door of the hotel room to prevent Allensworth’s entry; that he was intoxicated when he passed out on the floor of the hotel room; and that he had, earlier in the evening, relieved himself in the parking lot of a bar. While these factors might be considered by a jury in determining whether Coombs was conducting himself in a |7manner that showed an expectation of privacy, we do not consider them conclusive on that point. Other factors indicate that Coombs did conduct himself in a manner consistent with an expectation of privacy. Realizing that he had consumed too much alcohol, he went to his hotel room, closed the door, lay down on the floor, and fell asleep, clothed in everything except his shoes. Under these circumstances, the proof could lead to different conclusions by the fact-finder as to Coombs’s expectation of privacy, making summary judgment inappropriate. See Vicentic v. Bishop, 2011 Ark. App. 149, 2011 WL 693344.
We therefore reverse the summary judgment on Coombs’s invasion-of-privacy claim.
III. JBH’s Vicarious Liability
Coombs argues that a factual question exists as to whether JBH is liable, by virtue of either respondeat superior or ratification, for the tortious conduct of Allens-worth and Emerson. The circuit court found no basis for JBH’s vicarious liability.
Under the doctrine of respondeat superior, an employer may be held liable for the acts of its employee if the employee was acting within the scope of his employment at the time of the incident. Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997). The question of whether an employee is acting within the scope of employment depends on whether the individual is carrying out the object and purpose of the enterprise as opposed to acting exclusively in his own interest. Id.; J.B. Hunt Transp. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995).
In the present situation, the proof indicates that Allensworth and Emerson were “on the job” during the weekend of the retreat. They organized it and were in charge, attendance |swas mandatory, and the point of the outing was for employees to interact. Still, employers are not always liable for any and all acts that an employee commits while on the job. In Porter, supra, a radiology firm was ruled not liable for the acts of an employee who sexually molested a patient during an ultrasound. Our supreme court held that the employee was not acting within the scope of his duties but that his act was “purely personal.” A similar result was reached in Regions Bank & Trust v. Stone County Skilled Nursing Facil., 345 Ark. 555, 49 S.W.3d 107 (2001). The question of an employer’s liability, therefore, revolves around whether the employee’s act was purely personal. Under the circumstances of this case, that presents a question of fact.
Coombs’s evidence demonstrates that Emerson and Allensworth did not simply go into a room alone with him for their own purposes. Rather, as supervisors, they involved other employees in the activities by calling them into the room, allowing them to enter the room and view Coombs, and by taking photographs and showing them to other employees the following day. They also attempted to ensure that, after everyone had returned to work, the incident would not be revealed. A case could therefore be made that something more than an element of personal titillation or gratification characterized Al-lensworth’s and Emerson’s actions. The actions could also signify an attempt to exercise supervisory authority, an attempt to engage in group bonding among employees, and an attempt to protect not only themselves but the company from any repercussions of the events. When an overlap of the business and the personal are present in an employee’s actions, an employer may be vicariously liable under the doctrine of respondeat superior, depending on the circumstances. Doss, supra. Thus, | ssummary judgment was inappropriate on this issue.
We affirm the summary judgment, however, as to ratification. Wben a principal has knowledge of the unauthorized acts of his agent and remains silent, he cannot thereafter be heard to deny the agency but will be held to have ratified the unauthorized acts. Gordon v. Planters & Merchants Bancshares, Inc., 326 Ark. 1046, 935 S.W.2d 544 (1996). The undisputed proof is that JBH had no knowledge of Allensworth’s and Emerson’s conduct until late 2007, at which point it conducted an investigation and imposed sanctions. Coombs argues that because Allensworth and Emerson were officers of JBH, their knowledge, and the knowledge of others present in Kansas City, may be imputed to JBH to establish ratification. If that were the case, an employer would be considered to have automatically ratified any act of its officers or managers, whether or not the acts were authorized. We decline to broaden the concept of ratification to this extent.
IV. Outrage
To establish a claim for outrage, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiffs distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Rees v. Smith, 2009 Ark. 169, 301 S.W.3d 467. We have taken a strict approach and given a narrow view to the tort of outrage. Travelers Ins. Co. v. Smith, 338 Ark. 81, 991 S.W.2d 591 (1999).
Coombs argues that the circuit court erred in granting summary judgment on his outrage claim because questions of fact remained to be decided. While we agree that a factual question could exist on the issue of whether Allensworth’s and Emerson’s conduct was extreme and outrageous, we need not address that point because Coombs fell short on another essential element of the tort — he did not come forward with evidence to show that he sustained emotional distress so severe that no reasonable person could be expected to endure it.
Coombs’s deposition testimony was that he was humiliated, frustrated, upset, and outraged; that he could not tell his wife what had happened; that he was afraid to speak to anyone about the trip; and that he lost sleep and had nightmares. He also stated that he had not been to a counselor. Such testimony does not rise to the level needed for mental anguish associated with outrage, even when viewed in the light most favorable to Coombs. Our courts have recognized that discomfort, upset, embarrassment, anxiety, loss of sleep, and depression do not meet the “mental distress” element of the tort of outrage. See Kiersey v. Jeffrey, 369 Ark. 220, 253 S.W.3d 438 (2007); FMC Corp. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005); Schmidt v. Stearman, 98 Ark.App. 167, 253 S.W.3d 35 (2007). Compare Rees, supra, where summary judgment was reversed on a claim by the plaintiff that she required psychiatric care and counseling in addition to suffering a number of maladies due to the defendant’s conduct.
_JjjV. Wrongful Constructive Discharge
A constructive discharge occurs when an employer intentionally renders an employee’s working conditions intolerable and thus forces him to resign. Sterling Drug v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). Further, an employee is wrongfully discharged if he is terminated for an act done in the public interest. Id. Coombs claims that he was constructively discharged in retaliation for “blowing the whistle on the unlawful and harassing conduct of Emerson and Allensworth.” Coombs’s claim, however, proceeds from a faulty premise. The facts do not show that Coombs was the “whistle blower” like the employee in Oxford, supra. Rather, another employee, Mike Rice, reported the incidents of the Kansas City trip to management. For this reason, we uphold the summary judgment on the constructive-discharge count.
VI. Negligent Retention
Coombs argues that factual questions exist as to whether JBH negligently retained Allensworth as an employee. This theory of recovery comes about when an employer retains an employee but either knew, or through the exercise of ordinary care should have known, that the employee’s conduct would subject others to an unreasonable risk of harm. Saine v. Comcast Cablevision of Ark., 354 Ark. 492, 126 S.W.3d 339 (2003). In Saine, a summary judgment was reversed where a factual question existed as to Comcast’s knowledge that an employee, who attacked a customer, had acted similarly toward another customer a year earlier. By contrast, the present case does not reveal the possibility that JBH knew or should have known that Allensworth might pose a risk of harm to others.
112Coombs asserts that Allens-worth was “previously accused of discriminatory and/or harassing behavior involving another employee of [JBH].” In fact, the only proof on this point was Allensworth’s testimony that he was involved in a race or sex discrimination lawsuit at a JBH terminal in Alabama when “one of the employees ... alleged that she was passed over for promotion,” and the case was settled. Coombs also states that JBH was notified of other complaints against Allensworth for “inappropriate language.” Even if true, we do not see that such an allegation would serve to notify an employer that the employee would pose “an unreasonable risk of harm” to others.
VII. Conclusion
We affirm the summary judgment as to Coombs’s outrage, wrongful-discharge, and negligent-retention claims. We reverse and remand the summary judgment on Coombs’s invasion-of-privacy claim and on the issue of whether JBH may be held vicariously liable on that claim through the doctrine of respondeat superior.
Affirmed in part; reversed and remanded in part.
GRUBER and GLOVER, JJ., agree.
. We dismissed a previous appeal for lack of a final order. Coombs v. J.B. Hunt Transp., 2011 Ark. App. 203, 2011 WL 833625. | [
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KAREN R. BAKER, Justice.
| íA Van Burén County jury convicted appellant Rodney Jones of capital murder in the shooting death of his ex-wife, Orzo-na Fischer. The jury sentenced appellant to life imprisonment without parole. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(2) (2011). Appellant raises three points for reversal. We find no merit in any of his arguments and affirm.
Because appellant does not challenge the sufficiency of the evidence and the salient facts of the case are not in dispute, only a brief recitation of the facts is necessary. On September 5, 2008, appellant traveled from Thornton, Colorado, to Clinton, Arkansas, where his ex-wife and their three children lived with her husband, Lynn Fischer. Appellant drove approximately fifteen hours, arriving in Clinton late afternoon. After resting, appellant drove to the Fischers’ residence, parked a short distance from the house, and took a position approximately 30 feet from the front window of the house. Appellant was armed with a | ¡.scoped, Marlin lever-action 30-30 that he brought with him from Colorado, and he fired one shot into the front window of the residence, fatally striking Mrs. Fischer in the back.
Members of the Van Burén County Sheriffs Department and the Arkansas State Police Department investigated the murder. State Police agents Stacy Rhoads and Joe Carter traveled to Thornton, Colorado, to interview appellant. They first interviewed appellant on September 6, 2008. The officers advised appellant of his Miranda rights, which he waived. During the interview, appellant claimed to have been in Colorado at the time of the shooting. The interview, including appellant’s waiver, was videotaped.
After their attempts to corroborate appellant’s alibi failed and they received incriminating information from appellant’s girlfriend, the officers interviewed appellant a second time. Again, the officers read appellant his Miranda warnings, and the interview was videotaped and recorded. After the officers confronted appellant with contradictions in his story and told him that they had been unable to corroborate his alibi, appellant confessed. Appel lant gave a detailed account of how he carried out the crime, as well as the location in Kansas where he disposed of the murder weapon. At the end of the second interview, appellant invoked his right to remain silent and asked for an attorney, at which time, the interview terminated.
On September 8, 2008, appellant was charged with capital murder in the shooting death of Mrs. Fischer. At trial, appellant raised the affirmative defense of not guilty by reason of mental disease or defect. The jury found appellant guilty of capital murder and sentenced him to life in prison without parole.
[sFor his first and second points on appeal, appellant asserts that the trial court erred in denying his motions for a mistrial. He first asserts that the circuit court should have granted a mistrial when the State impermissibly inflamed the passions of the jury during the closing argument, and then that the court should have granted a mistrial when the State referred to appellant’s invocation of his right to seek counsel.
In closing argument following the guilt or innocence phase of the trial, the State made the following remarks:
You know, that girl right there [Mrs. Fischer] is gone forever. That life is taken. She’s gone. That — those two little girls and that little boy, there’s no more birthdays, no more holidays. There’s always the empty chair the rest of their lives. And it’s not just the holidays and the events and all that....
Defense counsel requested a bench conference and asked for a mistrial. The circuit court denied the motion, and defense counsel requested an admonition, but stated “I don’t think that’s sufficient to fix the problem, but I do have to ask for an admonition.” The circuit court told the jury:
Ladies and gentlemen of the jury, you have been instructed in the instructions that you should not permit sympathy, prejudice, or like or dislike of any party to this action or of any attorney to influence your findings in this case. I’m going to admonish you to disregard the last statement of counsel.
Appellant argues that the trial court abused its discretion in not declaring a mistrial.
A mistrial is a drastic remedy that should only be granted when justice cannot be served by continuing the trial. Woodall v. State, 2011 Ark. 22, 376 S.W.3d 408. The circuit court has the sound discretion to decide whether to grant a mistrial, and this decision will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. \Jd. The trial court is given broad discretion to control counsel in closing arguments. Lee v. State, 326 Ark. 529, 532, 932 S.W.2d 756, 758 (1996). Closing remarks requiring reversal are rare and must invoke an appeal to the jurors’ passions. Id. An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Zachary v. State, 358 Ark. 174, 178, 188 S.W.3d 917, 920 (2004).
In this case, the court sustained appellant’s objection and admonished the jury not to let prejudice or sympathy influence its decision. Appellant argues on appeal that the State’s only purpose in making the statements was to inflame the passions of the jury. The State points out that appellant’s own confession described that he was motivated, in part, by his desire to take his children away from his ex-wife. We hold that the statement was not so inflammatory that justice could not be served by continuing the trial, and we find no abuse of discretion in the circuit court’s denial of appellant’s motion for a mistrial.
Appellant’s second argument concerns his motion for a mistrial following his objection to an answer that a police officer gave during his testimony that referred to appellant’s request to cease the interview and consult with an attorney. During trial, the prosecutor questioned Detective Carter on direct examination regarding the statement that appellant gave during the second interview. Appellant gave the statement following the waiver of his Miranda rights. In response to questioning, Detective Carter testified that the interview terminated when appellant invoked his right to remain silent and asked for an attorney. The circuit court had previously ruled that the statement was admissible at a hearing on appellant’s motion to 1 ¡^suppress the statement. At trial, appellant objected on the basis that the officer’s statement regarding appellant’s invocation of his rights violated his Fifth Amendment rights. The court inquired as to the nature of appellant’s objection and requested appellant’s counsel to prepare a curative instruction, which stated as follows:
Members of the jury, you are instructed to disregard any testimony regarding [appellant’s] invocation of his rights to remain silent or to an attorney with regard — as a — by the Fifth Amendment of the Constitution of the United States. No inferences to be drawn regarding [appellant’s] guilt or innocence. It will be disregarded by you completely.
On appeal, appellant asserts that the officer’s testimony violated due process and prejudiced his trial by informing the jury of his invocation of his right to counsel, giving the appearance that he was not telling the whole truth and that he was being dishonest, and by showing a level of sanity and awareness rebutting appellant’s defense of mental disease or defect. Appellant argues that the officer’s statement was thus an improper comment on his silence and amounted to a Doyle violation, requiring our reversal. However, appellant is making an argument on appeal that he did not make to the circuit court. This he cannot do. Even in a case in which a sentence of life without parole has been imposed, the appellant is bound by the scope of the argument he made at the trial level. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996); see also Pike v. State, 323 Ark. 56, 60, 912 S.W.2d 431, 433 (1996) (stating “our duty is only to examine the record for error on objections decided adversely to the appellant, not to address arguments that might have been made”). We decline to address [fithis argument because appellant did not present it to the circuit court as a basis for his motion for a mistrial. The circuit court clearly requested a curative instruction to remedy any proposed error that appellant claimed, and the instruction that appellant’s counsel submitted and that the court gave to the jury was solely on the basis of appellant’s Fifth Amendment rights and not an alleged Doyle violation.
Lastly, appellant argues that the circuit court erred in failing to instruct the jury on the lesser-included offenses of reckless manslaughter and negligent homicide. Prior to trial, appellant’s counsel requested jury instructions on both forms of manslaughter — recklessly and under extreme emotional disturbance — and negligent homicide. The court granted the request for the instruction on extreme-emotional-disturbance manslaughter and gave the instruction to the jury, but denied the instructions on reckless manslaughter and negligent homicide. For reversal, appellant now asserts that there was testimony furnishing a reasonable basis on which appellant could have been found guilty of the lesser offenses. We find no error.
An instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. However, we will affirm the circuit court’s decision to not give an instruction on the lesser-included offense if there is no rational basis for doing so. Boyle v. State, 363 Ark. 356, 214 S.W.3d 250 (2005); see also Ark. Code Ann. § 5-1-110(b) (Supp. 2009). A circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Id.
Appellant contends that he was entitled to instructions on reckless manslaughter and negligent homicide. The circuit court refused to give these instructions on lesser-included offenses. Appellant’s counsel proffered the following instruction on reckless manslaughter, which is based on Arkansas Code Annotated sections 5-10-104(a) (Supp.2007) and 5-2-202(3) (Repl.2006):
AMCI 2d 1004
MANSLAUGHTER
To sustain this charge the State must prove beyond a reasonable doubt that: Rodney Jones recklessly caused the death of Orzona Fischer.
DEFINITIONS
“Recklessly.” — A person acts recklessly with respect to the results of his conduct when he consciously disregards a substantial and unjustifiable risk that the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the same situation.
Appellant’s counsel also proffered the following instruction on negligent homicide based on Arkansas Code Annotated sections 5-10-105(b) (Supp.2009) and 5-2-202(4) (Repl.2006):
AMCI 2d 1005
NEGLIGENT HOMICIDE
To sustain this charge the State must prove beyond a reasonable doubt that:
1 sRodney Jones negligently caused the death of Orzona Fischer.
DEFINITIONS
The term “negligently” as used in this criminal case means more than it does in civil cases. To prove negligence in a criminal case the State must show that Rodney Jones should have been aware of a substantial and unjustifiable risk that the death would occur. The risk must have been of such a nature and degree that his failure to perceive it, considering that nature and purpose of his conduct and the circumstances known to him, involved a gross deviation from the standard of care that a reason able person would have observed in his situation.
Appellant urges us to find a rational basis in the evidence for giving these instructions. Appellant contends that the testimony of Dr. Bob Gale, a forensic neu-ropsychiatrist, could have led the jury to conclude that although he did not possess a mental disease or defect sufficient to be found not guilty, the jury could have found that his mental infirmities did cause him to be reckless or negligent in his action. Appellant argues that his mental disease and defect prevented him from conforming his conduct to the requirements of the law necessary to form the mental state for the greater offenses.
The circuit court properly refused the instructions on reckless manslaughter and negligent homicide. The evidence at trial showed that appellant traveled approximately fifteen hours from Colorado to Arkansas, rested for awhile, and then watched and shot his ex-wife with a deer-hunting rifle that he had brought with him from Colorado. Appellant shot once into the house, mortally striking Mrs. Fischer in the back. He immediately returned to Colorado, disposing of the murder weapon on the way. Appellant offers no rational basis to support giving either instruction on the basis that his actions were reckless or negligent. Further, appellant cites us to no relevant authority to support finding a rational basis for giving 1 seither of these instructions in our case law, and such a finding would run counter to our prior case law. See, e.g., Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001) (pulling up and shooting a victim once in the stomach is not reckless conduct); Norris v. State, 2010 Ark. 174, 368 S.W.3d 52 (2010) (affirming the circuit court’s denial of an instruction on negligent homicide where there was no evidence that the appellant was unaware that his conduct, or the risk of his conduct, would result in the victim’s death). We conclude that there was no rational basis for the circuit court to instruct the jury on reckless manslaughter or negligent homicide.
In addition to the arguments raised by appellant, we have reviewed the record pursuant to Arkansas Supreme Court Rule 4 — 3(i) (2011), and we have found no prejudicial error that would warrant reversal.
Affirmed.
. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that "the Due Process Clause bars ‘the use for impeachment purposes’ of a defendant's postarrest silence." Tarkington v. State, 313 Ark. 399, 402, 855 S.W.2d 306, 308 (1993).
. Even if we addressed the Doyle violation, the circuit court’s denial of appellant's motion for a mistrial was not an abuse of discretion. Our decision in McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988), where we held that no Doyle violation had occurred, is instructive. In McIntosh, a police officer made a remark that "all three [appellants] made no comment.” The trial court there did not permit the prosecutor to attempt to use the appellants' silence for impeachment purposes or to call attention to their silence. Id. at 173, 753 S.W.2d at 276. Likewise, in this case the circuit court did not permit such use of appellant’s silence or request for an attorney. | [
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ROBERT J. GLADWIN, Chief Judge
| , Appellant Kristin Bell’s parental rights to her two-year-old daughter, AM., were terminated by the Yell County Circuit Court. Kristin argues that the circuit court’s order should b.e reversed because appellee Arkansas Department of Human Services (ADHS) failed to properly serve the petition for termination of parental rights (TPR) on her as required, by Arkansas Code Annotated section 9-27-341(b)(2)(A) (Repl. 2015). Kristin also argues for reversal because the evidence was insufficient to prove the statutory grounds pled in support of TPR or that it was in AM.’s best interest to terminate her parental rights. We affirm.
As to her first argument, we hold that Kristin waived any objection to service through her appearance by her attorney at the termination hearing' and she failed to preserve the issue with the circuit court. See, e.g,, Ark. Dep’t of Health & Human Servs. v. Jones, 97 Ark. App. 267, 248 S.W.3d 507 (2007); Myers v. Ark. Dep’t of Human Servs., 91 Ark. App. 53, 208 S.W.3d 241 (2005). Arkansas appellate courts have repeatedly stated that the failure |2to raise an objection to service issues at the trial level precludes review of the issue on appeal. Blackerby v. Ark. Dep’t of Human Servs., 2009 Ark. App. 858, 373 S.W.3d 375. Kristin aeknowl- edges that she failed to raise any objection to service of process and participated in the termination hearing through the full representation of her attorney. Kristin’s admitted failure to raise this issue below therefore bars any review of this issue on appeal.
An order terminating parental rights must be based on clear and convincing evidence, Smithee v. Arkansas Department of Human Services, 2015 Ark. App. 506, 471 S.W.3d 227, and the circuit court’s findings will not be reversed unless they are clearly erroneous — when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a definite and ñrm conviction that a mistake has been made. Id.; see also Strickland v. Ark. Dep’t of Human Servs., 103 Ark. App. 193, 287 S.W.3d 633 (2008). The appellate courts review TPR orders de novo. Samuels v. Ark. Dep’t of Human Servs., 2014 Ark. App. 527, 443 S.W.3d 599.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Smithee, supra. In order to terminate parental rights, the circuit court must determine by clear and convincing evidence that such termination is in the child’s best interest, including consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9-27 — 341(b)(3)(A). One of the statutory grounds for termination, found in Ark. Code Ann. § 9-27-341(b)(3)(B), must also be proved by clear and convincing evi-dencé.
lain the instant case, the circuit court granted ADHS’s TPR petition based on two grounds: subsequent factors, codified at section 9 — 27—341(b)(3)(B)(vii)(a), and aggravated circumstances, codified at section 9-27-341(b)(3)(B)(ix). Kristin claims that the evidence supporting these two grounds was insufficient and, thus, it was error for the circuit court to base its termination order on either of these grounds. The two grounds applicable are listed in section 9-27-341(b)(3)(B) as follows:
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate' family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent.
(ix)(a) The parent is found by a court of competent jurisdiction to:
(3)(A) Have • subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) ..a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification....
Ark.Code Ann. § 9-27-341(b)(3)(B)(vii) & (ix). /
We need not address all grounds because ADHS only had to prove one statutory ground to support TPR. The statutory ground on which we affirm the TPR order is the “subsequent, factors” ground, pursuant to section 9-27-341(b)(3)(B)(vii)(a).
|4The subsequent-factor ground for termination consists of multiple elements. First, this ground requires that subsequent issues arose after the original petition was filed, which demonstrate that it is contrary to the juvenile’s health, safety, or welfare to place the juvenile with the parent. Second, appropriate family services must have been offered. Third, there must be evidence that the parent is indifferent or lacks the capacity to remedy the subsequent factors or rehabilitate the parent’s circumstances that prevent placement of the juvenile with that parent. Finally, Kristin argues .that it is implicit that the subsequent factors arose at a time when the juvenile was not in the custody of the parent, as demonstrated by the language that “placement of the juvenile, in the custody of the parent is contrary to the juvenile’s health, safety, or welfare,” as well as the language at the conclusion of this subsection that the failure to remedy the subsequent factors “prevents the placement of the juvenile in the custody of the parent.”
In seeking to terminate Kristin’s parental rights, ADHS alleged the following subsequent factors: (1) Kristin’s mental ■instability; (2) the volatile relationship between Kristin and Billy Minnie, who is A.M.’s father, their relatives, and law enforcement; (3) Kristin’s positive drug tests; (4) Kristin’s leaving the state; (5) Kristin’s subsequent incarceration in Kansas; and (6) delays in A.M.’s development. Of these factors, Kristin argues that the only two that can be considered “subsequent factors” are her incarceration and delays in AM.’s development. She notes that the other •-issues alleged by ADHS occurred during the time that Kristin successfully maintained custody of A-.M. Although Kristin [^acknowledges that evidence was presented to confirm the existence throughout the case of her mental-health issues, her on-again, off-again relationship with Billy, and legal troubles that caused Kristin to be placed on probation, she notes that none of those issues .ever caused the circuit court enough concern that it felt AM.’s health, safety, or welfare was in jeopardy, as evidenced by the circuit court maintaining A.M.’s custody with Kristin. It was not until Kristin left the state that the circuit court felt compelled to change custody.
As for the two issues that Kristin claims can be considered actual subsequent factors, (1) her incarceration in Kansas, and (2) A.M.’s developmental delays, she claims that ADHS failed to offer any proof that 'Kristin was unwilling or unable to remedy those circumstances that prevented the return Of A.M. to her custody. Kristin acknowledges that ADHS has been involved with the family since May 27, 2013, and has offered services to the family, but she claims that the record demonstrates that Kristin benefited from those services and was able to successfully maintain custody of A.M. for over a year.
Kristin argues that, following her incarceration, both ADHS and the circuit court were unwilling to work with, or provide any further services to, Kristin to help remedy the cause of removal, as evidenced by the circuit court’s orders entered following the review and permanency-planning hearings held, respectively, on January .16, 2015, and March 20, 2015. She points out that drug issues did not cause the subsequent removal of AM. from her custody — as shown by both orders simply instructing the parents to refrain from possessing or using controlled substances, to submit to random drug screens, to com- píete a-drug-and-alcohol assessment, and to complete a drug-treatment program— there was no order for services or instructions to Kristin related to the subsequent removal of A.M. | (¡Additionally, Kristin argues that, in the absence- of an order terminating services, her incarceration did not negate the circuit court’s duty to order, and ADHS’s duty to provide, appropriate services pursuant to section 9-27-341(B)(3)(B)(vii)(a). ■ .Where no such services were offered, Kristin urges that there can be no evidence to sufficiently demonstrate that she manifested an indifference or incapacity to remedy the subsequent factors that prevented the placement of A.M. with her.
Kristin does not appear to challenge the existence of sufficient evidence supporting the circuit court’s findings; rather, she argues that the circuit court erred in considering certain evidence and claims that the remaining evidence was insufficient to support TPR. Kristin specifically admits that her mental-health issues, family turmoil, and criminal issues represented a reasonable summary of the issues facing her, and fails to challenge the existence of any facts related to those issues. ADHS argues that Kristin’s failure (1) to challenge the existence of the facts described in the evidence presented to the circuit court, or (2) to assert that the evidence did not satisfy the elements of the statutory grounds abandons any challenge to those facts on appeal. Contreras v. Ark. Dep’t of Human Servs., 2015 Ark. App. 604, 474 S.W.3d 510; Benedict v. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006).
Kristin’s argument is that the circuit court erred inconsidering..evidence about' issues and facts that arose. or occurred while A.M. was in Kristin’s custody from September 2013 to December 2014. Kristin argues that “implicit” in the subsequent-factors ground is that the subsequent factors arose at a time when A.M. was not in her custody. We hold that her argument is inconsistent with Arkansas law. First, there is no limitation in the subsequent-! factors ground that a subsequent factor cannot be factor that arose while a parent had custody of the juvenile during the dependency-neglect case. Ark. Code Ann. § 9 — 27—341(b)(3)(B)(vii). The only temporal limitation provided is that the factor- must arise “subsequent to the filing of the original petition for dependency-neglect,” which all of the subsequent factors relied on by the circuit court satisfied because they' occurred after ADHS’s initial petition was filed on May 31, 2013. Kristin improperly attempts to add a new requirement into an unambiguous law that would preclude consideration of any subsequent changes in custody or the reasons for those changes in TPR hearings. Further, we note that Kristin’s list of requirements that the subsequent factors must demonstrate that placement with her is contrary to A.M.’s health, safety, or welfare, and that her failure to remedy the subsequent factor(s) must prevent placement of A.M. with her, are elements that contemplate- that A.M. has been removed prior to termination. That said; there is no limitation on the circuit court’s consideration of factors that caused a removal after the initiation of the proceeding. Ark. Code Ann. § 9-27-341(b) (3) (B) (vii).
Kristin’s argument must also fail to the extent that Kristin’s assertion challenges ADHS’s efforts to provide- reunification services because Kristin failed to challenge any of the circuit court’s reasonable efforts findings in this case, including the January 16, 2015 review hearing and the. March 20, 2015 permanency planning hearing — each of which occurred after A.M.’s second removal from Kristin’s custody in October 2014. Anderson v. Ark Dep’t of Human Servs., 2011 Ark. App. 522, 385 S.W.3d 367.
Affirmed.
Virden and Gruber, JJ., agree.
. Billy Minnie is not a party to this appeal. | [
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COURTNEY HUDSON GOODSON, Associate Justice
|Appellant James McCafferty -appeals the circuit-court’s grant of summary judgment on his illegal-exaction claim against appellee The Oxford American Literary Project. Inc. ' (“Oxford American”). McCafferty’s suit arises from a loan made to Oxford American from the University of Central Arkansas (“UCA”) out of its cash funds. The circuit court found that McCafferty’s illegal-exaction claim failed as a matter of law because the funds at issue were not derived from taxes. We agree and affirm the circuit court.
McCafferty filed an illegal-exaction lawsuit against Oxford American asserting that UCA loaned $700,000 to Oxford American out of its cash funds and that the loan was an improper use of public funds. Oxford American filed a motion for summary judgment, arguing that'the cash funds at issue were not generated by taxes and could not support a claim for illegal exaction. In support of its motion, Oxford American attached an affidavit from Diane Newton, the vice president of Finance and Administration for UCA, who averred that the funds at issue were drawn from UCA’s Board of Trustees Fund and its ^auxiliary funds, which were “comprised of money from profits UCA has earned from housing, bookstore, food-services, and other auxiliary operation” as well as investment income. Newton also averred that no money at issue came from any appropriations authorized by the General Assembly. McCafferty responded that he was not required to prove that the money came directly from taxes to prevail on his illegal-exaction claim. Rather, he argued that the illegal-exaction lawsuit was appropriate because the money was public money that was generated from the assets of a tax-supported public institution. The circuit court held a hearing on the issue. During the hearing, McCafferty conceded that the issue before the court was an issue of law, and he did not identify any disputed issues of material fact. McCafferty also did not challenge that the funds at issue were “cash funds” but instead argued that cash funds were public funds that supported an illegal-exaction lawsuit. The circuit court granted Oxford American’s motion for summary judgment, concluding that the funds were not subject-to an illegal-exaction suit-because they were not funds derived from taxes. McCafferty has filed this appeal. ■
The only issue for this court to decide is whether McCafferty can maintain an illegal-exaction lawsuit to challenge an allegedly improper expenditure from UCA’s “cash fund.” Illegal-exaction lawsuits in Arkansas are authorized under article 16, section 13 of the Arkansas Constitution which provides, “Any citizen of any county, city, or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal ex-actions whatever.” An illegal exaction is defined as any exaction that either is not authorized by láw or is contrary to law. Brewer v. Carter, 365 Ark. 531, 231 S.W.3d 707 (2006). Two types of illegal-exaction cases can arise under article |316, section 13: “public funds” cases, where the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent, - and “illegal-tax”, cases, where the plaintiff asserts that the tax itself is illegal. Sullins v. Cent. Ark. Water, 2015 Ark. 29, 454 S.W.3d 727. The parties agree that the instant case is a “public funds” case rather than an “illegal-tax” case. It is axiomatic that, before a public-funds type of illegal-exaction case will be allowed to proceed, there must be facts showing that monies generated from tax dollars or arising from taxation are being misapplied or illegally spent. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377.
The. circuit court dismissed McCafferty’s illegal-exaction’ claim as not involving public funds generated from tax dollars, citing our decision in Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595 (1949). In that case, we held that funds “derived from such sources as students’ fees, sale of farm produce, dormitory charges, etc.” were not derived from taxes. Id. at 816, 223 S.W.2d at 597. Although Gipson did not involve a claim for illegal exaction, we, have subsequently confirmed that the type, of funds at issue in Gipson are not sufficient to support a claim for.-illegal exaction because they are not derived from taxes. . See Chapman v. Bevilacqua, 344 Ark. 262, 271, 42 S.W.3d 378, 384 (2001) (“As this court noted in Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595 (1949), a governmental subdivision use of funds, not derived from state taxpayer monies is not subject to a challenge for unlawful disbursement.”); Mackey v. McDonald, 255 Ark. 978, 504 S.W.2d 726 (1974) (noting that the funds at issue in Gipson could not support an.illegal-exaction claim because the funds were not derived from taxes and did not reach the state treasury).
^McCafferty argues that -the circuit court erred because the funds at issue are public funds arising-out of the operation of a tax-supported public institution. In support of his argument, he cites cases designating the cash funds of public institutions as “public monies.” See, e.g., Sebastian Cty. Chapt. American-Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Parker v. Ark. Real Estate Comm’n, 256 Ark. 149, 506 S.W.2d 125 (1974). However, these cases do not indicate that a fund merely qualifying as “public money” or a “public fund” is sufficient to support an illegal-exaction claim. Rather, these cases denote that cash funds and public monies are subject to some governmental regulation and oversight even though they are not comprised of tax-generated dollars. For example, at issue in Parker was a, pension plan established by the Arkansas Real Estate Commission. The Commission argued that the plaintiff had no -right to any funds from the plan because the Commission had created the plan without proper statutory authority and' was void ab initio. The plaintiffs argued that the pension plan, was valid because it was formed out of the cash funds of the Commission, which were not deposited with the general treasury, and accordingly, the Commission could utilize the funds in whatever way it chose. In ruling for the Commission, this court held that the cash funds were “public monies” and that the Commission was constrained in its expenditures of such money by statute. Notably, | (¡however, Parker did not involve a claim for Illegal exaction, and the fact that'the legislature can place restrictions on the spending' of cash funds does not mean that such funds are “public funds generated from tax dollars,” as required for an illegal-exaction-lawsuit.
McCafferty further ■ argues that the funds at issue arose from taxation because they were the result of the operation of a tax-supported institution. Under McCafferty’s theory, the funds at issue would not have been possible but for the fact that UCA received tax dollars and, accordingly, the funds should be considered as “arising from” taxes. We disagree. Although this court has used various terms in defining the type of public funds necessary to support an illegal-exaction lawsuit such as “generated from tax dollars,” “derived from taxes,” and “arising from taxation,” we have consistently required that the funds at issue come from taxes or implicate the state or local trea sury. See Mackey v. McDonald, 255 Ark. at 983, 504 S.W.2d at 731 (distinguishing Gipson, supra, by stating, “It is also significant that in Gipson, - none of the funds ever reached the public treasury”); Fort Smith Sch. Dist. v. Beebe, 2009 Ark. 333, at 6, 322 S.W.3d 1, 4 (stating, “This is a public funds case, and to prevail on their claim, Appellants must show that the State misapplied or illegally spent money that was lawfully collected pursuant to ad valo-rem property taxes”). This is because a citizen’s standing to bring a public-funds case is tied to his vested interest in ensuring that the tax money he has contributed to a state or local government treasury is lawfully spent. Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999); | (Accordingly, “a misapplication by a public official of funds arising from-taxation constitutes an exaction from-the taxpayers and empowers any citizen to maintain a suit to prevent such misapplication of funds.” Farrell v. Oliver, 146 Ark. 599, 602, 226 S.W. 529, 530 (1921). Such a rationale does not extend to this case, however, where the parties agree that the funds at issue did not come from the state treasury and that taxpayers are not required to replenish funds from UCA’s cash funds. See, e.g. Chapman v. Bevilacqua, 344 Ark. 262, 42 S.W.3d 378 (2001) (holding that a plaintiff did not have standing to challenge the expenditure of federal funds because the funds were strictly derived from federal taxes, were not comingled with funds from the state treasury, and the plaintiff did not have an obligation to replenish any improperly-spent funds).
Our case law has consistently required that the funds at issue in an illegal-exaction lawsuit implicate the state or local treasury and not merely be traceable to the general treasury through a “but-for” analysis. Indeed, we have rejected illegal-exaction suits under such circumstances in at least three previous cases. First, in Brewer, supra, the plaintiff attempted to bring an illegal-exaction lawsuit for the alleged misspending of insurance proceeds following the destruction of a county building. Although the building at issue belonged to the county- and' the insurance proceeds were paid to the county, we held that the plaintiff lacked standing because the funds were not generated or arising from taxation. Second, in Dockery, supra, the plaintiff brought an illegal-exaction lawsuit challenging funds derived from certain gas leases for mineral exploration on land belonging to the Arkansas Game and Fish Commission. Despite the fact that, the leases were on Commission land, we held that the money generated from those leases was not subject to an illegal-exaction |7lawsuit because it did not arise from taxation. • Finally, in McGhee v. Arkansas State Board of Collection Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006), the plaintiffs brought an illegal-exaction claim against the Arkansas State Board of Collection Agencies, arguing that the board was improperly licensing payday lenders. To support their illegal-exaction claim, the plaintiffs argued that the monies received by the board were public funds and that the board' had two full-time employees receiving salaries and benefits. On appeal, this court affirmed the circuit court’s grant of summary judgment in favor of the board, holding that it had demonstrated that the funds at issue could not support an illegal-exaction' claim because the board introduced unrefuted evidence that it did not receive revenue‘from the state treasuries and that the funds at issue were not generated from tax dollars. Additionally, the board averred that no tax revenue was used to pay for employee benefits of board employees. Thus, in Brewer, Dockery, and McGhee, we rejected the notion that funds could arise from taxation merely because they existed as a byproduct of tax funds.
In this case, the circuit court properly granted summary judgment against McCafferty because the undisputed facts show that the cash funds at issue were not generated or arising from taxation. On this point, Oxford American introduced an affidavit from Diane | ¿Newton, who averred that the funds were not appropriated 'by the legislature but instead- were made up of “money from profits UCA has earned from housing, bookstore, food-services, and other auxiliary operations”, as well as investment income. McCafferty presented no proof in response to this affidavit and did not challenge its factual accuracy. Additionally, as was the case in Brewer, Dockery, and McGhee, the fact that the funds may have been generated as a byproduct of facilities supported by tax dollars is not sufficient to support a claim for illegal exaction.
Finally, McCafferty argues on appeal that pur decision in Gipson supports his illegal-exaction claim because that case implicitly recognized that a citizen has legal recourse for the alleged improper spending of cash funds.. We disagree. In Gip-son, the plaintiff argued that various state institutions were improperly using their cash funds to supplement the salary of paid employees, so that the employees were receiving compensation in excess of the amount fixed by the legislature. The plaintiff sought an injunction prohibiting the defendants from using the cash funds in this way. This court held that the use of cash funds to increase a salary fixed by the legislature was illegal, and a state institution using the funds in such a way could be enjoined. Id. In the instant case, however, McCafferty does not seek an injunction; rather, he seeks money damages under a claim of illegal exaction. As indicated above, a claim for illegal exaction specifically requires that the funds at issue be generated or arise from taxation. As we clearly held in Gipson, cash funds do not meet this definition.
■ ^Because the cash funds at issue in this case were not generated or arising from taxation, the circuit court properly granted summary judgment in favor of Oxford American, and accordingly, we affirm that decision.
Affirmed.
Hart, J., concurs.
Brill, C.J., and Baker and Wynne, JJ., dissent.
. Indeed, following our decision in Gipson, the legislature passed a law requiring expenditures from cash funds tó be approved by the legislature, see Ark.Code Ann. § 19-4-802 (Repl. 2007), but this law does not affect the legal analysis in this case because it does not change the fact that the cash funds at issue were not derived from , taxes. In fact, the statute maltes clear that "cash funds" of a state institution aré those funds that "aré not on deposit with or in the trust of the Treasurer of State." Ark.Code Ann. § 19-4-801 (Supp. 2015).
. Contrary to the concurring opinion’s suggestion, we have never held, and we do not hold today that only direct appropriations are subject to challenge in an illegal-exaction suit.
. We reject the dissent’s suggestion that we should overrule these cases. This court has held that it is necessary, as a matter of public policy, to uphold prior decisions unless great injury or injustice would result. Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007). The policy behind stare decisis is to lend predictability and stability to the law. Id. . Accordingly, we will not overrule a prior decision absent a showing that “it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 288, 149 S.W.3d 325, 337 (2004). No such showing has been made here. | [
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LARRY D. VAUGHT, Judge
[ iAppellant Angela Stout Erskin appeals the order' entered by the Washington County Circuit Court denying her motions for modification of custody, visitation, and child support; denying her motion for contempt of court; and awarding attorney’s fees to appellee Marvin Stout, On appeal, she contends that the trial court clearly erred in finding that a material change in circumstances had not occurred and that modification of custody was not in the best interest of the parties’ son, J.S. (born April 18, 2004). Erskin also argues that the trial court erred in finding that Stout was not in contempt and in awarding attorney’s fees. We affirm.
After the parties were divorced, the trial court entered an order on October 24, 2013, denying a motion for change of custody previously filed by Erskin. This order gave Stout custody of J.S. and Erskin visitation. This order also required Stout to immediately effectuate any paperwork required to allow Erskin access to J.S.’s medical and educational information.
LOn June 19, 2014, Erskin moved for modification of custody, alleging that on March 18, 2014, J.S. pulled his permanent tooth by gnawing on his bed frame. ' She also álleged that on June 15, 2014, J.S. “chewed his bottom lip off.” Erskin asserted that Stout failed to provide medir cal/dental treatment after these incidents and that Stout failed to show concern for J.S.’s health or fully understand his medical condition. She alleged that J.S. was in danger and requested that she be awarded custody of him. Erskin later filed an amended motion alleging that the incidents of J.S.’s self-mutilation constituted a material change in circumstances sufficient to support a modification of custody, visitation, and child support. She also filed a motion for contempt, claiming that Stout failed to comply with the trial court’s order to effectuate paperwork so that she had access to J.S.’s medical information. ■
An emergency hearing was held on the issue of temporary custody of J.S. on July 8, 2014. Erskin testified that Stout told her that in March 2014, J.S. pulled one of his permanent teeth after he gnawed on his bed frame. In June 2014, she said that J.S. chewed the inside of his lip. She said that she found out about J.S.’s lip from Stout’s mother (J.S.’s grandmother), who called and asked Erskin to take him for treatment, which Erskin did at Northwest Medical Hospital. Erskin testified that she was displeased with J.S.’s treatment there. Erskin testified that later' that same day,'Stout took J.S. to Washington Regional Hospital, and J.S. was referred to Vantage Point for mental-health treatment, where he "was admitted and stayed for eight weeks. Erskin stated that Stout failed to put her on the emergency-contact list at Vantage Point and that she did not have' access' to his medical records and care there. However, she also said that she was present when J.S. was admitted to Vantage Point, she visited him every Sunday during his stay, Land- she received two passes that-permitted'her to remove J.S. from the facility. She claimed that Stout was disinterested in J.S.’s care and that he would receive better care in her custody.
Stout testified that he admitted J.S. to Vantage Point as soon as he was referred there. Stout said that he participated in family-counseling sessions. He also testified that he provided Vantage Point with Erskin’s contact information but that her name was not on the admission paperwork.
At the conclusion of. the hearing, the trial court found that there, was no emergency warranting a change of custody pending the full hearing on custody. The court found that both Erskin and Stout were involved in J.S.’s treatment, Stout did not fail to provide medical treatment to J.S., and Stout was not preventing Erskin from being involved in J.S.’s care. The court further found that there was no evidence Stout was going to take J.S. out of Vantage Point or that he had taken J.S. out on a pass and not returned him. An order was entered July 23, 2014, wherein the trial court found that there was “not enough evidence to show there is an emergency that warrants modifying temporary custody of the minor child.” Stout was ordered to add Erskin as a primary contact to J.S.’s medical-contact lists.
On November 10, 2014, the trial court appointed an attorney ad litem on behalf of J.S., and the modifícation-of-custody hearing was held on November 20, 2014. Faith Berry, J.S.’s counselor at Vantage Point, testified that J.S. had suicidal and homicidal ideations and .that his self-mutilating behavior was due to stress. J.S. told Berry that he was “distressed” because his parents were fighting over him. Berry said that both parents denied talking to J.S. about the custody case. However, when Berry asked J.S. how he knew about the custody case, he said that Uhis mom had been “working on” him “to try and say I want to live at her house.” He said that he knew that was what she wanted, but he wanted to live at both houses. When Berry asked J.S. if his dad ever talked to him about the custody case, J.S. said, “no, but sometimes I wish he would say what he wants me to do because I don’t know what to do and they’re fighting over me.” He added, “they’ve never really fought about it in front of me, but that’s what I feel like. I feel like I’m in the middle, and there is like these two battles going on all around me.” J.S. also told Berry that sometimes at night he did not feel safe at Erskin’s house, although he could not explain why. For these reasons, Berry said that she had concerns with Erskin having custody of J.S. and that, in her opinion, extended time with Erskin would be detrimental to J.S.’s mental health.
Berry stated that Stout attended all counseling sessions, had a positive disposition, and complied with the treatment team’s recommendations. Berry testified that she had no concerns with Stout having custody of J.S. Berry stated that Erskin attended some counseling sessions and also complied with the treatment team’s recommendations. However, Berry added that during one family session Erskin objected to discussing how the custody case was affecting J.S.’s stress level.
Erskin testified that while she was aware of J.S.’s admission to Vantage Point and attended some of his counseling sessions there, she stated that she was not advised of all of the counseling sessions or when J.S. was released. She added that she did not have Medicaid or ARKids insurance cards for J.S. and that she had been unable to make medical appointments I ¿for him. Erskin testified that Stout did not understand J.S.’s condition but that she had a “total understanding of it” because she has the same ADHD diagnosis.
Stout testified that J.S. was doing well in his home. He stated that he did not know that J.S. pulled his tooth until his school called about it. And he had not taken J.S. to the dentist after he pulled the tooth because it was too late. After the lip injury, Stout said that he and his wife, Malisa, took J.S. to Washington Regional Hospital for a second opinion and treatment. The next day, they checked J.S. into Vantage Point.
Malisa Stout testified that she and Stout had taken J.S. to the doctor a week-and-a-half after he pulled his tooth and that Stout asked the doctor for a psychological evaluation, but the doctor did not do it. She said that she gave Erskin a copy of J.S.’s Vantage Point discharge papers. Malisa also told the court that Stout’s sister (J.S.’s aunt) was murdered in ■ May 2014, that J.S. heard about it in the news, and that he was very upset about it.
J.S.’s attorney ad litem reported to the court that J.S. said that he wanted to live with his mother. The attorney ad litem also said that it was not normal for a ten-year-old boy to pull a permanent tooth. He believed that J.S. was stressed due to the custody case and his aunt’s murder, and despite the fact that he was in counseling, he was not improving. The attorney ad litem had concerns about both parents, but he thought a temporary change of custody might be beneficial for J.S., along with continued counseling and = treatment.
At the conclusion of the hearing, the trial court noted that this was the second time in one-and-a-half years that Erskin had filed for a change of custody. The court found that J.S. had | (¡mental-health issues, and the custody battle and the gruesome and highly publicized murder of his aunt were affecting him. The court took the matter under advisement.
On December 3, 2014, the trial court entered an order finding that Erskin failed to meet her burden of showing a substantial change of circumstances to warrant a change of custody. The court found that J.S.’s needs weré being met by Stout; Stout obtained proper mental-health treatment for J.S.; Stout handled each stage of the medical and psychological problems appropriately; J.S. disclosed to Berry that he felt distressed at Ers-kin’s home and that on one occasion felt less safe there; Berry did not have concerns with custody remaining with Stout; that the custody battle needed to end or J.S. would suffer emotional damage; and that it was not in J.S.’s best interest for custody to be modified. The trial court also found .that Erskin failed to prove that Stout was in contempt. And finally, the trial court awarded Stout $2000 in attorney’s fees. This appeal followed.
We have recited the standard of review in child-custody cases:
Arkansas law is well settled'that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. A judicial award of custody will not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree will be in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented' to the circuit court or were not known by the circuit court at the' time the original custody order was entered. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. The reasons for requiring these- more stringent standards -for modifications than for initial custody determinations are to promote stability and continuity in the life of the child, and to discourage the repeated litigation of the same issues. The party seeking modification has the burden of showing a material change in circumstances.
Harris v. Harris, 2010 Ark. App. 160, at 13-14, 379 S.W.3d 8, 15-16 (citing Hatfield v. Miller, 2009 Ark. App. 832, at 7, 373 S.W.3d at 366, 371). We consider the evidence de novo, but the trial 17court’s findings of fact will not be reversed unless they are clearly erroneous or clearly against the preponderance of the evidence. Hards, 2010 Ark. App. 160, at 14, 379 S.W.3d at 16. We give due deference to the superior position of the trial court to view and judge credibility of the witnesses, a deference even greater in cases involving child custody, where the trial judge has a heavy burden to utilize to the-fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id., 379 S.W.3d at 16.
Erskin’s first point on appeal is that the trial court clearly erred when it found there was no material change of circumstances sufficient to warrant a modification of custody and that modification was not in the best interest of J.S. She points out that the attorney ad litem suggested that a temporary change of custody might benefit J.S., and she notes that J.S.’s stated preference was to live with her. She also argues that Stout failed to notice that J.S. pulled his permanent tooth, failed to provide proper medical care for J.S. after he pulled his tooth and after he chewed the inside .of his lip, and failed to tend to- J.S.’s declining mental health. She claims that Stout “abdicated his parental responsibilities” like the father in Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009); in Stehle, our court reversed the trial court’s- denial of. the mother’s motion to modify custody,, holding that the trial court’s finding was clearly erroneous.
Erskin is confused about Stehle. Our court, in an unpublished opinion, Stehle v. Zimmerebner, CA 07-810, 2008 WL 2122820 (2008), reversed the trial court’s finding that the mother failed to prove a material .change of circumstances and held that custody should have .been vested in the mother. . However,, our decision was reversed by the supreme court in Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). There, the supreme court held that the trial court’s finding, denying the mother’s motion to modify custody, was not clearly erroneous. The supreme court pointed to the trial court’s finding that while some circumstances had changed for the parties (the father moved frequently with his daughter, he divorced his daughter’s stepmother after a physical altercation, and the mother improved her financial situation) and' both parties needed improvement, the child was doing well in the father’s custody. The supreme court also highlighted the trial court’s familiarity with the parties and its superior ability to assess their credibility. Id. at 456-57, 291 S.W.3d at 580-81. ■
Contrary to Erskin’s argument, our supreme court’s holding in Stehle' actually supports the trial court’s decision to deny her motion to modify custody. As in Stehle, the trial court herein acknowledged that some circumstances had changed •since the last custody hearing. J.S. was suffering from mental-health issues, which were manifested in two incidents of self-mutilation. However, similar to Stehle, -the trial court made findings that are supported by the evidence. The trial court, with its familiarity with the parties and its superior ability to assess their credibility, found that the evidence demonstrated that Stout obtained the proper mental-health treatment, for J.S. and that the custody .cases brought by Erskin were causing him to suffer extreme stress and anxiety. The trial court also found that Erskin’s testimony that she. and J.S. share the same condition and that she .understood what he was going through, implied that Stout did not and could not, which could alienate J.S. from Stout and cause additional stress. The -trial court also found that a change of custody was .not. in J.S.’s best interest. The trial court cited Berry’s testimony that she had concerns with Erskin having custody because J.S. had disclosed that he 1 flfelt distressed about being the center of the custody dispute, Erskin had talked with him about the custody case, and she had tried to convince him to live with her. J.S. also disclosed to Berry that he was stressed at Erskin’s home and on one occasion felt unsafe there. ' Berry did not have concerns ■ with custody remaining with Stout. The trial court found the testimony of Berry .credible, stating that she was concerned with the well-being of J.S. Ultimately, the trial court found that the “custody battles” must end or J.S. would suffer emotional damage.
Erskin claims that the trial court gave “an abundance of weight” to the testimony of Berry, but counters that she was biased against Erskin. She argues that it “is hard to ■ understand why the trial court would hinge its ruling of the best interest of the child on the therapist’s testimony when her testimony was so hostile, evasive, and obviously biased against the mother.” This is a challenge to Berry’s credibility. As set forth above,- when the question of whether the trial court’s findings are clearly erroneous turns largely, on. the credibility of the witnesses, we give special deference to the superior position of the trial court to evaluate the witnesses, their testimony, and the child’s best interest. Stehle, 375 Ark. at 456, 291 S.W.3d at 581; Harris, 2010 Ark.App. 160, at 14, 379 S.W.3d at 16. Therefore, we hold that the trial court did not clearly err in finding that Erskin failed to prove a material change of circumstances to justify a modification of custody of J.S. and that a modification was not in J.S.’s best interest.
ImErskin next- argues that the trihl court erred in denying her motion for contempt. She argues that'the trial court’s October 2013 order required Stout to effectuate all paperwork necessary to'allow her access to J.S.’s medical and educational infoririation and that he failed to do so. She testified that she was unable to get copies of J.S.’s medical records or make appointments for him and that she did not have copies of J.S.’s Medicaid or ARKids.insurance cards. Erskin’s sister also testified that Erskin was unable to make appointments for her son. Erskin points out that Stout did not sign the authorization for her to get J.S.’s school records until August 2014.
In order to establish contempt, there must be willful disobedience of a valid order of a court. Kilman v. Kennard, 2011 Ark.App. 454, at 7, 384 S.W.3d 647, 651. Contempt is -a matter between the court and the litigant and not between the two opposing litigants. Id., 384 S.W.3d at 651-52. Before one can be held in contempt for violating the court’s order, the order must be definite in its terms, clear as to what duties it imposes, and express in its ¡commands. Id., 384 S.W.3d at 652. This case involves civil contempt. Civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id., 384 S.W.3d at 652. The standard of review for civil contempt is whether the finding of the trial court is clearly against the preponderance of the evidence. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 449, 156 S.W.3d 228, 235 (2004).
We hold that the trial court’s denial of Erskiris motion for contempt is not clearly against the preponderance of the evidence. While Stout may have failed to properly and/or timely fill out medical or educational paperwork giving Erskin access to J.S.’s records, treatment, or | ^education, there was a complete lack of evidence that his omission was willful. Further, there is no evidence that Erskin was prejudiced or suffered as a result of his omission. She failed to present any evidence that she was denied access to J.S.’s educational records or activities. And the evidence that was presented showed that she was not denied access to J.S.’s medical information or treatment. For example, Erskin was able to take J.S. — on her own — to Northwest Medical without the insurance cards. She was present when J.S. was admitted at Vantage Point, and she did not testify that she asked for authorization at that time. Stout said that he provided her contact information to Vantage Point. Also, Ers-kin was aware and involved in J.S.’s treatment at Vantage Point. She visited him every Sunday during his eight-week stay. And she checked him out of the facility twice. Malisa Stout testified that she handed Erskin J.S.’s Vantage Point discharge papers. Based on this evidence, we hold that the trial court’s denial of Erskin’s motion for contempt was not clearly against the preponderance of the evidence.
For her final argument, Erskin argues that the trial court erred as a matter of law in ordering her to pay Stout’s attorney’s fees. She cites the Social Security Act, 42 U.S.C. § 407(a) (1998), which provides that none of the moneys paid or payable or rights existing under the Act shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or solvency law. Based on this statute, she argues that “the trial court stepped outside the bounds of state law when it levied [attorney’s fees] against [her] income, which is solely acquired from her Social Security disability income.”
There is no merit to Erskin’s argument. The trial court’s order assessing attorney’s fees is a judgment against Ers-kin — not a levy or garnishment of her benefits. A -judgment has been | ^defined as “[a] court’s final determination of the rights and obligations of the parties in a case.” Black’s Law Dictionary 918 (9th ed. 2009). A garnishment has been defined as a proceeding whereby a plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by such person to the defendant, and it may be issued at whatever stage of a proceeding the statutes may authorize. Sharum v. Dodson, 264 Ark. 57, 61, 568 S.W.2d 503, 505 (1978). A garnishment is a method of executing a judgment. Because the order/judgment assessing attorney’s fees against Erskin has no effect on her Social Security benefits, we hold that 42 U.S.C. § 407(a) has no application to this case. Accordingly, we affirm the trial court’s award of attorney’s fees to Stout.
Affirmed.
Virden and Glover, JJ., agree.
. Colleen Martin, Erskin’s sister, testified that she had seen her sister try, unsuccessfully, to make medical appointments for J.S.
. In Stehle, there was evidence presented that the father delegated his parental responsibilities to his daughter’s paternal grandparents and former stepmother.
. The parties attended three custody hearings, all initiated by Erskin, in fifteen months.
. Erskin argues that Berry was upset with Erskin and her counsel when Erskin told Vantage Point that she needed a pass to check out J.S. from treatment because the -trial court requested his attendance at the emergency custody hearing in June 2014. The trial court did’not make this request. | [
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CLIFF HOOFMAN, Judge.
| jAppellant Danny Lee Ashley appeals his convictions for possession of methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine. On appeal, Ashley argues that the trial court erred in denying his motion to suppress verbal statements and physical evidence and erred in denying his motions for directed verdict. We find no error and affirm.
Ashley was charged with possession of drug paraphernalia with intent to manufacture methamphetamine and possession of a controlled substance (methamphetamine) with intent to deliver. Prior to trial, he filed a motion to suppress arguing that statements he made and evidence seized from his possession should be suppressed.
The suppression hearing was held on October 25, 2010. Brent Cole, assistant police chief for the Sheridan Police Department, testified that he received a call on February 2, 2010, |2from Carroll at the feed store stating that a white male had just purchased five one-pound bags of organic iodine. Cole, who had been in law enforcement for sixteen years and was a certified methamphetamine-lab technician, testified that iodine could be used to manufacture methamphetamine and was also used to treat hoof rot in cows. The policy of the feed store was to have purchasers of iodine show identification and sign a logbook. Carroll gave Cole the license-plate number of the purchaser’s vehicle. Cole and Agent Eddie Keathley, supervisor of Group 6 Narcotics, responded in an unmarked truck and located Ashley’s vehicle as it was driving by. Cole and Keathley followed the vehicle through town for approximately a mile until the vehicle pulled into a bank. Brian Clark, the passenger in Ashley’s vehicle, repeatedly looked back at the officers and was acting very suspicious. Cole and Keathley parked approximately thirty feet from the bank’s entrance as Clark exited the vehicle and went inside the bank for a short time. Clark was watching the officers as he went in and out of the bank.
As Clark was exiting the bank, Cole and Keathley drove up and parked their truck near the rear of Ashley’s ear, but not blocking it. Cole walked to the passenger side of the vehicle as Clark was reentering the vehicle. Cole explained who he was and asked Clark to exit the vehicle. Cole asked Clark if he had any cows, and Clark responded that Cole needed to speak to Ashley. Cole went to the driver’s side of the vehicle where Ashley was sitting and asked him to step out of the car. Cole testified that Ashley was not under arrest or in custody at this point. Cole asked Ashley how many cows he had in his apartment, and Ashley stated that he was buying the iodine for someone else. Cole then asked Ashley what |she thought this other person was using the iodine for, and Ashley said it was to “cook dope.” Cole testified that at this point he considered Ashley to be under arrest. Cole then asked Ashley if he had anything illegal on him. Ashley did not verbally respond, but he looked down at his shirt pocket, took a deep breath, and did not look back up at Cole. Cole checked the shirt pocket and found two small containers that contained five baggies of methamphetamine. Cole then placed Ashley under arrest. The transaction lasted approximately twelve to fifteen minutes. Ashley’s vehicle was subsequently searched, and five one-pound bags of iodine were found.
At the police department, Keathley advised Ashley of his Miranda rights using a rights form, which Ashley signed. Keath-ley testified that Ashley stated the iodine was being used to “cook dope” and that he was going to trade the iodine for meth. Ashley would not say who he was going to trade with.
Cole testified that Carroll from the feed store had previously called him about purchases such as this one. Cole stated that for the amount of iodine that was bought, the purchaser would have to have a big ranch. Cole admitted that he did not have any knowledge that Ashley had made purchases of other materials that could possibly be used for manufacturing methamphetamine. Cole testified that the men were free to leave when he approached them to talk. He stated that even though he knew Ashley did not have cows, if Ashley had told him the iodine was for cows, he could not have arrested him. Cole and Keathley were both in plain clothes at the time they talked to the men. Cole had his badge on his belt and was wearing a weapon. Keathley was wearing his badge on a chain around 14his neck and was wearing a weapon. Cole acknowledged having his hand on his gun for safety purposes.
The trial court denied the motion to suppress, and a jury trial was held on December 13, 2010. Officers Cole and Keathley testified the same as they had at the suppression hearing. They both also testified that the packaging of the drugs in five individual baggies was indicative of selling drugs. However, Keathley also testified that it could be indicative of drugs that were just bought. Keathley testified that Ashley told him he had bought more methamphetamine than usual because he had extra money. Lauren O’Pry, a forensic chemist at the State Crime Lab, testified that the substance in the baggies seized from Ashley was amphetamine. She said that it was different from methamphetamine but that it was still a Schedule II stimulant drug.
When the State rested, Ashley moved for a directed verdict. On the charge of possession of drug paraphernalia with intent to manufacture methamphetamine, he argued that there was no evidence of his intent to manufacture methamphetamine because he possessed only one component, iodine, necessary for manufacture. The court denied this motion. On the charge of possession of methamphetamine with intent to deliver, Ashley argued that the evidence established his intent to use the drugs, not deliver them. The court denied this motion as well.
Ashley testified that he and Clark went to the store and he had Clark go in and buy the iodine because he had trouble walking. Ashley said that an acquaintance asked him if he could buy the iodine because the acquaintance could not get it around where he lived. |aAshley testified that he did not know that the salt form of iodine was used to make meth, although he did know liquid iodine was. He said that he did not know the iodine he bought would be used to make meth and he had not planned to trade it for meth. He denied telling the police these things. He claimed that Cole repeatedly asked him, and he finally responded that it might be used to “cook dope” but that he did not know. Ashley said he did not know if his acquaintance owned cows. He testified that he bought the methamphetamine found in his pocket the day before his arrest, and it was still packaged the way he bought it. He claimed that he bought the drugs to use them and that he did not sell or manufacture methamphetamine.
Ashley renewed his motions for directed verdict on the same grounds argued before. The motions were denied. The State then made a motion to amend the criminal information to charge Ashley with possession with intent to deliver amphetamine and possession of amphetamine, as opposed to methamphetamine. Ashley objected to an amendment because both sides had rested so there would be no chance for him to cross-examine the chemist regarding this new charge. The State’s motion was denied. Ashley then again moved for a directed verdict with respect to the charge of possession of methamphetamine with intent to deliver. This motion was denied.
The jury returned a verdict of not guilty on the charge of possession of methamphetamine with intent to deliver but guilty of the lesser-included offense of possession of methamphetamine. The jury also found Ashley guilty of possession of drug paraphernalia with intent to manufacture methamphetamine. He was sentenced as a habitual 16offender and received ten-year sentences on both convictions to run consecutively. Ashley then moved to set aside the verdict for possession of methamphetamine because there was no proof that he possessed methamphetamine. The court denied the motion. Ashley filed a timely notice of appeal.
Because of double jeopardy concerns, we must first review Ashley’s challenges to the sufficiency of the evidence. See Percefull v. State, 2011 Ark. App. 378, 383 S.W.3d 905. Ashley first argues that the trial court erred in denying his motion for directed verdict on the charge of possession of drug paraphernalia with intent to manufacture methamphetamine because he lacked the intent to manufacture. A motion for directed verdict is a challenge to the sufficiency of the evidence. Lueken v. State, 88 Ark.App. 323, 198 S.W.3d 547 (2004). When reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the guilty verdict, considers only that evidence supporting the verdict, and affirms if substantial evidence supports the verdict. Id. Evidence is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. Id. Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id.
Under Arkansas Code Annotated section 5-64-403(c)(5)(A) (Repl.2005), “[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine in violation of this chapter.” Drug paraphernalia is defined |7as “any equipment, product, and material of any kind that are used, intended for use, or designed for use in ... manufacturing ... a controlled substance in violation of this chapter.” Ark. Code Ann. § 5-64-101(14)(A) (Repl.2005).
Ashley argues that his testimony demonstrates that his conviction is based only on speculation and conjecture. He argues that he bought the iodine for a friend and that he did not have any intention of personally manufacturing methamphetamine and did not even know how to make it. He notes that when officers searched his car they found no other items used to make methamphetamine. He argues that he only speculated that the iodine might be used to “cook dope” after Cole’s repeated demands. Ashley also claims that he did not tell Agent Keathley that he was going to trade the iodine for meth, and Keathley admitted that this was not written in his report. The State argues that it does not matter that Ashley possessed only one ingredient, and one that also has a legal purpose, because the statute plainly states that it is illegal to possess any product intended for the manufacture of methamphetamine. The State argues that Ashley admitted to both officers that he knew iodine was used in manufacturing meth.
The credibility of witnesses is an issue for the jury. Meadows v. State, 360 Ark. 5, 199 S.W.3d 634 (2004). Furthermore, the jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Id. Here, the jury chose to believe that Ashley knew the iodine was going to be used to make methamphetamine. There is substantial evidence to support the verdict, and we affirm on this point.
| ¡jAshley next argues that there was insufficient evidence to support his conviction for possession of methamphetamine because the State proved only possession of amphetamine. He contends that the material variance of the criminal information that charged him with possession of methamphetamine and the State’s evidence of possession of amphetamine was unduly prejudicial to his defense. He argues that the State should have amended the information prior to trial to reflect that the drug at issue was amphetamine. Ashley claims he was prejudiced because the defense did not learn of the discrepancy until trial, and had they known before they would have changed his defense strategy. He further argues that methamphetamine is always an illegal drug, whereas amphetamines are commonly prescribed legal drugs.
The State argues that Ashley’s argument is not preserved for appellate review because he did not raise it to the trial court. When the State rested, Ashley moved for a directed verdict on the charge of possession of methamphetamine with intent to deliver and argued that there was insufficient evidence of intent to deliver. He did not argue that the substance he possessed was not methamphetamine. Ashley’s failure to move for a directed verdict on this ground at the close of the State’s case precludes us from reviewing it. See Ark. R.Crim. P. 33.1. Furthermore, even though the chemist testified that the substance was amphetamine, Ashley testified that it was methamphetamine. The jury was free to believe Ashley and convict him based on this testimony.
Last, Ashley argues that the trial court erred in denying his motion to suppress verbal statements and physical evidence because police lacked reasonable suspicion that he was |flcommitting, had committed, or was about to commit a felony. In reviewing the denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court and proper deference to the trial court’s findings. Summers v. State, 90 Ark.App. 25, 203 S.W.3d 638 (2005). The trial court’s ruling will not be reversed unless it is clearly against the preponderance of the evidence. Id. We will defer to the trial court in assessing the credibility of witnesses. Id.
Ashley argues that the police lacked reasonable suspicion to stop him under Arkansas Rule of Criminal Procedure 3.1; thus, he claims that the seized evidence and his statements were fruit of the poisonous tree that should have been suppressed. Rule 3.1 provides as follows:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony ... if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
The State argues that Ashley’s motion to suppress was rightfully denied because he was never stopped or seized by police. Instead, the State claims that Ashley was approached by police as authorized under Arkansas Rule of Criminal Procedure 2.2. Rule 2.2 provides that an officer may approach a citizen and request that they furnish information or otherwise | incooperate in the investigation or prevention of crime. This encounter is consensual and does not constitute a seizure. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). A seizure of a person occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. Id.
The State argues that Ashley was not seized because he stopped his car voluntarily and Officer Cole was not threatening in his speech or actions. Ashley claims he was seized when he was approached by the officers because the officers positioned their vehicle behind his so that there was no way for him to leave, and the officers, wearing guns and badges, ordered him to step out of his car. Officer Cole acknowledged asking Ashley to exit his vehicle; however, both officers denied that Ashley’s vehicle was blocked in. We hold that at this point, Ashley was detained under Rule 3.1.
Because Ashley was detained, Officer Cole must have had reasonable suspicion that Ashley was committing, had committed, or was about to commit a felony. Reasonable suspicion is defined as “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.” Ark. R.Crim. P. 2.1. The existence of a reasonable suspicion must be determined by an objective standard, and due weight must be given to the specific reasonable inferences an officer is entitled to derive from the situation in light of his Inexperience as a police officer. McConnell v. State, 85 Ark.App. 77, 146 S.W.3d 370 (2004). When reasonable suspicion is based solely on a citizen-informant’s report, there are three factors for determining reliability: (1) whether the informant is exposed to possible criminal or civil prosecution if the report is false; (2) whether the report is based on personal observations of the informant; and (3) whether the officer’s personal observations corroborate the informant’s observations. Id.
Ashley challenges only the third prong, arguing that there was a lack of personal observations by the police, and he claims that this case is very similar to Summers v. State, 90 Ark.App. 25, 203 S.W.3d 638 (2005). In the instant case, the informant told the police that a white male had bought five one-pound bags of iodine from the feed store just down the road from the police department, and he gave the police the vehicle’s license-plate number. Officer Cole ran the license-plate number and determined that the registered owner was Danny Ashley. When the officers left the police department, the car with that license-plate number passed by them and its occupants were two white males. This is sufficient corroboration of the informant’s observations. See McConnell v. State, 85 Ark.App. 77, 146 S.W.3d 370 (2004). WTiile following the car, the police observed the passenger looking back at the officers and acting very suspicious. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion, although nervousness alone does not constitute reasonable suspicion of criminal activity. Lilley v. State, 362 Ark. 436, 208 S.W.3d 785 (2005). Adding to Officer Cole’s suspicion was his knowledge that Ashley lived in an apartment and did not own cows; thus, it was unlikely that Ashley had a legitimate purpose for buying such a large 112amount of iodine. We must give.due weight to the reasonable inferences Officer Cole was entitled to derive in light of his sixteen years in law enforcement and qualifications as a certified methamphetamine-lab technician. Under these facts, there was reasonable suspicion for Officer Cole to detain Ashley. This case is distinguishable from Summers, where the only basis for the stop was a tip that the driver had purchased a “large quantity” of matches, which are used in the production of methamphetamine. The police did not ask the informant what constituted a “large quantity” and made no other relevant observations.
Ashley also argues that, based on the lack of reasonable suspicion, he was actually under arrest upon being questioned by Officer Cole; thus, he should have been read his Miranda rights before being questioned. Miranda warnings are only required in a custodial interrogation situation. Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005). The supreme court has held that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a degree associated with formal arrest. Id. Officer Cole detained Ashley for a short period of time to determine the lawfulness of his conduct. He did not have reason to arrest Ashley until Ashley said the iodine would be used to “cook dope.” Although Ashley was detained under Rule 3.1, his freedom of action was not curtailed to a degree associated with formal arrest, and a Miranda warning was not required. See Lee v. State, 102 Ark.App. 23, 279 S.W.3d 496 (2008); Bohanan v. State, 72 Ark.App. 422, 38 S.W.3d 902 (2001).
The denial of Ashley’s motion to suppress was not clearly against the preponderance of the evidence. Accordingly, we affirm.
|iaVAUGHT, C.J., and ABRAMSON, J., agree. | [
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ROBERT L. BROWN, Justice.
l,The issue in this case is whether a corporate officer, director, or employee, who is not a licensed attorney, engages in the unauthorized practice of law by representing the corporation in arbitration proceedings. We hold that such a person is so engaged, and we reverse the circuit court on this point. In addition, we reverse the circuit court’s determination that an arbitrator, rather than the court, should determine issues regarding legal representation during arbitration proceedings.
This case began as a dispute over construction costs between TriBuilt Construction Group, LLC (TriBuilt), the appellee herein, and NISHA, LLC (NISHA) and Centennial Bank (formerly known as Community Bank) (Centennial), the appellants. TriBuilt was the general contractor hired by NISHA to build the Country Inn & Suites in Conway.- Centennial entered into a Construction Loan and Security Agreement with NISHA, which [^assigned its interest in the construction contract with TriBuilt to Centennial as security for Centennial’s entering into a construction mortgage for the project. After the project was completed, TriBuilt filed suit in the Sebastian County Circuit Court against NISHA and Centennial and asserted that when the project was completed, they refused to pay TriBuilt the $666,462.12 balance owed, defamed TriBuilt, and intentionally interfered with TriBuilt’s ability to get bonding for the project.
NISHA moved to compel arbitration and contended that the contract with TriBuilt compelled the parties to arbitrate all disputes relating to the contract. Contemporaneously with this motion, NISHA moved to stay proceedings pending arbitration. The circuit court denied both of NISHA’s motions regarding arbitration. Centennial later filed a second motion to compel arbitration and requested that TriBuilt voluntarily enter into arbitration proceedings. On January 12, 2010, the circuit court entered an order granting the motion to compel arbitration in part and denying it in part. The circuit court granted the motion to compel arbitration and stay proceedings with regard to TriBuilt’s claims for breach of contract, quantum meruit, tortious interference with the contract, and conversion against Centennial and NISHA.
|sOn January 26, 2011, the circuit court entered a second order permitting TriBuilt’s counsel to withdraw from the case. TriBuilt’s attorney subsequently withdrew from the arbitration proceedings as well. Rather than obtain new counsel to represent it in the arbitration proceedings, TriBuilt through its President, Alan Harrison, notified NISHA and Centennial that it intended to represent itself. Harrison, a nonlawyer, would present TriBuilt’s case in the arbitration proceedings. On March 31, 2011, NISHA and Centennial filed a “Joint Petition for Permanent Injunction,” seeking to prevent Harrison from representing TriBuilt in either the circuit court case or in the arbitration proceedings. In support of its petition, NISHA and Centennial contended that a corporate entity cannot represent itself in litigation and litigation-related matters through agents who are not licensed attorneys. They requested that the circuit court permanently enjoin TriBuilt from permitting, authorizing, or condoning Harrison, or any other officer, director, or employee, from engaging in the unauthorized practice of law by representing TriBuilt in the circuit court proceedings or in the court-ordered arbitration proceedings.
On April 13, 2011, International Fidelity Insurance Company (IFIC) filed a response to the joint petition for permanent injunction. IFIC claimed that TriBuilt was not prohibited by law from representing itself in an arbitration proceeding and that the representation in such a proceeding did not constitute the unauthorized practice of law. It | maintained that under the American Arbitration Association (AAA) rules, which governed the arbitration proceeding at issue, any party could be represented by counsel, pro se, or “by any other representative of that party’s choosing.” IFIC claimed further that no Arkansas law prohibited a corporation from representing itself in arbitration proceedings.
On May 16, 2011, the circuit court entered an order granting NISHA and Centennial’s joint petition so far as it pertained to proceedings before the circuit court but denying their petition for a permanent stay so far as it pertained to the arbitration proceedings for two reasons: (1) the circuit court did not agree that nonlawyer representation in an arbitration proceeding constituted the practice of law, and (2) the arbitration panel should decide that issue. NISHA and Centennial filed an interlocutory appeal to this court pursuant to Arkansas Rule of Appellate Procedure — Civil 2(a)(6). The circuit court issued a certificate under Arkansas Rule of Civil Procedure 54(b) and found that pro se representation by a corporate officer was an issue of first impression and that there was no just reason to delay entry of final judgment regarding whether Harrison could represent TriBuilt in the arbitration proceedings.
NISHA and Centennial raise two points in their brief on appeal: (1) this court should reverse the circuit court’s finding that nonlawyer representation in arbitration proceedings does not constitute the unauthorized practice of law, and (2) that this court should reverse the circuit court’s finding that the arbitrator should decide who can represent a party in arbitration proceedings. TriBuilt has not filed a brief in response in this appeal.
|sThe circuit court’s conclusions that nonlawyer representation in arbitration proceedings did not constitute the unauthorized practice of law and that the arbitrator had the authority to decide who could represent a party in arbitration proceedings are conclusions of law. As such, those conclusions are given no deference on appeal, and this court’s standard of review is de novo on both issues. See Hill v. Kelly, 368 Ark. 200, 207, 243 S.W.3d 886, 890-91 (2006).
Although NISHA and Centennial present this as their second point for reversal, the question of whether the arbitrator or this court has the power to determine if a nonlawyer can represent a corporation during arbitration proceedings is jurisdictional and must be addressed first. See, e.g., Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 186 S.W.3d 705 (2004) (holding that circuit courts have jurisdiction to determine issues regarding the unauthorized practice of law). The circuit court concluded that the arbitration body is entitled to determine what parties and representatives may participate in arbitration proceedings, as well as what rules apply in the process. That is in error. This court has the exclusive authority to regulate the practice of law. Preston v. Stoops, 373 Ark. 591, 594, 285 S.W.3d 606, 609 (2008) (“Oversight and control of the practice of law is under the exclusive authority of the judiciary.”); see also Ark. Const, amend. 28 (“The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.”). Likewise, the unauthorized practice of law falls within this court’s constitutional authority to control and govern the practice of law. Preston, 373 Ark. at 594, 285 S.W.3d at 609. Because the issue is whether representation of a corporation by a nonlawyer during arbitration proceedings [(-.constitutes the unauthorized practice of law, the issue falls squarely within the ambit of this court’s constitutional powers and may not be decided by an arbitration body. We reverse the circuit court on this point.
NISHA and Centennial’s second argument is that a corporate entity cannot represent itself during arbitration proceedings because that constitutes the unauthorized practice of law. They cite this court to Arkansas Bar Association v. Union National Bank, 224 Ark. 48, 273 S.W.2d 408 (1954), to support this contention.
In Union National Bank, the Arkansas Bar Association sought to enjoin a bank from engaging in the unauthorized practice of law. That opinion addressed the authority of the bank, as fiduciary, to prepare and present petitions and precedents for orders in the probate and chancery courts without representation by an attorney. Id. at 49, 273 S.W.2d at 409. In our opinion, this court made five broad conclusions regarding the practice of law in Arkansas:
• Corporations are prohibited from practicing law in this state and a corporate employee, officer, or director who is not a licensed attorney cannot hold himself or herself out as being entitled to practice law. Id. at 51, 273 S.W.2d at 410. 75 An individual can practice law for himself or herself, but a corporation can only represent itself in connection with its own business or affairs in the courts of this state through a licensed attorney. Id.
• A trustee or personal representative does not act on his or her own behalf and a person who is not a licensed attorney and who is acting as an administrator, executor, or guardian cannot practice law in matters relating to his trusteeship. Id. at 51-52, 273 S.W.2d at 410.
• When one appears before a court of record for the purpose of transacting business with the court in connection with any pending litigation or when any person seeks to invoke the processes of the court in any matter pending before it, that person is engaging in the practice of law. Id. at 53, 273 S.W.2d at 411. 17* The practice of law is regulated by the judiciary. Id.
While the Union National Bank case is helpful in outlining the basic principles governing the practice of law in this state, it does not address the specific issue before this court, which, again, is, whether a corporate officer’s representation of that corporation in arbitration proceedings constitutes the practice of law.
NISHA and Centennial claim that arbitration invokes the processes of the courts, is quasi-judicial in nature, and, thus, constitutes the practice of law. They adduce Union National Bank as authority for this conclusion. We begin our analysis by noting that Arkansas is among the states that have adopted the 1955 version of the Uniform Arbitration Act. See Ark. Code Ann. §§ 16-108-201 to-224 (Repl.2006). We further recognize that as a matter of public policy, arbitration is strongly favored in Arkansas and is looked upon with approval by our courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Cash in a Flash Check Advance of Ark, L.L.C. v. Spencer, 348 Ark. 459, 466, 74 S.W.3d 600, 604 (2002).
There is no doubt that under Arkansas’s arbitration statutes, the circuit court remains involved to a degree in arbitration proceedings. Although arbitration proceedings can be initiated without court action, a court can compel parties to proceed to arbitration or stay already existing arbitration proceedings upon application of a party. See Ark.Code Ann. § |S16-108-202 (Repl.2006). The court may also send some claims to arbitration, while retaining other claims. See Ark.Code Ann. § 16-108-201(b)(2) (Repl.2006). Likewise, in some circumstances the court can appoint the arbitrator, if the parties have not agreed on a method for appointment or the agreed method fails or the arbitrator cannot continue. Ark.Code Ann. § 16-108-203 (Repl.2006).
In addition, a circuit court may, on request, direct the arbitrator to conduct a hearing promptly and render a timely decision. Ark.Code Ann. § 16-108-205 (Repl.2006). Plus, after a party to an arbitration proceeding receives notice of an award, that party may move the court for an order confirming the award, at which time the court shall issue a confirming order unless the award is modified, corrected, or is vacated. Ark.Code Ann. § 16-108-211 (Repl.2006); see also Ark. Code. Ann. §§ 16-108-212, 16-108-213 (Repl.2006). Except in certain limited situations, a valid and final award by an arbitrator has the same effect under the rules of res judicata as a judgment of a court. Ruth R. Remmel Revocable Trust v. Regions Fin. Corp., 369 Ark. 392, 402, 255 S.W.3d 453, 461 (2007). On appeal, this court will vacate an arbitration award only upon statutory grounds or a finding that the award violates a strong public policy. Hart v. McChristian, 344 Ark. 656, 666-67, 42 S.W.3d 552, 559 (2001). Based on this statutory scheme and this court’s holding that arbitration awards have the same res judicata effect as a judgment of a court, NISHA and Centennial conclude that the courts of this state remain “actively involved” in arbitration and that it is an ancillary court process.
| ^Although this court has never held that a nonlawyer’s pro se representation of a corporation in arbitration proceedings constitutes the unauthorized practice of law, courts in other jurisdictions have so held. In The Florida Bar re Advisory Opinion on Nonlawyer Representation in Securities Arbitration, the Florida Supreme Court held that a nonlawyer who represented an investor during arbitration engaged in the unlicensed practice of law because the representation required, among other things: (1) conducting discovery and related depositions; (2) presenting evidence, raising objections, examining witnesses, voir dire of experts, and opening and closing arguments; and (3) preparing and filing the initial written statements of claims, answers, and counterclaims as well as written and oral motions and legal memoranda concerning the claims at issue. 696 So.2d 1178, 1180 (Fla.1997); see also The Florida Bar v. Rapoport, 845 So.2d 874 (Fla.2003) (holding that a lawyer who was not licensed in Florida engaged in the unauthorized practice of law by representing clients in securities proceedings in Florida).
The Ohio Supreme Court reached the same conclusion that a corporation, or its nonlawyer representative, could not represent individuals during securities arbitration proceedings. See Disciplinary Counsel v. Alexicole, Inc., 105 Ohio St.3d 52, 2004-0hio-6901, 822 N.E.2d 348. The Arizona Supreme Court similarly held that a disbarred attorney engaged in the unauthorized practice of law when he represented a motorist during arbitration proceedings against the motorist’s insurance company. In re Creasy, 198 Ariz. 539, 12 P.3d 214 (2000). In that case, the Arizona Supreme Court defined the practice of law as follows:
|in[T]hose acts, whether performed in court or in the law office, which lawyers customarily have carried on from day to day through the centuries constitute the practice of law. Such acts ... include rendering to another any other advice or services which are and have been customarily given and performed from day to day in the ordinary practice of members of the legal profession....
Id. at 216-17 (citing State Bar of Ariz. v. Ariz. Land Title & Trust Co., 90 Ariz. 76, 366 P.2d 1, 14 (1961)). Based on this definition, the Arizona court determined that even a cursory review of the disbarred attorney’s actions during the arbitration proceeding showed that he rendered the kind of core service that is and has been customarily given and performed from day to day in the ordinary practice of law. In re Creasy, 12 P.3d at 217.
This court has never formulated an all-encompassing definition for what constitutes the practice of law. In fact, we have specifically recognized the difficulty in creating a satisfactory definition. See Union Nat’l Bank, 224 Ark. at 53, 273 S.W.2d at 411 (“It has been said in many opinions that it is not possible to give a definition of what constitutes practicing law that is satisfactory and all inclusive, and we make no such attempt.”). We have said, however:
[W]hen one appears before a court of record for the purpose of transacting business with the court in connection with any pending litigation or when any person seeks to invoke the processes of the court in any matter pending before it, that person is engaging in the practice of law.... [A]ny one who assumes the role of assisting the court in its process or invokes the use of its mechanism is considered to be engaged in the practice of law.... We make it clear at this point that we are not holding that other activities aside from appearing in court do not constitute practicing law. It is uniformly held that many activities, such as writing and interpreting wills, contracts, trust agreements and the giving of legal advice in general, constitute practicing law.
Id. at 53-54, 273 S.W.2d at 411-12.
| n Similarly, this court has stated that the practice of law is not confined to services by an attorney in a court of justice; it also includes any service of a legal nature rendered outside of courts and unrelated to matters pending in the courts. Undem v. State Bd. of Law Exam’rs, 266 Ark. 683, 692, 587 S.W.2d 563, 568 (1979). Finally, our statutory law provides in relevant part:
It shall be unlawful for any corporation or voluntary association to practice or appear as an attorney at law for any person in any court in this state or before any judicial body, to make it a business to practice as an attorney at law for any person in any of the courts, to hold itself out to the public as being entitled to practice law, to tender or famish legal services or advice, to furnish attorneys or counsel, to render legal services of any kind in actions or proceedings of any nature or in any other way or manner, or in any other manner to assume to be entitled to practice law or to assume or advertise the title of lawyer or attorney, attorney at law, or equivalent terms in any language in such a manner as to convey the impression that it is entitled to practice law or to furnish legal advice, service, or counsel or to advertise that either alone or together with or by or through any person, whether a duly and regularly admitted attorney at law or not, it has, owns, conducts, or maintains a law office or any office for the practice of law or for furnishing legal advice, services, or counsel.
Ark.Code Ann. § 16-22-211(a) (Supp.2011) (emphasis added).
Although TriBuilt did not file a brief with this court in this appeal, IFIC did file a response with the circuit court and urged that representation during arbitration proceedings did not constitute the practice of law. In that response, IFIC relied primarily on cases where individuals were permitted to represent themselves in arbitration proceedings, cases refusing to vacate arbitration awards on the basis that a participant engaged in the unauthorized practice of law, AAA rules, the Federal Arbitration Act (FAA), and section 16-22-211(a) quoted above. See Williamson v. John D. Quinn Construction Corp., 537 F.Supp. 613, 616 (S.D.N.Y.1982) (rejecting a claim that a New Jersey law firm was precluded from recovering 112any fees for services performed in connection with an arbitration proceeding that took place in New York because it had engaged in the unauthorized practice of law); Marino v. Tagaris, 395 Mass. 397, 480 N.E.2d 286 (1985) (noting that there is nothing inherently wrong with encouraging self-representation during arbitration proceedings); Colmar, Ltd. v. Fremantlemedia N. Am., Inc., 344 Ill.App.3d 977, 280 Ill.Dec. 72, 801 N.E.2d 1017, 1022 (2003) (holding that an out-of-state attorney’s representation during arbitration proceedings did not constitute the unauthorized practice of law). All three of the cases cited by IFIC in circuit court are distinguishable on their facts from the case before us.
Though this court has never decided whether legal representation in an arbitration proceeding constitutes the practice of law in Arkansas, we have noted, as already referenced, that arbitration is designed to be a “less expensive and more expeditious means of settling litigation,” and to relieve “docket congestion.” Cash in a Flash Check Advance of Arkansas, L.L.C., 348 Ark. at 466, 74 S.W.3d at 604. We have also said that “[arbitration hearings are not analogous to trial proceedings.” Hart, 344 Ark. at 666, 42 S.W.3d at 559. Those statements, though, do not decide the issue.
In reaching a decision on this matter, we are influenced by the fact that this court has been resolute in strictly enforcing the rule that a corporation through its nonlaw-yer officers cannot engage in the practice of law. See Ark.Code Ann. § 16-22-211(a); see also All City Glass & Mirror, Inc. v. McGraw Hill Info. Sys. Co., Div. of McGraw Hill, Inc., 295 Ark. 520, 521, 750 S.W.2d 395, 396 (1988) (finding that a judge was acting within his powers by striking the answer of the president of a corporation when the president was not authorized li3to practice law); Davidson Props., LLC v. Summers, 368 Ark. 283, 285, 244 S.W.3d 674, 675 (2006) (noting that a nonlawyer’s attempt to represent an LLC on appeal constituted the unauthorized practice of law). We are further influenced by the fact that arbitration proceedings bear significant indicia of legal proceedings under the Uniform Arbitration Act, which has been adopted by this state. As already noted, if a hearing is held during arbitration, the parties have the right to be heard, present evidence material to the controversy, and cross-examine witnesses appearing at the hearing. Ark.Code Ann. § 16-108-205(3).
Bearing in mind the role of an advocate in arbitration proceedings, as just described, we are hard pressed to say that services of a legal nature are not being provided on behalf of the party in arbitration; in this case, TriBuilt. See Undem, 266 Ark. 683, 587 S.W.2d 563. Accordingly, we reverse the decision of the circuit court on this point and hold that a nonlaw-yer’s representation of a corporation in arbitration proceedings constitutes the unauthorized practice of law.
Reversed.
. The circuit court found that as to Centennial, there was no mutuality of obligation so the motion to stay proceedings pending arbitration was denied. The circuit court further found that three of TriBuilt's claims against NISHA sounded in tort and were not subject to binding arbitration. As a result, the circuit court found that TriBuilt’s claims of defamation, deceptive trade practices, and interference with business expectancy were tortious in nature and were exempt from binding arbitration. Those findings are not before us in this appeal.
. In its pleading, IFIC identifies itself as a cross-defendant and stated that it was a party to the arbitration proceedings. The record filed with this court reveals no pleadings filed against IFIC by any party, although there are several pleadings referencing IFIC’s status as a party to the arbitration proceedings.
. Arkansas's Arbitration Act was amended by Act 695 of 2011. Because that amendment became effective on July 27, 2011, after the order was entered in the present case, we refer to the arbitration statutes in effect at the time the order was entered. | [
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RITA W. GRUBER, Judge
hOn May 27, 2014, Robbie Jewel Lewis was sentenced by the Circuit Court of Independence County to sixty months’ probation on his negotiated plea of guilty to two counts of second-degree forgery, a Class C felony. The State subsequently filed a petition to revoke probation, alleging that Lewis had violated various conditions of his probation. At a May 12, 2015 revocation hearing, the court found that Lewis had inexcusably violated the conditions of his probation. The court revoked his probation and sentenced him to consecutive terms of imprisonment totaling 180 months in the Arkansas- Department of Correction.
Lewis timely appeals the resultant sentencing order entered on May 28, 2015, and the amended sentencing orders of August 5 and 12, 2015. He raises one point, contending that the circuit court erred -in revoking his probation because there was insufficient evidence that |2he inexcusably failed to abide by the conditions of his probation. The State responds that the court did not err in revoking probation. We affirm.
In revocation proceedings', the circuit court must find by a preponderance of the evidence' that the defendant has inexcusably violated a condition of probation. Ark.Code Ann. § 16-93-308(d) (Supp.2015). Evidence that may not be sufficient to convict can be sufficient to revoke due to the lower burden of proof. Newborn v. State, 91 Ark. App. 318, 210 S.W.3d 153 (2005). A circuit court’s finding in revocation proceedings will not be reversed on appeal unless it is clearly against the preponderance of the evidence. Id. Because the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Boyd v. State, 2014 Ark. App. 336, 2014 WL 2442998. The State need show only that the defendant committed one violation to sustain .a revocation. Prackett v. State, 2014 Ark. App. 394, at 2, 2014 WL 3642214.
The circuit court in the present case entered written findings of fact that Lewis had committed the offense of fleeing and had violated conditions concerning laws, alcohol, controlled substances, employment, cooperation, and special conditions. The evidence is as follows. On February 24, 2015, Independence County Deputy Sheriff Mike Price observed Lewis driving his white Mustang and running a stop sign. Deputy Price got behind Lewis and attempted to make a stop. Lewis did not stop when Price activated his blue lights first and then his siren. Lewis then passed other vehicles on a double yellow line, traveling fifteen miles over the speed limit and bypassing places to pull over. He finally stopped in the parking lot of a Dollar General Store, where he got out of his car more quickly than Deputy Price did.
| ^Deputy Price testified,
As I got out, I ordered him to stop. He quickly walked around the rear of another vehicle he was parked beside, headed for the front doors of the Dollar Store. I caught up to him just as he was about to enter the door. He looked back at me, I fired and tasered X26, which struck him in the chest area, which temporarily immobilized him.
Deputy Price testified that Lewis was taken into custody and that Corporal John Carroll retrieved a digital scale while searching the passenger compartment of the vehicle that Lewis had occupied.
Krista Houston testified that she was Lewis’s probation officer and that he understood the terms and conditions of his probation. Among those conditions were that he not consume alcohol or controlled substances and that he attend weekly drug-treatment classes. Houston testified that on three occasions from June through December 2014, Lewis admitted to her that he had used methamphetamine, and he signed confession forms to this effect; and that, on the December date, he tested positive for alcohol as well as methamphet amine. Lewis testified that he had used methamphetamine three times and alcohol once. Both Ms. Houston and Lewis testified that he had failed to report to his drug counselor on three occasions, from July 2014 through February 2015. Lewis claimed that he had called to reschedule some drug-treatment classes he had been unable to attend while caring for his sick grandmother, but Ms. Houston testified that no records verified his calling in.
Another condition of Lewis’s probation was that he maintain gainful employment and complete 100 hours of community service. Lewis' testified that he was his grandmother’s full-time, paid caretaker and also a paid caretaker for an elderly neighbor. Ms. Houston testified |4that Lewis had not been employed on a full-time basis and had not completed any community service. She testified that, although he reported to her that he was taking care of his grandmother, Houston had received no proof of full-time employment.
The circuit court concluded from this testimony that Lewis Violated the terms of his probation that he must not commit a criminal offense punishable by imprisonment; drink or possess intoxicating or alcoholic beverages, or use, sell, distribute, or possess any controlled substance; and that he must be gainfully employed or enrolled as a student at all times, attend drug-treatment classes, and complete 100 hours of community service. We cannot say that the circuit court clearly erred in finding by a preponderance of the evidence that Lewis inexcusably violated conditions of his probation.
Affirmed.
Gladwin, C.J., and Virden, J., agree. | [
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PER CURIAM
pin 2003, petitioner Abraham Grant was found guilty by a jury of capital murder in the shooting death of Rosetta Pittman and first-degree battery in the wounding of Louise Perry. An aggregate sentence of life imprisonment without parole was imposed. We affirmed. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004).
In.2007, Grant filed in the trial court a petition for postconviction relief that was denied, and he appealed to this court. We dismissed the appeal. Grant v. State, CR-07-784, 2008 WL 616056 (Ark. Feb. 7, 2008) (unpublished per curiam).
In 2010, Grant petitioned this court to reinvest jurisdiction in the trial court so that he could proceed with a petition for writ of error coram nobis. The petition was denied. Grant v. State, 2010 Ark. 286, 365 S.W.3d 894 (per curiam). In 2014, Grant filed a second such petition, which was also denied. Grant v. State, 2014 Ark. 466, 2014 WL 5784447 (per curiam). On February 26, 2015, Grant filed ■ his third coram-nobis petition, which was denied. Grant v. State, 2015 Ark. 159, 2015 WL 3548784 (per curiam). On July 10, 2015, Grant filed a fourth coram-nobis petition. The petition was dismissed as an abusé of the writ because it raised grounds that this court had already addressed when we considered an earlier petition. Grant v. State, 2015 Ark. 323, 469 S.W.3d 356 (per cu-riam).
Now before us is Grant’s fifth petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The petition for leave to proceed is necessary because the trial court can entertain a petition for writ of error coram nobis, after a judgment has been affirmed on appeal only after we grant-permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure' relief from a judgment rendered while there existed some fact that would have prevented the judgment’s rendition if it had been known to the, trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009. Ark. 539, 354- S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
' The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a Isthird-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
As grounds for reinvesting jurisdiction in the trial court, Grant alleges that the State did not provide him with information that could have been used by the defense to impeach witness Louise Perry, who was present when the victim was shot and who was wounded when one of the bullets that passed through Pittman’s body struck her. The petition is not entirely clear, but it appears that Grant is asserting that the impeachment evidence took the form of alleged coercion by the police that forced Perry to accuse him of being the shooter. He argues that it was a violation of due process of law for him to be convicted by the State’s use of Perry’s coerced statement when the jury was unaware of the coercion. He further contends that examination of the bullets removed from Pittman and Perry did not produce any evidence that he was the perpetrator, which rénders the evidence insufficient to- sustain- the judgment.
Grant has not stated a ground for the writ. Perry testified at trial, and her testimony was subject to cross-examination by the defense so that the circumstances under which her .pretrial statements were made to police could have been brought out. Grant’s allegations concerning Perry’s testimony and the failure of the State to produce evidence of his guilt from the examination of the bullets amount to assertions, not that the State concealed evidence from the defense; rather, the evidence adduced at trial did not support a finding of guilt. Issues concerning the sufficiency of the evidence or the credibility of witnesses are matters to be settled at trial and are not cognizable in coram-nobis proceedings. See Pinder v. State, 2015 Ark. 423, at 4-5, 474 S.W.3d 490 (per curiam).
14As to Grant’s claim that the State withheld impeachment evidence, the wrongful withholding of material, exculpatory evidence by the State is a violation of the provisions of Brady v. Maryland, 373 U.S. 83, 83 S.CL 1194, 10 L.Ed.2d 215 (1963), and cognizable in a coram-nobis proceeding. Impeachment evidence that is material, as well as exculpatory, falls within the Brady rule. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
A Brady violation is established when material evidence favorable to the defense is wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclosed-to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936; see also Howard, 2012 Ark. 177, 403 S.W.3d 38. To determine whether the proposed attack on the judgment is meritorious so as to warrant the granting of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations of the petition and to the existence of the probability of the truth of those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662.
|fiThe petitioner raising a claim of suppression of exculpatory evidence must establish with facts that evidence favorable to the defense was concealed. Howard, 2012 Ark. 177, 403 S.W.3d 38; see also Barnett v. State, 2015 Ark. 190, 461 S.W.3d 683 (per curiam). Here, Grant offers no substantiation for his conclusory statement that the State withheld evidence; thus, his claim fails because the petition lacks- the factual support for the allegations that is required before the writ can issue. Howard, 2012 Ark. 177, 403 S.W.3d 38.
The onus is entirely on the petitioner in a coram-nobis proceeding to establish with facts that information was concealed from the defense and that the issue could not have been determined with certainty at the time of trial. Barnett, 2015 Ark. 190, at 5, 461 S.W.3d at 687. As stated, coram-nobis proceedings are attended by a strong presumption, that the judgment of conviction is valid, and a court is not required to accept at face value the allegations of the petition. Cloird v. State, 357 Ark. 446, 450, 182 S.W.3d 477, 479 (2004). The application for the writ must make a full disclosure of specific facts relied on and -not merely state conclusions as to the nature of such facts. Penn v. State, 282 Ark. 571, 575, 670 S.W.2d 426, 428 (1984).
Finally, we And that Grant has not acted with due diligence in bringing his claims. This court has consistently held that due diligence is required in making application for coram-nobis relief, and, in the absence of a valid excuse for delay, the petition will be denied. Cloird, 357 Ark. 446, 182 S.W.3d 477. This court will itself examine the diligence requirement and deny a petition where it is evident that a petitioner failed to proceed diligently. Roberts, 2013 Ark. 56, at 12, 425 S.W.3d 771, 778.
|nDue diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) upon discovering' the fact, the defendant did not delay bringing the petition. Id. Grant was found guilty in 2003,' and the judgment was affirmed in 2004. He filed the instant petition on December 29, 2015, and has filed four prior petitions in his court. He does not explain in the instant petition why he could not bring his claims for coram-nobis relief in a more timely fashion or even explain when, or how, he obtained whatever specific information is alleged to underlie his allegations. The burden is on the petitioner in a coram-nobis proceeding to establish with due diligence that the judgment in his case-was rendered while there existed some fact extrinsic to the record that would have prevented its rendition had it been known to the trial court and which, through no negligence or fault of the petitioner, was not brought forward before rendition of the judgment. Williamson v. State, 2015 Ark. 373, 471 S.W.3d 633 (per curiam). Grant has not met that burden.
Petition denied. | [
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RITA W. GRUBER, Judge
I {La-Z-Boy Manufacturing,' Inc., appeals the decision of the Arkansas Workers’ Compensation Commission that adjudicated Rebecca Bruner’s claim of bilateral carpal-tunnel syndrome as a compensable injury. La-Z-Boy contends that the Commission’s finding that the claim was not barred by the statute of limitations is an error of law and is not supported by substantial evidence. We disagree and affirm.
With exceptions not relevant to the present case, a claim for compensation for disability on account of an injury shall be barred unless filed with the Commission within two years from the date of the compensable injury. Ark.Code Ann. § 11-9 — 702(a)(1) (Repl.' 2012). The statute of limitations for gradual-onset injuries, such as carpal-tunnel syndrome, begins to run when the injury becomes apparent to the claimant. 2Pina v. Wal-Mart Stores, Inc., 91 Ark. App. 77, 84, 208 S.W.3d 236, 239-40 (2005) (citing Minnesota Mining & Manufacturing v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999)); see also Cottage Cafe, Inc. v. Collette, 94 Ark. App. 72, 76, 226 S.W.3d 27, 30 (2006).' The claimant’s awareness that her injury is causally related to the working' environment is not an element of the inquiry; Pina, 91 Ark. App. at 85, 208 S.W.3d at 240.
La-Z-Boy contends that the Commission disregarded case law that has established the analysis for a determination of the commencement of the limitations period. La-Z-Boy'also challenges the Commission’s finding that Ms. Bruner’s injury was first apparent to her in October 2013 when her symptoms were diagnosed as carpal-tunnel syndrome and she reported her injury to her supervisor. La-Z-Boy argues that Ms. Bruner “was clearly aware of her injury, by her own admission, five or six years prior to filing a claim” and that testimony and medical records “conclusively show” her awareness three years before she filed her claim in November 2013. The administrative law judge outlined these issues as follows:
The Commission has been asked to determine if the claimant sustained. a compensable injury in the form of bilateral carpal tunnel syndrome with symptoms manifesting on October 22, 2013. However, the respondent has raised the statute of limitations as an affirmative defense. Therefore, the first question that must be addressed is "if this claim is barred by the statute of limitations.
Regarding the statute-of-limitations issue, the Commission wrote the following in the opinion that we now review:
[T]he Incident Statement completed by the claimant on November 7, 2013 indicated that she had suffered from “tin- • gling and numbness” five to six years. Nevertheless, the claimant correctly states on appeal that she was not diagnosed with carpal tunnel syndrome until October 2013. The claimant cites Pina v, Wal-Mart Stores, Inc., 91 Ark. App. 77, 208 S.W.3d 236 (2005). In Pina, the Court of Appeals affirmed the Commission’s determination that the statute of limitations began running at the time lathe claimant complained of symptoms to her supervisor. The Full Commission finds in the instant matter that the two-year statute of limitations did not begin running until October 2013, when the claimant first reported symptoms to her supervisor. The claimant’s supervisor, Shelly Smith, corroborated the claimant’s contention that she did not report work-related symptoms until October 2013. The claimant filed claim for worker’s compensation no later than March 2014, well within the two-year statutory period. The Full Commission finds that the claimant’s gradual-onset injury did not “become apparent” to the claimant until October 2013, when the claimant reported work-related symptoms to her supervisor. We find that the “true extent” of the claimant’s injury did not manifest until October 2013. See Hall’s Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992).
The Commission also concluded that Ms. Bruner proved that she had sustained a gradual-onset injury causing physical harm to the body, which arose out of and in the course of employment.
La-Z-Boy asserts on appeal that, in determining when a scheduled gradual-onset injury legally commences, the Commission applied the “manifestation” approach that we have previously rejected as improper. La-Z-Boy further argues that the record “is flooded with evidence” that Ms. Bruner knew of, recognized, and was aware of her injury “for over three years prior to October 2013.” It points to testimony by her coworker Curtis Nebber, who on cross-examination said that Ms. Bruner “possibly” complained about her hands before then and to Ms. Bruner’s testimony that she had previously experienced pain and numbness.
In Collette, 94 Ark. App. at 75, 226 S.W.3d at 29-30, where successive insurers accepted neither the compensability of the injury nor the liability of the claim, we wrote,
[Pursuant to the manifestation approach], liability attaches when the injury “manifests” and the claimant begins to lose time from work, requires medical attention, and is no longer able to perform his job. Finding that “the true extent of the claimant’s injury to her right wrist and elbow did not manifest itself until” appellant Farmers had become the carrier, it held that Farmers was liable for the claim.
14The Commission cites neither authority nor public policy considerations supporting its adoption of this rule. Furthermore, it disregards prior opinions of the Arkansas appellate courts' that bear on the question under consideration, ie., when does a scheduled gradual-onset injury legally commence?
We reversed and remanded for the Commission to make a finding as to when:the claimant became aware of the injury under Pina, supra.
In October 1999, the claimant in Pina complained to her supervisor of numbness in her hands traveling to her forearms and elbows; she sought no medical treatment and was reassigned to various job positions and tasks. Medical records following a March 2002 motor-vehicle accident included her complaints of immediate pain in the neck, back, and shoulders; past numbness in her hands; and, subsequently, chronic numbness and tingling that radiated down her arms. A January 2001 medical record for an unrelated annual examination included her complaint of wrist and ■ elbow pain and reported “numbness of her hands ... and a burning sensation. She is awakened at night.” Pina, 91 Ark. App. at 81, 208 S.W.3d at 238. Pina reported an injury to her supervisor when she noticed a worsening or increase in symptoms in January 2002, and she completed a statement for compensation based on an injury to both hands. The company doctor evaluated her, suspected carpal-tunnel syndrome, and referred her for nerve-conduction studies. Those results were consistent with a diagnosis of carpal-tunnel syndrome in both hands. The following- day, an orthopedic surgeon saw her and opined that her occupation was of a “contributory nature” to her carpal-tunnel symptoms. Id. at 82, 208 S.W.3d at 238. ;The Commission found that “because her symptoms were sufficient to voice a complaint to her supervisor in October 1999, her Injury became apparent to her by at least October 1999.” Id. at 85, 208 S.W.3d at 240. We affirmed the |fiCommission’s finding that Pina’s April - 2002 .carpal-tunnel-syndrome claim was barred by the statute of limitations.
In the present case, the parties agreed to litigate whether Ms. Bruner sustained a compensable injury in the form of bilateral carpal-tunnel syndrome- “with symptoms manifesting on October 22, 2013.” There is no indication that, in deciding this issue, the Commission used the manifestation approach we rejected in Collette: lost time from work, requirement for medical attention, and inability to perform the job. We reject La-Z-Boy’s argument that - the Commission erred as a matter of law in applying an incorrect manifestation analysis.
On appellate review, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Get Rid of It Ark. v. Graham, 2016 Ark. App. 88, 2016 WL 537389. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Pina, 91 Ark. App. at 83, 208 S.W.3d at 239. We will not reverse the Commission’s decision unless fair-minded persons with the same facts before them could not have reached the Commission’s conclusions. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; furthermore, we are bound by the Commission’s determinations on issues of credibility. Id.
The Commission recounted the following testimony in reaching its decision. Ms. Bruner testified that after working about ten years in La-Z-Boy’s cutting department sawing lengths of fabric, she then worked about four years as a “fiber blower.” The latter job | (¡involved gripping and holding a pillow onto a pipe of a machine that blew fiber into a bag — mainly using her right hand but sometimes ■ her left, and’working ten hours a day. Her coworker Russell Luethja, who ■ had worked with her in “fiber fill,” said the work was hand intensive and caused “wear and tear”’ on the body as well as fatigue in the upper extremities. The Commission recounted that Ms. Bruner’s medical providers noted her hand-intensive work when she first sought medical .treatment beginning on October 21, 2013; that eleetrodiag* nostic testing on October 23, 2013, resulted in a diagnosis of bilateral carpal-tunnel syndrome; and that Dr. - Gary Moffitt, upon, referral from La-Z-Boy, also diagnosed “severe bilateral carpal tunnel syndrome” and noted on November 19, 2013, that Ms. Bruner performed “repetitive gripping at work.”
We hold that substantial evidence supports the Commission’s' decision.
Affirmed.-
Gladwin, C.J., and Virden, J., agree.
. The Commission also found that the treating physician's “referral to an orthopedic sur-geori” was reasonably necessary in connection with the injury. | [
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WOOD, J.,
(after stating the facts). The statutes of the State provide that the mayor of cities of the first class shall receive such salary as their council “may designate” or “fix,” and, “when once fixed the same shall not be increased or diminished during the term to which he may have been elected, by way of fees, fines or perquisites.” Secs. 5483, 5599 and 5617 of Kirby’s Digest.
It is clearly shown by a preponderance of the evidence that it was the intention of the city council of Argenta, especially after the office of manager of its electric light department was abolished and the duties of that position were imposed upon the mayor, to allow the mayor in addition to the salary of $125 per annum which had been fixed in 1908, the sum of $150 per month, or an annual salary amounting in the aggregate to the sum of $1,925.
■ Mord Roberts assumed the duties as acting mayor in October or November, 1915, and “expense accounts” appear in the record which show that from December 20, 1915, allowances were approved by the city council consecutively and continuously thereafter, in the sum of $150 per month up to April 9, 1917, when the appellee, Pixley, was inducted into office. Roberts testified that when he went in as acting mayor, it was understood between him and the city council that he was to receive as compensation the sum of $150 per month. This monthly amount the city council approved as long as he acted as mayor.
The allowances were made under the designation “expense account” including the month prior to December 20, 1915, and continuing to October 20, 1916. After Mayor Faucette returned, the monthly allowance was continued under the same designation (“expense account”), until his term of office expired April 9, 1917.
Now, it is wholly immaterial that these monthly allowances were designated as “expense account.” The undisputed evidence shows that the purpose in such allowance was to increase the salary or compensation of the mayor on account of the additional duties that had been imposed upon him in managing the electric light department. It is true that a more direct and appropriate method of increasing the salary of the mayor of the city of Argenta would have been by ordinance or resolution, naming the aggregate amount per annum to be paid monthly, but the fact that such increase was not made in this particular manner does not render the action of the city council in increasing the salary of the mayor, void.
The statute authorizing the city council to fix the mayor’s salary does not prescribe the particular manner in which the council shall act in so doing. In the absence of any mode prescribed by law, the council may in its discretion, exercise its power in any usual and appropriate manner. 28 Cyc. 275, and cases cited. See also State v. Nichols, 83 Minn. 3; Fountain v. Mayor, 50 Mich. 260.
The proof shows that the monthly allowances were made by vote of the city council, and it is not contended by appellants that these allowances were made in any but the usual and appropriate way. It was not alleged, nor is there any proof that the action of the city council in fixing the salary of the mayor in the manner indicated was an actual fraud or resorted to for the sinister purpose of evading the law prohibiting a mayor’s salary from being increased or diminished during the term for which he is elected.
Taking the testimony as a whole, we are convinced that the action of the city council, as shown by the testimony of Mord Roberts and the regular monthly allowance of “expense accounts” and the ordinance of January 18, 1916, was tantamount to fixing the salary of the mayor at the sum of $150 per month in addition to the annual salary of $125, and that such was the amount of the salary or compensation of the mayor as fixed by the council at the time that appellee, Pixley, qualified as mayor. Therefore, so far as the intervener was concerned, this action of the council did not fall within the provisions of the law forbidding the salary or compensation of a mayor to be increased or diminished during the term for which he may have been elected. Secs. 5483 and 5617 of Kirby’s Digest.
The resolution of July 1,1917, appropriating the sum of $150 per month out of the general revenue of the city “for the current and incidental expenses of the mayor’s office, ’ ’ when viewed in connection with the action of the council prior to the time when Mayor Pixley qualified as mayor, showed that it was the purpose' of the city council to continue to make appropriations for the salary of mayor the same as it had been fixed before, and as it existed at the time when Mayor Pixley entered upon the discharge of the duties of his office.
It follows that the court did not err in entering a decree dismissing the complaint for want of equity, and such decree is therefore affirmed. | [
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WOOD, J.,
(after stating the facts). The decree of August 14, 1917, in which the appellee and the appellant were parties was res adjudicata on the matters set up by the appellant in his response to the citation. In that ease the decree of the court was tantamount to a judgment in favor of the appellee against appellant for the sum of $425.96, which sum appellant was ordered to pay over to the commissioner appointed to carry out the original decree of foreclosure. If the decree in that case was erroneous, the appellant could and should have had the same corrected on appeal or in some other manner which involved a direct attack on that decree. The citation herein was but a process to enforce that decree which had not been annulled in any manner provided by law.
In Meeks v. State, 80 Ark. 579, we held: “Where a court had jurisdiction to render a decree, the fact that the decree was erroneous would not excuse disobedience on the part of those bound by its terms until it was reversed.” The citation herein is in the nature of a direct proceeding against the appellant for contempt for disobedience of the orders of the chancery court, and ap pellant’s remedy against a final judgment or order based upon such process was not by writ of error or appeal, but by certiorari. Cossart v. State, 14 Ark. 528; Ex parte Butt, 78 Ark. 262. But tbe record is before us and treating it as on certiorari, it does not appear that the court erred in its decree, and tbe same is therefore affirmed.
HUMPHREYS, J., not participating. | [
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WOOD, J.,
(after stating the facts). The records show that the lands in controversy between appellant and appellee Hill were entered as a homestead in 1872, and that final certificate was issued in 1879; that the lands in the case of appellant against appellee Ash were entered as a homestead in 1873, and that final certificate was issued on this land in 1878; and that the lands in the case of appellant against appellee Wilmoth were entered by cash entry August 22, 1860, and the evidence shows that the final certificate would bear that date. These lands were, therefore, subject to taxation before the overdue tax decree of the Benton Chancery Court (December 12, 1881) was rendered against them. Burcham v. Terry, 55 Ark. 398.
The lands in controversy here were embraced in that decree. If the court had acquired jurisdiction to render the decree against them under the statute, then a title based on such a decree is invulnerable to collateral attack and must prevail here unless the appellant is estopped, or has failed to comply with the rule as to the burden of proof.
(1) Did the court have jurisdiction?
The overdue tax decree of Benton Chancery Court against these lands recites: “The court doth further find that, after filing of the complaint by the plaintiff in this cause in the office of the circuit clerk of Benton County, said clerk caused an order to be made of record in said cause on the filing of said complaint, warning all persons having any right or interest in said lands herein described to appear within this court within forty days from the date of said order, which was dated August 9, A. D., 1881, and then and there show cause, if any they could, why lien should not be declared on said lands for unpaid taxes and why said land should not be sold for the payment thereof, and the court doth further find that the clerk of this court caused a copy of said order to be published by two insertions in the “Weekly Advance,” a newspaper printed and published in Benton County before the first day of this term of court.”
The undisputed, proof shows that a warning order, in the exact language prescribed by the statute and describing the lands in controversy, was duly entered on the record of the chancery court of Benton County, by the clerk of that court, as required by section 2 of the overdue tax law approved March 12, 1881.
In Clay v. Bilby, 72 Ark. 101, we held that “a defect in an affidavit made in proof of the publication of the warning order required by the overdue tax law was a mere- irregularity which does not affect the jurisdiction of the court or the validity of its decree in such pro ceediugs.” In so holding this court overruled the case of Gallagher v. Johnson, 65 Ark. 90, which had decided to the contrary. While the overdue tax act requires the warning order to be entered of record, there is no such provision as to the proof for publication. In Clay v. Bilby, supra, we said: “No statute forbidding, parol evidence may be received to prove publication of notice; and if the decree or judgment does not exclude the conclusion, the presumption is that sufficient and competent evidence was before the court to sustain its findings as to the publication of the notice.” See also, Fiddyment v. Bateman, 97 Ark. 76.
It was within the power of the Legislature to prescribe what facts should appear of record in order to give the court jurisdiction. The Legislature provided that the warning order should appear of record, (section 2, Act 39, Acts 1881) hence this was essential to give the court jurisdiction, as was held in Gregory v. Bartlett, 55 Ark. 30.
It is a well established rule that has been often adhered to by this court that where a court exercising general jurisdiction under the Constitution has been given special statutory jurisdiction in certain matters, and the manner in which such jurisdiction is to be exercised is pointed out by the statute, the record of such court must show the jursdictional facts. The statute in such cases must be strictly pursued and the jurisdiction must be made to appear in the mode pointed out by the statute. No presumption as to jurisdiction in such cases will be indulged. Reeves v. Conger, 103 Ark. 446; Oliver v. Routh, 123 Ark. 190, and cases there cited.
But the Legislature did not see fit to require that the proof of publication of the warning order should be entered by the clerk upon the record. On the contrary, the Legislature provided as follows: “The strict rules of law relating to the jurisdiction of courts in special statutory proceedings shall not be applied to proceedings under this act; but all presumption shall be in favor of the jurisdiction of the courts in which they are had, and of their regularity in all respects.” Sec. 18, Acts 1881, p. 72. Thus by express provision the Legislature enacted that the above rule should not apply to overdue tax proceedings.
Therefore, since the statute does not require that the proof of publication be entered of record, the presumption will be indulged, on collateral attack upon the decree of the court, that the court found that the proof of publication of the warning order was made in the manner required by the statute. The recitals of the decree show that the court found that the warning order was published by two insertions in the ‘‘Weekly Advance,’’ a newspaper printed and published in Benton County, before the first day of the term of the court which rendered the decree. It will be presumed that the court also found that the “Weekly Advance” had a bona fide circulation in Benton County and had been regularly published in that county for a period of one month next before the day of the first publication of the warning order.
Learned counsel for the appellees are mistaken in saying that the recitals of the decree show that the court found otherwise. There are no recitals in the decree showing what the court found in this respect, and it must therefore, be presumed that the court found the facts to exist which .were essential to the court’s jurisdiction to render its decree. Scott v. Pleasants, 21 Ark. 364; Porter v. Dooley, 66 Ark. 1; Clay v. Bilby, supra; Fiddyment v. Bateman, supra; see also Applegate v. Lexington and Carter Mining Co., 117 U. S. 802 (Lawyers Ed.).
We conclude, therefore, that the Benton Chancery Court had jurisdiction to render the decree in the overdue tax suit against the lands in controversy and that its decree is impervious to collateral attack. The matters set up in appellees’ answer and cross-bill constitute a collateral attack upon that decree and do not render it void.
(2) Is appellant estopped?
Appellant under his deed of March 21, 1916, acquired all the title and rights incident thereto which the State had to the lands in controversy. The issue here, therefore, involves an inquiry as to whether or not the State, at the time she sold the lands to appellant, could have maintained a suit against the appellees for the possession of these lands. These lands had been entered as homesteads and the appellees and their predecessors in title had paid the taxes continuously, from the time that the final certificates of entry were issued to the institution of these suits, on one of the tracts 56 years, on another 38 years, on the other 37 years. The presumption in the absence of proof to the contrary is that the appellees and those under whom they claimed had been in possession continuously from the time of their homestead entry. It had been thirty-four years from the date when the lands were stricken off to the State at the sale under the overdue tax.decree until the appellant obtained his deed from the State Land Commissioner.
The State through her taxing officers placed these lands, or permitted them to remain, on. the tax books of Benton County and assessed and collected taxes thereon. Section 11 of the Overdue Tax Act, among other things, provides that: ‘ ‘ The owner of any lands thus sold may redeem from the purchaser at any time within the period fixed by law for the redemption of lands sold for taxes,” etc. Section 13 provides: “The owner, in. case of a sale to the State, may redeem within the time prescribed by section eleven of this act, by making the payment therein required to the Treasurer of the State, who shall thereupon give him a certificate showing the amount of such payment, and the purpose for which it is paid, which shall be by him filed with the Commissioner of State Lands, who shall issue to him, under his seal of office, a certificate showing the fact of such redemption” et cetera.
The State could only act through her taxing officers. These officers, the clerk, assessor and collector, had no authority to place and keep these lands on the tax records for the assessment, levy and collection of taxes unless the same had been redeemed from the State as required by thé statute. While there is no proof in the record that the lands had been redeemed, yet under the above undisputed facts it will be presumed that the lands had been redeemed. After a lapse of thirty-four years during all of which time the State each year through its officers had assessed, levied and collected the taxes in the names of the owners listed upon the tax books, the State will not be heard to say that the acts of her officers were unauthorized and that the lands had not been.redeemed as authorized by the overdue tax act. As is said in Martin v. Barbour, 140 U. S. 646, “No more manifest case for the interposition of a court of equity can be imagined. The State is bound by the acts of her officers in placing the lot on the tax books for the years 1885 and 1886, and receiving from the appellees the taxes for those years. Equity will treat the transaction as a waiver of the prior supposed forfeiture, and will regard the tax paid for 1885 and 1886 as so much paid toward redemption, and will permit the payment of the rest. The appellant took his deed for the land in the same condition in which the State held it, and subject to the same equities and defenses. The State, having created its bureau of taxes, is bound to see to it that its officers impart correct information to parties dealing with it and do not mislead them.”
The presumption that the lands were redeemed from the State and that the Land Commissioner had issued a certificate to the owners showing redemption under the statute is supported in principle by the doctrine announced by this court in the recent case of Carter v. Goodson, 114 Ark. 62, where we held: ‘ ‘ The presumption of a grant from long continued possession is one of fact, and it is for the jury or court trying the case to determine the effect of the evidence in support of the presumption.” ■
After a period of thirty-four years of continuous possession and a payment of taxes, during all of which time the State received her portion, in the absence of affirmative' proof that the lands had not been redeemed, the State should not be permitted to repudiate these acts of her officers. To do so would enable her to take advantage of her own wrong.
It is a well established doctrine, and one consistently adhered to by this court, that the State is not estopped by the unauthorized acts of her officers. The State is only liable to the extent of the power actually given to its officers and not to the extent of their apparent authority. This doctrine was announced by this court in one of its later cases as follows: “It is settled by decisions of this court that the State can not be estopped to assert title to its lands on account of unauthorized acts of its officers.” Woodward v. Campbell, 39 Ark. 580; Pulaski County v. State, 42 Ark. 118. In one of these cases the court said: “The State is liable only to the extent of the power actually given to its officers, and not to the extent of their apparent authority, and all who deal with a public agent must at their peril inquire into his real power to bind his principal.” Board of Directors St. Francis Levee District v. Fleming, 93 Ark. 495. In this case the Board of Directors of the St. Francis Levee District had foreclosed a lien for the levee taxes on lands in the district and had purchased the lands at the sale. Afterwards its officers assessed and collected levee taxes on the same lands from the former owner. It was contended by such owner that the acceptance of the taxes by the officers of the levee district estopped the district and those claiming under it from asserting title under the foreclosure sale. But in that case there was no redemption from the foreclosure sale for levee taxes and could not be, for, as stated in the opinion, ‘ ‘ at that time the statute provided no period for the redemption of lands sold for levee taxes for that district.” The levee district in that case at the foreclosure sale having acquired the absolute title, of course neither it nor its subsequent grantee could be estopped by the acts of the officers in thereafter assessing and collecting the levee taxes from the former owner of the lands for the reason that their acts in so doing were wholly unauthorized.
That case is distinguished from the case at bar in the fact that here the State by sale under the overdue tax act acquired a title which under that statute was subject to redemption, and its title did not become absolute until the period of redemption had expired. In the meantime the tax officers placed the lands back upon the tax books in the name of the former owners and proceeded thereafter to assess and collect the taxes, which as we have seen they were only authorized to do in case of redemption.
The case of Martin v. Barbour, supra, was cited and relied on in the brief of counsel for appellee in the case of Levee Dist. v. Fleming, supra, to sustain the doctrine of estoppel against the district. The case was not discussed or even referred to in the opinion, showing that the court rested its opinion in the Fleming case upon the ground that under the statute which governed that case there could not be any redemption. Hence it was unnecessary to decide the question now under consideration.
Inasmuch as the lands could have been redeemed under the statute which applies here, it will be presumed from the conduct of the officers through all these years that they were redeemed, and that the officers were therefore acting within the express scope of the authority given them. That the State can be and will be estopped by the conduct of its officers acting within the express scope of their authority is a doctrine as well settled as the converse thereof.
(3) Did appellant show by a preponderance of the evidence that he had the real or superior title to appellees?
Since the undisputed evidence shows that the appellees and their'predecessors in title have been in possession of these lands through all these years paying the taxes thereon, the burden was certainly upon the appellant to show that the lands had not been redeemed. The appellant had to recover upon' the strength of his own title, and the burden of showing title in him is not discharged by the exhibition of a deed from the State Land Commissioner which does not overcome the undisputed proof above mentioned, raising the presumption of redemption. The Land Commissioner’s deed was prima facie evidence of title in the appellant, carrying with it the presumption that the lands had not been redeemed. But the tax records of Benton County showing that these lands had been continuously listed for taxation in the names of the former owners since the overdue tax decree and that appellees and their grantors had paid the taxes and been in possession for all these years raised the presumption that the lands had been redeemed.
It occurs to us that the presumption in favor of the appellees under the circumstances is of a higher nature than the conflicting presumption in favor of appellant. Mathews, Presumptive Evidence, p. 59. The presumption is that public officers do as the law and their duty require them. Lawson on Presumptive Evidence, rule 14, p. 67, and cases cited. But even if it could be said that the presumption of no redemption arising from the State Land Commissioner’s deed was of equal dignity with the presumption of redemption arising from the tax records of Benton County, and the possession and payment of taxes by the appellees, and that these conflicting presumptions neutralized each other, then, the burden being upon appellant to show real title in himself and a better right to possession than had the appellees, he must necessarily fail. Such by analogy, at least, is the doctrine announced by this court in Winn v. Whitehouse, 96 Ark. 42, where we said: “Between these conflicting presumptions of equal statutory dignity and probative power, the one who has the burden must fail unless he brings forward proof to overcome the presumption that stands in the way of his contention. The presumptions stand in equilibrium, so to speak, and appellants could only ‘turn the scale’ in their favor by proof. Therefore, appellee being in possession under a prima facie title, appellants, if they succeed in ousting him, must overcome his prima facie title by showing not only that they also have prima facie title, but that they have more than this, i. e., the real title.”
It follows that the decrees of the chancery court dismissing appellant’s complaint for want of equity are correct and they are, therefore, affirmed. | [
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McCULLOCH, C. J.
Appellant was convicted of the crime of second degree murder in the killing of one Clayton Hunter. He killed Hunter by stabbing him with a knife, and the tragedy occurred at or near appellant’s own premises and in the presence of several witnesses.
The testimony adduced by the State tended to show that appellant and Hunter got into a quarrel out in the public road in front of appellant’s yard; that appellant walked into his yard and deceased followed to the gate and seized the latch on the gate and threw it at appellant and then started to run off down the road, when appellant pursued him for a distance of about one hundred yards and stabbed him with a knife. The dying declara tion of Hunter, which was introduced by the State, was to the effect that, as Hunter ran .away down the road pursued by appellant, he fell down and appellant ran up and stabbed him. Hunter lived about thirty minutes after he was stabbed by appellant. All the testimony tended to show that when Hunter ran away from appellant’s premises he declared that he was going home to get his gun and that he would kill appellant. Hunter’s home was about one-quarter of a mile distant from appellant’s yard, where the difficulty began.
Appellant himself testified that he stabbed Hunter before the latter left the yard, but just as he was turning to go out of the gate. He testified that Hunter threw the gate latch at him and then turned to go out at the gate saying: “You stay here until I come back, you black son-of-a-bitch, and I will kill you,” and that just as Hunter started out the gate he (appellant) ran up and grabbed him with one hand and stabbed him with the other.
It is needless to say, upon this state of the proof, that the verdict of the jury convicting appellant of second degree murder was fully warranted. According to the State’s testimony, he followed Hunter at least one hundred yards down the road and stabbed him to death. According to his own statements, he grabbed Hunter as the latter was about to run away and stabbed him. The testimony was sufficient to warrant a conviction of either second degree murder or voluntary manslaughter. The facts, even according to appellant’s own narrative, afforded no justification for the killing.
It i§ insisted that the court erred in refusing to permit appellant to introduce testimony tending to establish prior threats on the part of Hunter which were communicated to appellant. Proof of threats in homicide cases are admitted only for the purpose of throwing light on the question as to who was the aggressor in the encounter or for the purpose of determining whether or not the defendant acted under a reasonable belief that he was in imminent danger. Carter v. State, 108 Ark. 124.
The state of the proof in the present Cáse left no donbt on those points and the court was correct in refusing to permit the testimony to be introduced.
The court properly refused instruction No. 10, requested by appellant, which reads as follows:
“You are instructed that if you find from the evidence that prior to the killing of Clayton Hunter by defendant, the deceased had made threats against the life of defendant and that these threats had been communicated to the defendant before the fight in which the deceased was killed, then the defendant had a right to protect his own life from such threatened -assault if you find deceased attacked defendant; and if you find from the evidence that after a knowledge of these threats, the defendant was attacked in his own front yard by the deceased, he being without fault in provoking the assault, and at that time the words and conduct of the deceased were of such a hostile nature as to lead the defendant, acting as a reasonably prudent person, to believe that the deceased was then and there attempting to carry his threats into execution, by going home to get a gun to kill defendant, then you are told defendant was not required to retreat from the fight and had a right to kill deceased.”'
Even under proof more favorable to appellant than this record discloses as to the danger to which he was subjected, the instruction should not have been given for the reason that it told the jury that merely because of previous threats and the declaration of deceased that he was going home to get a gun to kill appellant, the latter had the right to kill deceased. The question of imminence of the danger should have been left to the jury, and this instruction would have taken it away from the jury and declared the law to be that the danger was so imminent that the accused had a right to slay his adversary.
We find no error in the proceedings, and the judgment is, therefore, affirmed. | [
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McCULLOCH, C. J.
This is an action instituted by appellant against appellee in the chancery court of Woodruff County to recover the sum of $1,250, with interest, being the aggregate amount of five promissory notes executed by appellee to appellant for the balance on the purchase price of a traction engine, and to enforce a lien on the property.
Appellant was engaged in manufacturing and' selling new machinery of the kind sold to appellee, but this particular sale covered a second-hand machine. Appellee was engaged in the business of manufacturing lumber in Woodruff County, and part of its business was to transport logs from the woods to the manufacturing plant and the machine in question was purchased by appellee to use for that purpose.
The sale was negotiated between Mr. Robnolt, one of appellant’s .salesmen, and Mr. Bush, the manager of appellee’s business, and negotiations took place at appellee’s place of business. Appellant furnished its salesmen with two printed forms or order blanks, one printed on pink paper for use in taking orders for second-hand machinery, and the other printed on blue paper for use in taking orders for new machinery. It was customary for salesmen to leave a carbon copy of an order with the purchaser, but on this particular occasion it appears that the agent only had one copy of the form used for second-hand machinery, and instead of making a carbon copy, he wrote the terms of the sale upon the other form of blank and made the following indorsement on that form, and signed it:
“This copy should be written on a second-hand order blank, but it is understood this blank takes its place.”
This copy was left with Mr. Bush, appellee’s manager, and the original order written on the second-hand machinery order blank was signed by appellee and sent in to appellant by Mr. Robnolt. The terms of the con tract of sale were that appellee was to pay $400 cash on delivery of the machine and execute five equal notes for the balance.of $1,250. ■ The order blank which was sent in to the. company contained no warranty concerning the article sold, but, on the contrary, contained the following clause: -
“As a condition hereof it is fully understood and agreed that said machinery is purchased as second-hand and the company makes no warranties or guaranties of any kind either expressly or by implication except as to the ownership, thereof at time and place of delivery. No representation made by any person as an inducement to give and execute this order shall bind the company.”
The copy left with appellee contained a clause warranting the material, durability and capacity of the machine and contained a further provision that the machine should be tested within ten days and if found not up to warranty, appellant should have the right to replace it with other machinery or to refund the portion of the price paid and take the machinery back. The machine was shipped to appellee by appellant, and on its receipt appellee made the cash payment of $400, and executed the notes pursuant to the contract.
The preponderance, of the. testimony is to the effect that appellant’s agent, in negotiating the sale with appellee, made representations to the latter that the second-hand machine which was the subject of the sale would do the work of a new machine, and that it would pull a load of three times its weight. After the machine was received by appellee it was tested and found that it would not do satisfactory work as represented. Appellee notified appellant of the result of the test, and thereupon a controversy arose as to whát the contract was between' the parties, and this litigation ensued.
Appellee in its answer and cross-complaint set up the fact that the machine was purchased under the belief that the copy of the contract left with its manager represented the terms of the sale, that appellant’s agent had misrepresented the capacity of the machine, and that the machine would not do the work either according to the representations of the salesman or the language of the written warranty, and the prayer of the cross-complaint was for the recovery of the sum of $400 paid. The finding of the chancellor was in appellee’s favor.
The testimony is voluminous and embraces the depositions of Robnolt, appellant’s salesman, and Bush, appellee’s manager. Bush did not, in his testimony, claim that Robnolt, in express words misrepresented the contents of the written contract which he (Bush) signed and which was sent in to the company, but his testimony shows that he was led to believe by Robnolt’s representations and conduct that the copy signed by him and sent in to appellant company expressed the same terms with reference to the warranty of quality and capacity as that contained in the copy of the contract which was left with Bush. Robnolt’s indorsement on the printed form left with Bush is ambiguous. It states that the copy “should be written on a second-hand order blank,” but it goes on further to state that “it is understood this blank takes its place.” The first part of the indorsement would indicate that another form had been used stating different terms, but the concluding language is that the form of contract upon which the indorsement was made took the place of the other, and was to evidence the contract between the parties. The ambiguity is sufficient to let in proof which is, according to the preponderance, in favor of Bush’s contention that he was misled by the conduct and representations of Robnolt, and that in good faith he accepted the copy of the contract from Robnolt believing it to contain the same terms as the one to be sent to the company.
The established rule is, of course, that the party who signs an instrument of writing which is intended to evidence his contract with another party must read it before he signs, otherwise he can not be heard to say after-wards that it does not constitute the contract. But this rule is subject to the qualification that where a mistake is induced by the conduct of one of the parties, and the one who signs does so upon the belief that it contains certain omitted matter, this affords a good defense to a suit on the contract. Stewart v. Fleming, 96 Ark. 371.
The facts proved make out a case of failure of the minds of the parties to meet, for it appears from the testimony that appellee’s manager intended to make one kind of a contract, whilst an entirely different one was sent to appellant for its approval, and that this state of facts was induced by the conduct of appellant’s agent. Since the minds of the parties did not meet upon the same contract, no liability resulted. Barton-Parker Mfg. Co. v. Taylor, 78 Ark. 586.
There is a conflict in the testimony as to what took place between Bobnolt and Bush, but the finding of the chancellor on that issue of fact is not against the preponderance of the testimony. The decree is, therefore, affirmed. | [
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JIM HANNAH, Chief Justice.
11 Appellant David Waldon Paschal was convicted of four counts of second-degree sexual assault and one count of witness bribery. He was sentenced to ten years’ imprisonment on each of three of the sexual-assault convictions, given ten years’ suspended sentence for the fourth sexual-assault conviction, and fined $4000 for the witness-bribery conviction. On appeal, Paschal contends that the circuit court erred in (1) denying his motion for directed verdict on the witness-bribery charge, (2) refusing to admit evidence of bias on the part of the State’s chief witness-bribery-charge witness, (3) failing to sever the witness-bribery charge, (4) finding the second-degree sexual-assault statute constitutional as it was applied to |2him, (5) admitting certain witness testimony during the penalty phase, and (6) rejecting proffered jury instructions. We affirm in part, reverse and remand in part, and reverse and dismiss in part.
I. Sufficiency of the Evidence: Witness Bribery
Paschal contends that the circuit court erred in denying his motion for directed verdict on the charge of witness bribery. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. E.g., Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. . Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
Arkansas Code Annotated section 5-53-108 provides in relevant part that a person commits witness bribery if he or she
(1) Offers, confers, or agrees to confer any benefit upon a witness or a person he or she believes may be called as a witness with the purpose of:
(A) Influencing the testimony of that person;
(B) Inducing that person to avoid legal process summoning that person to testify; or
(C) Inducing that person to absent himself or herself from an official proceeding to | swhich that person has been legally summoned.
Ark.Code Ann. § 5-53-108(a)(l) (Repl. 2005). An “official proceeding” is “a proceeding heard before any legislative, judicial, administrative, or other government agency or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or depositions in any such proceeding.” Id. § 5-53-101(4)(A). “Testimony” means “an oral or written statement, document, or any other material that is or could be offered by a witness in an official proceeding.” Id. § 5-53-101(5).
Paschal, a high school teacher, had a months-long sexual relationship with eighteen-year-old A.D., a student at Elkins High School, where Paschal taught. Principal Rebecca Martin testified that on May 5, 2010, A.D. and her mother contacted school officials and informed them that A.D. and Paschal had engaged in a sexual relationship. Martin testified that Paschal told her that he knew his sexual relationship with A.D. was illegal and that he was concerned about whether his actions would have an effect on his career and his relationship with his children. Fayetteville Police Department Detective Jonathon Snyder interviewed Paschal that day in the school superintendent’s office, and Paschal admitted that he had engaged in a sexual relationship with A.D. On June 2, 2010, Snyder arrested Paschal, and he was formally charged with four counts of second-degree sexual assault on August 13, 2010.
S.C., a senior at Elkins High School, testified that Paschal was his AP World History teacher during his junior year. S.C. said that A.D. was his friend and a year ahead of him in ^school. S.C. stated that he worked at the local Wal-Mart and that Paschal knew that he worked there. In June 2010, while S.C. was returning to work from a break, Paschal waved at him and walked up to him. According to S.C., Paschal said, “[A.D.] knows that she’s not gonna get any money out of this and if it’s money she wants, I’ll give her a couple of thousand if she’ll drop the case.” S.C. testified that he attempted to contact A.D. through several of her friends, but when he was unable to make contact with her, he told Ms. Taylor, a geometry teacher at the school, what Paschal had told him. S.C. also stated that he told law enforcement officers what Paschal had said. S.C. identified Paschal in the courtroom as the person who had asked him to contact A.D. and offer her money.
Paschal contends that there was no evidence presented to the jury that he had offered A.D. money through S.C. for the purpose of influencing her testimony, inducing her to avoid legal process, or inducing her to absent herself from a legal proceeding to which she had been legally summoned. Paschal states that the conversation with S.C., which occurred in June 2010, was “a month or two” before he was formally charged in August 2010, so there were no legal proceedings at issue. Paschal contends that the evidence illustrates nothing more than his attempt to resolve the matter without all the attention of a trial, much like when prosecutors offer defendants plea offers in an attempt to resolve a pending case. We find no merit in Paschal’s argument.
Paschal was in no position to attempt to “negotiate” with A.D. The State has the authority to bring criminal charges, irrespective of whether the victim wishes to pursue those charges. See, e.g., Clay v. State, 236 Ark. 398, 403 n. 4, 366 S.W.2d 299, 303 n. 4 (1963) (noting that the State is the party in the criminal prosecution, not the victim). According to S.C., Paschal told him to tell A.D. that he would give her money if she would “drop the case” against him. While the decision to bring criminal charges was the State’s and not A.D.’s, A.D.’s allegations formed the basis of the State’s case, and the State needed her cooperation as a witness. When Paschal spoke to S.C., he was aware that criminal charges against him were being investigated by the police, and Paschal was likely aware that A.D. could give a sworn statement for use against him in a criminal prosecution. Finally, even though Paschal’s conversation with S.C. took place before formal charges were filed, the statute does not require that a criminal case or any other “official proceeding” actually be pending at the time of the offer. S.C.’s testimony established that Paschal offered to confer a benefit upon A.D. with the purpose of influencing her testimony. We hold that there is substantial evidence to support a conviction for witness bribery. The circuit court did not err in denying Paschal’s motion for directed verdict.
II. Admission of Evidence of Bias
Paschal contends that the circuit court abused its discretion in rejecting his proffered evidence of the bias of S.C. The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion. E.g., Rollins v. State, 362 Ark. 279, 208 S.W.3d 215 (2005).
At trial, Paschal sought to introduce evidence that S.C.’s father was sued in 2009 in a quiet-title action by J.P. Corporation of Northwest Arkansas, a corporation in which |RPaschal’s father held an interest. The corporation lost the lawsuit, and title to the property was quieted in S.C.’s father on May 11, 2009. During voir dire examination of S.C., S.C. testified that he lived on the property at issue in the lawsuit and that he knew that Paschal’s family was “on the other side of the lawsuit.” Neither S.C. nor Paschal was a party to the lawsuit, and S.C. said that he was not affected by the lawsuit “in any form or fashion.” S.C. testified that the extent of his knowledge of the lawsuit was “just hearing, just second-hand, just hearing it from my parents.” The circuit court concluded that the evidence was not relevant, that it had no probative value, and that it would be prejudicial.
The State contends that the circuit court did not abuse its discretion by refusing the evidence because neither S.C. nor Paschal was a party to the lawsuit, which had ended favorably to S.C.’s father. The State also points out that the lawsuit ended in May 2009, which was nearly two years before S.C.’s testimony at Paschal’s trial and over a year prior to Paschal’s witness-bribery attempt.
As a general rule, all relevant evidence is admissible. Ark. R. Evid. 402 (2011). Relevant evidence is “evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Ark. R. Evid. 401. Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403.
“A witness’s credibility is always an issue, subject to attack by any party.” Fowler v. State, 339 Ark. 207, 219, 5 S.W.3d 10, 16 (1999). The scope of cross-examination extends to matters of credibility. See Ark. R. Evid. 611(b). A matter is not collateral if the evidence is relevant to show bias. Fowler, 339 Ark. at 219, 5 S.W.3d at 16. Proof of bias is “almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” Id., 5 S.W.3d at 16-17 (quoting United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)). “In other words, matters affecting the credibility of a witness are always relevant.” Id., 5 S.W.3d at 17.
S.C. was the State’s chief witness for the witness-bribery charge, and Paschal sought to attack S-.C.’s credibility by offering evidence of proof of bias. We disagree with the circuit court’s finding that the evidence was not relevant. The jury should have been allowed to hear this evidence because it might have borne on the accuracy and truth of S.C.’s testimony. The circuit court abused its discretion in refusing to admit evidence of the proof of bias of S.C.
Before leaving this point, we note that, in his brief on appeal, Paschal contends that this situation — where the only evidence of guilt is the testimony of a single witness — should be treated like one in which the testimony of an- accomplice is relied upon by the government and that the denial of cross-examination in such an instance may constitute a violation of the Sixth Amendment right of confrontation. Paschal did not make this argument to the circuit court; therefore, it is not preserved for our review. Our law is well settled that issues raised for the first time on appeal, even constitutional ones, will not be sconsidered on appeal. E.g., Davis v. State, 2009 Ark. 478, 348 S.W.3d 553.
III. Constitutionality of Arkansas Code Annotated section 5-11-125 (a) (6)
Paschal next contends that the circuit court erred in finding that section 5-14-125(a)(6) was constitutional as applied in this case. Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. E.g., Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008). If it is possible to construe a statute as constitutional, we must do so. Id. Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Id.
Arkansas Code Annotated section 5-14-125(a)(6) (Supp.2009), in effect at the time of the crimes charged, provided that “[a] person commits sexual assault in the second degree if the person [i]s a teacher in a public school in a grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is [a] student enrolled in the public school and [l]ess than twenty-one (21) years of age.” The record reveals that A.D. was an adult when she engaged in a sexual relationship with Paschal, and the State does not dispute Paschal’s contention that the sexual relationship was consensual. Paschal contends that, Inbecause he and A.D. were adults engaged in a consensual sexual relationship, the statute unconstitutionally infringes on a fundamental right. In support of his argument, Paschal relies on the United States Constitution’s protection of the right to privacy, see Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), as well as the Arkansas Constitution’s protection for “all private, consensual, noncommercial acts of sexual intimacy between adults,” see Jeg- ley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 332, 350 (2002). Paschal asserts that, because section 5—14—125(a)(6) infringes on a fundamental right and because the statute is not the least restrictive method available for the promotion of a state interest, it is unconstitutional.
The State responds that there is no fundamental right for a public high school teacher to have sex with an eighteen-year-old high school student enrolled in that public school. In support of its argument, the State cites Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006). In Talbert, the defendant, a minister, challenged the constitutionality of Arkansas Code Annotated section 5-14-126(a)(l)(B) (Repl. 2006), which provides that “[a] person commits sexual assault in the third degree if the person [e]ngages in sexual intercourse or deviate sexual activity with another person who is not the actor’s spouse, and the actor is ... a member of the clergy and is in the position of trust or authority over the victim and uses the position of trust or authority to engage in sexual intercourse or deviate sexual activity.” (Emphasis added.)
Citing Lawrence and Picado, Talbert contended that the statute violated his federal and state constitutional rights to engage in private, consensual sex with other adults. Talbert, 367 Ark. at 269-70, 239 S.W.3d at 511-12. We rejected Talbert’s challenge under the United States Constitution, concluding that, “substantive due process, including his right to engage in private, consensual sex, protects an individual’s liberty interest under the United States Constitution (Lawrence, supra), but Talbert has no liberty interest to engage in sexual activity by using his position of trust and authority.” Id. at 269, 239 S.W.3d at 511. We also rejected Tal-bert’s challenge under the Arkansas Constitution and held that section 5-14-126(a)(1)(B) did “not infringe upon Tal-bert’s fundamental right to have private, consensual sex” because “[t]he conduct criminalized by the statute is the use of trust and authority as a minister over individuals to engage in unwanted sexual activity with them.” Id. at 270, 239 S.W.3d at 512. Further, we noted that the Talbert case was distinguishable from Picado because the “conduct criminalized in [Pica-do ] was purely consensual, whereas the conduct criminalized” in Talbert was not. Id., 239 S.W.3d at 512.
Paschal contends that Talbert is distinguishable from the instant case. He asserts that there is a constitutional difference between the coerced sexual conduct that was present in Talbert and the consensual, noncommercial acts of sexual intimacy that are present in his case. We agree. The State misapprehends the issue when it asserts that there is no fundamental right for a public high school teacher to have sex with an eighteen-year-old high school student enrolled in that school. The issue is whether the statute, as applied in this case, |ninfringes on Paschal’s fundamental right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult. We hold that it does.
“[T]he fundamental right to privacy implicit in our law protects all private, consensual, noncommercial acts of sexual intimacy between adults.” Picado, 349 Ark. at 632, 80 S.W.3d at 350. Section 5-14-125(a)(6) criminalizes consensual sexual contact between adults. While it is possible that the General Assembly intended to criminalize a teacher’s use of his or her position of trust or authority over an adult student to procure sex, section 5-14-125(a)(6) contains no language evincing such intent. While we might be inclined to assume the General Assembly so intended, we are constrained from making such assumptions. This court strictly construes criminal statutes, resolving any doubts in favor of the accused. E.g., Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). This court cannot, and should not, by construction or intendment, create offenses under statutes that are not in express terms created by the legislature. E.g., Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). Nothing is taken as intended which is not clearly expressed, and this court is without authority to declare an act to come within the criminal laws of the state merely by implication. See, e.g., Heikkila v. State, 352 Ark. 87, 98 S.W.3d 805 (2003).
As applied in this case, section 5-14-125(a)(6) criminalizes consensual sexual conduct between adults and, therefore, we conclude that the statute infringes on Paschal’s | ^fundamental right to privacy. A statute that infringes on a fundamental right is subject to strict-scrutiny review, and the statute cannot survive unless “a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest.” Picado, 349 Ark. at 632, 80 S.W.3d at 350 (quoting Thompson v. Ark. Social Servs., 282 Ark. 369, 374, 669 S.W.2d 878, 880 (1984)).
The State does not claim a compelling state interest in its brief to this court. Rather, it contends that the Arkansas Constitution clearly contemplates the preservation of a special learning environment for high school students through the age of twenty-one and that the State has a legitimate interest in protecting that environment. Citing article 14, section 1 of the Arkansas Constitution, the State avers that Arkansans aged six through twenty-one have a constitutional right to a public education in a “general, suitable and efficient” public school system, and the State is required to use “all suitable means to secure to the people the | ^advantages and opportunities of education.” The State contends that section 5-14-125(a)(6) preserves the special learning environment because it protects all high school students, regardless of their age, from the sexual advances of teachers who have special authority and control over such students. Further, the State contends that, even if the relationship is consensual, the statute is designed to protect persons, both minors and adults, from people who have power, authority, or control over them on a day-to-day basis. As we understand the argument, the State asserts that it has an interest in protecting adult students from the sexual advances of teachers who have power, authority, or control over them.
Assuming that the State has asserted a compelling state interest and assuming that section 5-14-125(a)(6) advances that interest, we must determine whether the statute is the least restrictive method available to carry out the State’s interest. We recognized in Picado that “the State has a clear and proper role to protect the public from offensive displays of sexual behavior, to protect people from forcible sexual conduct, and to protect minors from sexual abuse by adults,” 349 Ark. at 637, 80 S.W.3d at 353 (citing Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980)), and that “criminal statutes, including those proscribing indecent exposure, rape, statutory rape, and the like, are in existence to protect the public from precisely such harms.” Id., 80 S.W.3d at 353. Likewise, we recognize that the State has an interest in protecting adult students from the sexual advances of teachers. But section 5-14-1125(a)(6),14 which criminalizes adult consensual sex, is not the least restrictive method available to carry out the State’s interest. Moreover, the State’s interest is already advanced in section 5-14-126(a)(1)(C) (Supp.2011), which prohibits a mandated reporter in a position of trust or authority over a victim from using the position of trust or authority to engage in sexual intercourse or deviate activity. Section 5-14-125(a)(6), as applied in this case, infringes on | ,5a fundamental right and is not the least restrictive method available for the promotion of a state interest; therefore, it is unconstitutional. Because we conclude that the statute is unconstitutional on this basis, we need not address the remaining constitutional challenges to the statute. Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822.
We feel compelled to point out that the dissenting justices would like to have before them a very different statute than what the General Assembly provided in section 5-14-125(a)(6). Regardless of how we feel about Paschal’s conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts.
Paschal’s convictions for sexual assault in the second degree are reversed and dismissed. Finally, because we reverse and dismiss those charges, we need not address Paschal’s remaining arguments on appeal.
Affirmed in part; reversed and remanded in part; reversed and dismissed in part.
DANIELSON, J., concurs in part and dissents in part.
BROWN, GUNTER, and BAKER, JJ., dissent in part and concur in part.
. The judgment and commitment order stated that the sentences on the sexual-assault counts were “to run consecutively for a total of 480 months ... with 120 suspended and 360 to serve.”
. Although Paschal's challenge to the denial of the directed-verdict motion was not his first point on appeal, protection of Paschal's double-jeopardy rights requires that we address such an argument prior to addressing other asserted trial errors. E.g., Sullivan v. State, 2012 Ark. 74, 386 S.W.3d 507.
. " 'Sexual contact’ means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.” Ark.Code Ann. § 5-14-101(10) (Supp.2009).
. A.D. testified that she was eighteen when she began having a sexual relationship with Paschal. "All persons of the age of eighteen (18) years shall be considered to have reached the age of majority and be of full age for all purposes. Until the age of eighteen (18) years is attained, they shall be considered minors.” Ark.Code Ann. § 9-25-101(a) (Repl.2009).
.In Lawrence, the United States Supreme Court found unconstitutional a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.
. In Picado, the court held that Arkansas’s sodomy statute, Arkansas Code Annotated section 5-14-122, was "unconstitutional as applied to private, consensual, noncommercial, same-sex sodomy.” 349 Ark. at 632, 80 S.W.3d at 350.
. We find it perplexing that one of the dissenting justices chooses to ignore this court’s binding precedent and instead turns to cases from other jurisdictions to determine whether an Arkansas statute, section 5-14-125(a)(6), as applied in this case, violates the fundamental right to privacy found in the Arkansas Constitution. See Flaskamp v. Dearborn Pub. Sch., 385 F.3d 935 (6th Cir.2004) (holding that a school board's denial of tenure to a teacher who had allegedly engaged in a sexual relationship with a high school student within nine months of the student’s graduation did not violate the teacher’s federal constitutional rights); State v. McKenzie-Adams, 281 Conn. 486, 915 A.2d 822 (2007) (holding that a statute criminalizing sexual intercourse between a teacher and a student was not unconstitutional under the United States Constitution and the Connecticut Constitution), overruled on other grounds by State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012); State v. Hirschfelder, 170 Wash.2d 536, 242 P.3d 876 (2010) (holding that a statute criminalizing sexual conduct between teachers and students was not void for vagueness and did not violate the teacher’s right to equal protection under the United States Constitution).
. We must make this assumption because the State, concluding that Paschal's fundamental right to privacy was not violated, did not address Paschal’s contention that the statute was subject to strict-scrutiny review.
. Mandated reporters have a duty to notify the Child Abuse Hotline if they have reasonable cause to suspect that a child has been subjected to child maltreatment or that a child has died as a result of child maltreatment. Ark.Code Ann. § 12-18-402(a) (Supp. 2011). A teacher is a mandated reporter. Id. § 12—18—402(b)(26).
. Oddly, the dissents repeatedly refer to Paschal's misuse of his position of trust or authority when that is not at issue in this case. Section 5-14-125(a)(6) is a strict-liability statute. The State was required to prove only that, while Paschal was a teacher, he had sexual contact with a student who was less than twenty-one years of age. We find appalling the statement from one of the dissenting justices that the majority's interpretation of the statute condones a teacher's misuse of trust or authority. A cursory glance at section 5-14-125(a)(6) reveals that the statute contains no language regarding trust or authority, much less the misuse of that trust or authority. The majority's interpretation can hardly condone conduct that is not mentioned in the statute.
Another dissenting justice writes that the majority has suggested that, because the words "trust or authority" are not included in the statute, "a teacher may not be aware of the fact that he or she holds such a position vis-á-vis a student, which apparently, according to the majority’s reasoning, somehow permits that unknowing teacher to have sex with an eighteen-year-old student.” Not only does the majority make no such suggestion, but Paschal never contended that he was unaware that he held a position of trust or authority in the school. The dissent’s manufacturing of an issue is both injudicious and irresponsible. The interpretation of section 5 — 14—125(a)(6) favored by the dissenting justices — which would require this court to add words to the statute and thus add elements to the crime— amounts to legislation by judicial fiat. Despite the dissents’ apparent willingness to do so, we will not usurp the General Assembly’s legislative role by reading language into the statute. | [
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RITA W. GRUBER, Judge.
|T Appellants, Minnie Ann Weeks-Conrad and Morton “Skip” Conrad, bring this appeal from an order of the White County Circuit Court entering summary judgment and dismissing their complaint to set aside the City of Beebe’s (the City) annexation of their property. They also appeal the court’s denial of their request to grant them nonconforming-use status. We affirm the circuit court’s order.
The material facts are undisputed. On July 24, 2006, appellee, the City of Beebe, passed an ordinance proposing to annex certain property, including property owned by appellants. The City published a copy of the ordinance in The Beebe News, but the publication did not contain a copy of the map and legal description of the property to be annexed. No notice was ever given to appellants that their property was being considered for annexation. The proposed ordinance was placed on the ballot at the general election on November 7, 2006, and was passed by the voters.
|2AppeIlants did not learn that then-property had been annexed to the City of Beebe until they began receiving citations from the City in February 2009 for violation of various provisions of the City Code. Appellants have owned their property since 1997 and have continuously used the property to raise goats, hogs, ducks, turkeys, emus, geese, chickens, donkeys, cows, dogs, cats, and rabbits. Appellants also keep old buses on the property as shelter for the animals and trailers for storage and living. Finally, appellants keep various types of scrap metal that they store and sell. The City contends that these uses of appellants’ property violate various ordinances that prevent keeping nondomestic animals, nonoperating vehicles, and junk within the city limits.
On May 26, 2009, appellants filed a complaint against the City of Beebe to set aside the annexation of their property, contending, among other things, that they had no knowledge of the proposed annexation and were not given the opportunity to review the proposal or object thereto. Alternatively, appellants asked the court to declare that they were “grandfathered in” because they had owned their property since 1997 and had continuously used it in the same manner. Appellee filed a motion for summary judgment, contending that it complied with all statutory procedures and that, in any ease, appellants’ claims were barred by the thirty-day requirements set forth in Ark.Code Ann. §§ 14-40-303 and 304. Appellants filed a response and a cross-motion for summary judgment, contending that appellee failed to comply with Ark.Code Ann. § 14-40-303 by neglecting to attach a copy of a map and legal description of the property proposed to be annexed in its notice of the election by publication and failed to provide any notice whatsoever to appellants that their | ^property was being proposed for annexation. They argued that this violated their constitutional right to due process. Alternatively, appellants argued that summary judgment should be denied because there were factual issues regarding their request for a declaration “grandfathering in” their nonconforming-use status.
The court granted summary judgment to appellee and dismissed appellants’ complaint asking to set aside the annexation. The court found that Arkansas law does not specifically require publication of a map or legal description and that the annexation laws as a whole contain sufficient safeguards to provide appellants with notice that satisfies due process. Further, the court found that the law required challenges to procedures in annexation elections to be made within thirty days of the annexation election and that appellants failed to present their challenge within that time.
The court denied summary judgment on the issue of grandfathering in appellants’ nonconforming uses, and the parties agreed to stipulated facts and submitted trial briefs on the issue. After reviewing these, the court found that the purpose of the ordinances prohibiting the keeping of nondomestic animals and maintaining non-operating vehicles on property within city limits was to promote the public health, safety, and welfare and denied appellants’ request for grandfathering with regard to these uses. With regard to appellants’ continuance of their scrap-metal business, the court found that this use, along with the placement of trailers for personal use and storage, could continue as long as they complied with the Beebe Zoning Code provisions governing nonconforming uses.
|4I. Setting Aside Annexation
For their first point on appeal, appellants contend that the circuit court erred in refusing to set aside the annexation of their property because appellee failed to attach a map and legal description of the property proposed to be annexed in its newspaper publication. Specifically, appellants argue that appellee’s failure to publish the map and description was a violation of Ark.Code Ann. § 14-40-303(c)(1)(D) (Supp.2005), which requires the city clerk to “give notice of the election [regarding the annexation] by publication by at least one (1) insertion in some newspaper having a general circulation in the city.” Neither party in the instant case argues that there is any issue of material fact in dispute. The only issue is whether the statute governing annexation required publication of a map and legal description, and whether any challenge was barred by the limitation period contained in the statute.
The trial court found no such publication was required by the statute and that appellants’ claims were barred by the thirty-day limitation period contained in the relevant statute and consequently granted appellee’s motion for summary judgment on this issue. To the extent that the grant of summary judgment was based upon the circuit court’s interpretation of an Arkansas statute, that is a question of law which this court decides de novo. Harrisburg School Dist. No. 6 v. Neal, 2011 Ark. 233, at 6, 381 S.W.3d 811, 814-15.
We turn to the relevant statute. An annexation ordinance that is adopted by a municipality must contain an accurate description of the lands desired to be annexed. Ark.Code Ann. § 14 — 40-303(a)(l) (Supp.2005). Section 303(b)(1) provides that the annexation ordinance will not become effective until “the question of annexation is submitted to the | ^qualified electors of the annexing municipality and of the area to be annexed[.]” Under then-existing law, if the ordinance is approved, the county clerk must record the certified election results and a description and map of the annexed area in the county records and with the Secretary of State within seven days of the election. Ark.Code Ann. § 14-40-303(b)(6)(A) (Supp.2006). Under Arkansas law, the annexation is effective thirty days after the county clerk performs those duties. Ark.Code Ann. § 14 — 40-303(b)(6)(B) (Supp.2006).
Appellants have not challenged any of these procedures. They contend only that appellee violated section 303(c)(1)(D), which requires the city clerk to “give notice of the election by publication” in the newspaper. They do not dispute that ap-pellee published the fact that the ordinance regarding annexation was to be submitted to the voters at the general election, only that the notice contained no legal description or map. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. City of Little Rock v. Rhee, 375 Ark. 491, 495, 292 S.W.3d 292, 294 (2009). We are not bound by the circuit court’s determination of the statute’s meaning; however, in the absence of a showing that the circuit court erred, we will accept its interpretation as correct on appeal. Scoggins v. Medlock, 2011 Ark. 194, at 4, 381 S.W.3d 781, 784.
The language in the statute requires only that the city give notice of the election, which it did in this case. While publication of a map or legal description might be helpful to | fithe voters, the statute does not require the city to include either. Accordingly, we affirm the circuit court’s decision refusing to set aside the annexation.
The court’s alternative ruling refusing to set aside the annexation was that appellants’ claims were barred. Arkansas Code Annotated section 14^0-304 (Repl.1998) provides that a legal action challenging the standards required by section 14 — 40-302 must be filed within thirty days after the election. While appellants argue that section 304 does not apply to claims under section 303, the law is otherwise. In Williams v. Harmon, 67 Ark.App. 281, 999 S.W.2d 206 (1999), we held that the thirty-day limitations period set forth in section 304 extends to challenges to all procedures outlined in the subehapter and not only to those enumerated in section 302. See also City of Barling v. Fort Chaffee Redevelopment Authority, 347 Ark. 105, 60 S.W.3d 443 (2001) (citing Harmon with approval for its holding that the thirty-day limitations period extends to challenges to annexation procedures not enumerated in section 14-40-302).
II. Nonconforming-Use Status
For their second point on appeal, appellants contend that the circuit court’s refusal to grant nonconforming-use status to them was clearly erroneous. We review a trial court’s decision not to grant a party’s request for declaratory judgment for clear error. Poff v. Peedin, 2010 Ark. 136, 366 S.W.3d 347. Appellants cite City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S.W.2d 94 (1977), in support of their argument that appellee’s attempt to deprive them of their preexisting use of their property constitutes an unconstitutional taking without compensation in violation of their right to due process. In City of Fayetteville, the supreme court held that |7an ordinance regulating preexisting uses — in that case, the ordinance restricted the size, height, and setback of signs and prohibited signs with flashing or blinking lights — that were “not inimical to the health, safety or morals of the community” amounted to an unconstitutional taking. Id. at 155, 547 S.W.2d at 97-98.
An owner’s use of his property is not unbounded, whether it is a preexisting use or future use. A zoning ordinance is presumed to be constitutional and the burden of proving otherwise is upon the party challenging it. Night Clubs, Inc. v. Fort Smith Planning Comm’n, 336 Ark. 130, 132, 984 S.W.2d 418, 420 (1999). The supreme court has recognized that a municipality has a duty to exercise its police power in the interest of the public health and safety of its inhabitants. Phillips v. Town of Oak Grove, 333 Ark. 183, 189, 968 S.W.2d 600, 603 (1998). This police power is always justified “when it can be said to be in the interest of the public health, public safety, public comfort, and when it is, private rights must yield to public security, under reasonable laws.” Id.
Appellants contend that, like the landowners in City of Fayetteville, they had a vested right in their preexisting uses. City of Fayetteville concerned business owners’ signs and the question whether the city’s new ordinance governing those signs was valid as to the owners’ preexisting signs. While the court found that the owners did have a vested right protected by the constitution for those uses that were not inimical to public health, safety or morals — height, size, and setback — the court held that the owners did not have a vested right protected by the constitution in the use of flashing and blinking signs because the city contended, and the court agreed, that the use fell within that area of police regulation “that [fis exercised for the protection of the health and morals of the people.” City of Fayetteville, 261 Ark. at 155, 547 S.W.2d at 98.
In this case, the ordinances prohibiting the keeping of nondomestic animals and the keeping of nonoperating vehicles both specifically state that these uses present an imminent threat to the public peace, health, safety, and welfare. The court noted this in its order. The supreme court’s decision in City of Fayetteville was based on its holding that the prohibited uses in that case were not inimical to public health or safety. Here, the circuit court specifically noted that appellee’s purpose for the ordinances was to protect “an imminent threat” to public peace, health, safety, and welfare. We hold that the circuit court’s determination refusing to grant nonconforming-use status to appellants was not clearly erroneous.
Affirmed.
GLOVER and HOOFMAN, JJ., agree.
. This time period in this provision was changed from seven days to fifteen days by Act No. 557 in 2007. | [
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WAYMOND M. BROWN, Judge.
11 Rebecca Watkins brings this appeal from the order of the Phillips County Circuit Court on the property division following her divorce from appellee Floyd “Chuck” Watkins. We do not address the merits of Rebecca’s arguments but, instead, remand the case to the circuit court for the purpose of having the court give a more comprehensive explanation of why it divided the parties’ marital property unequally.
This is the parties’ second marriage to each other. There were no children born to the parties; however, both had children by prior marriages. They first married in November 2000 and divorced in September 2002. Prior to the marriage, Rebecca received certain real property from her family. When the parties divorced, Rebecca was awarded the parties’ mobile home, and she was ordered to pay the debt on the home. No specific mention was |2made of the real property. Chuck was awarded a four wheeler.
The parties remarried in April 2004 and separated in March 2008. On March 19, 2008, Rebecca filed her complaint seeking a divorce, a return of her nonmarital real property, and division of the marital debts. Chuck filed an answer and counterclaim. Both parties amended their pleadings after an attempted reconciliation failed in August 2008.
The case proceeded to trial on June 30, 2009. The major issues were the status of approximately $82,500 in funds that Chuck had deposited into bank accounts titled in the names of both parties before withdrawing those funds just prior to the parties’ separation; the status of funds Chuck received from the sale of a piece of farm equipment; and the status of a shop building Chuck erected on the real property Rebecca owned prior to the first marriage. The evidence showed that in 2006 the parties agreed to build a shop on the real property Rebecca acquired prior to the parties’ first marriage. Chuck testified that he had no other location from which to operate his business. According to Rebecca, the parties separated in March 2008 and Chuck removed $82,520 out of a marital account and transferred it to another bank. Chuck asserted that he kept his business funds separate from Rebecca’s funds. He admitted that when the parties separated in March 2008, he took $82,500 out of what he called a business account titled in both parties’ names “to avoid any kind of problems with Rebecca and the money.” The money was redeposited into an account with both names when the parties reconciled. At the time of their final separation, the account balance was approximately $66,000. Two months later that balance had been reduced to $252. Chuck also acknowledged using $32,000 in marital funds to pay off the debt on his cotton picker | ^before selling it for a $4,000 loss. Chuck further testified that he purchased a new car for cash approximately one month prior to trial.
On August 13, 2009, the circuit court issued a letter opinion that granted Rebecca a divorce. Chuck was awarded the new vehicle as his separate property. The court also classified certain personal property as marital property, including the shop building, a tractor, and other farm equipment. The court further ordered that if the parties were unable to agree upon a division of the marital property, that property was to be sold at a public auction conducted by the clerk. The court concluded that, under the circumstances and in consideration of the factors listed in Ark.Code Ann. § 9 — 12—315(A)(1), especially Chuck’s occupation, it would be equitable to give Chuck a life estate in the building and in the land immediately surrounding it. The court concluded by stating that any asset not specifically referenced would be the separate property of the party in possession.
The court issued a clarification letter opinion on September 23, 2009. The court emphasized that the shop would not be sold because Chuck was awarded a life estate in that property. The court also ruled that the equipment Chuck purchased for the business would be his separate property.
On October 20, 2009, Rebecca filed a motion alleging that Chuck had purchased real property on October 1, 2009, for $50,000 cash. She asserted that this was marital property and sought a division. In response, Chuck asserted that the division of the property had already been resolved. After considering the parties’ posttrial briefs, the circuit court issued a third | ,, letter opinion dated February 18, 2010. The court assumed that Rebecca was correct and that the property was marital property. Nevertheless, the court awarded the real property to Chuck as his separate property. In doing so, the court stated that it had considered two of the factors listed in section 9-12-315, including the estate, liabilities, needs of each party, and the contributions of each party in the acquisition of the property. The court found that neither party contributed to the needs of the other party after their separation. Also, the court noted that the property was purchased with income from Chuck’s nonmarital business and with funds from his father.
The court’s divorce decree, which incorporated the three earlier letter opinions, was entered on February 22, 2010. This appeal followed.
The statutory authority for a circuit court’s division of property upon divorce is set forth in Arkansas Code Annotated section 9-12-315. Section 9-12-315(a) gives a court the discretion to divide equitably both marital and non-marital property after considering certain stated factors in order to achieve an equitable distribution. The overriding purpose of the property-division statute is to enable the court to make a division of property that is fair and |sequitable under the circumstances. With respect to the division of property in a divorce case, we review the circuit court’s findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence. A circuit court’s finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. In reviewing a circuit court’s findings, we defer to the circuit judge’s superi- or position to determine the credibility of witnesses and the weight to be accorded to their testimony. We note that the statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably.
While the circuit court did not specifically find that it was making an unequal division of marital property, it appears that the result was an unequal division. However, the order failed to include findings explaining why the factors supported an unequal division of marital property.
We begin with the circuit court’s award of a life estate to Chuck in Rebecca’s 1 (¡nonmarital real property. Here, the circuit court stated that it considered the statutory factors and concluded that it was equitable to award Chuck a life estate. However, the circuit court did not address various other concerns arising from such an award, such as a description of the property immediately surrounding the shop building or the fact that Chuck purchased a new home and may no longer need the shop on Rebecca’s property to operate his business. These concerns should be addressed on remand.
Likewise, the circuit court did not specifically address Rebecca’s contention that Chuck took marital funds for his personal use and should compensate her for her share. We surmise that the circuit court believed that it had addressed the issue by its statement in the February 18, 2010 letter opinion that Rebecca was attempting to raise issues that had already been decided in the earlier letter opinions. The only other possible disposition of the funds was the circuit court’s catch-all provision in its August 13, 2009 letter opinion when it stated that “[a]ny property asset not specifically referenced above shall remain the separate property of the party now [in possession].”
Rebecca relies on the presumption that property is marital property that arises when nonmarital property or funds are titled or deposited into couple’s joint accounts. Both parties testified that the money was in an account that was titled in both names. Chuck argues that the money is his separate property because it is excluded from the definition of “marital property” as being the increase in value of property acquired prior to marriage or income [ 7from property owned prior to the marriage. However, the fact that Chuck was awarded the business in the parties’ first divorce and it was his separate property does not mean that the earnings he derived from that business during the second marriage were not marital property. Such earnings are marital property. Here, the circuit court failed to explain either how Chuck rebutted the presumption or the factors it considered in deciding upon an unequal division of the funds.
Rebecca also argues that the circuit court erred in not awarding her a share of the vehicle and real property Chuck purchased after the parties’ separation but prior to the entry of the circuit court’s decree. Any property acquired after separation but prior to the entry of a divorce decree is marital property. While there is no requirement that each party receive a share of each item of marital property, an explanation for such unequal division is required. The court did somewhat explain its reasons, finding that neither party contributed to the needs of the other following their separation. The court also considered the fact that the property was purchased with funds from Chuck’s nonmarital business. However, as discussed above, the income Chuck earned during the marriage was marital property even though the | ^business was his separate property.
In the absence of such an explanation, and in light of the presumption that marital property will be divided equally, we must remand for entry of an order that demonstrates proper consideration of the statutory factors.
Remanded for further proceedings consistent with this opinion.
WYNNE and ABRAMSON, JJ., agree.
. (Repl.2009).
. Those factors are (i) The length of the marriage; (ii) Age, health, and station in life of the parties; (iii) Occupation of the parties; (iv) Amount and sources of income; (v) Vocational skills; (vi) Employability; (vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and (ix) The federal income tax consequences of the court’s division of property.
. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993); Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983).
. Baxley v. Baxley, 86 Ark.App. 200, 167 S.W.3d 158 (2004).
. Id.
. Id.
. Id.
. Id.
. Ark.Code Ann. § 9-12-315(a)(1)(B); Young v. Young. 288 Ark. 33, 701 S.W.2d 369 (1986) (holding that when a trial court makes an unequal division of marital property, it must state its reasons for doing so).
. See McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000); Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988).
. Ark.Code Ann. § 9-12-315(b)(5), (7).
. Box, 312 Ark. at 554, 851 S.W.2d at 440; Davis v. Davis, 79 Ark.App. 178, 84 S.W.3d 447 (2002).
. See Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007); Cavin v. Cavin, 308 Ark. 109, 823 S.W.2d 843 (1992); Franklin v. Franklin, 25 Ark.App. 287, 758 S.W.2d 7 (1988); Speer v. Speer, 18 Ark.App. 186, 712 S.W.2d 659 (1986).
. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988); Cole v. Cole, 82 Ark.App. 47, 110 S.W.3d 310 (2003) (Cole I).
. Ark.Code Ann. § 9-12-315(a)(l)(A).
. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988); Baxley, supra. | [
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RAYMOND R. ABRAMSON, Judge
|!Appellant James Andrew Moppin was charged with domestic battery in the second degree in the Boone County Circuit Court. A jury convicted him of the lesser offense of domestic battery in the third degree. Moppin was placed on probation for one year, ordered to serve twenty days in the county jail, and fined $600. On appeal, he argues that the circuit court erred by denying his motion for directed verdict because the State did not prove he knew the victim was sixty years of age or older and that the circuit court erred by overruling his objection to the.State’s closing argument. Moppin asserts that the State improperly argued that he had the burden of proof on the issue of whether he knew the victim was sixty years old or older. We affirm.
At trial, evidence was presented that Rodney McCullough is Moppin’s father-in-law. ■ McCullough and Moppin, along with Moppin’s nuclear family, lived together in a small trailer in Omaha, Arkansas. On September 26, 2013, Moppin returned home after four or [¡.five days away to find his pet rats dead and outside on the front porch. Moppin was furious and told McCullough he needed to move out immediately. Moppin then proceeded to beat McCullough; ultimately, McCullough had to be air lifted by helicopter, from the hospital in Harrison to a Springfield, Missouri, hospital, where he was admitted overnight with serious injuries.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Jackson v. State, 375 Ark. 321, 324-25, 290 S.W.3d 574, 577 (2009). We do not address Moppin’s challenge to the sufficiency of the evidence because it is not preserved for our review. At the close of the State’s case, Moppin made a motion for a directed verdict as to the domestic-battery charge, but he did not renew it at the • close of all the evidence, as required by Rule 33.1(a) of the Arkansas Rules of Criminal Procedure. The failure of a defendant to challenge the sufficiency of the evidence- at the times and in the manner required in subsection (a) will constitute a waiver of any' question pertaining to the sufficiency of the evidence to support the verdict br judgment.' Ark. R.Crim. P, 33.1(c) (2015).
.
Moppin’s second point on appeal is without, merit. Moppin-. argues that in the State’s closing argument, the State improperly shifted the burden of proof to him, forcing him to put on evidence that he did not know that the victim was sixty years of age. However, this is not an element of the crime for which Moppin was convicted. The jury found Moppin guilty only of domestic battering in the third degree, not domestic battering in the second degree. As such, he was not prejudiced by any asserted error relating to the domestic battering in the Rsecond degree. See Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). We therefore affirm Moppin’s conviction.
Affirmed.
Harrison and Glover, JJ., agree. | [
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KAREN R. BAKER, Associate Justice
’ | |This appeal stems from a Wholesale Water Purchase Contract (“contract”) be tween appellants, Town of Lead Hill, Arkansas, et al. (“Lead Hill”)' and the ap-pellee, Ozark Mountain Regional Public Water Authority (“Ozark”). On April 27, 2009, the parties entered into a contract with a forty-year term for Ozark to provide potable water to Lead Hill. Lead Hill agreed to purchase water with a “minimum monthly charge” based on- an average daily usage of 56,038 gallons at the rate between $2.75 and $3.25 per thousand gallons at a minimum monthly charge between $4,687 and $5,540. Further, the contract provided that Lead Hill would pay the minimum monthly charge regardless of whether Lead Hill “actually purchased or takes water” from Ozark. Ozark constructed a water-treatment facility and connecting water lines and incurred bond indebtedness secured in part by , the contract. The contract provided that water would be provided commencing in November 2012.
|2On November 12, 2012, Ozark began supplying potable water to Lead Hill, and Lead Hill paid for the water. On August 16, and September 16, 2013, Ozark sent Lead Hill monthly invoices. The invoices totaled $10,555.02, - which included a late fee of $51.99. However, Lead Hill did not pay those invoices. On October 15, 2013, Lead Hill notified Ozark that the Lead Hill City Council had unanimously voted to terminate its contract with Ozark.
On October 25, 2013, Ozark filed suit against Lead Hill seeking a declaratory judgment and a writ of mandamus .to enforce the contract. On November 27, 2013, Lead Hill filed an answer. On January 15, 2014, Ozark filed a motion for summary judgment and brief in support. Lead Hill responded and filed an amended response, and Ozark replied.
On March 13, 2014, the circuit court held a hearing and, at the request of the parties, entered a continuance in the matter and delayed ruling on the motion for summary judgment for sixty days while the' parties attempted to- resolve the matter and Lead Hill was to make payments into the registry of the circuit court. On May 22, 2014, the circuit court conducted a hearing on the summary-judgment motion. On June 11, 2014, the circuit court granted Ozark’s motion for summary judgment and issued a writ of mandamus. On July 9, 2014, Lead Hill timely filed its notice of appeal and now presents four points on appeal: (1) the contract violates article 12, section 4, and amendment 78 of the Arkansas Constitution; (2) the contract violates federal law; (3) Qzark lacked the capacity to enter into the contract; and (4) the contract is unenforceable under several contract principles. Because this case presents an issue involving the interpretation of the Arkansas Constitution, we havels jurisdiction -pursuant to Ark. Sup.Ct. R. l-2(a)(l) (2014).
Standard of Review
This case comes to us from an order granting summary judgment. A trial court may grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the . moving party is entitled to judgment as a matter of law. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, 381 S.W.3d 793. Summary judgment is not proper, however, where evidence, although in' no material dispute as to actuality,' reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable minds might differ. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). In Flentje v. First Nat. Bank of Wynne, 340 Ark. 563, 569-70, 11 S.W.3d 531, 536 (2000) (internal citations omitted), we explained, “we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. However, when there is no material dispute as to the facts, the court will determine whether reasonable minds could draw reasonable inconsistent hypotheses to render summary judgment inappropriate.”
On appeal, we view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811.
Points on Appeal
|4I. Article 12, Section Ip, and Amendment 78 of the Arkansas Constitution
A. Article 12, Section 4
Turning to Lead Hill’s first point on appeal, Lead Hill asserts that the circuit court erred in granting summary judgment regarding two provisions of the Arkansas Constitution, article 12, section 4, and amendment 78. Prior to reaching this issue, we note that when interpreting the constitution, “our task is to read the laws as they are written, and interpret them in accordance with established principles of constitutional construction.... Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning.” Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 720, 120 S.W.3d 525, 537 (2003) (internal citations omitted).
First, at issue is article 12, section 4, of the Arkansas Constitution, which provides in pertinent part,
The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made[.]
In other words, a city cannot enter into a contract for an amount that exceeds its annual revenue for a fiscal year. Here, the circuit court held that article 12, section 4 was not a valid legal defense to enforcement of the contract.
Article C, section 19, of the contract provides as follows:
Funding of Purchaser:
The parties hereto agree that all Purchaser revenues associated with the funding of this Agreement shall be derived solely from revenues generated by lathe sale of the Purchaser’s water to its customers and that except for a pledge of said revenues that Purchaser does not otherwise further guarantee the obligations hereunder with its full faith and credit.
On appeal, Lead Hill asserts that the contract violates article 12, section 4, and the contract is void and unenforceable because the contract exceeded Lead Hill’s annual revenue. Lead Hill further contends that although the provision of the contract may purport to limit the payments only from income derived from the sale of water by Lead Hill to its waterworks customers, its customer base has been reduced by fifty percent and therefore its financial obligation under the contract also exceeds its annual revenue for one year because of its loss of customers. Therefore, Lead Hill argues that the terms of the contract are not enforceable under article 12, section 4.
Ozark responds that the contract language is clear — the funding for the contract is derived solely from the revenues generated by the sale of the water to its customers. Ozark further contends that Lead Hill’s arguments regarding loss of its customers is hearsay and not part of the record. Relying on McGehee v. Williams, 191 Ark. 643, 87 S.W.2d 46 (1935), and Hink v. Board of Directors of Beaver Water District, 235 Ark. 107, 357 S.W.2d 271 (1962), Ozark contends that we have affirmed the authority of towns such as Lead Hill to purchase water pursuant to multi-year contracts, and the circuit court properly granted summary judgment in its favor.
In McGehee, we held,that the town of Alma’s twenty-year-purchase contract did not violate article 12, section 4, also known as amendment 10, because the payments due Under the contract were revenues solely from Alma’s sale of water to its customers and would not |ficonstitute a guarantee of Alma’s full faith and- credit:
Appellants also contend that this contract is in violation of Amendment No. 10 to the Constitution of 1874. This contention is grounded upon the theory that the water rentals due under the contract would be a charge against the general revenues of the city of Alma during the life of the contract. We do not so construe the contract. The' rentals therein provided are to be paid from the revenue derived from the distribution of the water supply. When the contract is thus construed, it can in no event offend the amendment.
McGehee, 191 Ark. 643,649, 87 S.W.2d 46, 48 (1935). ■ ■ '
Next, in Hink, we also interpreted article 12, section 4, and explained,
Amendment 10 requires the fiscal affairs of all cities to be conducted on a sound financial basis and prohibits any city from entering into any contract or incurring any obligation in excess of its revenues for the current fiscal year. By one of the contracts now in question, attached as Exhibit C to the complaint, the city would pledge only its net waterworks revenues to secure the performance of its contract with the Beaver Water District. This contract is valid, for it is well settled that Amendment 10 does not prohibit the creation of a debt exceeding current annual revenues if the debt is secured by and payable solely out of the income or assets of a special and separable activity such as a municipal waterworks, Williams v. Harris, 215 Ark. 928, 224 S.W.2d 9.
Hink, 235 Ark. at, 110, 357 S.W.2d at 273.
In McGehee and Hink, we held that multiyear purchase contracts for water did not violate article 12, section 4 because the contracts did not pledge the full faith and credit ’ of the town; but rather they pledged the revenues derived from the sale of the water and pledged the revenues of its own waterworks system. Here, the same is true. The contract at issue provides,
The parties hereto agree that all Purchaser revendes associated with the funding of this Agreement shall be derived solely from revenues- generated by the sale of the Purchaser’s water to its customers and that except for a pledge of said revenues that Purchaser does not otherwise further guarantee the obligations hereunder with its full faith and credit.
^Accordingly, McGehee and Hink are on point, and we do not find merit in Lead Hill’s argument. Based on the express terms of the contract and the record before us, Lead Hill has pledged payment under the contract “solely from revenues generated by the sale of the [Lead Hill’s] water to its customers and that except for a pledge of said revenues that [Lead Hill] does not otherwise further guarantee the obligations hereunder with - its full faith and credit.”
Further, as Lead Hill has argued in its brief, the crux of Lead Hill’s argument here is the “practical effect” of the enforcement. Our review is of the circuit court’s order concerning the’ terms of the contract, not any future enforcement of the contract. Here, the language of the contract does not offend art! 12, section 4. Finally, in support oí its position, Lead Hill references a contempt order and a sales-and-use’ tax that Lead Hill alleges was passed as a result of the contempt order. However, Lead Hill did not appeal from the contempt order.
We hold that Lead Hill has failed to show that there is a genuine issue as to a material fact or that reasonable differing inferences could be drawn from the undisputed facts. Accordingly, we affirm on this first point. '
|rB. Amendment 78
Second, Lead Hill asserts that the contract is “wholly void” because the contract term 19exceeds five years, which is- in violation of amendment 78 to the Arkansas Constitution. Ozark responds that the contract at issue does not fall within the parameters of amendment 78.
The circuit court held:
The five-year limitation for short term financing obligations under Amendment 78 to the Arkansas Constitution is not applicable to the Water Purchase Contract. Therefore, the Town’s citation of Amendment 78 is not a valid legal defense to the enforcement of the Water Purchase Contract.
Amendment 78 provides in pertinent part:
For the purpose of acquiring, constructing, installing or renting real property or tangible personal property having an expected useful life of more than one (1) year, municipalities and counties may incur short-term financing obligations maturing over a period of, or having a term, not to exceed five (5) years. ;
Ark. Const. Amend. 78, § 2(a).
Further, the amendment defines “short-term financing obligation” as “a debt, a note, an installment purchase agreement, a lease, a lease purchase contract, or any other similar agreement, whether secured or unsecured.” Id § 2(b)(1). Lead Hill asserts that the circuit court erred because the contract at issue falls within amendment 78 and the terms of the contract exceed the five-year limitation prescribed in our constitution. Ozark responds that the contract' for the delivery of potable water to the master meter does not violate amendment 78 because it is not a short-term financing obligation.
Here, the parties entered into a contract to provide potable water to be paid for by revenues derived from its customers. The contract is not a short-term financing, obligation as defined by amendment 78. Based on the record before us, Lead Hill has failed to present | ^unresolved material facts on this issue or that reasonable differing inferences could be drawn from the undisputed facts. Accordingly, based on our standard of review,- we affirm the cir-; cuit court on this point.
II. The Contract Violates Federal Law
Lead Hill next asserts that the circuit court erred in granting summary judgment because the contract violates 7 U.S.C. § 1926(b) and is therefore void. Lead Hill contends that federal law prohibits a water entity, such as Ozark, from curtailing' another entity’s ability to repay ÜSDA loans by providing water service in an area where the indebted entity, Lead Hill, is already providing water and therefore the contract is unenforceable. Ozark responds that the statute is not applicable to the contract.
Lead Hill’s argument regarding 7 U.S.C. § 1926(b) requires us to interpret the statute. . “The first rule in considering the meaning and effect of.a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in .common language.” Potter v. City of Tontitown, 371 Ark. 200, 209, 264 S.W.3d 473, 481 (2007).
The circuit court held that 7 U.S.C.A. § 1926(b) was not a valid legal defense to enforcement of the contract and granted summary judgment on this point.
7 U.S.C. § 1926(b) provides in pertinent part:
(b) Curtailment or. limitation of service prohibited.
The service provided or made available through any such association shall not be curtailed or limited by inclusion of the area. served -by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan; nor shall the happening of any such event be the basis of requiring such association to secure any franchise, license, or permit as a condition to continuing to serve the area |userved by the association at the time of the occurrence of such event.
Here, Lead Hill contends that it was indebted to the USDA on three separate loans at the time it entered into the contract. Further, Lead Hill contends that it had to disconnect from its current water supply and use water only from Ozark. In other words, Lead Hill asserts that Ozark violated § 1926(b) because the contract required Lead Hill to disconnect from its current water system and purchase 100% of its water from Ozark and curtailed its ability to repay its USDA loans.
Ozark responds that Lead Hill has misinterpreted the application of 7 U.S.C. § 1926(b) and the noncurtailment statute does not apply to void the contract. Ozark further responds that Lead Hill’s waterworks system operated by Lead Hill is financed by the USDA bonds, not the water supply, and the waterworks system has not been impaired or affected.
In Public Water Supply District No. 3 of Laclede County, Missouri, v. City of Lebanon, Missouri, the Eighth Circuit Court of Appeals analyzed the applicable statute and explained:
The key operative provision of § 1926(b) provides that a rural district’s service “shall not be curtailed or limited.” In this context, the verbs “curtail” and “limit” connote something being taken from the current holder, rather than something being retained by the holder to the exclusion of another. See The New Shorter Oxford English Dictionary 575, 1591 (4th ed. 1993) (defining “curtail” as “[s]horten in ... extent or amount; abridge”; defining “limit” as “set bounds to; restrict”); see also CSL Utils., Inc. v. Jennings Water, Inc., 16 F.3d 130, 135 (7th Cir.1993) (“The cases and fragments of legislative history available to us all seem to have in mind curtailment resulting from substitution of some third party as a water-supplier for [the rural district].” (emphasis added)). FN3.
FN3. The legislative history is consistent with such a reading. Subsection (b) was added to § 1926 in 1961 “to assist in protecting the territory served by such an association facility against competitive facilities, which might otherwise be developed with the expansion of the boundaries of municipal and other public | ^bodies into an area served by the rural system.” S. Rep. 87-566, 1961 U.S.C.C.A.N. 2243, 2309 (emphasis added).
605 F.3d 511, 516 & n.3 (8th Cir.2010).
The issue before us is whether the circuit court erred in granting summary judgment regarding Lead Hill’s claim that 7 U.S.C. § 1926(b) renders the contract unenforceable. Based on the plain language of 7 U.S.C. § 1926(b) and the record before us, 7 U.S.C.A. § 1926(b) has no application to the case before us. The parties here are not competing for waterworks customers. As Lead Hill acknowledged in its brief to the circuit court, “this is simply [Lead Hill] buying water from ... [Ozark.]” The statute is designed to prevent competition. There is no competition or curtailment between Lead Hill and Ozark. Accordingly, we hold that the circuit court did not err arid affirm on this point.
III. ' Ozark Lacked the Capacity to Enter Into the Contract
Lead Hill next contends that Ozark lacked the capacity to enter into the contract and that the circuit court erred by granting summary judgment because a factual question remains regarding Ozark’s capacity. Lead Hill asserts that the cir cuit court erred because Ozark did not follow corporate formalities and was not properly formed; therefore, Lead Hill cannot be bound to the contract because any act by Ozark is an ultra vires act and it should not be bound to the contract.
In granting Ozark’s motion for summary judgment on this issue, the circuit court held that Lead Hill’s “argument that [Ozark] lacked the capacity to enter into the ... contract is not a valid legal defense to the enforcement of the ... contract under Arkansas law. No facts supporting the defense of capacity would change the enforceability of the ... contract as a | ismatter of law.”
With regard to Ozark’s ability to enter into the contract, Ark.Code Ann. § 4-35-210(20) & (22) (Supp. 2013) provides in pertinent part:
A water authority shall have the following powers, together with all powers incidental thereto or necessary to the discharge thereof:
(20) To do and perform all acts and things and have and exercise any power as may be convenient or appropriate to effectuate the purposes for which the water authority is formed;
(22) To enter into water contracts for the purchase or sale of water on a wholesale basis on the terms and conditions the board determines are in the best interest of the water authority.
In Barnhart v. City of Fayetteville, 321 Ark. 197, 209, 900 S.W.2d 539, 545 (1995), we addressed contracts that may have been formed by ultra vires acts and are unenforceable:
We have long made a distinction between a contract with a municipality that is ultra vires in the general sense and, because it is wholly outside the authority of the municipality to make such a contract under any circumstances, is void ab initio, Town of Newport v. Batesville & Brinkley Ry. Co., 58 Ark. 270, 24 S.W. 427 (1893), and a contract that is ultra vires in the limited sense because the power to contract was merely exercised irregularly and thus can be ratified. Blount v. Baker, 177 Ark. 1162, 9 S.W.2d 802 (1928).
Further, in Keith v. City of Cave Springs, 233 Ark. 363, 374-75, 344 S.W.2d 591, 597 (1961), we explained that a party cannot be permitted to accept the benefits under the contract and at the same time avoid its obligation under such agreement:
The evidence is undisputed that the City of Cave Springs has for the past ten years diligently fulfilled an implied covenant to purchase water for its residential and industrial consumers and the express covenant to pay for the water purchased. See Mooney v. Gantt, 219 Ark. 485, 243 S.W.2d 9 [ (1951) ]. Therefore, appellants cannot be permitted to accept the benefits under the contract and at the same time avoid their obligation under such agreement. Williams Mfg. Co. v. Strasberg, 229 Ark. 321, 314 S.W.2d 500 [ (1958) ].
Here, despite whether Ozark adhered to the proper corporate formalities, the record demonstrates that Ozark has received articles of incorporation and maintained the statutory authority to enter into the contract. Pursuant to Ark.Code Ann. § 4-35-210(20) and (22) and Barn-hart, Ozark’s acts were not ultra vires. Finally, based on our holding in Bamhari, even if Ozark did proceed irregularly, Ozark maintained the authority to enter into the contract. Therefore, we do not find error and affirm the circuit court on this point.
IV. The Contract is Unenforceable Under Several Contract' Principles
For its final point on appeal, Lead Hill contends that its performance under the contract is excused and the contract fails based on several contract principles: impossibility of performance, impracticability of performance, supervening frustration, unconscionability,' and lack of mutuality.
A. Excuse of Performance: Impossibility, Impracticability and Su- '' pervenirig Frustration
Lead Hill first asserts that its performance under the contract is excused by the impossibility of performance, impracticability of performance,, and supervening frustration. Lead Hill asserts this because “numerous statutes-and constitutional provisions ... will be violated” if the contract is enforced. Lead Hill further asserts that the performance of the contract has become impractical and frustrated because its. customer base was decreased by fifty percent.
Ozark responds- that the doctrines are not applicable because Lead Hill’s assertions are not based on any factual evidence but on hearsay arguments of counsel concerning the | ^number of' customers that buy water. Further, Ozark responds that Lead Hill has not alleged a' change in circumstance that was a basic- assumption of the contract and has waived any right to argue a change in circumstance because Lead Hill failed to avail itself of the procedural mechanisms and remedies in the contract.
In its June 11, 2014 order granting summary judgment to Ozark, the circuit court held that “[n]one of the other defenses raised by the Town in opposing the Motion for Summary Judgment constitutes a valid legal defense to the enforcement of the Water Purchase Contract. No facts supporting such defenses would change the enforceability of the Water Purchase Contract as a' matter of law.”
The Restatement (Second) of Contracts provides in pertinent part:
§ 261 Discharge by Supervening Impracticability
Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract .was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.
§ 265 Discharge by Supervening Frustration
Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.
§ 266 Existing Impracticability or Frustration
(1) Where, at the time a contract is made, a parties performance under it is impracticable without his fault because of a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty to render that performance arises, unless the language or circumstances-indicate the contrary.
11fi(2) Where, at the time a contract is made, a party’s principal purpose is substantially frustrated without his fault by a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty of that psgty to render performance arises, unless the language or circumstance's indicate the contrary.
Restatement (Second) of Contracts §§ 261, 265 & 266 (1981).
Here, the crux of Read Hill’s argument is that the circuit court erred in granting summary judgment on its defenses to performing the contract due to the loss of customers and that the contract is now impracticable, impossible, and frustrated. Based on the record before us, Lead Hill has failed to demonstrate that the circuit court erred in granting summary judgment on this point. We do not find error and affirm.
B. Unconscionability
Lead Hill next asserts that there are “numerous” provisions in the contract and that the contract as a whole is unconscionable. However, Lead Hill’s primary complaint is that Article B, section 2 is unconscionable. That section of the contract provides in pertinent part:
Minimum Charge. Purchaser shall be invoiced each month for its “Minimum Charge” which initially shall be based upon the average amount of water pumped per day in 2008 (Lead Hill=56,-038 gpd). The “Minimum Monthly Charge” shall be between $4,687.00 and $5,540.00 dependant on the wholesale water rate described in Article B-3 at the commencement of this Agreement. The Minimum Charge is calculated by the Seller to be a rate whose sum is equal to the Purchaser’s pro-rated share of the debt service, debt service reserve deposit requirements, depreciating fund deposit requirements, operation and maintenance (O <& M) costs and administrative costs associated with the construction and operation of the System. Payment of the Minimum Charge allows the Purchaser to consume, without further charge, the number of gallons of water determined by dividing the Minimum Charge by the Wholesale Water Rate, as defined herein.
| ^Purchaser covenants and agrees to pay the Minimum Charge on a Monthly Basis, as invoiced by Seller, regardless of whether Purchaser actually purchases or takes water from Seller. To the extent that Purchaser’s consumption of water exceeds the amount determined by dividing the Minimum Charge by the Wholesale Water Rate, Purchases will be invoiced by Seller monthly for the excess, based on the prevailing Wholesale Water Rate.
Lead Hill contends that this provision is unconscionable because -this provision and the contract terms commit Lead Hill to a perpetual contract and require a minimum monthly charge even if Lead Hill never uses the water.
The circuit court granted Ozark summary judgment on this issue and held, “None of the other defenses raised by the Town in opposing the Motion for Summary Judgment constitutes a valid legal defense to the enforcement of the Water Purchase Contract. No facts supporting such defenses would change the enforceability of the Water Purchase Contract as a -matter of law.”
In Gulfco of Louisiana, Inc. v. Brantley, 2013 Ark. 367, at 9, 430 S.W.3d 1, 13, we explained unconscionability:
Our standards regarding unconsciona-bility are as follows. An act is unconscionable if it affronts the sense of justice, decency, and reasonableness. Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. We have stated that in assessing whether' a particular contractual provision is unconscionable, the courts review the totality of the circumstances surrounding the negotiation and execution of the contract. Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 207 S.W.3d 525 (2005). Two important considerations are whether there is a gross inequality of bargaining power between the parties and whether the aggrieved party was made aware of and comprehended the provision in question. Id. We also observe that another factor which may contribute to a finding of unconscionability is a belief by the stronger party that there is no reasonable probability that the weaker party will fully perform the contract. Restatement (Second) of Contracts § 208.
We also addressed unconscionability in LegalZoom.com, Inc. v. McIllwain, 2013 Ark. 370, at 6-7, 429 S.W.3d 261, 264, and explained,
While “unconscionability” is not precisely defined in the law, one of the earliest applications of the doctrine described an unconscionable contract as one that “no man in his senses and not under delusion would make on the one hand, and ... no honest and fair man would accept on the other.” James J. White & Robert S. Summers, Handbook o f the Law Under the Uniform Commercial Code § 4-1 (3d ed.1988) (quoting Earl of Chesterfield v. Janssen (1750) 728 Eng. Rep. 82, 100 (KB.)). In essence, to be unconscionable, a contract must oppress one party and actuate the sharp practices of the other.
Here, based on the record before us, the record does not support Lead Hill’s argument for reversal. Accordingly, we agree with the circuit court and affirm on this point.
C. Lack of Mutuality and Illusory Provisions
Lead Hill also contends that the contract fails for lack of mutuality based on illusory provisions in the contract. Lead Hill cites to Article B, section 4(A) and asserts that a reallocation must be reviewed and approved by Ozark, which constitutes an illusory promise and lacks mutuality because any request must be approved by Ozark. Further, Lead Hill again relies on its allegations of a decrease in its customers from South Lead Hill. Ozark responds that Lead Hill has waived any argument that the contract contains illusory provisions resulting in lack of mutuality because consideration has been conferred. Ozark also responds that Lead Hill’s argument regarding lack of mutuality is based on hearsay argument by counsel that is not supported by the record before the court.
Article B, section 4(A) of the contract provides:
Adjustment to Minimum Charge or Wholesale Water Rate.
During the term of this Agreement, Seller may adjust the Minimum Charge or the Wholesale Water Rate, without the consent or the approval of the Purchaser, in the following ways or under the following circumstances:
lioA. In the event that during the courts of this Agreement the number of retail customers of any purchaser obtaining water from Seller should substantially decrease or increase, then either on request of any purchaser or on its own initiative, the Seller shall perform a reallocation of the Minimum Charge to all purchasers receiving water from Seller so as to relieve undue participant burden associated with the decreasing or increasing customer base. A reallocation shall be considered based upon the request of any purchaser made in writing to the Seller which cites the reasons and rationale for the requested reallocation. Any reallocation must be reviewed and approved by the Board of Directors of Seller before becoming effective. Seller may perform and implement such realloca-tions from time to time without the necessity of obtaining written consent or approval from the Purchaser, but under no circumstances will realloca-tions be performed more often than two times in any calendar year.
In Jordan v. Diamond Equipment & Supply Co., 362 Ark. 142, 153, 207 S.W.3d 525, 533 (2005), we explained the mutuality of obligations:
We have recognized that mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; thus, neither party is bound unless both are bound. The Money Place v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002); Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000)... Mutuality of obligation involves the exchange of promises, and mutuality of obligations becomes “a non-issue” when performance is given.
Here, the record demonstrates that Lead Hill agreed to pay Ozark to provide potable water to Lead Hill’s master meter in exchange for payment and the parties adhered to the contract for ten months. Additionally, based on the record before us, Lead Hill has not demonstrated the existence of a material fact at issue regarding its loss of customers or that reasonable differing inferences could be drawn from the undisputed facts. Therefore, we cannot say the circuit court erred in granting summary judgment on this point, and we affirm its decision.
| ^Affirmed.
Danielson and Hart, JJ., dissent.
. Justice Danielson’s dissent on this point is fatally flawed for three reasons. First, Justice Danielson states that,
According to Lead Hill, under the terms of its contract with Ozark, it is obligated to pay a minimum monthly charge to Ozark that results in a total obligation of $2.25 million, an amount that far exceeds the town’s annual revenue of approximately $360,000.
This misconstrues Lead Hill's argument. Lead Hill asserts that its total obligation over the 40-year term of the contract would be $2.25 million, not an annual obligation of $2.25 million.
Second, Justice Danielson states: ■
It is irrelevant that -the contract included a provision purporting to prohibit Lead Hill from guaranteeing the obligations under the contract with its full faith and credit and1 designating that the purchase price be paid from revenue generated through the sale of Ozark’s water, because Leád Hill is obligated to pay a minimum monthly charge of between $4,687 and $5,540 regardless of whether it generates sufficient revenue from the sale of the water.
Although Justice Danielson states that the provision is “irrelevant,” our case law indicates otherwise. We have approved this "irrelevant” provision and held that multiyear purchase contracts for water did not violate article 12, section 4 because the contracts did not pledge the full faith and credit of the town; but rather they pledged the revenues derived from the sale of the water and pledged the revenues of its own waterworks system. See McGehee v. Williams, 191 Ark. 643, 87 S.W.2d 46 (1935); Hink v. Board of Directors of Beaver Water District, 235 Ark. 107, 357 S.W.2d 271 (1962).
Third, Justice Danielson’s position is based upon a hypothetical situation that may occur upon enforcement. His position is not premised on the record before this court. Simply put, Lead Hill asserted below that the contract on its face was void because it was unconstitutional. They did not plead, argue, or meet proof with proof showing that revenues from the sale of water were insufficient • to meet the minimum monthly amount agreed to in the contract. Thus, the trial court did not err in granting summary judgment.
Justice Hart’s dissenting opinion is flawed as well. Justice Hart states:
The Arkansas Supreme Court has superintending authority over the inferior courts of this state. Ark. Const, amend. 80. We should exercise this authority, if for no other reason, than to prevent the misuse of an extraordinary writ and the violation of our state constitution.... Accordingly, in the case before us, we should not act as though we are fettered by the arguments raised in the parties’ briefs.
However, this position is misplaced, our jurisdiction is appellate and we cannot exceed that jurisdiction. | [
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KENNETH S. HIXSON, Judge
| lAppellant Elizabeth James appeals the entry of an order by the Sebastian County Circuit Court' that required her to pay $4,929.58 as a reasonable attorney’s fee to her ex-husband, appellee Butch Lee Wal-chli. Elizabeth contends that the trial court’s award of this fee constitutes an abuse of discretion. We disagree and affirm.
The parties married in 2008, and their son CW was born in June 2009. The parties separated in- May 2011. That same year, Elizabeth moved from Sebastian County to Beebe, in White County. Their Sebastian County divorce was finalized by a decree" filed in July 2012. At the time the divorce decree was entered, Butch Walchli was incarcerated for violating a prior suspended sentence for criminal mischief. The parties agreed that Elizabeth |2would have primary custody of CW and that Butch’s visitation rights would be held in abeyance until after Butch was released from prison.
Elizabeth Walchli married Steven James within days of her divorce from Butch being final. Butch was released from prison on November 9, 2012, and ■ shortly thereafter attempted to arrange for visitation with CW. While Butch was incarcerated and during the period that his visitation schedule with CW was specifically held in abeyance by the.Sebastian County Circuit Court, Elizabeth’s new husband Steven filed a petition to- adopt CW in White County Probate Court. In the petition to adopt, Steven (and Elizabeth) alleged that Butch’s consent was not required for the adoption of CW.
On November 16, 2012, Butch filed a petition for contempt and for a change of custody of CW in the Sebastian County domestic-relations proceedings. Butch contended that Elizabeth was actively attempting to terminate his parental rights to CW by virtue of the adoption petition. Further, he asserted that there were material changes in circumstances justifying a change in custody because Elizabeth was acting against CW’s best interest by referring to Steven as CW’s father and having CW refer to Steven as his father. Butch sought an immediate hearing to address visitation alleging, inter alia, that because of the upcoming holidays, the issue of temporary visitation was a sufficient reason for an emergency hearing.
Elizabeth resisted Butch’s petition, and she sought a continuance of the temporary hearing planned for December 2012. The continuance was not granted. The trial judge awarded Butch visitation for three days in December, with standard weekend visitation to ^commence at the end of December 2012. A temporary order was filed of record in January 2013.
Another hearing was conducted in May 2013 to address various motions by the parties. There were persistent problems with visitation, miscommunications between the parties about drop off and pickup, and general discontent between the parties. An amended temporary order filed in June 2013 ordered Butch to provide the transportation for both pickup and delivery of CW for visitation, due to Elizabeth’s current pregnancy. The order stated that Butch’s prior missed visitation would be worked out between Elizabeth’s attorney and Butch so that he could recover that time.
In August 2013, Elizabeth filed a motion for the presiding judge to recuse based on alleged bias or prejudice. In November 2013, that judge recused, and in December 2013, Judge James Cox was reassigned to hear this case.
In December 2013, Elizabeth filed another motion for contempt against Butch, alleging that he had wrongfully taken CW out of state without court permission during November and December 2013. In late December 2013, Butch filed a response, denying that this brief excursion was any violation of a court order. Butch countered with his own motion for contempt, alleging that Elizabeth had wrongfully denied him weekend visitation in mid-December, in line with her pattern of behavior.
A hearing was conducted in May 2014 to consider the cross-motions for contempt and Butch’s motion to change custody. Elizabeth, her husband Steven, and Butch testified. At the end of the hearing, Elizabeth withdrew her motion for contempt and agreed to dismiss |4a pending appeal on the denied petition for adoption. Closing arguments were presented by each party’s attorney. The trial court also heard recommendations by CW’s attorney ad litem, who was prepared to recommend a change of custody prior to Elizabeth’s stated intent to drop the adoption appeal. The attorney ad litem made detailed recommendations about standard and extra visitation that should be permitted to Butch.
The trial court issued an order finding that Elizabeth had made efforts to alienate CW from his father, exemplified by a failed attempt to have CW adopted. The trial judge found that, although there had not been “a strong enough showing of a change of circumstances” sufficient to support a change of custody, any continued efforts to have Elizabeth’s husband adopt CW would constitute a material change of circumstances.
Butch was awarded standard visitation, with an additional two weeks of summer visitation. Butch was also awarded seven additional days of visitation with CW to make up for the days that Elizabeth had not permitted. This comported with the trial judge’s remark from the bench that the make-up and extra visitation would “take care of’ Butch’s motion for contempt. The trial judge ordered that Butch be allowed additional reasonable visitation as the parties agreed. Elizabeth was ordered to make CW available for brief visits when Butch was in the area, provided that Butch gave her reasonable notice.
The trial court found that “there has been a good deal of noncooperation on Plaintiff Mother’s part in the past and she is ordered to stop that behavior and cooperate with | ^Defendant Father.” Both parties were ordered “to operate in good faith in facilitating visitation and good relations.” Also in the order, the judge authorized Butch to file a motion for attorney fees and for visitation transportation costs. Elizabeth does not appeal this order.
The motion for attorney fees and transportation costs filed by Butch contended that Elizabeth was never agreeable to any requests Butch made about visitation and, rather, she interfered and refused to permit make-up visitations. He alleged that, even after Elizabeth’s baby had been born, she refused to share in transporting CW to and from- visits. Butch pointed to the failed attempt at adoption, further proof of her interference and attempts to alienate the child. Butch requested attorney’s fees in the amount of $8,866.08, attaching an itemized billing statement. Butch also requested $4,000 in reimbursement for Elizabeth’s half of transportation expenses he incurred, attaching a handwritten exhibit to show thousands of miles he had driven CW.
Elizabeth filed a response to the petition for .fees and request for travel cost reimbursement. She challenged the accuracy of details and lack of appropriate supportive documentation for Butch’s travel reimbursement request. As to the attorney fee request, Elizabeth countered that Butch totally absented himself from CW’s life for the year that he was in prison; that she and her husband reasonably believed that an adoption proceeding was appropriate; that all of Butch’s attorney fees could have been avoided had Butch, his family, or his counsel properly communicated with her; and that it would be inequitable to award Butch any attorney fee. Elizabeth added that she earns substantially less than Butch, $2,000 | ¿per month, whereas Butch earns approximately $6,000 per month, making the disparity in their incomes another basis .to deny fees because such an award would be punitive toward her.
The trial judge issued an order in September 2014,- refusing to award Butch any travel-related reimbursement, but awarding $4,929.58 as “a reasonable attorney’s fee.” The order recited that the trial judge had:
carefully considered and applied the factors enunciated in Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983), citing Robinson v. Champion, 251 Ark. 817, 475 S.W.2d 677 (1972), when making the partial attorney’s fee award. In applying said factors, the Court believes the attorney’s fee assessed against the Plaintiff, Ms. James to be reasonable given the circumstances, pleadings and other issues before the Court.
Elizabeth appeals this order. Butch does hot cross-appeal.
Elizabeth argues, on appeal that the trial court abused its discretion in several ways, summarized as follows: (1) by failing to. accurately assess the complete circumstances and entirety of the legal proceedings; (2) by failing to recognize that Butch’s attorney lacked skill and legal ability, which unnecessarily'increased litigation costs; (3) by failing to recognize that Elizabeth was the “prevailing party” on Butch’s motion for contempt and his motion to' change custody; and (4) by disregarding the disparity in the parties’ incomes. She does not contest-the reasonableness of the attorney’s hourly rate or the sum total of fees -in the billing statements. We disagree that an abuse of discretion has been demonstrated. .
In domestic-relations procéedings, the circuit court has the inherent power to award attorney fees, and the decision to award fees and the amount of those fees are' matters within the- discretion of the circuit court. Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427; Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699; Payne v. White, 1 Ark.App. 271, 614 S.W.2d 684 (1981). Absent an abuse of that discretion, an award of fees will not be disturbed on appeal. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007); Jones v. Jones, 327 Ark. 195, 938 S.W.2d 228 (1997).
There is no fixed formula for determining what constitutes a reasonable amount of attorney fees. Yancy v. Yancy, 2014 Ark. App. 256, 2014 WL 1758917. Because the trial court has presided over the case and gained familiarity with the case and the extent and quality of the services rendered by the attorney, the trial court has a superior opportunity to assess the critical factors that apply. Id. In Tiner v. Tiner, 2012 Ark. App. 483, 422 S.W.3d 178, we held that in domestic-relations proceedings, a trial court is not required to make written findings on the factors enumerated in Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), regarding the award of attorney fees. In the finer opinion, we affirmed the trial court’s award of a partial attorney fee, noting that our court gives due deference to the superior position of the trial court in exercising discretion on that issue. ■ Likewise in Yancy, we affirmed the trial court’s award of approximately one third of the.- attorney fee requested. ' •
In this case, Butch was awarded just over half of the attorney fees he requested. This litigation was ongoing from the end of 2012 to the latter part' of 2014. Butch prevailed in seeking' to set and enforce his rights of visitation with CW; Butch was awarded additional visitation to compensate for lost time with CW that Elizabeth caused; and Elizabeth abandoned her petitions for contempt against Butch. Elizabeth’s persistent- noncooperation regarding visitation was an extensive topic of the trial court’s' concern, and the order in which [sthose findings were made was not appealed. It is apparent that the trial court possessed familiarity with the'parties and the circumstances involved in this litigation.
Pertinent -, considerations in determining an attorney fee amount are the attorney’s judgment, learning, ability; skill, experience, and professional standing; the relationship between the parties and the importance of the subject matter of the case; the nature, extent, and difficulties of services; the research, anticipation of defenses and means of meeting them; and receiving of confidential information and giving - of confidential advice before any pleadings are filed or other visual steps are taken. Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983). The relative financial ability of each party is a consideration, but it is not determinative. See Webb v. Webb, 2014 Ark. App. 697, 450 S.W.3d 265; Valentine v. Valentine, 2010 Ark. App. 259, 377 S.W.3d 387. The trial court’s own experience and knowledge of the character of such services may be used as a guide. Robinson v. Champion, 251 Ark. 817, 475 S.W.2d 677 (1972). Unless a clear abuse of discretion is evident, we will not disturb the trial judge’s action in fixing the attorney fee. Warren v. Warren, 270 Ark. 163, 603 S.W.2d 472 (1980). Appellant has failed to demonstrate to us that there is a clear abuse of discretion in this attorney fee award, which was supported by the evidence and approximately one half of that requested.
Affirmed.
Kinard and Gruber, JJ., agree.
. Butch Walchli has an older son, AW, from a previous relationship. Elizabeth adopted AW in August 2009. Butch was awarded custody of AW in the divorce decree. The custody and visitation of AW are not involved in this appeal.
. During the pendency of the litigation in Sebastian County, the petition for adoption was denied. Elizabeth's husband filed a notice of appeal. During this hearing, Elizabeth agreed to have her husband dismiss his appeal. | [
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JIM GUNTER, Justice.
| Appellants, Kenneth Middleton and Lynn Carl Middleton, appeal from an order of the Newton County Circuit Court reviving a 1999 decree and denying their motion for summary judgment. This case has previously been appealed to and decided by this court on three separate occasions. See Middleton v. Lockhart, 364 Ark. 32, 216 S.W.3d 98 (2005) (Middleton III); Middleton v. Lockhart, 355 Ark. 434, 139 S.W.3d 500 (2003) (Middleton II); Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001) (Middleton I). Therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(7). We affirm.
In March 1991, shortly after Appellant Kenneth G. Middleton was convicted of murdering his wife and sentenced to life in prison without the possibility of parole, he executed a warranty deed conveying property (hereinafter referred to as the “Middleton homeplace”) in Newton County, Arkansas, to his brother, Appellant Lynn Carl Middleton. The previous year, in July 1990, Kenneth had been sued by Ap-pellees Geraldine Lockhart, |2Mildred M. Anderson, Joyce M. Henson, and Jessie J. Brewer — his wife’s siblings — for wrongful death in Missouri, which resulted in the entry of default judgment against Kenneth in the amount of $1,350,000 on May 26, 1992. See Lockhart v. Middleton, 863 S.W.2d 367 (Mo.Ct.App.1993). That judgment was registered in Newton County as a foreign judgment three days later. On June 12, 1992, appellees filed a third amended complaint in Newton County against appellants asserting a cause of action under the Fraudulent Conveyance Act.
Following a hearing on March 25, 1999, the chancellor stated from the bench that “[t]he conveyance of the Middleton home-place to Lynn Carl Middleton by Ken G. Middleton was fraudulent and was an effort to try to avoid the effects of the tort claim of the plaintiffs and is hereby set aside.” On May 25, 1999, the court entered a decree finding that the conveyance had been fraudulent and ordering that the Middleton homeplace be sold at execution sale. Incorporated into the 1999 decree was a joint stipulation of fact describing the property known as the Middleton homeplace; attaching the civil judgment appellees had obtained against Kenneth in Missouri for $1,350,000; stating that property in Missouri belonging to Kenneth and his late wife had been bought by appellees at judicial sale for $10,000 and that the proceeds had been applied to the 1992 judgment; and noting that as of March 1, 1999, the unpaid balance of appellees’ civil judgment against Kenneth was $2,412,686.63 with interest continuing to accrue at the rate of $555.46 per diem at 9% per annum. The 1999 decree was appealed, and this court affirmed. Middleton I, supra.
|sOn May 13, 2009, appellees filed a petition for writ of scire facias in Newton County to revive the 1999 decree. On July 17, 2009, appellants filed an answer to the petition admitting that the court had entered a decree in 1999, denying all other allegations, and asserting affirmative defenses of untimeliness and satisfaction. Also on July 17, 2009, appellants filed a motion for summary judgment arguing that the writ was untimely because it was filed more than ten years from the rendition of both the 1992 judgment and the 1999 decree in violation of Ark.Code Ann. § 16-65-501 (Repl.2005), and that the 1992 judgment was satisfied pursuant to Mo. Rev.Stat. § 516.350 because it was presumed paid after ten years. In response, appellees maintained that the judgment to be enforced was the 1999 decree, not the 1992 judgment; that regardless of when a judgment is rendered, pursuant to Rule 58 of the Arkansas Rules of Civil Procedure and Administrative Order No. 2(b)(2), a judgment is not effective until it is filed by the circuit clerk; that under Ark. Code Ann. § 16-65-501, the writ was timely filed within ten years from the date the 1999 decree was effectively rendered; and that to the extent that Ark.Code Ann. § 16-65-501 establishes a different procedure than Rule 58, the statute is an unconstitutional violation of separation of powers.
In an order filed April 21, 2011, the circuit court found that the dispute involved the timeliness of the writ of scire facias filed by appellees in an attempt to revive the 1999 decree; that Ark.Code Ann. § 16-65-501 allowed a judgment to be revived within ten years; that the ten-year window for reviving the 1999 decree began on May 25, 1999, when the decree became effective; and that failure to revive the 1992 Missouri judgment was not persuasive as to the revival of the 1999 decree. The circuit court denied appellants’ motion for summary [judgment and ordered that the 1999 decree be revived for another ten-year period. Appellants filed a timely notice of appeal from the circuit court’s order on May 17, 2011.
Where the issue is one of law, our review is de novo. See Preston v. Stoops, 373 Ark. 591, 285 S.W.3d 606 (2008). However, we will not reverse a circuit court’s factual findings unless they are clearly erroneous. Hickman v. Courtney, 361 Ark. 5, 203 S.W.3d 632 (2005). A finding of fact made by a trial court sitting in equity is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been made. Id.
For their first point for reversal, appellants assert that this case is solely an effort by appellees to collect on the 1992 judgment in an untimely fashion and that the viability of the 1999 decree is dependent on the viability of the 1992 judgment, which appellants assert is unenforceable under both Missouri and Arkansas law. The circuit court found that appellees were entitled to revive the 1999 decree independently of the 1992 judgment. Although appellants maintain that this was error, we conclude that the circuit court did not clearly err in finding that appellees are entitled to revive the 1999 decree.
In order to revive a judgment, a writ of scire facias must issue as dictated by statute:
(a) The plaintiff or his or her legal representatives at any time before the expiration of the lien of a judgment may sue out a scire facias to revive the judgment.
(e) If a scire facias is sued out before the termination of the lien of any judgment or decree, the lien of the judgment revived shall have relation to the day on which the seme facias issued.
|5(f) No scire facias to revive a judgment shall be issued except within ten (10) years from the date of the rendition of the judgment, or if the judgment shall have been previously revived, then within ten (10) years from the order of revi-vor.
Ark.Code Ann. § 16-65-501. A writ of scire facias is a writ issued requiring a person against whom it is brought to show cause why a judgment should not be revived. Bohnsack v. Beck, 294 Ark. 19, 740 S.W.2d 611 (1987). Scire facias is not the institution of a new suit but is a continuation of the old one, and its object is not to procure a new judgment for the debt but execution of the judgment that has already been obtained. Towns v. Taylor, 211 Ark. 880, 203 S.W.2d 190 (1947).
A decree is traditionally defined as “a judicial decision in a court of equity, admiralty, divorce, or probate — similar to a judgment of a court of law.” Black’s Law Dictionary 440 (8th ed.2004). In Towns v. Taylor, 211 Ark. at 885, 203 S.W.2d at 192, we noted the following:
It is argued that a judgment for past-due alimony is not such a judgment as may be revived by scire facias, but that contention cannot be sustained. In the chapter, Scire Facias, 47 Am.Jur., Sec. 14, p. 471, it is said: “Strictly speaking, scire facias is a proceeding at law, and hence not available for the enforcement of decrees and other determinations of other courts. Where, however, a statute authorizes writs of execution to issue for the enforcement of decrees of probate, chancery, and other courts, such decrees are substantially placed on the same footing as a judgment of a court of law, and the power to prosecute proceedings thereon by scire facias is impliedly conferred.”
In this case, the 1999 decree, which was entered in chancery court prior to the adoption of amendment 80 merging law and equity, set aside Kenneth’s conveyance of the Middleton homeplace to Lynn and ordered the property sold at execution sale. We have recognized that chancery courts had the statutory power to issue writs of execution to enforce their decrees. See Horn v. Horn, 232 Ark. 723, 339 S.W.2d 852 (1960); McGehee Bank of McGehee v. Charles W. Greeson & Sons, 223 Ark. 18, 263 S.W.2d 901 (1954). Consequently, based on our reasoning in Towns, the 1999 decree was entitled to “the same footing” as a judgment, and the circuit court did not err in concluding that it could be revived by a writ of scire facias.
For their second point on appeal, appellants contend that the circuit court erred in finding that the writ of scire facias was filed timely so as to revive the 1999 decree. In particular, appellants maintain that the ten-year time frame contemplated by Ark.Code Ann. § 16-65-501 refers to “rendition of the judgment,” which is when the court pronounces its decision as opposed to “entry of judgment,” which refers to the date the clerk of the court enters the order on the record. Appellants claim that the circuit court rendered its judgment from the bench on March 25, 1999 — rather than on May 25, 1999, when the decree was entered — and that appellees’ petition for writ of scire facias was therefore untimely when filed on May 13, 2009.
Appellants argument on this point fails. We have rejected a distinction between the “rendering” of a judgment as referred to in statutes and “entry” of a judgment as referred to in our rules. In Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000), this court held that Ark.Code Ann. § 16-65-121, which generally provides that “[a]ll judgments, orders, and decrees rendered in open court by any court of record in the State of Arkansas are effective as to all parties of record from the date rendered and not from the date of entry of record,” conflicted with Rule 58 of the Arkansas Rules of Civil Procedure, which provides that a judgment or decree is effective only when entered as provided by Administrative Order No. 2 (when it 17is stamped or marked by the clerk). We held that Rule 58 effectively superceded the statute. Price, 341 Ark. at 316, 16 S.W.3d at 251; see also State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990) (holding that where conflicts arise between statute and our rules, our rules reign supreme unless the court rule’s primary purpose and effectiveness are not compromised by the statute). Although the statute at issue here, Ark.Code Ann. § 16-65-501, has not been specifically addressed by this court in this context, we find no reason not to extend our conclusion in Price, which involved the more generally applicable Ark.Code Ann. § 16-65-121, to the scire facias statute involved here. Thus, we conclude that the circuit court did not err in finding that appellees timely revived the 1999 decree where they filed their writ of scire facias on May 13, 2009, within ten years from May 25, 1999, the effective date of the decree.
Appellants’ final point on appeal is that the circuit court’s 2011 order was vague, ambiguous, and lacked specific findings. We need not address this point because it has not been preserved for our review. It is well settled that this court will not consider arguments raised for the first time on appeal. McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430 (2007). Here, appellants made their vague-and-ambiguous argument for the first time in a motion for clarification filed nineteen days after the circuit court’s entry of its order. A request for the circuit court to amend its findings or make additional findings is untimely if not made within ten days of the entry of judgment. Ark. R. Civ. P. 52. Although appellants filed a motion for clarification of the court’s findings, which would ordinarily be sufficient to | preserve their arguments for appeal, they did so in an untimely fashion. As such, the circuit court was not given an opportunity to rule on the issue, and it is not preserved for appeal. See Brown v. SEECO, Inc., 316 Ark. 336, 871 S.W.2d 580 (1994) (refusing to consider vagueness of an injunctive order because in order to preserve an issue for appeal, the issue must be presented to the trial court for resolution).
Affirmed.
. Amendment 80, which merged the courts of law and equity, became effective on July 1, 2001.
. Even excluding holidays and weekends, as required by Ark. R. Civ. P. 6, the motion for clarification was untimely as to the entry of the circuit court’s order. | [
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BRANDON J. HARRISON, Judge
| ¶ Joyce Rene Rollf-was convicted during a 2014 bench trial of first-degree murder, abuse of a corpse, and tampering with physical evidence. The circuit court sentenced Rollf to thirty years’ imprisonment for murder, ten years for abusing a corpse, and six years for tampering with physical evidence related to the death of James Heath — and ordered the sentences to run consecutively. Here, Rollf argues only that the State produced insufficient evidence to support the first-degree-murder conviction. We disagree and affirm the conviction.
I. Trial Testimony
Because Rollf challenges the sufficiency of the evidence, and differing accounts of James Heath’s death were' presented during trial, a detailed account of the trial testimony is |2necessary. Taylor Arnold testified that he lived with Rollf on Centennial Road in September 2012. According to Arnold, on September 15, he, Rollf (the defendant), Heath (the victim), and William Null (Rollf s boyfriend) were getting ■ high on methamphetamine inside R’ollf s trailer. ‘ Rollf left the room, and Arnold heard “No, Rene, no,” “a metal baseball bat hitting something,” and a “ting noise.” A “scuffle” and “fighting” occurred, and Arnold saw Rollf hitting Heath with a bat. At one point, two more people — John and Jody Posey — arrived at the residence. Arnold said that when he came out of the bedroom, Heath was dead in the hallway; and Rollf and Jody Posey had blood on them. Arnold told the court that “Rene killed James Heath,” and that Rollf was mad at Heath because Heath had told Rollf s parents about her methamphetamine use. Arnold said that he helped Rollf bum bloody clothes, clean the trailer, and dispose of Heath’s body because he was “scared she was gonna beat me with the bat and put me in a hole, too ... because that’s how she was.” Arnold denied that he saw anyone else in the trailer with the bat. He said that Rollf later hid the bat in a cabinet. Arnold agreed to testify during Rollf s trial in exchange for a probation recommendation.
Another account of events came from John Posey. Posey testified that he came to Rollfs house on September 15 because Rollf had texted his wife Jody asking for help beating up a guy “who had snitched on her.” Posey first encountered Heath for a brief moment before Heath ran back into the house. Posey then heard “the aluminum cling of a baseball bat” and, when he entered the home, saw Heath holding an aluminum bat in his right hand and a wooden cane in his left. Rollf, in a rage, picked up a large knife. Heath eventually dropped the bat, and Posey used the bat to knock Heath down. Then, disaccording to Posey, Rollf started hitting Heath “all over” with the bat like “she’s splitting wood.” Posey explained that this went on for five or ten minutes with Heath getting up several times and trying to defend himself. When Heath tried to run out the front door Posey shoved him into the hallway. Heath then locked himself in the bathroom. Rollf kicked the bathroom door off its hinges, and Jody and Rollf started beating Heath. Posey said he prevented Rollf from using a knife, telling her “if you want to beat his ass, beat his ass, but you’re not going in there with the knife.” Rollf, without the bat, straddled Heath “trying to choke him and gouging his eyes and stuff like that” and Heath' bit her. This, according to Posey, made Rollf more enraged, and Heath started screaming “Stop it, Rene, you’re killing, me.” Rollf reportedly replied that she didn’t care. A minute or two later Rene reported to John Posey that Heath was dead and “it was over.”
When Rollf stepped into the master bedroom Posey said he looked down the hallway and saw his wife Jody standing on Heath’s throat. Jody told John that she “thought she seen him [Heath] breathing.” Heath was dead and had blood on his head and shoulder area, according to John Po-sey. At that point, Rollfs-friend Justine Gainey and her boyfriend Mike arrived at the house, and, according to Posey, Rollf started to “bark” orders that “everybody is gonna help and nobody’s gonna say nothing, or else they was next.” The group eventually tied Heath’s body to a dóor and carried him to a hole that Rollf had readied in- an area directly behind her back fence.
On cross-examination, John Posey explained that Jody, who weighed 180 pounds, stood on Heath’s neck for thirty seconds to a minute. Posey also said that he had “stepped on [Heath] myself’ and that he heard Heath breathe. Posey stared at Heath for another Rminute then stepped on his body again and' felt Heath “take a deeper breath” inhaling and exhaling one time. It was also revealed that John Posey’s testimony was also part of a plea arrangement.
Justiné Gainey, Rollfs friend, testified that there was blood on the ‘floors', walls, and hallway of Rollf s' residence when she and her boyfriend arrived. Rollf was in her bedroom in boxer shorts and a bra with blood on her holding a bag of ice on. her injured hand. According to Gainey, Heath was on the hallway floor, not moving, and his clothes were partially ripped off. Rollf sent Gainey to the store to buy bleach; but there was only enough money to buy cigarettes and gas, according to Gainey.
• Pulaski County Sheriff Department Investigator Jeff Allison testified during trial that, on 26 October 2012,-he went to Rollfs trailer to investigate Heath’s disappearance, because it was. then a missing-person case. Law enforcement had recovered Heath’s van in Jacksonville in October and through a series of events and interviews had talked to Taylor Arnold. Arnold told the police that a body was buried behind Rollfs house. Investigator Allison testified that he was specifically watching Rollfs residence as law enforcement discovered Heath’s body below a pile of debris. 'Officer Allison noticed that a woman opened the back door and quickly darted back inside; Rollf and two men then fled the residence. Rollf was arrested the next day in Pope County and cut her -wrists while being pulled over by the police.
Rollf made a recorded statement to the police the day after her arrest.. It was played during the State’s case in chief. During her statement, Rollf told the police that John Posey had hit Heath on the head. Rollf also admitted hitting Heath, but she did not Rremember what she had hit him with or why Heath ended up dead. She told the investigator, “I know I got a couple of blows in, but I didn’t kill him.”
Dr. Charles Kokes, a forensic medical examiner, testified that the official cause' of Heath’s death was blunt-force trauma to the head from an “oval shaped depressed skull fracture” measuring “about three quarters of an inch in length and five eights inch in width” and depressed inwards “by as much as an eighth of an inch.” He ruled the death a homicide. In Dr. Kokes’s expert opinion, “[a] injury of this type, if left untreated, would inevitably lead to death.” The skull fracture was caused by a “hard object with a cylindrical shape ... very consistent with something like an aluminum baseball bat.” Dr. Kokes also testified that a person who strikes another person with a metal baseball bat could cause the type of injury Heath sustained. The location of the injury — the frontal part of the head — requires “the full force swing of a normal strength adult” swinging an object “roughly about as hard as they can” to make an indent. Dr. Kokes also said, “I believe the fracture is at least part of the cause of death. As mentioned before, a person who sustains this injury and none other will, in my estimation, die unless they get medical attention.” Dr. Kokes explained that Heath’s body had partially decomposed before the exam was done, and there was post-mortem animal activity. He concluded that the right larynx and hyoid bone were absent because of the animal activity.
On cross-examination, Dr. Kokes maintained that Heath’s skull fracture was consistent with an injury from a baseball bat and not something like a ball-peen hammer. He also agreed that if the skull fracture was “the only injury that was sustained, that is, and the person receives prompt medical attention, it is a survivable injury.”
|fiOn recross-examination. Dr. Kokes said that Heath’s arterial system had decomposed when the autopsy was performed. Then defense counsel asked him this:
Defense: So, if some, if some injury ■ was caused to that by pressing on the carotid artery and that person died, you would not be able to give an opinion as to that. Is that correct?
Dr. Kokes: No and yes. No. it’s not there, but then again, when that phenomenon actually does occur, you can’t tell it by looking at that tissue anyway.
Defense: So you’re saying he didn’t die that way, right?
DR. Kokes: Well, what I can say and comment on is what is there, which is the blunt force head trauma. I can’t rule in or out other sorts of trauma that may have taken place depending on where anatomically they are.' But ■ one need not invoke other trauma to explain his death.
Christopher Glaze with the Arkansas State Crime Laboratory testified that, two DNA samples taken from an aluminum bat that the police had recovered from a cabinet in Rollf s house matched Heath’s DNA profile. Another swab from the floorboard of the house matched Heath’s DNA profile too.
Defense witness Robert Robins provided yet another version of the story. Robins was a high-school friend of Arnold who Arnold reportedly told about the murder. Robins said that Arnold told him they used a ball-peen hammer to hit Heath over the head and that Arnold had. dug a shallow grave with a garden hoe. Arnold also told Robins that the ball-peen hammer was in the back of his red truck parked in front of Rollf s house.
17At the close of the State’s case and the close of all the evidence, Rollf moved for a directed verdict, arguing that the State did not prove she purposely caused Heath’s death. The court denied the motions, and Rollf appeals.
II. Discussion
A motion to dismiss made during a bench trial and a motion for a directed verdict during a jury trial challenge the sufficiency of the evidence. See Ark. R. Crim. P. 33.1 (2014). When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005). Only evidence supporting the verdict will be considered. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Whether evidence is direct or circumstantial, it must meet the requirements of substantiality. Id. Substantial evidence is evidence forceful enough to compel the fact-finder to make a conclusion one way or the other without resorting to speculation or conjecture. Id. Direct evidence is evidence that proves a fact without resorting to inference. Id. When circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis than that of. the guilt of the accused, or it does not amount to substantial evidence. Id.
A person commits murder in the first degree if, with a purpose of causing the death of another. person, the person causes the death of another person. Ark. Code Ann. § 5-10-102(a) (Repl. 2013). The State must prove each element of first-degree. murder beyond a reasonable doubt. See Victor v.. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).
Is A. Causation
Rollf argues that the State failed to prove she was the one who caused Heath’s death because the evidence supports that multiple people caused, his death. According to Rollf, Heath could have received the fatal head injury from three different assailants or he could have died from pressure on his neck. Rollf points out that Dr. Kokes testified that Heath’s death resulted from blunt head trampa, but he could not identify which object caused , the trauma. There was also testimony that at least two people stood on Heath’s body and that Jody Posey had put her body weight on Heath’s neck for at least thirty seconds. Dr. Kokes said that death from pressure to the neck was possible and could not be excluded.
■ Ark. Code Anh. § 5-2-205 (Repl. 2013) provides:
Causation may be found when the result would not have occurred but for the conduct of the defendant' operating either alone or concurrently with another cause unless:
(1) The concurrent cause was clearly sufficient to produce the result; and
(2) The conduct of the defendant was clearly insufficient to produce the result
The Arkansas Supreme Court has interpreted this statute to mean “where there are concurrent causes of death, conduct which hastens or contributes to a person’s death' is a cause of death.” Cox v. State, 305 Ark. 244, 248, 808 S.W.2d 306, 309 (1991); Porter v. State, 308 Ark. 137, 145, 823 S.W.2d 846, 850 (1992) (upholding first-degree-murder conviction when removal of life support system was concurrent cause of child’s death, but the injury to the child’s brain caused by the defendant contributed to child’s death); see also Burrage v. United States, — U.S. -, 134 S.Ct. 881, 891, 187 L.Ed.2d 715 (2014) (noting that Arkansas expressly departs from a traditional but-for, cause-in-fact analysis).
We hold that the State" produced sufficient evidence that Rollf caused Heath’s death. • "Here, although the expert testimony left open possible concurrent causes for Heath’s death, the skull injury clearly contributed to his death.' Arnold and Posey testified that Rollf was the only person to hit Heath with the aluminum bat, and Rollf admitted to striking Heath. Heath’s skull injury — which the forensic examiner said would result in death without treatment — was consistent with being hit with a-baseball bat; and Heath’s blood was found on the baseball bat.' The trier of fact, in this case the circuit court, must resolve questions of conflicting testimony and inconsistent evidence. See Williams v. State, 2015 Ark. 316, 468 S.W.3d 776. It was entitled to credit the State’s expert and its witnesses’ account of Heath’s death over Rollfs. See Barrett v. State, 354 Ark. 187, 195, 119 S.W.3d 485, 490 (2003). Sub'stantial evidence supports the court’s conclusion that Rollfs actions caused Heath’s death.
B. Mental State
Next, Rollf argues that the State failed to prove that she acted with a purpose to cause Heath’s death. She argues that while she intended to have an altercation with Heath, she did not have a purpose to cause his death. She cites Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), in support of her argument. We reject Rollfs reliance on the Midgett case. When Midgett was decided the flrst-de-gree-murder statute required the State to prove premeditation and deliberation. One month after Midgett was decided, however, the Arkansas General Assembly changed the statute. See Davis v. State, 325 Ark. 96, 105, 925 S.W.2d 768, 773 (1996). So the Midgett case has been overruled by statute and has no role in this case.
Under Arkansas law, a person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. See Davis v. State, 2009 Ark. 478, 348 S.W.3d 553. Efforts to conceal a crime, as well as lying to friends and police about one’s involvement in a killing, can be considered evidence of consciousness of guilt. Williams v. State, 2015 Ark. 316, 468 S.W.3d 776.
We hold that the State produced sufficient evidence that Rollf purposely killed Heath. John Posey’s testimony supports the conclusion that it was Rollfs conscious object to end Heath’s life. Recall his testimony that, after Rollf had beaten Heath with an aluminum bat for several minutes, Heath cried “Stop it, Rene, you’re killing me,” that Rollf did not stop, and that she was enraged. Furthermore, Rollfs efforts to conceal the crime by hiding the bat, burning bloody clothes, cleaning the trailer, and burying Heath’s body beneath a pile of debris also show a purposeful mental state. See Williams, supra. And Rollfs decision to flee the moment investí- gators found Heath’s body on her property, and her subsequent suicide attempt, reasonably support an inference of guilt. See Branscum v. State, 345 Ark. 21, 29, 43 S.W.3d 148, 154 (2001) (flight from the place where a 'crime has been committed may be considered as evidence of guilt).
luIII. Conclusion
Considering all the bench-trial testimony and the credibility determinations that had to be made, the circuit court sitting as the trier-of-fact could have reasonably concluded that Rollf purposely caused Heath’s death. The first-degree-murder conviction is therefore affirmed.
Affirmed.
Abramson and Brown, JJ., agree. | [
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CLIFF HOOFMAN, Judge
11After a jury trial, appellant Lori Rose was convicted of aggravated residential burglary, second-degree domestic battery, aggravated assault, and terroristic threatening. She was sentenced-to a total of thirty-six years’ imprisonment. On appeal, Rose argues that the trial court erred by denying her motion for directed verdict on the charge of aggravated residential burglary. We affirm.
At trial, the victim, Billy Vaught, testified that he and Rosé were in a romantic relationship • for approximately two years until they broke up oh November 19, 2013. On the evening of November 21, 2013; Vaught stated that Rose’s teenage daughter, April, phoned him and asked him to come stay at her home because she was scared and had not been able to reach her mother.' Vaught testified that after he unsuccessfully attempted to contact Rose, he went to her home, spoke with April, and then slept on the couch. Rose arrived home at approximately 3:00 a.m. and went to sleep in her room; while Vaught remained on the 12couch. He agreed to take April to school the next morning because Rose had to be at work early. At 6:45 a.m., after Rose had left for work, Vaught stated that he received a text from her, telling him to get out of her house. He stated that* he did not think this was strange, as they had been texting back and forth earlier that week and Rose had mentioned that he had no reason to be at her home going forward. He then collected his belongings and left the home. Vaught denied that he had acted inappropriately toward April that morning, as Rose later claimed.
The next evening, November 22, 2013, Vaught testified that he went to bed early. He woke up around midnight when Rose entered his bedroom and turned the light on. He stated that she had a rifle that 'he had previously loaned to her pointed at his upper body. He testified that Rose told him not to move and “to prepare to die, Billy Vaught.” Vaught asked her what she was talking about, and she told him that he had hurt her daughter. He denied hurting her and told Rose to call the police and let them handle the situation. She replied, “No, they told me to just shoot your ass.” Vaught stated that he could tell that the hammer on the rifle had been cocked and that Rose had been drinking, so he kicked the gun with his left leg. The rifle went off and shot Vaught in the right leg just below the knee. He briefly struggled with Rose and retrieved the gun, then called his sister, who drove him to the hospital. Rose left before Vaught’s sister arrived.
Vaught testified that the gunshot broke his kneecap and femur boné and that he had' to have knee-replacement surgery. Vaught admitted that he had initially claimed the shooting was an accident, explaining that he did not want to cause problems for anyone else and that |3he had a prior relationship with Rose. During their relationship, Vaught indicated that they would frequently stay at each other’s homes and that it was not necessary for them to have an explicit invitation to do so. Vaught testified that he had not told Rose that she was no longer welcome in his home prior to the shooting.
Chief Deputy Scott Sawyer with the Polk County Sheriffs Department testified that he spoke with Vaught at the hospital in the early morning hours of November 23, 2013. Although Vaught initially told him that the shooting was an accident, Sawyer stated that after he told Vaught that was physically impossible, Vaught admitted that Rose had shot him. Rose was taken into custody that night by Deputy Seth Smith, and a statement was obtained from her. In her first statement, a re cording of which was played for the jury, Rose admitted that she had filed a police report against Vaught for alleged sexual abuse of her daughter, but she denied that she had been to his home or' that she had shot him that night. She instead stated that she had been out drinking and had then gone home. Rose also claimed that she and Vaught had been dating until the previous morning. Smith testified, that Rose did not,appear to be highly intoxicated at the time he obtained her statement, although he , could smell alcohol on her.
The following day, on November 24, 2013, Rose asked to give another statement to police. In her second statement, which was also playéd' at trial, 'Rose claimed that she was scared and intoxicated and had not told the truth during her earlier interview.. She admitted that she had gone to Vaught’s home around midnight on November 23. Rose stated that she had been drinking at the Elk’s Lodge and had been told by someone there that Vaught had 14also acted inappropriately toward his son in the past. , She indicated that she went to Vaught’s home, not with the purpose of confronting him, but instead with the intention of taking his son home with her. She did not expect Vaught to be at home, but when she realized that he was asleep in,his bedroom, she testified that she grabbed the rifle sitting by the front door and went to speak to him. Rose agreed that this was the rifle that Vaught had loaned to her, but she claimed that she had returned it to his house after they had Broken up earlier in the week She stated that she grabbed it for protection, wanting only to intimidate Vaught and make him apologize. Rose then walked into Vaught’s bedroom, identified herself, and asked him why he had hurt her daughter. She stated that the rifle was pointed toward the ground, not at Vaught. However, when he kicked it, the gun went off and shot him in the leg. She indicated that they struggled over the gun until Vaught gained control of the weapon. She handed him his cell phone to call for help and stated that Vaught then told her to leave. Rose stated that she did not remember the details of her drive home.
Terry Plunkett, a mutual friend, of both Rose and Vaught, testified that he saw Rose on November 22, 2013, and that, he was aware of the allegations she had made against Vaught. Plunkett stated that he received a text from Rose that morning indicating that she had her gun “fully loaded,” although he did not think that she was being serious. Plunkett also saw Rose at the Elk’s Lodge , later .that night, and he described her as being Very intoxicated. He wanted to drive her home, but she left before he could do so. '
At the ■ conclusion of the State’s case, Rose moved for a directed verdict only on the charge óf aggravated residential burglary, arguing that there was insufficient proof that she had ^entered or' remained in Vaught’s residence unlawfully. The circuit court denied the motion.
At trial,. Rose stated that she and Vaught had broken up on, the Tuesday prior to the shooting, although they had been involved in a serious relationship for the previous two years. Rose stated that they had broken up on prior occasions and had gotten back together within a couple of days; however, she indicated that this particular breakup stood out and that it seemed that they both wanted to finally move on.’ She testified that she had taken some of his belongings, including the rifle, to his house on the day after their breakup and that he had then' texted her that she was always welcome in his home.Rose indicated that Vaught’s house was always unlocked. With regard to the details surrounding the shooting, Rose testified in conformity with her second ■ statement to police. She stated that Vaught’s door was not locked and that she grabbed the rifle as a “boundary” between them because she “did not know how he was going to react to [her] being in the house you know after what happened.” However, she testified that she “had every right to go in the house” and that no one had said that she could not go in there.
After both sides had rested their case, Rose renewed her motion for directed verdict, which was again denied by the circuit court. The jury found Rose guilty of all charges, sentencing her to twenty-four years’ imprisonment for the aggravated-residential-burglary conviction and three years on each of the remaining charges. In addition, Rose received a twelve-year sentence enhancement for each offense due to her use of a firearm. The circuit court ordered the three-year sentences to run consecutively to each other but concurrent to the twenty-four-year sentence. The court also ran one twelve-year sentence enhancement |ficonsecutively to Rose’s remaining sentences, while the other enhancements were to run concurrently, for a total of thirty-six years’ imprisonment. Rose'filed a timely notice of appeal from the sentencing order.
For her sole argument bn appeal, Rose contends that the circuit court erred in denying her motion for directed verdict on the charge of aggravated residential burglary. Specifically, Rose argues, as she did in her directed-verdict motions at trial, that the evidence was insufficient to support her conviction because the State failed to prove that she entered or remained unlawfully in Vaught’s home.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 2010 Ark. App. 759, 2010 WL 4523758. On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id, In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The jury is free to believe all or part of a witness’s testimony,- and we do not weigh the credibility of witnesses on appeal, as that is a job for the fact-finder and not the appellate court. Young v. State, 371 Ark. 393, 266 S.W.3d 744 (2007).
A person commits the offense of residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of | ./committing in the residential occupiable structure any offense punishable by imprisonment. Ark.Code Ann. § 5-39-201(a) (Repl. 2013). A person “enters or remains unlawfully” when he or she does not have a license or a privilege to enter or remain upon the premises. Ark. Code Ann. § 5-39-101(2)(A) (Repl. 2013). Furthermore, a person commits aggravated residential burglary if he or she commits residential burglary as defined above and (1) is armed with a deadly weapon or represents by word or conduct that he or she is armed with a deadly weapon; or (2) inflicts or attempts to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5-39-204(a) (Repl. 2013).
Rose argues that she had a privilege or a license to enter Vaught’s home during their relationship and that, according to his, testimony at trial, he never revoked this privilege or license prior to the shooting. While Vaught did admit on cross-examination that he had never explicitly told Rose that she was no longer welcome in his home after their breakup, the State asserts that any privilege or license Rose had as Vaught’s girlfriend was implicitly revoked when that relationship ended and that no express revocation was necessary. Rose admitted in íier testimony that, even though they had broken up on previous occasions, this'time was different in that they both wanted to “move on.” Although Rose testified that Vaught had sent her a text stating that she was always welcome in his home, she did not introduce this text message into evidence. As the State argues, the jury was not required to believe her self-serving testimony, nor was it required to set aside its common sense and experience in reaching a verdict. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). As such, the jury could have reasonably found from the evidence that Rose no longer had a | Slicense or privilege to enter Vaught’s home on the night of the shooting, especially late at night when he was asleep. See Holt v. State, 2011 Ark. 391, 384 S.W.3d 498 (stating that the jury could have easily determined that the defendant’s invitation to enter his ex-girlfriend’s home was not so extensive as to include entry in the middle of the night while she was asleep).
Furthermore, even if Rose’s initial entry into Vaught’s home was not considered to be unlawful, the residential-burglary statute also states that a person cannot remain in the residence unlawfully. Ark. Code Ann. § 5-39-201(a). In this regard, our supreme court has held that a person’s license or privilege to enter' a home is revoked once that person inflicts injury upon the owner. See, e.g., Holt v. State, supra (holding that even if the jury believed the defendant’s testimony that he had been invited to the victim’s residence, he was not privileged to remain there once he began telling the victim “I told you I could get in anytime I wanted to” and “if I can’t have you, no one can,” and stabbing her); Young v. State, supra (holding that substantial evidence supported the defendant’s conviction for residential burglary where the defendant was licensed or privileged to enter the victim’s residence but was certainly not licensed or privileged to remain there after he began stabbing the owner and removing his property).
Here, the evidence showed that Rose entered Vaught’s home while he was asleep, grabbed a loaded rifle, and then pointed the gun at him, telling him not to move and to “prepare to die.” Vaught pleaded with Rose to call the police' and was then shot in the leg as he attempted to kick the gun away. ■ After Vaught regained control of the gun, he phoned |9for ■ help and told Rose to leave. Under the circumstances' in this case, there was substantial evidence to support a finding by the jury that Rose unlawfully entered or remained in Vaught’s home, and we therefore affirm her conviction for aggravated residential burglary.
Affirmed.
Gladwin, C.J., and Whiteaker, J., agree. | [
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CLIFF HOOFMAN, Judge.
| Appellant Dustin Kyle Chastain appeals from the trial court’s order granting appellee Courtney Heather Chastain’s motion to change custody and to relocate with the parties’ two minor children. On appeal, appellant argues that (1) the trial court erred by considering evidence outside of the record; (2) the trial court’s finding that the parties did not have true joint custody was against the preponder- anee of the evidence; (3) the trial court’s finding that appellee should be allowed to relocate with the children without finding that the move was in the best interest of the children was clearly erroneous. We affirm on all points.
The parties to this appeal were married in 2005 and have two children, A.C. and B.C., |2who were five years old and three years old at the time of the hearing on appellee’s motion to change custody. The parties entered into a marital settlement agreement on May 12, 2009, which was incorporated into their divorce decree entered on June 16, 2009. The parties provided in their agreement that parental responsibility would be shared by both parents and that custody of the children would be “joint and equal with the mother having the primary residence.” The agreement set out “Secondary Residential Responsibility, Visitation, or Time,” as follows:
On the months in which Dustin Chastain is assigned day shift hours, the children will stay with Courtney Chastain from 5:00 PM Thursday through 5:00 PM Sunday. Dustin Chastain will have the children from 5:00 PM Sunday night through 5:00 PM Tuesday. The parents will alternate custody of the children Wednesday nights.
On the months in which Dustin Chastain is assigned evening shift hours, the children will stay with Courtney Chastain from 5:00 PM Wednesday through 5:00 PM Monday. Dustin Chastain will have the children from 5:00 PM Monday through 5:00 PM Wednesday. Also Dustin Chastain will be allowed unlimited visitation on nights he chooses and is available for the children.
In addition, the agreement stated that both parties would split all child-related expenses evenly and that neither party was required to pay child support. It also provided that the parent granted primary residential responsibility of the children shall have the benefit of any tax deductions for the children.
On June 7, 2010, appellee, who was employed as an intelligence analyst with the Arkansas Air National Guard, filed a motion for change of custody and requested permission to move with the children to Fort Bragg, North Carolina, to accept new employment as a civilian contractor. She alleged that there had been a material change of circumstances since the award of custody was entered and that there had not been an equal division of time |3between the parties with respect to custody. During months when appellant worked the night shift, appellee alleged that she had custody more than eighty percent of the time and that she also had primary parental responsibilities for doctors’ visits, extracurricular activities, and school arrangements. In addition, appel-lee alleged that appellant had accepted a position with the United States Marshals Service, that he would be out of state attending training for six months, and that his new work responsibilities would prevent him from caring for the children overnight. Appellee asserted that her new job opportunity in North Carolina would pay twice the salary of her current employment and that her schedule would also be more conducive to parenting the children. She alleged that it was in the best interests of the children that custody be changed to her and prayed that she be permitted to relocate with the children, with appellant being entitled to liberal visitation.
Appellant filed a response denying ap-pellee’s allegations. Prior to the hearing on the motion, appellee married Joseph Dark, a warrant officer, who was stationed at Fort Bragg, North Carolina. At the hearing on September 27, 2010, appellee testified that she met Dark when they were both deployed to Haiti in January 2010 and that she wished to relocate with the children to North Carolina to join Dark and to accept a job offer as a civilian contractor. Appellee stated that this new employment opportunity would double her current salary, that she would have a three- or four-day weekend every week, and that she would no longer be worried about being deployed for disaster relief. She testified that she and Dark had arranged to rent a three-bedroom house with a nice yard and that they had checked into registering her older child at the nearest elementary school, which was less than two miles away. Appellee further testified that there would be daycare and before- and after-school care for |4both children at a nearby. childcare facility. She stated that she and Dark also had friends in North Carolina with children around the same age as her children and that there would be opportunities for her children to be engaged in activities such as soccer, dance, and karate with these other children. Although appellee had no extended family in North Carolina, she testified that she would now be able to afford to visit her family in Washington due to her increased salary. She also testified that she would try to complete her required quarterly National Guard drills in Arkansas, so that appellant and his family could visit with the children during those time periods. Appellee further stated that she would be willing to facilitate liberal visitation with appellant by allowing him at least eight weeks of visitation in the summer, spring break and Thanksgiving holiday visitation, and a week at Christmas. She testified that she was also willing to pay for half of appellant’s airfare if he wanted to visit the children in North Carolina.
Appellee testified that she and appellant intentionally named her as the primary residential parent in their settlement agreement so that the children would be able to attend the Cabot School District, where she resided. Since the parties’ divorce, appellee testified that she had been the primary caretaker of her children, except during her deployment to Haiti, and that she usually handled the discipline and took them to their doctors’ visits. Appel-lee stated that she had attempted to give appellant equal time with the children, although she indicated that the children often stayed with appellant’s mother or sister when in his custody due to his work schedule.
Appellant testified that he and appellee had agreed upon joint, equal custody of the children at the time of their divorce. He stated that neither party consulted an attorney but |fithat appellee used an online service to draw up their settlement agreement. He agreed that appellee was named as the primary residential parent because they wanted the children to attend school in Cabot, where she lived. Appellant testified that he did not pay child support because he and appellee shared all child-related expenses equally. He stated that he was employed as a state trooper and that he rotated from day shifts to night shifts on a monthly basis. According to appellant, he also sometimes worked for the U.S. Marshals Service when he was off-duty, although he resigned from the SWAT team because it was interfering with his time with his children. Appellant testified that he lived in a three-bedroom apartment with a male roommate and that the children shared a room when they stay with him. He stated that he had applied to work full-time for the U.S. Marshals Service and that he had been conditionally accepted but had not yet been officially offered a job. He agreed that he would have to attend out-of-state training for five months if he were offered the position.
Regarding appellee’s request to relocate to North Carolina, appellant testified that he was opposed to the move because he loved his kids and “it would kill” him to not see them as frequently. He also stated that his children had a very close relationship with his family and that it would be devastating for the children not to be around them. Appellant testified that there had not been a change in circumstances since the divorce and that it was not in the children’s best interests to move to North Carolina.
Both parties agreed at the hearing that a primary issue to be decided by the trial court was whether the parties had true, joint-physical custody under the terms of their settlement agreement or whether ap-pellee had primary physical custody and was entitled to a |fitrial court requested that the parties file letter briefs arguing their respective positions and stated that it would make a decision after reviewing the briefs.
After the parties submitted their briefs, the trial court entered its decision on October 7, 2010, finding that appellee was the primary custodian based on the testimony of the parties and the terms of their settlement agreement. In making this determination, the trial court noted that several other states recognize the term “primary residential parent” as synonymous with “custodial parent,” although Arkansas does not typically use that term. The court further noted that appellant’s visitation schedule was described in a section titled “Secondary Residential Responsibility, Visitation or Time,” that appellee testified that she is the primary caregiver, and that the parties’ testimony indicated that the term “primary residential parent” was used to ensure that the children would be in the Cabot School District when they reached school age. Finally, the court found that it was relevant that the agreement provided that the primary residential parent was entitled to any tax deductions on behalf of the children, because Administrative Order Number 10 and our case law support the position that the custodial parent is presumptively entitled to these tax deductions. Thus, the trial court found that appellee was entitled to a presumption in favor of relocation and discussed the applicable factors relevant to the petition to relocate. The trial court further found that appellant had failed to rebut this presumption and that appellee was allowed to relocate with the children to North Carolina. The order also set out a visitation schedule for appellant. Appellant now appeals from the trial court’s decision and asserts several points on appeal.
In reviewing equity cases, appellate courts conduct a de novo review of the record and do not reverse a finding by the trial court unless it is clearly erroneous or clearly against the ^preponderance of the evidence. Valentine v. Valentine, 2010 Ark. App. 259, 377 S.W.3d 387. We also give due deference to the trial court in judging the credibility of the witnesses, and this deference is even greater in cases involving child custody, as a heavier burden is placed upon the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.
Pursuant to our supreme court’s decision in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), a custodial parent no longer has the burden to prove a real advantage to himself or herself and the children in order to relocate. Instead, the primary custodian is entitled to a presumption in favor of relocation, and the noncustodial parent has the burden to rebut this presumption and show that the move would be detrimental to the children’s best interests, using the factors set out in Hollandsworth. Id. Therefore, the meaning of the language in the parties’ settlement agreement stating that they would share “joint and equal” custody but that appellee would be the “primary residential parent” was an important issue to be determined by the trial court.
Because the trial court found the provision in the agreement allowing appel-lee, as the primary residential parent, to have the benefit of any tax deductions for the children was persuasive evidence that the parties intended for appellee to be the custodial parent, appellant argues on appeal that the court committed reversible error by considering evidence outside the record before it, because there was no evidence presented by either party as to who had actually claimed these tax deductions. This argument need not be addressed, however, as it was not raised to the trial court. It is well settled that in order to preserve an argument for appeal, the issue must first be raised at the trial court level. Doss v. Miller, 2010 Ark. App. 95, 377 S.W.3d 348.
In any event, as appellee asserts in her brief, no error occurred here because the trial court did not consider evidence outside the record in making its decision. The trial court found that the provision in the parties’ agreement awarding the primary residential parent the benefit of tax deductions was relevant, but the court made no findings regarding which party had actually taken the deductions, as there was in fact no evidence presented on this matter. As the trial court did note, however, under Administrative Order No. 10, the primary custodial parent is presumptively entitled to a tax deduction; thus, the trial court acted appropriately in taking into consideration a similar provision in the parties’ agreement in this case, where the issue was whether the parties had intended a joint physical-custody arrangement or one where appellee was to be the primary custodian. Whether appellee had actually claimed the deduction is simply not relevant to this issue and was not considered by the trial court. Thus, there is no merit to appellant’s argument on this point.
In a related argument, appellant contends that the trial court’s finding that the parties did not have true, joint-physical custody of the children under the terms of their settlement agreement was clearly against the preponderance of the evidence. This court’s standard of review for contract interpretation is set out in Poff v. Peedin, 2010 Ark. App. 365, at 3-4, 374 S.W.3d 879, 881:
When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. As explained by our supreme court in Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 371, 255 S.W.3d 424, 429 (2007):
Our standard of review for contract interpretation has been stated often:
|flThe first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and under stood in their plain and ordinary meaning. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. It is also a Well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement.
The court is to give great weight to the construction of the contract given to it by the parties, and it may look to the conduct of the parties to determine their intent. When a contract is free of ambiguity, its construction and legal effect are questions of law for the court to determine. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. The determination of whether ambiguity exists is ordinarily a question of law for courts to resolve.
(Citations omitted.)
In interpreting the parties’ agreement in this case in order to determine their intended custodial arrangement, the trial court relied on language contained in several different sections of the agreement, as well as the parties’ testimony at the hearing regarding their intent. The court found that the parties did state that “custody will be joint and equal”; however, they also stated that appellee would be the “primary residential parent” and that appellant would be awarded very liberal “visitation” under the section titled “secondary residential responsibility.” The trial court noted that the agreement was completed by the parties without the assistance of counsel and that the term “primary residential parent” is not one commonly used in this state. However, in other states such as Delaware, Florida, Louisiana, and Oregon, this term is synonymous with “custodial parent,” the term typically used in Arkansas to describe which party has primary care of the minor children. As mentioned | ^earlier, the trial court further found to be persuasive the section in the parties’ agreement awarding appellee, as the primary residential parent, the benefit of any tax deductions for the children, a benefit presumptively awarded to the primary custodial parent in Arkansas under Administrative Order No. 10. In addition, the court relied on the testimony of appel-lee that she is the primary caregiver for the children, enrolling them in school, taking them on field trips and play dates, and taking them to the doctor even when the children were in appellant’s custody. Both parties also testified that appellee was intentionally named as the primary residential parent so that the children could attend Cabot schools when they reached school age. The trial court concluded that, by reading the settlement agreement in context, the parties intended for appellee to be the primary custodian, with appellant enjoying “extremely liberal visitation of up to one-half of the time with the children.” The trial court further noted that joint custody was disfavored in Arkansas and that this court has previously held that generous visitation does not constitute joint physical custody. Shannon v. McJunkins, 2010 Ark. App. 440, 376 S.W.3d 489. The trial court’s interpretation of the parties’ agreement is not clearly against the preponderance of the evidence, and we affirm on this point.
In his third point on appeal, appellant argues that, because the trial court failed to expressly find that the relocation was in the children’s best interests, its decision allowing appellee to move with the children was clearly erroneous. Appellant asserts that the trial court only found that he failed to rebut the presumption in favor of allowing appellee to relocate and that this is not sufficient, as the “polestar” consideration remains the best interests of the children.
Under the law governing relocation cases, as set out in Hollandsworth, supra, the |n presumption in favor of the custodial parent’s relocation must be rebutted by the noncustodial parent, who has the burden to show that the move will have a detrimental effect on the child and on visitation with the noncustodial parent. The trial court must then decide whether the noncustodial parent has sufficiently rebutted the presumption and whether the move is in the children’s best interests by using the factors set out in Hollandsworth: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) the visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and (5) the preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference. Id. at 485, 109 S.W.3d at 663-64.
While the trial court in this case did not specifically state that the relocation was in the children’s best interests, the court did find that appellant failed to rebut the presumption in favor of the move and discussed the applicable Hollands-worth factors relevant to the children’s best interests. The court noted that ap-pellee’s reasons for her desired relocation were to be with her new husband and to pursue a better job opportunity, where she will double her current salary; to provide more financial stability for her and the children; and to offer the children a two-parent household. The trial court also noted the evidence that the children will be able to attend a neighborhood school and participate in extracurricular activities with other children their age. Further, the court found that appel-lee would cooperate with visitation with appellant and that, even though the move would have a detrimental impact on the amount of appellant’s visitation and the relationship with the children’s extended 112family in Arkansas, this did not outweigh the benefits in favor of relocation. Because of the children’s young age, there was no evidence presented as to their preference on the move. Based on its evaluation of the Hollandsworth factors, the trial court found that appellee should be allowed to relocate with the children.
Thus, even though the trial court did not specifically state that the move was in the children’s best interests, it did consider the appropriate factors relevant to this determination. As appellee points out, appellant did not request that the trial court set forth specific findings of fact and conclusions of law, as he was entitled to do under Ark. R. Civ. P. 52. Further, when the trial court fails to make certain findings of fact, the appellate court, under its de novo review, may nonetheless conclude that the evidence supported the decision. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). Because the evidence clearly supported the trial court’s decision to allow appellee to relocate in this case, there is no merit to appellant’s argument on this point, and we affirm.
Affirmed.
VAUGHT, C.J., and ABRAMSON, J., agree.
. This case is again before us after we previously ordered that appellant supplement his addendum to include relevant pleadings and letter briefs contained in the record. Chastain v. Chastain, 2011 Ark. App. 495, 2011 WL 3837046. Appellant has filed a supplemental addendum containing these missing documents, and we now address the merits of the appeal. | [
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DOUG MARTIN, Judge.
| jThis dispute is between a law firm, appellant Grayson & Grayson, P.A., whose principals are Melanie Grayson and Keith Grayson, and an attorney, appellee David Couch. The circuit court granted summary judgment against both parties. Grayson & Grayson brought this appeal, and Couch filed a cross-appeal. We reverse the summary judgment entered against Grayson & Grayson on its claims against Couch and remand for trial. We affirm the summary judgment entered against Couch on his claims against Gray-son & Grayson.
I. Procedural History
According to Grayson & Grayson, the law firm invited Couch to enter into an “of counsel” relationship with it in early fall 2003, after Couch’s former partner had ended their 12association. The precise terms of the parties’ oral agreement are disputed; however, it is not disputed that Couch moved into Grayson & Grayson’s law office and was given access to its staff, equipment, and supplies, in exchange for his splitting fees with Grayson & Grayson on some nursing-home cases. On October 8, 2003, Couch formed David A. Couch, PLLC. The parties worked together on some cases and separately on others. A number of clients signed engagement contracts with Grayson & Grayson and Couch; Couch opened probate proceedings for some of them, signing some of the pleadings “Grayson & Grayson, P.A., by David A. Couch.” He signed some settlement agreements in the nursing-home cases as “David A. Couch, Grayson & Grayson,” and used Grayson & Grayson’s letterhead. Some fees were paid to the client and Couch. In December 2005, Couch and Keith Grayson met to “square up” some matters; precisely what was discussed is in dispute. In January 2006, however, Grayson & Grayson terminated its relationship with Couch, who moved out of Grayson & Grayson’s office space at the end of that month.
On August 24, 2006, Grayson & Gray-son filed this action against Couch, individually, and his PLLC, alleging breach of contract and unjust enrichment for their failure to properly split fees collected in settling five lawsuits. Couch’s PLLC filed a counterclaim against Grayson & Gray-son for one-half of the fee paid to Grayson & Grayson in settling a lawsuit brought by Leister Dewey against Beverly Enterprises. Grayson & Grayson responded that it was holding that fee in trust as a set-off against the amount Couch owed the firm. Grayson & Grayson filed a first amended complaint against Couch and his PLLC in August 2007. In their answer, Couch and his PLLC denied that they had practiced with Grayson & Grayson but stated, “The only affiliation is that the defendants held themselves out to the general |apublic as ‘Of Counsel.’” As before, Couch and the PLLC raised several affirmative defenses, including accord and satisfaction, set-off, and the statute of frauds. In its first amended counterclaim, the PLLC listed other resolved cases for which Grayson & Grayson allegedly owed it fees. In its answer, Grayson & Gray-son admitted that “there were agreements between itself and David A. Couch, PLLC concerning work on cases” and that the PLLC was entitled to one-half of the fees from the Dewey case but denied the other allegations.
Grayson & Grayson failed to serve the PLLC with process. Couch and the PLLC moved for partial summary judgment, alleging that Grayson & Grayson did not perform any work on three of the cases; that Melanie Grayson attended two hearings in the probate proceeding in another case; and alternatively, that Grayson & Grayson was barred by accord and satisfaction from sharing fees in four of the cases. Couch and the PLLC also argued that all agreements were with the PLLC, and not Couch, individually. To support the summary-judgment motion, Couch submitted an affidavit in which he stated that he was the president and an employee of the PLLC and that all business conducted with Grayson & Grayson was done on behalf of the PLLC and not himself, individually. To further support his claim that the parties had reached an accord and satisfaction, Couch’s affidavit also stated the following:
4. On or about December 16, 2005, Mr. Grayson sent the attached email to me indicating that “Up to now we have been able to work it out informally within the cases we worked on together.” In addition he stated, “Going forward I don’t think we will have as many opportunities to do so because of the changes in the nursing home industry.” The email proposed a rent and cost sharing arrangement. At the time I received this email I was on a family vacation in Colorado. When I returned from vacation I countered the proposal. My handwritten notes are on the email which is attached hereto and I also tendered to Grayson & Grayson a check in the amount of $1,250.00 for the monthly rent which was subsequently cashed.
|45. Sometime in mid-January Mr. Grayson came to my office and told me that he did not want to be a landlord and I told him I understood and would find another office. After this meeting I found on my desk the check I had given Grayson & Grayson for rent in the amount of $1,250.00 with an attached note dated 1/17/2006 that stated “Just pay for the days in January you are here. Thanks, KG.” I took this to mean I should find an office in a hurry which I did. I moved on January 30, 2006 and returned to Grayson & Grayson the check in the amount of $1,250.00 which was deposited and cashed.
In support of its response to Couch’s motion for summary judgment, Grayson & Grayson filed affidavits from Melanie and Keith Grayson; a letter from Couch to the Chief Counsel at DHS; the affidavit of Rebecca Hepler, a client; engagement contracts with various clients; and a pleading in a probate case that Couch signed on behalf of Grayson & Grayson.
In her affidavit, Melanie Grayson stated:
2. Grayson & Grayson, P.A. had an agreement with Mr. David Couch that he would be “of counsel” with our law firm. We added Mr. David Couch, J.D. as “of counsel” to our letterhead. Our letterhead did not state David Couch, PLLC as being “of counsel.” ... Mr. Couch used this firm letterhead to correspond with various persons.... In addition, Mr. Couch had his own law firm letterhead separate from Grayson & Grayson, P.A. that he used for cases in which he did not share a fee with Gray-son & Grayson, P.A.
3. In exchange for Mr. Couch receiving use of Grayson & Grayson, P.A.’s nursing home system, office space, phone lines, fax machines, computer server, secretaries, postage, and copy machines, we agreed to joint venture certain nursing home cases.
4. Mr. Couch never made any statement to me that Grayson & Grayson, P.A. would only get the fee on these eases if work was personally performed by Keith Grayson or me. I considered each of the cases in dispute in this litigation to be Grayson & Grayson, P.A. cases. Jan Armstrong, Grayson & Grayson, P.A.’s legal assistant, at my instruction, then began filing Probate petitions and obtaining orders to have the contingent contracts approved by the various Probate courts. Mr. Couch signed many of these pleadings and orders under the heading of “Grayson & Grayson, P.A.” Again at no time did Mr. Couch ever state to me or, to my knowledge, Keith Grayson, that ^Grayson & Grayson, P.A.’s fees in these cases were contingent upon personal work product of Keith Grayson or myself.
5. The medical authorization for these cases list Grayson & Grayson, P.A. as the attorney for the Plaintiff. Records requests for these cases were sent out by Jan Armstrong on Grayson & Grayson, P.A. letterhead. Jan Armstrong, my legal assistant, performed extensive work on these and other cases for Mr. Couch. Grayson & Grayson, P.A. did not receive any separate compensation from David Couch for her services. Grayson & Grayson, P.A. paid all of Jan Armstrong’s salary and benefits during this time frame without any contribution from Mr. David Couch or David Couch, PLLC.
11. My husband forwarded to me a memo and check from Mr. Couch listing costs and the calculation for the fee divisions on the Forest and Hogue cases. I did not check Mr. Couch’s math on the fee division. Mr. Couch had access to the correct numbers. I did not consider payment of costs for these two cases in dispute along with other cases a settlement for the fees owed in [the] Hepler, Hawley, Barnett and Wegman eases. In the Hawkins case, Mr. Couch paid , our costs on August 5, 2005, but did not pay our portion of the fee until October 5, 2005.
12. Keith and I discussed our continuing relationship with Mr. Couch. I did not want to be in a position of being a landlord or having to monitor Mr. Couch’s usage of our staff and facilities to keep our relationship financially fair. We asked Mr. Couch to move in December of 2005.
13. We have learned that settlement checks in the Hepler, Barnett, and Haw-ley cases were not made payable to Mr. David Couch, PLLC but were rather made payable to the client and to Mr. David Couch personally.
Keith Grayson’s affidavit contained similar statements; in addition, Keith averred the following:
10. Eventually, I began to see that Mr. Couch was working on cases with other lawyers and not having Grayson & Grayson, P.A. participate. These cases were not cases that he sent out joint fee agreements on with Grayson & Grayson, P.A. However, Jan Armstrong performed secretarial work for Mr. Couch on these cases without compensation to Grayson & Grayson, P.A. David Couch wanted the use of our facilities and personnel without payment for them.
11. On or about December, 2005, I caused an email to be sent to Mr. Couch asking him how he saw our business relationship going forward. Mr. Couch responded |fiin writing that he was willing to pay some money for overhead. In December 2005, I also met with Mr. Couch to discuss the fee division in the Forest case and Hogue cases. I did not agree that we would not receive a fee in the Hepler, Hawley, Barnett and Weg-man cases.
12. Mr. Couch later prepared a memo listing the costs on several cases and a fee division for the Forest and Hogue cases. I had no input in these calculations. I assumed that Mr. Couch’s math was correct on the Forest and Hogue division. Mr Couch had access to the Hogue file to determine the correct fee division. With this memo Mr. Couch attached a costs cheek for the cases he listed. It is not unusual when fees are divided to receive a cost check and then the fee check later. I did not consider his giving me a cost check for several cases, some of which were over 8 months old to be a settlement for the fees owed in Hepler, Hawley, Barnett and Wegman. Grayson & Grayson, P.A. has never received its fees in the cases which are the subject of this lawsuit.
13. After a discussion with my wife, it was decided that we did not want to be landlords and we asked Mr. Couch to move in December 2005. He agreed. I anticipated that he would move early in January; however since he had given us $1250.00 for a month of rent it was apparent that he intended to stay the entire month. I then returned the check with a note that said to pay for the days he would be present, hoping he would get the hint that he needed to move as soon as possible. Mr. Couch remained in our offices until the last day of January at which time he returned the $1250.00 check.
14. The Dewey case was one which we obtained because the estate was one of Melanie Grayson’s clients. This matter was initially signed with a joint fee contract between David Couch and Grayson & Grayson, P.A. and subsequently referred to another law firm, Wilkes & McHugh. Mr. Couch sent me an email inquiring as to the settlement. I responded by sending him a letter suggesting that we get together to settle up all of the outstanding fees that he owed Grayson & Grayson, P.A.
15. I have learned that the settlement checks for Hepler, Barnett, and Hawley were not made payable to David Couch, PLLC, but contrary to our written agreements were made payable to the client and to David Couch personally-
16. At no time did I ever agree that Grayson & Grayson, P.A. were not owed a fee on Hepler, Barnett, Hawley and Wegman.
In her affidavit, Rebecca Hepler, the administrator of the estate of her mother, Barbara Hepler, stated that Melanie Gray-son had represented her and her father at her |7mother’s guardianship and probate hearings and that, in her capacity as guardian and administrator, she had signed a contract hiring Grayson & Gray-son and Couch to pursue litigation against Beverly Enterprises for her mother’s injuries. Hepler emphasized that both Gray-son & Grayson and Couch were her attorneys.
The PLLC filed a second amended counterclaim against Grayson & Grayson and a third-party complaint against Keith and Melanie Grayson in August 2008. In its third amended counterclaim and first amended third-party complaint, filed in September 2008, the PLLC asserted claims for breach of contract and constructive fraud concerning the fees from the settlement of Dovie Hogue’s estate’s lawsuit against Beverly Enterprises, stating as follows:
After the case settled David A. Couch PLLC prepared a memo which was given to Keith Grayson in which there was an error in the calculation of the fees due in that matter. David A. Couch, PLLC was under the assumption that the fee agreement in the case was 40%. The memo was given to Keith Grayson, who knew that the fee agreement was 45%. Mr. Grayson did not point out the error and which resulted in the benefit to him and Grayson and Grayson, P.A. in the amount of $45,000.00.
The PLLC asserted that, as parties to the joint-venture agreement, Keith Grayson and Grayson & Grayson owed it a fiduciary duty to correct this mistake. The PLLC also asserted that it had been damaged by $280,000 concerning the Forrest estate because Keith Grayson had not informed the PLLC that Grayson & Grayson would no longer continue their business relationship when they met to discuss fees in the fall of 2005. Again, Grayson & Grayson and the Graysons admitted that there were agreements between Grayson & Grayson and Couch about working on cases; the Graysons asserted, however, that the third-party | ^complaint was barred by the statute of limitations, and they raised a counterclaim for breach of contract and unjust enrichment.
In October 2008, Couch and his PLLC supplemented their motion for partial summary judgment, asserting that no genuine issue of material fact existed regarding the fees earned in several of the cases and submitting a supporting affidavit. In response, Grayson & Grayson again stated that it had an agreement with Couch and his PLLC to share fees but disputed a number of facts, including Couch’s claim that he was entitled to a fee from the Hogue case.
Melanie and Keith Grayson subsequently moved for summary judgment on the third-party claims against them. In their supporting affidavits, they stated that they had not entered into any agreement in their individual capacities with Couch or his PLLC. Couch and his PLLC then filed a second motion for summary judgment in February 2009, alleging that the PLLC had never been served with a copy of the summons and complaint, and that, under Arkansas Rule of Civil Procedure 4(i) and the statute of limitations, all of the claims against the PLLC should be dismissed.
In March 2009, Couch filed a counterclaim against Grayson & Grayson for breach of contract and constructive fraud. Couch moved for summary judgment, asserting that, at all times, he was acting as an employee and agent of the PLLC, his disclosed principal, and that, as a matter of law, he was not liable for any breach of contract. He also stated that, even if he had contracted individually, he could not be held liable for a breach because he had not resolved any cases individually; that all of the cases were resolved by the PLLC; and that all fees were received by the PLLC, and not himself, individually. In an affidavit offered in |9support of his summary-judgment motion, Couch stated that he had practiced law as an employee of the PLLC, and never as an individual, since October 8, 2003; that he had received wages and dividends from the PLLC; that the PLLC had maintained bank accounts and filed state and federal income tax returns; that he had moved to Grayson & Grayson’s office on October 23, 2003, after the PLLC was incorporated; that he had conducted all business as “David A. Couch, PLLC”; and that his business cards listing the PLLC were kept in the lobby of Grayson & Grayson’s- office.
On April 9, 2009, the circuit court granted the PLLC’s second 'motion for summary judgment and dismissed the complaint against it as well as its counterclaims and third-party complaints. This order left Grayson & Grayson’s claims against Couch, and Couch’s counterclaim, pending.
Grayson & Grayson raised the statute of limitations in its answer to Couch’s counterclaim and filed a motion to dismiss on this ground and others. In response to Couch’s motion for summary judgment, Grayson & Grayson argued that numerous questions of material fact remained to be tried; that the PLLC did not even exist when they agreed that Couch would join the firm “of counsel”; that Couch could not breach his agreement with impunity by hiding' behind a corporate facade; that Couch individually entered into their oral agreement; that Couch acted as an agent of Grayson & Grayson in certain matters; that the PLLC was not an agent of Gray-son & Grayson; and that the PLLC was Couch’s alter ego. Grayson & Grayson supported this response with Melanie Grayson’s affidavit, in which she stated that, “[ajt the time this agreement was reached, David Couch did not have the professional limited liability corporation of David A. Couch, PLLC.” Melanie also stated that Imshe “remember[ed] David Couch coming into our office, after we had reached an agreement that he would move in and we would work on his nursing home cases together, telling me he had created David A. Couch, PLLC.” The affidavit further stated that Couch routinely signed documents as follows:
Respectfully submitted,
Grayson & Grayson, P.A.
PO Box 9376
North Little Rock, AR 72119 (501) 370-9192
By: David A. Couch, Ark. Bar No. 85033
The affidavit went on to state that David A. Couch, PLLC, was never an agent for Grayson & Grayson, P.A., and that “David A. Couch, PLLC, did not have authority to sign on behalf of Grayson <& Grayson, P.A.” although “David A. Couch, individually did have the authority to sign on behalf of Grayson & Grayson, P.A. since he was ‘Of Counsel.’ ”
Melanie’s affidavit further asserted that Couch used Grayson & Grayson, P.A. letterhead to correspond with various persons. That letterhead listed “David A. Couch” as “of Counsel,” not “David A. Couch, PLLC,” and, according to Melanie, David Couch never requested that the firm list his PLLC as “of Counsel” on its letterhead. Regarding the client representation agreements that were executed by Couch on behalf of Grayson & Grayson, Melanie noted that contracts signed by each client at issue in the lawsuit provided as follows:
“Attorneys at Grayson & Grayson, P.A. are engaged in the practice of law in Arkansas; and you and/or your family (called “you”, which includes the plural where [ „ necessary) wish to employ DAVID A. COUCH and GRAYSON & GRAYSON, P.A. as your law firm to file your nursing home negligence claim through suit or otherwise.”
The client contracts were then executed as follows:
Grayson & Grayson, P.A.
By: Keith Grayson
By: David A. Couch
Melanie further asserted that Couch used his own contract for those cases that were joint-ventured with David A. Couch, PLLC, and she noted that the settlement checks for the Hepler, Barnett, and Haw-ley cases were not made payable to “David Couch, PLLC,” but were rather made payable to the client and to David Couch personally.
In December 2009, Grayson & Grayson moved for partial summary judgment on Couch’s constructive-fraud claim, arguing that the claim was barred by the statute of limitations, because it was based on Couch’s assertion that Keith Grayson had a duty to correct an error that Couch had made in the December 14, 2005 memorandum. Noting that Couch had moved out of its office on January 30, 2006, Grayson & Grayson argued that Couch had alleged no act of fraudulent concealment that would toll the three-year statute of limitations.
The same day, Couch filed a renewed motion for summary judgment based on an IRS Form 1099 that Grayson & Grayson issued the PLLC in January 2005. In response, Grayson & Grayson produced the affidavit of Melanie Grayson, who explained that, in dividing the attorney’s fees received in a lawsuit, she had asked Couch to submit an IRS |12Form W-9 indicating how he wanted his portion of that fee to be handled for tax purposes; that Couch had directed her to pay his portion of the fee to the PLLC; and that how the check or the Form 1099 were written did not indicate who the parties to their agreement were. She reiterated: “Our underlying agreement ... was with David Couch, individually.”
In July 2010, Grayson & Grayson filed yet another motion for summary judgment on all of Couch’s claims on the basis of the statute of limitations. On October 22, 2010, the circuit court granted Grayson & Grayson’s motion for partial summary judgment on the statute of limitations and also granted Couch’s renewed motion for summary judgment. Grayson & Grayson filed a motion for reconsideration, on which the court did not rule. Grayson & Grayson filed a timely notice of appeal, and Couch filed a notice of cross-appeal.
II. Standard of Review
Summary judgment may be granted by a trial court only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, clearly show that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Lee v. Martindale, 103 Ark.App. 36, 286 S.W.3d 169 (2008). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Dodson v. Allstate Ins. Co., 365 Ark. 458, 231 S.W.3d 711 (2006). On appeal, we need only decide if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of the motion left a material question of fact unanswered. Id. In making this decision, we view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Summary ] judgment should be denied if reasonable minds might reach different conclusions from the undisputed facts. Worley v. City of Jonesboro, 2011 Ark. App. 594, 385 S.W.3d 908.
III. The Direct Appeal
Although the trial court did not expressly state the basis for its grant of summary judgment, the primary argument advanced below by Couch was that he could not be held liable to Grayson & Grayson because he was an agent of David A. Couch, PLLC, during his association with Grayson & Grayson, and Grayson & Grayson had notice of this agency relationship. Grayson & Grayson asserts that summary judgment was improper because whether Couch was acting as an agent for David A. Couch, PLLC, was an issue of fact. It is true that an agent cannot be held personally liable to a third person on a contract for a disclosed principal. Ferguson v. Huddleston, 208 Ark. 353, 186 S.W.2d 152 (1945). If the facts are in dispute, agency is a question of fact to be determined by the finder of fact. Sterne, Agee & Leach, Inc. v. Way, 101 Ark.App. 23, 270 S.W.3d 369 (2007).
Grayson & Grayson also contends that it did not enter into an “of-counsel” agreement with David A. Couch, PLLC, but with Couch individually. Questions of fact relating to the formation of contracts are for the trier of fact to determine, Ingersoll-Rand Co. v. El Dorado Chem. Co., 373 Ark. 226, 283 S.W.3d 191 (2008), and conclusions concerning the true intent of the parties to the agreement primarily involve issues of fact. Cobren v. Anderson, 2011 Ark. App. 477, 385 S.W.3d 319. When there are genuine questions of material fact with regard to a party’s intent, summary judgment is improper. Worley, supra.
In the present case, there were numerous questions of material fact as to whether Couch was acting as an agent for David L. Couch, PLLC, and whether Grayson & Grayson entered into a contract with Couch individually or with David A. Couch, PLLC. Indeed, in Couch’s “Statement of Undisputed Facts” in support of his motion for summary judgment, Couch as much as concedes that fact: “Grayson [& Grayson] claims that the arrangement was with David Couch individually. Couch claims that the arrangement was with the PLLC. The terms of this arrangement are unclear and disputed.” (Emphasis added.) Where the terms of the agreement and the identities of the parties thereto are the crux of the complaint, it is inconceivable that the circuit court granted summary judgment in the face of this statement by the party moving for summary judgment. See, e.g., IC Corp. v. Hoover Treated Wood Prods., Inc., 2011 Ark. App. 589, 385 S.W.3d 880 (we view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party) (emphasis added).
Other material questions of fact were presented below, rendering summary judgment inappropriate. For example, Grayson & Grayson contends that it offered the of-counsel position to Couch individually, not to David A. Couch, PLLC, and that it did so before Couch created the PLLC; Couch, on the other hand, maintained that all business conducted with Grayson & Grayson was “conducted on behalf of the corporate entity David A. Couch PLLC and not David Couch individually” and that the of-counsel agreement was between Grayson & Grayson and David A. Couch, PLLC. Further, despite Couch’s claims that he was 11Balways acting on behalf of his corporate entity, Grayson & Grayson points out that Couch’s name on the Grayson & Grayson letterhead was simply “David A. Couch,” not “David A. Couch, PLLC,” and that Couch signed both employment contracts with clients and various court pleadings in his individual — not corporate — capacity. These issues present genuine issues of material fact.
A material fact is one that is “significant or essential to the issue or matter at hand.” Black’s Law Dictionary 670 (9th ed.2009). The major issues in this litigation were the identities of the parties to the of-counsel agreement and whether Couch could be held individually liable to Grayson & Grayson, or whether he was insulated from individual liability by the fact that he was working as an agent for his corporation. As is evident from the facts discussed above, presented by Gray-son & Grayson in its responses to Couch’s motions for summary judgment, there were clearly numerous genuine issues of material fact that rendered summary judgment inappropriate.
Couch argues that, in the event this court agrees with Grayson & Grayson on the disclosed-agent issue, the summary judgment can nonetheless be affirmed for a different reason, namely, that the parties entered into an accord and satisfaction of all claims against each other when he and Keith Grayson met to “wrap up” business in fall 2005. An accord and satisfaction generally involves a settlement in which one party agrees to pay and the other to 11fireceive a different consideration or a sum less than the amount to which the latter is or considers himself entitled; before there can be an accord and satisfaction, there must be a disputed amount involved and a consent to accept less than the amount in settlement of the whole. Dyke Indus., Inc. v. Waldrop, 16 Ark.App. 125, 697 S.W.2d 936 (1985); see also Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001); Holland v. Fanners & Merchants Bank, 18 Ark.App. 119, 711 S.W.2d 481 (1986). When the testimony is in conflict on the issue of whether the parties agreed and what the terms of the agreement were, however, a question arises that is to be determined by the trier of fact. Country Corner Food & Drug, Inc. v. Reiss, 22 Ark.App. 222, 737 S.W.2d 672 (1987); Holland, supra. Keith Grayson stated that he did not intend to settle all of the parties’ outstanding fee issues when they met in fall 2005. Thus, Grayson & Grayson presented sufficient evidence to avoid summary judgment on this basis.
Finally, Couch devotes over six pages of his brief to his argument that this court could also affirm on the ground that the terms of the parties’ agreement were uncertain. We disagree; in fact, as explained above, this uncertainty demonstrates that there were questions of fact to be tried. See Reiss, supra; Holland, supra.
IV. The Cross-Appeal
Couch argues on cross-appeal that, if this court reverses the summary judgment against Grayson & Grayson, the circuit court erred in granting Grayson & Grayson’s partial motion |i7for summary judgment on statute-of-limitations grounds and dismissing Couch’s counterclaim. Actions founded upon an oral contract must be commenced within three years after the cause of action accrues. Ark.Code Ann. § 16-56-105(1) (Repl.2005). The limitations period in actions on contract begins to run when there is a complete and present cause of action, and, in the absence of concealment of the wrong, when the injury occurs, not when it is discovered. Parkerson v. Lincoln, 347 Ark. 29, 61 S.W.3d 146 (2001); Helms v. Univ. of Missouri-Kansas City, 65 Ark.App. 155, 986 S.W.2d 419 (1999).
Couch argues that the statute did not begin to run because Keith Grayson failed to tell Couch that Couch had erroneously calculated the fee percentage that Grayson & Grayson received in the Hogue matter on a 40% contingent fee rather than the 45% contingent fee that Grayson & Gray-son’s contract with its client provided. Silence can be the basis of a constructive fraud; generally, however, liability for a nondisclosure may be found only in special circumstances. Downum v. Downum, 101 Ark.App. 243, 274 S.W.3d 349 (2008). Couch, therefore, had to demonstrate that Grayson & Grayson concealed a material fact known to it and that it had a duty to communicate that fact to Couch. See id. Couch asserts that, as a co-venturer on the Hogue case, Grayson & Grayson owed him a fiduciary duty, Johnson v. Lion Oil Co., 216 Ark. 736, 227 S.W.2d 162 (1950); therefore, Keith Grayson’s failure to speak amounted to constructive fraud, which tolled the statute of limitations.
11sOrdinarily, the question of fraudulent concealment is one of fact and unsuited for summary judgment, Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007), and the running of the statute of limitations is largely a question of fact. Nw. Ark. Recovery, Inc. v. Davis, 89 Ark. App. 62, 200 S.W.3d 481 (2004). Here, however, Grayson & Grayson presented evidence that it was not aware of the erroneous fee percentage until after this litigation began, and Couch failed to meet that proof with proof, rendering summary judgment proper. See Dye v. Anderson Tully Co., 2011 Ark. App. 503, 385 S.W.3d 342 (affirming summary judgment where party opposing the motion failed to meet proof with proof).
Reversed and remanded on direct appeal; affirmed on cross-appeal.
HART and GLOVER, JJ„ agree.
. The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control and that the other consents to so act. Sterne, Agee & Leach, Inc. v. Way, 101 Ark.App. 23, 270 S.W.3d 369 (2007). The two essential elements of an agency relationship are (1) that an agent have the authority to act for the principal, and (2) that the agent act on the principal’s behalf and be subject to the principal’s control. Id.
. Couch asserts that Grayson & Grayson admitted in its earlier pleadings, such as its answer to Couch’s counterclaim, that Couch acted as an agent for the PLLC and that it is bound by those admissions. It was unnecessary for Grayson & Grayson to make a distinction between Couch and David A. Couch, PLLC, however, until the PLLC was dismissed from the lawsuit for failure of service of process.
. Grayson & Grayson contends that Couch’s notice of cross-appeal was untimely. We disagree. Grayson & Grayson filed its notice of appeal on December 1, 2010. Couch filed his notice of cross-appeal on December 27, 2010. Arkansas Rule of Appellate Procedure-Civil 4(a) (2011) provides that a notice of cross-appeal shall be filed within ten days after receipt of the notice of appeal, but in no event shall a cross-appellant have less than thirty days from the entry of judgment. Grayson & Grayson’s motion for reconsideration under Arkansas Rule of Civil Procedure 60 was filed on October 28, 2010, and was deemed denied on November 29, 2010 (a Monday). Ark. R.App. P.-Civ. 4(b)(2) (2011). Couch thus had until December 29, 2010, to file his notice of cross-appeal, which was timely. | [
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PER CURIAM
~ hln 2014, petitioner Joseph O’Neal filed a petition to correct an illegal sentence in the Chicot County Circuit Court challenging a judgment reflecting his 1994 conviction on charges of first-degree murder, robbery, and burglary. On May 26, 2015, the circuit, court entered an order dismissing the petition as untimely. In 2016, O’Neal filed in this court the instant pro se motion for belated; appeal of the May 26, 2015 order,*in which he seeks to proceed with an appeal of the order despite his failure to file a timely notice of appeal. Because O’Neal fails to show good cause for this procedural default, we deny the motion.
There is no notice of appeal contained in the record, and O’Neal does not contend that he filed one. Arkansas Rule of Appellate Procedure-Criminal 2 requires an appellant to file his notice of appeal within thirty days of the date of the entry of an- order denying postconviction relief. ■ Ark. R.App. P.-Crim. 2(a) (2015). Under Rule 2, this'court will allow a belated appeal from an order denying postcon-viction relief if the movant shows Iggood cause for the failure to. file a notice of appeal within the required time. Ark. R.App. P.-Crim. 2(e); see also Clay v. State, 2015 Ark. 352, 2015 WL 5772423 (per curiam).. •
O’Neal contends that he was hnaware of the order dismissing his petition to correct an illegal sentence.- He alleges that he became aware of the order only when he obtained a certified record from the .circuit court clerk sometime after October 30, 2015.- O’Neal appears to contend that a number of filings, including the order, were “backdated,” but he provides no factual basis for the allegation that the order was not actually signed or entered- on the dates marked. He contends that, because he made mistakes in seeking a. writ of mandamus from this court and in obtaining a certified, record of the proceedings, he has shown diligence.,
This court has recognized good cause to excuse a petitioner’s failure to timely file a notice of appeal in cases where the circuit court failed to abide by a mandatory requirement that it provide prompt notice to the petitioner of an order denying postcon-viction relief under Arkansas Rule of Crimiiial Procedure 37.3(d). Green v. State, 2015 Ark. 198, 2015 WL 3548398 (per curiam); see also Nelson v. State, 2013 Ark. 316, 2013 WL 4774472 (per cu-riam). Under circumstances such as those in the instant proceedings, that is, where there was no absolute duty imposed on a judge or a clerk to notify the petitioner that a petition for postconviction relief had been denied, a failure to provide timely notice of the denial does not, in itself, constitute good cause for the failure to file a timely notice of appeal. Barber v. State, 2015 Ark. 267, 2015 WL 3542161 (per cu-riam).
, Our law imposes a duty on lawyers and litigants to exercise reasonable diligence to keep up with the status of their cases, and pro se litigants are held to the same standard as ^licensed attorneys. Id. O’Neal does not contend that he made any inquiry concerning the status of his case; .rather, he alleges that he mistakenly attempted to compel the judge to provide a ruling on the petition to correct an illegal sentence. O’Neal appears to have done so without first'asking either the circuit court or the circuit court clerk whether an order had been entered, even though he indicates that he was aware that a draft order had been submitted to the court by the prosecutor. These stated facts demonstrate a lack of diligence, rather than an excuse for the failure to file a notice of appeal within the time required.
When a petitioner fails to perfect an appéal in accordance with the prevailing rules óf procedure, the burden is on the petitioner, even if he' is proceeding pro se, to establish good cause for failure to comply with the procedural rules. Early v. Hobbs, 2015 Ark. 313, 467 S.W.3d 150 (per curiam). The duty to conform to procedural rules applies even when the petitioner proceeds pro se, as all litigants must bear the responsibility for conforming to the rules of procedure or demonstrating good cause for not doing so. Miller v. State, 2013 Ark. 182, 2013 WL 1776515 (per curiam). O’Neal did not meet this burden.
Motion denied. | [
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LARRY D. VAUGHT, Judge
| Appellant Christopher Foster appeals the divorce decree entered by the Garland County Circuit Court on July 28, 2014. He challenges the awards of rehabilitative alimony and attorney’s fees and costs to appellee Leah Foster. We affirm.
Christopher and Leah were married on February 12, 2002. Three children were born of the marriage: AF (age eleven), EF (age seven), and FF (age five). • Christopher filed for divorce, alleging general indignities, in September 2013. Leah answered, challenging the grounds for divorce and requesting alimony, child support, and an unequal distribution of the marital assets. Leah subsequently counterclaimed for divorce on the ground of general indignities, again requesting alimony, child support, and an unequal distribution of the marital assets.
A hearing was held on March 19, 2014, to resolve the distribution of the marital property, child support, alimony, and attorney’s fees. Testimony revealed that, during the marriage, | ¡¡Christopher was the primary income earner; -with an average annual' net income of approximately $124,000 in 2011 and 2012. Evidence also showed .that Leah, a stay-at-home mother, had been the primary care giver to the children. While she had.;an active real-estate license, she earned no appreciable income from that job; because of her responsibilities with the children. Leah testified that, unlike Christopher, she only had a high-school education. There was testimony that although the family lived in Hot Springs, Christopher worked in Little Rock, and his job prevented him from providing help with the children.
Leah testified to her plan for rehabilitative alimony. She believed that she should receive $5000 per month for the first three years, $2500 per month for the next two years, and $2000 per month for the last three years. She said that this would allow her to transition into the workforce over time, while still allowing her to fulfill her parental responsibilities. Leah also requested attorney’s fees añd costs, citing the economic imbalance between the parties. She introduced into evidence a cost- and-fee statement from hér attorney’s office in support of her request. Counsel for Christopher was able to highlight several inconsistencies in the fee statement during cross-examination.
The trial court; entered the decree of divorce in July 2014. In the decree, the trial court approved the parties’ property-settlement agreement, awarded Leah child support, and awarded her rehabilitative alimony pursuant to Arkansas Code Annotated section 9—12—312(b), in the amount of $4500 per month for the first three years, $3500 per month for the next three years, and $2500 per.month for the final four years. The trial court also awarded Leah $14,190 in attorney’s fees and $647.18 in costs.
|sOn appeal,' Christopher first argues that the trial court misinterpreted Act 1487, - which amended Arkansas Code Annotated section 9-12-312 to specifically include a provision-for rehabilitative alimony. It is his contention." that the general assembly, by amending the statute in this regard, intended to create -a clear distinction between permanent alimony and rehabilitative alimony. More specifically, he contends that the trial court erroneously applied the traditional factors relating to permanent alimony and that these factors are not applicable to rehabilitative alimony.
Our . courts recognized, rehabilitative alimony in 1990, when, this court considered Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). The Bolán court defined rehabilitative alimony as alimony that is payable for a short, specified duration of time. Id. at 67 n. 1, 796 S.W.2d at 360 n. 1. The primary purpose of rehabilitative alimony is to afford the recipient a specific period of time in which to become self-supportive. Id., 796 S.W.2d at 360 n. 1. In Bolan, and every rehabilitative-alimony case thereafter, this court has conducted the same analysis in determining the appropriateness of the award—including a consideration of the factors applying to permanent alimony. The primary factor is the financial need of one spouse and the other spouse’s ability to pay. Spears v. Spears, 2013 Ark. App. 535, at 6, 2013 WL 5424819. Other factors include the financial circumstances of both parties; the couple’s past standard of living; the value of jointly Uowned property; the amount' and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party’s spendable income; the earning ability and capacity of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage. Id.
Nothing in the statute’s amendment changed this analysis. If the general assembly had intended to change this analysis, it could have so provided. It did not.
Moreover, it is instructive that the general assembly’s amendment made the provision of a rehabilitative-alimony plan discretionary, not mandatory. Thus, the general assembly clearly contemplated that the trial court must use the traditional factors when determining whether rehabilitative alimony is appropriate, and, if so, the amount and duration of the award. The General assembly did not expressly provide any factors for the trial court’s determination. Our -case law, however, does. Dozier v. Dozier, 2014 Ark. App. 78, at 4-5, 432 S.W.3d 82, 85 (applying the traditional alimony factors in a rehabilitative-alimony case). And the general as sembly is presumed to have full knowledge of our judicial determinations. McLeod v. Santa Fe Trail Transp. Co., 205 Ark. 225, 168 S.W.2d 413 (1943) (holding that to aid in the construction of a statute, it is presumed that the legislature, in enacting a law, does so with the full knowledge of the constitutional scope of its powers, of prior legislation on the same subject, and of judicial decisions under the preexisting law). Therefore, we hold that the language of Act 1487 does not prevent the trial court from awarding rehabilitative alimony, based upon consideration of the well-settled factors, in an amount that it finds reasonable under the circumstances.
| BIn awarding Leah alimony, the trial court found that there was an economic imbalance in the earning power of the parties. The court noted that Christopher had a financial degree, while Leah had only a high school diploma. As such, Christopher had been the primary source of income for the family. Moreover, his large income was extremely liquid as opposed to Leah’s assets. And while Leah had a license to sell real estate, she failed to earn any appreciable income during the marriage. The trial court also noted that her ability to earn any significant income from real estate was diminished by the downturn in the real-estate market and that the responsibility of caring for their active children, given Christopher’s busy schedule and employment in a different city, impeded her economic activities outside the home. As a result, the trial court awarded rehabilitative alimony, but structured it in such a way that it would be (1) reduced as the children matured and needed less parental involvement and (2) continued for a reasonable time thereafter as might be necessary for her to rehabilitate herself for employment.
The decision whether to award alimony is a matter that lies within the trial court’s sound discretion, and on appeal, this court will not reverse the trial court’s decision to award alimony absent -an abuse of that discretion. Delgado v. Delgado, 2012 Ark. App. 100, at 6, 389 S.W.3d 52, 57. An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and,without due consideration. Id., 389 S.W.3d at 57. The trial court is in the best position to view the needs of the parties in connection with an alimony award. Jones v. Jones, 2014 Ark. App. 614, at 3, 447 S.W.3d 599, 601.
We hold that the trial court considered the relative financial stability of the parties and the potential for income based on their respective positions and determined that alimony was ^appropriate. Additionally, the trial court' rejected the' plan as proposed, modifying it slightly as to the amounts and time periods of the payments, which demonstrated the exercise of thoughtful and due consideration. Therefore, we hold that the trial court did not abuse its discretion in awarding Leah rehabilitative alimony.
Christopher argues that the rehabilitative-alimony award is iihproper because it did not include a “plan of rehabilitation” pursuant to section 9-12-312. He contends that there was no actual “rehabilitation” involved in the áward because it did not include a plan- with quantifiable academic or technical training in order to reach a specific career goal or milestone, and it essentially allowed Leah to continue to be á stay-at-home mom.
The statute provides that “the payor may request or the court may require the recipient to provide a plan of rehabilitation for the court to consider.” Ark. Code Ann. § 9—12—312(b)(2) (emphasis added). The language is discretionary, not mandatory; therefore, a rehabilitation plan is not required under the statute. Moreover, the statute does not specify what information the plan must include. While Leah’s rehabilitation plan did not provide details as to how or when she would become self-sufficient, the statute does not require such details, and we reject Christopher’s narrow construction of the statute.
The statute simply requires that the alimony award be made under “proper circumstances concerning rehabilitation.” Ark.- Code Ann. § 9-12-312(b)(l). Such circumstances are not defined, and we hold that there is no abuse of 'discretion where ■the trial court determined that the age and needs of the parties’ children were currently a significant impediment to her ability to earn a living. Furthermore, the trial court’s award was based on more than Leah’s obligations j 7as a mother. There was significant evidence as to the amount of time it would take for her to build up a real-estate practice sufficient to support herself. The court’s decree recognized this by establishing a plan that initially provided Leah with full support that slowly tapered off over time. In the decree, the trial court stated that the initial amount would provide adequate. monthly income “regardless of how much she is able to generate as a realtor or in another job,” while later amounts would only “supplement” her income. The trial court stated that, at the end of the ten-year period, Leah should be fully able to support herself. To find an abuse of discretion here would be to rule that trial courts may never take family circumstances, such as the needs of young .children, into consideration in establishing a rehabilitative-alimony award. The language of the statute does not support such a ruling.
The last argument Christopher raises regarding alimony is that the amount awarded—$408,000 —was excessive. He "argues that more than half of his income for the first few years will be consumed by alimony and that the amount is about 48% for the ten-year period.
Our court has never reviewed an award of alimony solely on a mathematical-formula analysis. Kuchmas v. Kuchmas, 368 Ark. 43, 46, 243 S.W.3d 270, 272 (2006) (holding that the amount of alimony should not be reduced to a mathematical formula because the need for flexibility outweighs the need, for relatiye certainty). Here, because thq trial court considered the income of both parties, the assets of both parties, and the needs of Leah oyer the life of the | saward, we hold that the amount of alimony awarded by the trial court was not an abuse of discretion."
Christopher’s remaining arguments revolve around the trial court’s award of •attorney’s fees 'and costs to Leah. He argues that the trial court’s award of attorney’s fees and costs—the exact amount listed on Leah’s counsel’s billing statement—was in error because the billing statement contained inaccuracies. He also argues that the trial court abused its discretion in finding that she was not able to pay her "fees. -
In domestic-relations proceedings, the trial court has the inherent power to award attorney’s fees, and whether the trial court should award fees and the amount’ thereof are matters within the court’s discretion. Tiner v. Tiner, 2012 Ark. App. 483, at 15, 422 S.W.3d 178, 187. Due to the trial court’s intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial court in assessing the applicable factors, and an award of attorney’s fees will not be set aside absent an abuse of discretion. Id. at 16, 422 S.W.3d at 187. Finally,-when addressing a trial court’s award of attorney’s fees, our courts have often observed that there is no fixed formula in determining what is reasonable. Id. at 16, 422 S.W.3d at 187.
Despite the inconsistencies in the billing statement, we hold that the trial court did not abuse its discretion on the attorney’s fees and costs award. In determining whether to -award attorney’s fees, the trial court must consider the relative financial abilities of the parties. Poole v. Poole, 2009 Ark. App. 860, at 14, 372 S.W.3d 420, 429. In the case at bar, the trial court did that, expressly finding that Leah was not in a financial position to pay her attorney’s fees, while Christopher had liquid funds available to do so. Also, we note that the billing statement on ]8which the award was based did not include fees for the final hearing, posthearing briefing, and preparation of the precedent. Therefore, based on our standard of review and the record before us, we cannot say that the court abused its discretion on this point.
Affirmed.
Abramson, Gruber, and Hoofman, JJ., agree.
Whiteaker and Hixson, JJ,, dissent.
. The parties had reached an agreement as to child custody and visitation, as well as the disposition of the marital residence.
. Section 9-12-312 provides that “[ajlimony may be awarded under proper circumstances concerning rehabilitation to either party in fixed installments for a specified period of time so that the payments qualify as periodic payments within the meaning of the Internal Revenue Code.” Ark. Code Ann. § 9—12— 312(b)(Z) (Supp. 2013). The statute continues, ‘‘[w]hen a request for rehabilitative alimony is made to the court, the payor may request of the court may require the recipient to provide a plan of rehabilitation for the court to consider in determining [wjhether or not the plan is feasible!] and [t]he amount .and duration of the award.” Id. § 9-12-312(b)(2)(A), (B).
. Christopher’s $408,000 figure includes the total amount of alimony, attorney’s fees, and costs he will pay over the ten-year duration of the award, " | [
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RITA W. GRUBER, Judge
11 Andre Lamont Williams was tried by a jury and was found guilty of felony theft by receiving, felony fraudulent use of a credit card, misdemeanor refusal to submit to arrest, and misdemeanor fleeing apprehension. Hé now appeals, challenging only the sufficiency of the evidence to support his conviction of fraudulent use of a credit card. He disputes the evidence that the State presented as proof that he purchased item's totaling more than $1000 with the victims’ credit cards. We affirm.
A person commits the offense of fraudulent use of a credit card if with the purpose to defraud, he or she uses a credit card or credit • card account number to obtain property or á service with knowl edge that the card or account number is (1) stolen; (2) revoked or cancelled; or (3) forged; or “(4) [f]or any other reason his or her use of the credit card [or] credit card account number ... is unauthorized by either the issuer or the person to whom |2the credit card ... is issued.” Ark.Code Ann. § 5-37-207(a) (Supp. 2013). In general, under this statute, it is the use of a stolen, revoked or cancelled, forged, or unauthorized credit card or account number that results in a criminal violation. See Patterson v. State, 326 Ark. 1004, 1005, 935 S.W.2d 266, 267 (1996) (holding that subsection (a)(4) is directed at “a person’s acts”).
When the sufficiency of the evidence is challenged in a criminal conviction, the appellate court views the evidence in a light most favorable to the verdict and considers only the evidence supporting it. Adkins v. State, 371 Ark. 159, 264 S.W.3d 523 (2007). The conviction will be affirmed if it is supported by substantial evidence, Id. Substantial evidence is evidence of such sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may constitute substantial evidence to support a conviction. Thornton v. State, 2014 Ark. 157, at 5, 433 S.W.3d 216, 219. Circumstantial evidence, in order to be found substantial, must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. Such a determination is a question of fact for the trier of fact, who is free to believe all or part of any witness’s testimony and who may resolve issues of conflicting testimony and inconsistent evidence. Id.
UThe State’s witnesses at appellant’s trial were Don Sosebee and his wife, Rebecca, who each had a Sears credit card on an account that ended with the digits 7173; Pam Page, Sears’s loss-prevention manager; Fort Smith Police Detective Barbara Williams, who investigated the Sosebees’ report of a stolen credit card and fraudulent use; and police officers who participated in arresting appellant shortly after Sears alerted police that the man they wanted was in the store, and police observed him on live video shopping. The evidence viewed in the light most favorable to the verdict is as follows.
The Sosebees were billed for transactions at their local Sears store from late 2014 through early 2015 that they had not made. Mr. Sosebee reported his card missing and cancelled it. Ms. Sosebee gave the police information about the account, and the Sosebees told Detective Williams that they suspected appellant and his girlfriend. Appellant had been in Mr. Sosebee’s car a number of times, and appellant and his girlfriend had been in the Sosebees’ home. The Sosebees had not given the couple the Sears cards or permission to use them.
Detective Williams provided Pam Page with information about transactions on the cards ending with 7173. Ms. Page found the transactions in Sears’s local computer system and, by using the name and phone number associated with 7173, discovered a separate card belonging to the Sosebees on a different account. The second ac count ended with 3158. When appellant was arrested, he was carrying a Sears credit card in Mr. Sosebee’s name on account 3158. Although it is standard procedure for Sears to send a replacement card to an account holder after fraudulent activity by someone else, Mr. Sosebee never received one for [ 47173. Ms. Sosebee knew nothing about the second account.
By using the computer system’s transaction numbers, time stamps, and register numbers, Ms. Page was able to find relevant transactions in videos from the store’s surveillance footage. She testified at trial that she watched the videos on February 12, 2014, was able to see the person making the transactions on the videos, and was “100 percent sure” that the same person was in each of them. She further testified:
I recognized [appellant]. I had an interaction with him on another occasion in the store. He claimed someone had taken something out of his shopping cart, and I reviewed the video and spoke to him in person on the sales floor. Yes, a face to face conversation.
Yes, I was able to print out the records. I gave the surveillance 'footage to Detective Williams along with the transactions. [Appellant] was in the store quite often. ’ Some of the associates would call and say “Hey, the guy is back.” We got to calling him the Car-hartt guy because he always wore a Carhartt or Arkansas Razorback jacket. He was in the store making large purchases on consecutive days, so that was very odd. He was purchasing fine jewelry items or t.v.’s, electronics, that type of thing. Sometimes twice a day, sometimes ... consecutive days.
State’s Exhibit 4 is the DVD I burned for Detective Williams. It contains all the transactions that were made on these credit cards ... [and] is an accurate copy of my surveillance footage.
Through Ms. Page’s testimony, computer printouts of seven transactions were admitted into evidence as State’s Exhibits 5-11. Exhibits 8, 9, and 11 were printouts with a second page showing account 3158. Ms. Page testified that she had researched and determined the account numbers associated with each transaction on the other exhibits missing an account number. She gave specific testimony about the printouts and videos regarding the seven transactions:
UThe credit card on this transaction [shown in Exhibit 5] had the last four digits of 7173. I know that because at the time that I was pulling these I was pulling the credit cards off our journals in the same computer and also the second page in multi-system. No, I couldn’t get to that if I didn’t know what credit card it was coming from.
State’s Exhibit 6 is a transaction from January 2, from my children’s register. I found it by searching the credit card information. The card used for this transaction, it was the same card 7173.... A 32 inch LED t.v. was purchased that day, along with some clothing and some candy.... I pulled surveillance footage for that.... There were eight items. The account was number 7173 also.
I also pulled transactions for a different credit card. State’s Exhibit 7 is a printout from our computer on a transaction at my jewelry counter. That transaction occurred February 4, at 12:26. A necklace was purchased. Yes, I retrieved that record. Yes, there is a second page to that document. It shows that account number 3158 was used on this purchase. It was made under the name Don Sosebee. This one is . a video I provided, shot at Sears, at the fine jewelry counter. -The defendant is wearing a Carhartt jacket, it is significant because we saw him multiple times in his jacket. •
State’s Exhibit 8 is a printout of a transaction at Sears. The date of that transaction is also February 4.... The second page is different on this printout. It has the account number, the credit card number.. - The credit card used to make the transaction was 3158. It belongs to Rebecca and Don Sosebee....
I recognize the person in the video. It is [appellant]. State’s Exhibit 9 is a printout off our local system computer of the transaction that occurred February 4, the ■ same date as the last two other ones. -This one took place at 18:53. A Samsung 43” tv. was purchased for $438.99. Yes, there is a second page to that document. It shows that account number 3158 was used on this purchase: It was made under the name Don Sosebee. .■.. This is. in the electronics department. I observed [appellant] making the transaction.. He was wearing the Carhartt jacket and made three transactions for the 4th.
State’s Exhibit 10 is a printout from our local computer system for a transaction made February 5, 2014 at Sears. It is Trac phones and Trac phone minutes, to the best of my knowledge. This is mobile minutes, and Trac phones. $159.10 was spent. Card 3158 was used—
State’s Exhibit 11 is a printout from our computer of a transaction at Sears. The transaction shows 7281. ■ The amount spent was $ 570.69. ■ The transaction took place at 16:25 on February 5. Yes,- it is the same day as the one we just viewed. A Samsung 51” t.v. and a Boost Mobile Minutes for phone were purchased. Yes, the | (¡record indicates the 3158 card was used. That card belonged to Don Sosebee.
At the conclusion of the State’s case, appellant, moved for a directed verdict on the charge of fraudulent use of a credit card. He renewed the motion without putting on a case for the defense. Each motion was denied. In his arguments on appeal, he repeats the arguments made to the trial court.
Appellant argues that there was “no documentary evidence attaching [Exhibits 5 and 6,} to the use of Mr. Sosebee’s credit card,” the video associated with Exhibit 5 showed only- the back of a black male with a shaved head, and the video associated with Exhibit 6 showed a male wearing an Oklahoma jacket, which did not corroborate testimony of a male wearing a Razorback or Carhartt jacket. He further argues:
The ... transactions associated with Exhibits 5, 6, 7, and 10 have no link to a credit card being used. There is no evidence that the transactions were paid for by a credit card as a form of payment, "and certainly not one belonging to the Sosebees. Moreover, the video associated with these transactions likewise does not show a card being presented as a form of payment. Therefore, there. was insufficient evidence regarding those transaction's to show fraudulent use of a credit card.
. The transactions associated with Exhibits 8, 9 and 11 do purport to have a credit card associated with those transactions, one with a number ending in 3158. This was the card found on appellant at the time of his arrest. • However, the only evidence presented linking the use of that, credit card, as. opposed to possession alone, with appellant is the video evidence presented in State’s Exhibit 4.
Appellant points to Pam Page s agreement that the person in the video of Exhibit 11 was barely visible and that Exhibit 8 showed only a bald head at the bottom of the video. He argues that the purchaser is barely visible in Exhibit 9. He acknowledges documentary evidence associating those transactions with a credit card, but he argues that no credible evidence shows that he was the one who used the card.
|7We find no merit in appellant’s arguments. It was up to the jury to decide the weight and credibility of the evidence to show that the purchases at' issue were made on the Sosebees’ credit cards and that appellant was the person making each transaction. Deferring to the jury on these matters, and viewing the evidence in the light most favorable to the verdict, we hold that the evidence is substantial to sustain appellant’s conviction for fraudulent use of a credit card.
Affirmed.
Kinard and Hixson, JJ., agree.
. Arkansas Code Annotated section 5-37-207(a) (Supp. 2013) also includes fraudulent use of debit cards.
. Patterson involved interpretation of a prior version of the statute, Arkansas Code Annotated section 5-37-207 (Repl. 1993), which re-orred to credit cards but not to debit cards or account numbers. Our supreme court affirmed appellant’s conviction, finding sufficient evidence that she had used another person's credit card account number to obtain merchandise without his authorization. Patterson, 326 Ark. at 1007, 935 S.W.2d at 268.
. There is no abstract of the videos themselves, but the abstract contains Ms. Page's testimony about them. The DVD is provided in the addendum. | [
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DOUG MARTIN, Judge.
| lAppellant Tim Green, a former North Little Rock police officer, appeals from the decision of the Pulaski County Circuit Court granting the motion for summary judgment filed by the appellees, collectively referred to herein as “the City of North Little Rock” or “the City.”
Green began working as a police officer for North Little Rock in 1997. During his tenure as a police officer, he was married to Carmen Green, who was also a North Little Rock police officer. On January 2, 2007, Carmen Green approached North Little Rock Police Lieutenant Brian Scott and conveyed an allegation that Tim Green was using steroids. | gScott relayed the allegations to Captain Donnie Bridges that same day, informing Bridges in a memorandum that Carmen Green had advised Scott that she had discovered a large bag of syringes in her home; in addition, Ms. Green said that she had researched her bank statements and discovered payments for suspected steroids to a company from overseas.
Upon receiving this information, Bridges notified North Little Rock Police Chief Danny Bradley of the allegations. Bridges and Bradley contacted Captain Mike Davis, Tim Green’s supervisor, and discussed Carmen Green’s allegations. At that meeting, Davis informed Bradley of two recent hostile encounters between Green and two other North Little Rock Police Department officers. Bradley also recalled seeing Green recently and noticing that he had “become swollen and bloated,” according to Bridges’s affidavit. Bradley concluded that, while Carmen Green’s allegations alone might not warrant the ordering of a drug test, her allegations, combined with the two hostile encounters and Bradley’s personal observations, amounted to reasonable suspicion that Green was using steroids.
At that point, Bradley ordered Green to submit to a drug test pursuant to the Police Department’s “Alcohol and Drug Policy,” which provides that members of the police force “shall be required to submit to chemical testing ... [w]hen the City has reasonable suspicion that a member has violated [the Police Department’s] prohibitions regarding use of alcohol or drugs.” Bridges informed Green that he was required to take the “reasonable suspicion” drug test, and on January 9, 2007, Lieutenant Jim Scott and Sergeant Janice Jensen (both of whom were officers with the department’s Professional Standards division) transported Green to the testing facility, where Scott read Green the “reasonable suspicion” paperwork. Green |ssigned the form, was photographed, and provided a urine sample. In addition, Green was placed on administrative leave by Bradley.
The sample was analyzed by Dr. Richard Doncer, who contacted Scott and informed him that Green had tested positive for high levels of the anabolic steroid Nan-drolone. Dr. Doncer’s official test results, however, contained the following conclusion:
After review of the data on Officer Tim Green’s drug test, I have made the final interpretation as a negative test. He did have a legal use administered by a physician in the past. Due to the uncertainty and poor data available regarding the metabolism and detectability of the drug (Nandrolone), I feel that this is the correct decision.
Perhaps, you may want to advise the donor to refrain from future use, even if prescribed legally. You may also want to randomly drug test him in the coming months to assure his levels are declining.
On February 1, 2007, Bradley wrote a letter to Green advising that Green was being released from administrative leave and returned to his regularly scheduled duties in the patrol division. On February 5, 2007, Green completed a “work environment survey” in which he claimed to be aware of “behaviors in the workplace” that violated the Police Department’s discrimination and harassment policy. Green was interviewed by Lieutenant Scott and Sergeant Jensen about his claims on February 14, 2007. During that interview, Green complained about “what was done to [him] on January the 9th being placed on administrative leave due to false allegations by members of this department.” Green also asserted that he was treated in a “threatening and intimidated [sic] manner” when he was called and when he tried to explain that he had a prescription for the steroids. Green further |4advised Scott and Jensen that he did not know the nature of the reasonable suspicion underlying his drug test, and he complained that no one would tell him.
On March 19, 2007, Bradley sent Green a letter in which Bradley related that “the complaint that you voice in your statement does not fall under the purview of [the Department’s discrimination and harassment policy] or any other department policies, rules, regulations, standards of conduct dealing with illegal discrimination or harassment; therefore, no further investigation of your complaint will be conducted.” Bradley did, however, schedule a meeting with Green to discuss the complaint.
Bradley and Davis met with Green on May 16, 2007, after which Bradley wrote an internal memorandum to memorialize the discussion that was had. Bradley wrote that Green felt he was subjected to the drug testing and was being treated differently because of his pending divorce from Carmen Green. Bradley advised Green, “that certainly was not a motivation on my part, nor did I have any knowledge of it being a motivation of any other supervisor in this department.”
Green apparently made no further complaints about the situation, and he received commendations from the Police Department on July 30, 2007 and September 11, 2007, as well as a letter of recognition on November 9, 2007. Green received a pay raise in July 2007.
Green sustained an on-the-job injury to his knee on December 10, 2007, while responding to a police service call. He sought workers’ compensation benefits, and on December 11, 2007, his physician, Dr. Vander Schilden, recommended that Green be taken off work until further notice. Green received workers’ compensation benefits until February | s27, 2008. In addition, he was given “injured-on-duty days,” meaning he was entitled to full pay while recovering from his injury, from December 11, 2007, the day after his injury, until January 27, 2008.
Green submitted the initial paperwork for taking leave pursuant to the Family and Medical Leave Act (FMLA) to Bradley on December 10, 2007. Green never completed the paperwork, however. On December 12, 2007, Green filed an application for duty-disability retirement with the Arkansas Local Police and Fire Retirement System (LOPFI). On December 26, 2007, a representative from LOPFI contacted Bradley to inform him that Green had applied for duty-disability retirement and to seek a written statement certifying whether the disability was duty-related. Bradley advised LOPFI on January 3, 2008, that Green injured his knee while responding to a service call and that the Department did not oppose Green’s application for disability retirement.
On January 31, 2008, Dr. Vander Schil-den released Green to return to a “desk-type occupation until a determination is made by the medical board as to the status of his medical retirement.” In a separate note dated that same day, Dr. Vander Schilden advised that Green was capable of returning to a*desk-type job on January 28, 2007, but the doctor did not want Green returning to work in any capacity while he was taking pain medication. Dr. Vander Schilden again stated on February 4, 2008, that Green could return to work in a “desk-type capacity.”
Based on Dr. Vander Schilden’s representations, Bradley assumed that Green would seek light-duty work when he returned to duty, and Bradley thus began filling out the ^appropriate paperwork that would allow Green to do so. The “Light/Modified Duty Agreement” provided that Green could perform light-duty work in the service division of the Police Department from February 4, 2008, until February 18, 2008.
On February 8, 2008, however, Green sent an interdepartmental communication to Bradley informing the chief that Green intended to resign, effective as of February 22, 2008. Green’s supervisor, Captain Davis, received this letter on February 14, 2008. On that same date, Bradley approved Green for light-duty work. When Bradley received Green’s resignation letter, however, he rescinded his decision to allow Green to work a light-duty position. Bradley explained in an affidavit as follows:
Upon reflection of ... Green’s medical retirement, which I believed meant that he was claiming a disability and could not return to work; his resignation, which also meant he would not be returning to work; and the “light-duty” policy, which limits “light duty” positions to those who are going to return to work, I decided to rescind my decision concerning ... Green’s “light duty” position.
In a deposition, Bradley stated, “I mean, he’s leaving the department, so there’s no point in continuing his light duty.” Bradley denied, however, that he would ever have denied Green light duty in order to force a retirement.
Upon receiving Bradley’s rescission of the light-duty agreement, Green submitted a revised resignation letter in which he expressed his belief that he was “being discriminated 17against and treated unfairly.” Accordingly, Green announced his intention to make his resignation effective February 19, 2008.
Green filed a complaint against the City on December 15, 2008, alleging that, on January 9, 2007, the City caused Green to be arrested without probable cause, drug tested, and placed on administrative leave. Green also alleged that, by virtue of the drug test, he was deprived of his right to be free from unreasonable search and seizure pursuant to the Fourth Amendment of the United States Constitution and also pursuant to the Arkansas Constitution. Moreover, Green alleged that the deprivation of his state and federal constitutional rights constituted a violation of the Arkansas Civil Rights Act. In the second count of his complaint, Green alleged that the City denied him the benefit of his rights pursuant to the FMLA and that the City’s actions constituted “interference with [Green’s] FMLA rights as well as retaliation.”
The City answered and filed a motion for summary judgment. In its motion, the City asserted that Green failed to establish that a violation of his Fourth Amendment rights or his FMLA rights occurred, and that, even assuming any violations had occurred, the City was entitled to qualified immunity and, accordingly, summary judgment. Regarding Green’s Fourth Amendment claims, the City as serted that ordered submission to a drug test was incidental to Green’s employment as a police officer and thus did not violate the Fourth |sAmendment; moreover, the City contended that Bradley had reasonable suspicion to order the drug test. As for Green’s FMLA claims, the City argued that there is no entitlement to “light-duty” work under the FMLA, and accordingly, Green had failed to state a cause of action for a violation of that Act.
Green responded to the City’s motion for summary judgment by claiming that the City had “raised strawman arguments on [Green’s] constitutional claims.” He reiterated his claims from his complaint that he was arrested and subjected to an unconstitutional search and additionally argued that he was denied his rights pursuant to Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). In addition, Green argued that with respect to his FMLA claim, he was “denied light duty, when others were given this benefit” and was “forced to retire before his FMLA leave was exhausted.” Green further asserted that the City was not entitled to any kind of qualified immunity.
After a hearing, the circuit court entered an order on March 4, 2011, granting the City’s motion for summary judgment, finding that there existed no genuine issue of material fact, that the City was entitled to judgment as a matter of law, and that Green had failed to meet proof with proof. Green filed a timely notice of appeal on March 14, 2011.
The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. Crockett v. C.A. G. Invs., Inc., 2011 Ark. 208, 381 S.W.3d 793. A trial court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Id. On appeal, this court determines if summary judgment |nwas appropriate based on whether the evidentiary items presented by the moving party leave a material question of fact unanswered. Bryan v. City of Cotter, 2009 Ark. 172, 303 S.W.3d 64. Summary judgment is also appropriate when the trial court finds that the allegations, taken as true, fail to state a cause of action. Cottrell v. Cottrell, 332 Ark. 352, 965 S.W.2d 129 (1998); Hice v. City of Fort Smith, 75 Ark.App. 410, 58 S.W.3d 870 (2001). We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811.
In Green’s first point on appeal, he argues that he was unconstitutionally arrested and searched when he was required to take a drug test on January 9, 2007. He begins from the premise that there was no probable cause for “arresting” and obtaining a urine sample from him, and thus, according to Green, the “nonconsensual, warrantless, and suspicionless search” was unauthorized and unconstitutional and violated his Fourth Amendment rights. We disagree.
It is true that a urine test conducted by a state actor is a search within the meaning of the Fourth Amendment. Ferguson v. City of Charleston, 532 U.S. 67, 76, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The Fourth Amendment, however, does not proscribe all searches and seizures, but only those that are unreasonable. Skinner, 489 U.S. at 619, 109 S.Ct. 1402. What is reasonable “depends on all of the circumstances surrounding the search ... and the nature of the search ... itself.” Id. (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)). Except in certain well-defined | mcircumstances, a search is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. Id. The United States Supreme Court has recognized exceptions to this rule, however, when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). In such circumstances, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context. Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). The Skinner Court explained further as follows:
Our cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. When the balance of interests precludes insistence on a showing of probable cause, we have usually required “some quantum of individualized suspicion” before concluding that a search is reasonable. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.
Skinner, 489 U.S. at 624, 109 S.Ct. 1402 (internal citations omitted).
Thus, rather than simply assuming, as does Green, that the order for him to submit to a drug test was an unconstitutional arrest, we must determine whether the drug test was reasonable. In so doing, we must balance the State’s interests against Green’s privacy expectations. The United States Supreme Court has found that the government has a compelling interest in ensuring the safety and fitness for duty of government employees ^engaged in activities that implicate public safety. See, e.g., Skinner, supra (approving policies mandating drug testing of railroad employees involved in certain kinds of railroad accidents); Von Raab, supra (upholding drug testing for employees of the United States Customs Service who had direct involvement in drug interdiction or enforcement or related laws and who carried firearms as part of their job duties).
Here, the “purpose statement” of the North Little Rock Police Department’s Alcohol and Drug Policy makes clear that the Police Department “has a vital interest in providing for the safety and well being of all members and the public as well as maintaining efficiency and productivity in all of its operations.” The policy further includes police officers in its category of “safety and security-sensitive positions,” which are described as those
in which a momentary lapse of attention may result in grave and immediate danger to the public or one where the position requires enforcement of the laws pertaining to the use of illegal substances. Officers who themselves use such substances may be unsympathetic to the enforcement of the law and are, therefore, potentially subject to blackmail and bribery.
Thus, we conclude that the City’s interest in maintaining an efficient police department and providing for the public safety falls squarely in the category of “ ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.” Skinner, 489 U.S. at 620, 109 S.Ct. 1402.
Against the City’s interests, we must weigh Green’s privacy expectations. In Skinner, the Supreme Court considered whether taking urine samples unduly impinged upon an individual’s right to privacy. The court acknowledged that such tests “require employees to perform an excretory function traditionally shielded by great privacy,” id. at 626, 109 S.Ct. 1402, but noted that the pertinent regulations “endeavor to reduce the intrusiveness of the collection process.” Id. Moreover, the Court examined the process of obtaining the samples against the backdrop of the relevant public-safety issues and concluded that “the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees.” Id. at 627, 109 S.Ct. 1402.
In Von Raab, a drug test was a mandatory part of applying for employment or promotion within the Customs Service. The Court determined that the purpose of the testing program was not to serve the ordinary needs of law enforcement but to deter drug use among those seeking employment at “sensitive positions within the Service and to prevent the promotion of drug users to those positions.” Von Raab, 489 U.S. at 666, 109 S.Ct. 1384. The Von Raab Court also noted that
a warrant would provide little or nothing in the way of additional protection of personal privacy. A warrant serves primarily to advise the citizen that an intrusion is authorized by law and limited in its permissible scope and to interpose a neutral magistrate between the citizen and the law enforcement officer engaged in the often competitive enterprise of ferreting out crime. But in the present context, the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically, and doubtless are well known to covered employees.
Id. at 667,109 S.Ct. 1384 (internal citations and punctuation omitted).
The Court then examined the individual’s right to and reasonable expectation of privacy, weighing those rights against the interference with personal liberty that results from requiring an employee to undergo a urine test:
11sThe interference with individual privacy that results from the collection of a urine sample for subsequent chemical analysis could be substantial in some circumstances. We have recognized, however, that the “operational realities of the workplace” may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts. While these operational realities will rarely affect an employee’s expectations of privacy with respect to searches of his person, or of personal effects that the employee may bring to the workplace, it is plain that certain fonns of public employment may diminish privacy expectations even with respect to such personal searches. Employees of the United States Mint, for example, should expect to be subject to certain routine personal searches when they leave the workplace every day. Similarly, those who join our military or intelligence services may not only be required to give what in other contexts might be viewed as extraordinary assurances of trustworthiness and probity, but also may expect intrusive inquiries into their physical fitness for those special positions.
We think Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewise have a diminished expectation of privacy in respect to the intrusions occasioned by a urine test. Unlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity. Much the same is true of employees who are required to carry firearms. Because successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness. While reasonable tests designed to elicit this information doubtless infringe some privacy expectations, we do not believe these expectations outweigh the Government’s compelling interests in safety and in the integrity of our borders.
Id. at 671-72, 109 S.Ct. 1384 (emphasis added) (internal citations omitted).
Similarly, in the instant case, officers with the North Little Rock Police Department carry firearms and are frequently involved in apprehending individuals who are dealing in illegal drugs. Thus, it is not unreasonable for the City to require officers to submit to drug testing in certain circumstances in order to determine fitness of those officers to complete their duties. As such, we conclude that the drug test meets the “reasonableness requirement of the Fourth Amendment.” Id. at 665, 109 S.Ct. 1384. As the Von Raab Court noted, “neither a warrant nor Improbable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” Id.
We also note that, in the present case, not only did the test meet the general reasonableness standard, but the City actually had some “measure of individualized suspicion.” Id. As mentioned above, Bradley determined that he had reasonable suspicion to order a drug test of Green based not solely on Green’s ex-wife’s allegation about the bag of syringes and the bank statements showing purchases of steroids, but also on his own personal observation of Green’s physical appearance and recent aggressiveness, traits which Bradley associated with the use of anabolic steroids. The Police Department’s drug policy provides that an officer may be required to submit to chemical testing “[w]hen the City has reasonable suspicion that a member has violated any of the [policy’s] prohibitions regarding use of alcohol or drugs.” Under the policy, “reasonable suspicion” must be “based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the member.” Clearly, Bradley’s observations, coupled with Carmen Green’s allegations, provided the Police Department with reasonable suspicion to order Green to submit to a drug test.
Despite Green’s contention that he was “arrested,” he points to no evidence other than his own personal belief that the drug test was not job-related and reasonable under the circumstances. Moreover, although he complains that he was “seized” when he was not allowed to drive his own vehicle to the testing facility, the Supreme Court has held that “the employer’s antecedent interference with the employee’s freedom of movement” need not |15be considered an independent Fourth Amend ment seizure, Skinner, 489 U.S. at 618, 109 S.Ct. 1402, and “[t]o the extent transportation and like restrictions are necessary to procure the requisite ... urine samples for testing, this interference alone is minimal given the employment context in which it takes place.” Id. at 624, 109 S.Ct. 1402.
Finally, Green argues that the drug-testing order violated his rights pursuant to Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Garrity holds that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained [from a police officer] under threat of removal from office.” Garrity, 385 U.S. at 500, 87 S.Ct. 616. The Fifth and Fourteenth Amendment right protected in Garrity, however, is the privilege to be free from being compelled to communicate or otherwise provide testimony. Giving a blood or urine sample for drug testing does not violate that privilege. Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see also Oman v. State, 737 N.E.2d 1131, 1144 (Ind.2000) (holding “toxicological samples are not evidence of a testimonial nature”). Garrity simply has no application in this situation, and Green’s arguments to the contrary are unavailing. In short, we conclude that the trial court correctly granted the City’s motion for summary judgment on this issue.
In his second argument on appeal, Green maintains that he “established a clear violation of the FMLA,” and as such, the City and the individually named defendants are not entitled to qualified immunity. Green appears to raise two basic claims related to the FMLA: that he suffered an adverse job action by being constructively discharged, and that the City | ^interfered with his rights under the FMLA by treating him differently than other employees who exercised their FMLA rights.
As for the “adverse job action,” Green argues that he was told to “resign or be terminated” and was thus constructively discharged. A constructive discharge exists when an employer intentionally renders an employee’s working conditions intolerable and thus forces him to resign. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988) (citing Harris v. Wal-Mart, 658 F.Supp. 62 (E.D.Ark.1987)). It exists only when a reasonable person would have resigned under the same or similar circumstances. Id. Green notes that, in order to establish a constructive discharge, he “must show that conditions were so intolerable that they rendered a seemingly voluntary resignation a termination.” He then cites cases from several other jurisdictions in which constructive discharges were found to exist. Other than his assertion (without citation to the record or addendum) that he was told to resign or be terminated, however, Green offers no compelling argument that he was constructively discharged, nor does he relate the alleged “resign or be terminated” communication to his FMLA claim.
Green’s second contention is that the City interfered with his FMLA rights because he should have been allowed to work light duty. He posits that “individuals who have not taken FMLA leave have been allowed to work light duty for years,” and he cites 29 C.F.R. § 825.220(c) in support of his argument that the FMLA’s prohibition against “interference” prohibits an employer from discriminating or retaliating against an employee for having exercised or attempted to exercise FMLA rights. Thus, he concludes, “whether termed as | ^retaliation or interference, the City has treated others more favorably in terms of light duty, denied [Green] the benefits of the policy, and denied [Green] his full 12-week entitlement under the FMLA” because he was “forced to resign before his FMLA was exhausted.”
We note several problems with Green’s argument. First, despite his protestations in his reply brief to the contrary, the gist of his claim is that he was entitled to light-duty work but was denied it. In Green’s December 7, 2010 deposition, attached as an exhibit to his response to the City’s motion for summary judgment, the following exchange occurred:
Q: Your claim — your claim at FMLA is that you were denied light duty, correct?
A: Yes.
Similarly, in Green’s affidavit, also attached as an exhibit to his response to the City’s motion for summary judgment, he states that the City “denied me the benefit of the FMLA by depriving me of light duty.” (Emphasis added.) Thus, it is apparent that his FMLA-interference claim is premised on the City’s alleged refusal to allow him to perform a light-duty job.
Under the FMLA, however, there is no entitlement to light-duty work. See generally 29 U.S.C. § 2612; Hendricks v. Compass Group, USA, Inc., 496 F.3d 803, 805 (7th Cir.2007) (“There is no such thing as ‘FMLA light dut/ whether pursuant to the statutes or their corresponding regulations.”). If there is no entitlement to light-duty work under the FMLA, Green’s rights under the Act could not have been violated by any alleged refusal to provide him with such work.
[ lsSecond, the chronology of this case belies Green’s arguments. Green was injured on December 10, 2007, and he applied for duty-disability retirement on December 12, 2007. When Green’s treating physician released him to work effective January 28, 2008, Captain Bridges began filling out the necessary paperwork to allow Green to work a light-duty position on February 4, 2008. Green then submitted his letter of resignation to Bradley on February 8, 2008, stating that he would like his resignation to be effective on February 22, 2008. Although Bradley initially approved Green’s light-duty paperwork, when the chief received Green’s resignation letter, Bradley rescinded that decision on February 15, 2008, reflecting that if Green was going to retire, he would not be eligible for light-duty work, which was only available for employees who intended to return to work.
It is apparent from this timeline that Green decided to retire on February 8, 2008, and the decision that he would not be approved for light-duty work was not made until February 15, 2008. As such, we cannot agree with Green that the rescinding of the light-duty approval was the event that triggered Green’s decision to retire. That is, as Green had decided to resign prior to the decision to decline his request for light-duty work, the denial of light duty could not have been the cause of Green’s resignation. Green simply was not “forced” to resign as a result of anything having to do with the exercise of his FMLA rights; in fact, the record demonstrates that he was not “forced” to resign at all.
As there were no violations of Green’s FMLA rights, we find it unnecessary to determine whether the City is entitled to qualified immunity. A motion for summary judgment based on qualified immunity is precluded only when the plaintiff has asserted a | ^constitutional violation, has demonstrated the constitutional right is clearly established, and has raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right. Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005); Baldridge v. Cordes, 350 Ark. 114, 85 S.W.3d 511 (2002). Here, there was no conduct on the part of the City or its employees that violated any of Green’s constitutional rights; accordingly, the circuit court correctly granted summary judgment on this issue.
Affirmed.
PITTMAN and WYNNE, JJ., agree.
. The named defendants/appellees are the City of North Little Rock, North Little Rock Police Captain Donnie Bridges, North Little Rock Police Lieutenant Brian Scott, North Little Rock Police Chief Danny Bradley, North Little Rock Police Captain Mike Davis, and North Little Rock Police Lieutenant Jim Scott. All of the named individuals were sued both individually and in their official capacities.
.The police department’s policy directive concerning temporary light- or modified-duty work provides that "temporary light duty” work is "work assigned during recovery from temporary work restrictions that prevent members from performing one or more of the essential functions of their jobs.” That directive also provides that "[temporary light or modified duty assignments will not extend beyond the actual time required for recuperation."
. The complaint was originally filed in Saline County but was subsequently transferred to Pulaski County.
. Because the retaliation issue is mentioned nowhere in Green's brief, we conclude that he has abandoned this issue on appeal.
. At page 5 of his reply brief, Green maintains that he “has never argued that the FMLA provides him with an independent entitlement to light duty.” | [
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DOUG MARTIN, Judge.
_[jThis is a no-merit appeal from the revocation of appellant Thomas T. Jones’s probation wherein he was sentenced to a total of sixteen years in the Arkansas Department of Correction. Jones’s counsel has filed a motion to withdraw and a no-merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4—3(k)(l) (2011). Jones was provided a copy of his counsel’s brief and was notified of his right to file a list of pro se points on appeal within thirty days; he has submitted three pro se arguments for reversal.
Jones was charged with one count of second-degree domestic battery on May 15, 2007, in CR-2007-285-5-2. He was subsequently charged with a second count of second-degree domestic battery on August 27, 2007, in CR-2007-676-5-2. Jones pled guilty to both counts on September 14, 2007, and the Jefferson County Circuit Court sentenced him to sixty months’ probation on each charge, to be served concurrently. As part of the order ^placing Jones on probation, he was ordered to have no contact with Kimberly Jones Miller, the victim of his domestic battery. In addition, the conditions of his probation required him to not commit any criminal offense or drink alcohol or use drugs. Jones was also required to pay court costs and fines, complete 120 hours of community service, and obtain a GED.
The State filed a petition to revoke Jones’s probation on July 27, 2010, alleging that he committed numerous offenses, including driving while intoxicated, violation of a protective order, and domestic battery. In addition, the revocation petition alleged that Jones tested positive for marijuana, opiates, and cocaine; failed to report as instructed; and violated the no-contact order. Following a revocation hearing on November 18, 2010, the circuit court entered an order revoking Jones’s probation and sentencing him to ten years in the Arkansas Department of Correction in CR-2007-285-5-2 and six years in CR-2007-676-5-2, with the sentences to run consecutively.
As noted above, Jones’s counsel has filed a no-merit brief and motion to withdraw pursuant to Anders v. California, supra. An attorney’s request to withdraw from appellate representation based upon a meritless appeal must be accompanied by a brief that contains a list of all rulings adverse to his client that were made on any objection, motion, or request made by either party. Eads v. State, 74 Ark.App. 363, 47 S.W.3d 918 (2001). The argument section of the brief must contain an explanation of why each adverse ruling is not a meritorious ground for reversal. Id. This court is bound to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Campbell v. State, 74 Ark.App. 277, 47 S.W.3d 915 (2001).
|sIn his brief, counsel notes six objections raised below and posits that, as each amounted to an evidentiary objection, the circuit court did not abuse its discretion in ruling on any of them. We agree. Those objections were as follows:
• During cross-examination of Jones’s probation officer, Brooke Norsworthy, counsel asked Norsworthy whether Jones had told her that Miller “kept pursuing him.” Norsworthy said he had told her that, and counsel asked, “Now, when he told you that, did you think he was lying to you or did you think he was telling the truth or what?” The State objected that the question called for speculation; the court agreed and sustained the objection.
• During cross-examination of Norswor-thy about Jones’s testing positive for opiates, which he claimed was the result of taking prescription medication, Norsworthy explained that, even if Jones had a prescription, it had expired. Counsel asked, “Okay, but have you ever had a prescription and had old medicine laying around the house?” The State objected, arguing that what Norsworthy has done with her medicine was irrelevant; the court agreed and sustained the objection.
• During cross-examination of Pine Bluff Police Officer Billy Dixon, who responded to Miller’s 911 call, Jones’s counsel asked whether, if Miller went to Jones’s house, “that sound[ed] like a person who’s got an order of protec tion?” The State objected, contending the question called for speculation; the court agreed and sustained the objection.
• During the State’s direct examination of Miller, the State asked whether she had had contact with Jones and how that contact came about. Miller began talking about her animals’ being injured, and Jones objected that her answer was not responsive to the question. The State asserted that it was going to try to narrow Miller’s responses, and the court allowed the State to continue.
• During the State’s direct examination of Miller, the State was asking whether Miller allowed Jones to be around her despite the no-contact order. The State asked, “So, sometimes to keep him from getting upset, do you agree to see him or be around him or ... let him around you?” Counsel objected to leading, but the court disagreed and overruled the objection, noting that the rules of evidence did not apply to revocation proceedings and disagreeing, in any event, that the prosecutor was telling the witness what to say.
14» During cross-examination of Miller, Jones’s counsel asked her, “according to your testimony, you’re terrified of my client, is that right?” Miller replied, “I’m terrified of him when he is aggressive, yes.” Counsel then asked, “Oh, in other words, you’re terrified when he doesn’t do what you want him to do; is that what you’re saying?” The State objected, and the court admonished counsel not to question Miller in an aggressive or argumentative fashion.
A trial court has broad discretion in evidentiary rulings, and this court will not reverse a trial court’s ruling on the introduction of evidence unless the lower court has abused that discretion. Williams v. State, 2011 Ark. App. 675, 386 S.W.3d 609. Moreover, even when a circuit court errs in admitting evidence, the appellate courts will affirm a conviction and deem the error harmless if the evidence of guilt is overwhelming and the error is slight. Marmolejo v. State, 102 Ark.App. 264, 284 S.W.3d 78 (2008). As discussed below, the evidence supporting the revocation of his probation was overwhelming; thus, even assuming that the trial court erred in admitting any of this testimony, any error would be harmless and thus could not stand as the basis for a meritorious argument on appeal.
Counsel asserts that there was sufficient evidence to support the revocation of Jones’s probation. In addition, Jones also raises the sufficiency of the evidence in one of his pro se points on appeal. We agree with counsel and conclude that any argument related to the sufficiency of the evidence would not form a meritorious basis for appellate review.
In probation-revocation proceedings, the State has the burden of proving that an appellant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence, and this court will not reverse the trial court’s decision to revoke probation unless it is clearly against the preponderance of the evidence. Amos v. State, 2011 Ark. App. 638, 2011 WL 5110125; Maxwell v. State, 2009 Ark. App. 533, 336 S.W.3d 881. The State need | Bonly show that the appellant committed one violation in order to sustain a revocation. Amos, supra.
As noted above, the revocation petition filed by the State in this case alleged that Jones had been arrested on various criminal charges, including domestic battery; tested positive for controlled substances; failed to report as instructed; and violated the no-contact order keeping him away from Miller. At the revocation hearing, Jones’s probation officer, Brooke Norswor-thy, testified that Jones had tested positive for cocaine and opiates; in addition, Nor-sworthy testified that Jones had not obtained his GED as required by the trial court. Norsworthy further testified that Jones had admitted to her on several occasions that he had been in contact with Miller, although he claimed that Miller initiated those encounters.
Jefferson County Sheriffs Deputy David Walker testified that he responded to a domestic disturbance at Miller’s home on January 31, 2010, where he found her with blood on her nightgown and a bruise on her cheek. Miller told Walker that Jones caused her injuries. Trooper Jas-sen Travis of the Arkansas State Police, who arrested Jones later that day, testified that Jones was argumentative and had a strong odor of intoxicants about him. Officer Billy Dixon of the Pine Bluff Police Department similarly testified that he was dispatched to a domestic disturbance involving Miller and Jones on March 11, 2010. Dixon observed redness around Miller’s neck, and Miller told him that Jones had grabbed her around the neck. Miller also testified, describing the incidents in which Jones became violent and angry with her.
In Jones testified on his own behalf. Although he denied knowing how he tested positive for cocaine, he conceded that he smoked marijuana, contacted Miller despite a no-contact order, and drank alcohol on several occasions during his probationary period.
At the conclusion of the revocation hearing, the circuit court found that Jones had accrued two new domestic-battery charges in violation of the first condition of his probation. The court also found that Jones had been arrested for driving under the influence and had testified that he had drunk whiskey with his father in violation of the second condition of his probation. The court further pointed to Jones’s testing positive for cocaine and admitting that he had smoked marijuana on several occasions in violation of yet another condition of probation. Finally, the court pointed out that Jones had not obtained his GED as required by the terms of his probation and had violated the no-contact order.
In his pro se argument on appeal challenging the sufficiency of the evidence, Jones asserts that “statements and testimony by [Miller] contradict each other, as well as testimony by other witnesses,” and “the judge ruled on hearsay and not actual admission of evidence.” As to Jones’s argument that the testimony was contradictory, it is the duty of the trier of fact — the trial judge in this instance — to resolve any contradictions, conflicts, and inconsistencies in a witness’s testimony and to determine the credibility of the witnesses. Lee v. State, 2010 Ark. App. 15, 2010 WL 26391; B.J. v. State, 56 Ark.App. 35, 937 S.W.2d 675 (1997). Jones cites no authority to contradict the well-established rule that an appellate court defers to the trial court on questions of witness credibility and conflicting testimony. See Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002); Autrand v. State, 2010 Ark. App. 245, 2010 WL 816227. As for his hearsay 17argument, Jones never raised a hearsay objection below. It is well settled that the appellate courts will not address an argument that is raised for the first time on appeal. Stansell v. State, 2011 Ark. App. 670, 2011 WL 5429589; Caldwell v. State, 2011 Ark. App. 358, 2011 WL 1795524.
As to his contention that the State failed to prove by a preponderance of the evidence that he violated a condition of his probation, Jones fails to acknowledge that he had admitted to smoking marijuana, contacting Miller despite the no-contact order, and drinking alcohol. Jones’s testimony, standing alone, constitutes sufficient evidence that he violated the terms and conditions of his probation.
In his second pro se point, Jones contends that, pursuant to Arkansas Code Annotated section 16-93-402 (Repl.2006), the trial court erred in sentencing him to a “prison term longer than [the] remainder of [the] time originally imposed.” He argues that he was “originally sentenced to a total of five years, and at my revocation hearing, I was sentenced to ten years and six years respectively.”
Section 16-93—402(c)(5), on which Jones relies, provides that a court may revoke a probation and “require the probationer to serve the sentence imposed or any lesser sentence which might have been originally imposed.” When, however, no sentence was initially imposed, as happened here, the statute has no application. In Lee v. State, 299 Ark. 187, 772 S.W.2d 324 (1989), the supreme court explained that probation is a procedure whereby a defendant who pleads or is found guilty of an offense is released without pronouncement of sentence subject to the supervision of a probation officer. Lee, 299 Ark. at 189, 772 S.W.2d at 325 (citing Ark.Code Ann. § 5-4-101(2)). When a defendant is placed on probation and |sno sentence is imposed, and the circuit court later revokes the probation, the court may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty. Id. at 190, 772 S.W.2d at 326; see also Ark.Code Ann. § 5-4-309(f)(1)(A) (Repl.2006).
Here, Jones entered guilty pleas to one count of second-degree domestic battery and one count of third-degree domestic battery, and he was placed on probation. Second-degree domestic battery is a Class C felony, Ark.Code Ann. § 5-26-304(b)(l) (Repl.2006), which has a sentencing range of not less than three years nor more than ten years. Ark.Code Ann. § 5-4—401(1)(3) (Repl.2006). Third-degree domestic battery is a Class D felony, Ark.Code Ann. § 5-26-305(d)(2)(B) (Repl.2006), for which a sentence may not exceed six years. Ark. Code Ann. § 5-4-403(a)(4) (Repl.2006). Accordingly, his sentences of ten and six years, respectively, are sentences that might have been originally imposed for the offenses of which he was found guilty.
Finally, Jones argues that his revocation hearing was held more than sixty days after his arrest, in violation of Arkansas Code Annotated section 5-4-310(b)(2) (Repl.2006). That statute provides that a revocation hearing “shall be conducted by the court that ... placed [the defendant] on probation within a reasonable period of time after the defendant’s arrest, not to exceed sixty (60) days.”
|3The purpose of section 5-4-310 is to assure that a defendant is not detained in jail for an unreasonable time awaiting his revocation hearing. Holmes v. State, 33 Ark.App. 168, 803 S.W.2d 563 (1991). The constitutional right to a speedy trial does not apply to probation-revocation hearings, however, see White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997), and the time limitation provided in the statute is not intended to be jurisdictional. Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978). Rather, it represents the period beyond which the hearing cannot be delayed if the defendant objects. Id. Where a defendant does not object to the timeliness of the hearing, he waives his right to insist that the revocation hearing be held within sixty days. Id. Here, the record reflects that Jones never objected to the alleged untimeliness of the revocation hearing. As such, Jones waived any argument on this issue.
Based on our review of the record and the brief presented to this court, we conclude that there has been full compliance with Rule 4 — 3(k) and that the appeal is without merit. Counsel’s motion to be relieved is granted, and the judgments of conviction upon revocation are affirmed.
Affirmed.
PITTMAN and WYNNE, JJ., agree.
. Jones was arrested on January 31, 2010, and his revocation hearing was held on November 18, 2010. | [
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HART, J.,
(after stating the facts). The chief reliance of counsel for appellant for a reversal of the judgment is, that the court erred in refusing to allow him to prove by witnesses that the universal custom between land owners and real estate brokers in Mississippi county, is, that when a tract of land is listed with a broker for a designated price per acre net to the owner, the broker gets as his commission all that he sells the land for in excess of the list price. Counsel for appellant admit that generally it is the duty of the court to construe a written contract and declare its terms and meaning to the jury. But they invoke the rule that where commercial terms are used which by custom are used in a sense other than the ordinary meaning of the words, oral testimony is admissible to explain the meaning of the words used and that it should be submitted to the jury to determine in what sense they were used. They rely upon the principles of law decided in Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400. In that case the parties entered into a written contract for the sale and delivery of lumber at a designated price per thousand feet “board measure.” The court held that it was competent to show by parol evidence that the phrase “board measure” was a commercial term, and that it was the well-nigh universal custom in the lumber trade for sales to be made in accordance with its commercial meaning. There is no difficulty of this kind in the contract here. The .words have a settled and definite legal meaning. In Boysen v. Robertson, 70 Ark. 56, the court in construing a similar contract held that the words used were only a limitation upon the power of the agent to sell and that it was still his duty to sell the land for the highest price obtainable, and to account to his principal for the proceeds, less a compensation not greater than the excess of the purchase money over the designated price per acre net, and at the same time not exceeding a reasonable compensation. This rule was reaffirmed in the later case of Bennett v. Thompson, 126 Ark. 61. It was there said that the duty rests upon a real estate broker, the same as upon any other agent, to make disclosure to his principal of the terms of a negotiation so that the principal may act advisedly in determining whether or not the proposal is satisfactory. The court held that the broker may make a contract whereby he will be entitled to the difference between the price the seller agrees to accept and the amount the purchaser agrees to pay, regardless of what that amount is; but that such a contract must be plainly expressed in order to relieve the broker of the duty he owes to his principal to make a full disclosure concerning the terms of the negotiation. In the case above cited the words under consideration had a meaning peculiar to the lumber trade and that meaning was understood by all lumber men. Here the words used in the contract had a well defined legal meaning, and, in the absence of any showing in the contract that the parties intended them to have a different meaning, they must be presumed to have used them in their legal meaning. In all cases where evidence of custom or usage is received the rule must be taken with the qualification that the evidence be not repugnant to or inconsistent with the contract. No usage or custom can be incorporated into a contract which is inconsistent with its terms. It is clear that local usages or customs can not defeat the express terms of a contract; nor can they contravene settled principles of law. This principle is clearly recognized in the case above cited as well as by other opinions of this court. Although usage may be resorted to to explain the meaning of a commercial term, it can never be received to contradict the express terms of a contract, nor to give words a meaning different from their settled legal interpretation. Hence the court did not err in refusing the offered testimony.
The contract under consideration does- not fix what compensation appellant was to receive for selling the land. It was agreed by the parties that, in the absence of a contract to the contrary, 5 per cent, is a reasonable commission for the sale of the land. The jury found for appellant and fixed his compensation at $960. This finding eliminates from our consideration the other assignments of error, for the reason that the finding of the jury being in favor of appellant, he could not be prejudiced by the instructions given to the jury;
It follows that the judgment must be affirmed. | [
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McCULLOCH, C. J.
Eoad Improvement District No. 4 of Jackson County was duly organized by an order of the county court of that county upon the petition of a majority in value of the property owners as prescribed by Act No. 338 of the G-eneral Assembly of 1915. The preliminary survey and estimate of cost made by the State Highway Department, upon which the petition to the court was based, specified the route and distance of the road, and the character of the improvement as a gravel road, five inches in depth, with a gravel coat of asphalt treatment one inch in depth, the road to be twelve feet wide.
The estimated cost of the improvement was $176,717. The commissioners of the district, upon the recommenda tioxx of the engineers, subsequently decided upon an alteration'in the plans and estimates so as to provide for fourteen feet width for the road and the use of gravel seven and one-half inches in depth, omitting the coat of asphalt treatment. It was found that the cost of the improvement according to this change, and the enhanced cost of purchasing the material, will be $229,048.49, an excess of $52,331.49, but it is shown that a considerable portion of the enhanced cost is, on account of changed conditions which require additional cost of material, even in constructing the road according to the original plans. In other words, there is a difference in the two estimates to the extent of the sum of $52,331.49, but the net additional cost on account of the alteration to be made by the commissioners amounts to $26,647.32.
The county court approved the changes, and this action was instituted by appellant against the commissioners of the district to restrain them from departing from the original plans, specifications and estimates in the construction of the improvement.
The contention is that there is no authority for the commissioners and county court to make the changes. This contention is based upon our decision in the recent case of Rayder v. Warrick, 133 Ark. 491, where we held, in substance, that after the organization of a district there is no authority for a total change in the character of the improvement as prescribed in the plans, specifications and estimates upon which the petition was based. In that case we discussed the effect of the statute which expressly authorized the commissioners to make alterations in the plans and specifications or the route of the road to be constructed, but we held that this authority was limited to such changes as did not wholly change the character of the improvement. In that ’case the changes involved an additional cost which practically doubled the cost of the improvement as originally estimated. It also made a radical change in the route of the road to be improved and also changed the character of the improvement from gravel to asphalt. In commenting on the stat ute authorizing the commissioners to make changes we said that the provisions of this statute “would not in anyway safeguard the interests of the land owners if the commissioners could wholly change the plans and specifications so as to make an entirely different improvement and to construct it over an entirely different route, ’ ’ and in summing up the effect of the alterations we said that “the change from a gravel roadbed to an asphalt one was a radically different improvement from the one contemplated in the petition circulated among the land owners” and that the commissioners have “also adopted a wholly different route from that at first contemplated” which they could not legally do. In that opinion we recognized the force and validity of that part of the statute which authorizes the commissioners to make changes, but we construed it in the light of other sections so as to limit the changes as not to totally change the type or character of the improvement. Of course, in each instance it must remain as a question to be determined upon the particular facts, as to whether or not the alterations are such as to fall within the kind authorized by the statute.
In the present case it is seen that there was no change at all in the distance or route of the road to be improved and the changes were limited to the width of the road and the kind of material. If the statute is given any effect at all, it must admit of changes to the extent of slight increase or decrease in the width of the road, and also if it has any effect at all it authorizes such changes in the kind of material which do not amount to a change in the type of the road to be constructed. Of course, the question of additional cost, while not necessarily controlling, is always to be considered in determining whether or not there has been such a^ radical change from the original plans as to constitute a different type of improvement. Here the asphalt surface treatment was omitted and an additional depth of gravel was substituted in its place, and the engineers who testified as experts stated that this did not constitute a change in the type of the road.
"We are of the opinion that these alterations in the plans and specifications did not constitute a total change in the improvements, hut that they were such alterations as the statute expressly authorizes the commissioners to make.
We have nothing to do with the policy of the law authorizing the commissioners to make such changes, for it is entirely a matter of legislative control, and we must give effect to the plain letter of the statute which authorizes commissioners to make alterations. A total change in the character of the improvement would not, however, constitute an alteration of the old improvement, but would be a substitution of a type of improvement to which the property owners had not consented, and that is not authorized by the statute.
Decree affirmed. | [
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SMITH, J.
The Arkansas National Bank sued C. J. Ledwidge and Maude Anna Ledwidge, his wife, and for cause of action alleged that C. J. Ledwidge was indebted to it in the sums of $2,250 and $225 and while so indebted had made a voluntary conveyance to his wife of an undertaking business which he owned in the city of Hot Springs, and which said conveyance rendered him insolvent. An amendment to the complaint ■ was filed which alleged the sale was made in violation of the Bulk Sales Law of this State, in that the notice there required was not given to creditors. The answer denied these allegations and set up an accord and satisfaction of the demand sued on.
The record is a voluminous one and various matters of more or less relevancy were developed in the testimony. But the relevant facts may be summarized as follows: Ledwidge was largely indebted to numerous creditors and was in fact insolvent. The bank was his principal creditor, and he had long been one of its customers and the relation between Ledwidge and the managing officers of the bank was close and cordial. The bank undertook to.assist Ledwidge in settling with his other creditors and to that end prepared a letter which was sent them advising an acceptance of fifty cents on the dollar in full settlement of their demands. The officers of the bank testified, however, that there was no agreement on its part to accept less than the full amount due it. This Ledwidge denied, and the court in effect found with Ledwidge on this issue. Ledwidge was at the time indebted to the bank in the sum of $4,500, and according to his version he discharged this indebtedness by a payment to the bank of fifty cents on the dollar as agreed. It appears that other creditors were paid fifty cents on the dollar of their indebtedness pursuant to the proposal to that effect.
The bank executed to Ledwidge a receipt for $2,250, which recited that it was “Payment in full of all demands and claims to this date, and in consideration of said sum the said C. J. Ledwidge is hereby released of and from any and all other demands and claims of every kind and nature to this date. ’ ’
At the time the payment recited was made Ledwidge had some cash items and a good note for about $250, which the bank was willing to take, but offered to credit only the proceeds of the note after discounting it. This Ledwidge agreed to, and he was then directed to prepare a deposit slip showing his items and to draw a check for the amount thereof, and this he did, whereupon the receipt was executed. The transaction detailed occurred after banking hours, and the cashier placed all the papers in his private bos and on the following morning gave them to the teller to enter on the books of the bank. In doing this it was discovered that Ledwidge had been given credit on his deposit slip for the face of the note and also for the proceeds thereof after discounting it. The bank assumed that the mistake would be corrected, as it was apparent, and the transaction was entered on the books of the bank by a proper entry of the items in question and Ledwidge was- notified of the mistake the day it was discovered. He denied that any mistake had been made, but promised to correct it if such was the case. The mistake was not corrected, and Ledwidge took the position that no mistake had been made, and it is now argued that the bank accepted Ledwidge’s check for the sum recited and issued the receipt in consideration thereof, and that if there was a mistake its effect was only to permit an overdraft of Ledwidge’s account at the bank. This contention is based upon the theory that the deposit by Ledwidge of his items was one transaction, and that the bank became his debtor for the amount thereof, and that drawing the check to the order of the bank for the amount of these items was an entirely different transaction, and that as a result of both transactions Ledwidge had satisfied the accord which he had made with the officers of the bank but in doing so had overdrawn his account. A complete answer to this contention is that there were not two transactions as contended. There was only one. Depositing the items and drawing the check against them was a simultaneous transaction. For convenience it was the method adopted of giving Ledwidge credit for the payment recited in the receipt.
We have, therefore, an accord, but the question is whether there was a satisfaction, and this appears to be the real question in the case. We do not have before us the question whether an accord can be defeated by a mutual mistake made in its satisfaction, although it may be conceded that the mistake at the time it was made was a mutual one; but it was soon discovered, and its existence was so patent that there could be no. question about Ledwidge having failed to pay the sum of money which he had agreed to pay and which the receipt recited he had paid. He was called upon frequently to rectify the mistake and failed to do so. His position was that no mistake had been made and that he had received a receipt which was a full acquittance. It is true that, he stated that if a mistake had been made he would give his note to correct it, but he never gave the note nor was there any agreement to accept a note in lieu of the cash payment which should have been made. The matter remained in this unsettled condition for several months, when finally after suit had been threatened Ledwidge proposed to give the note or to pay the cash, but the proposition was conditioned upon the acceptance of the payment then to be made as full settlement of the original indebtedness. The bank declined to receive the sum thus .tendered and brought this suit to recover the amount of its original debt less the sum paid.
There is no dispute in this case about the amount of the original debt, and there has never been. And the court below held in effect that there had been an accord without satisfaction and rendered judgment for the amount of the original debt less the sum paid.
It will be borne in mind that the original debt sought to be settled was not unliquidated. There was no question about its amount. A settlement of fifty cents on the dollar was promised but was not made. The entire sum promised was not paid. Upon the contrary, $225 of that amount has never been paid. It was to have been paid in cash and before the execution of the receipt and the receipt was executed under the mistaken belief that the sum recited had been paid. There was no satisfaction of the accord. The bank was entitled to a cash payment but did not get it. Ledwidge stood upon the proposition that no mistake had.been made and refused to correct it after repeated demand so to do, and he can not by his belated tender claim the benefit which would have inured from a prompt correction of the mistake.
The cases of Whipple v. Baker, 85 Ark. 439, and Hill-Ingham Lumber Co. v. Neal, 89 Ark. 385, are cited in opposition to the views here expressed. But the doctrine of those cases is not applicable here. In those cases the minds of the parties had fully met, and a new agreement made which was accepted in satisfaction of the demand compromised. The instant case is ruled by the case of St. L. S. W. Ry. Co. v. Mitchell, 115 Ark. 339. In that case we quoted from 1 Corpus Juris the following statement of the law:
“In 1 Corpus Juris, sec. 20, page 363, it is said: ‘Mere readiness to perform is insufficient, and while there are a few decisions which seemingly hold an accord, with tender of performance and refusal to accept, is equivalent to satisfaction, and may be so pleaded in bar of the action on the original claim, the great weight of authority is directly to the contrary. The. majority of decisions are to the effect that tender of performance is in no case equivalent to performance and, therefore, not a satisfaction of the original obligation. Nothing short of actual performance, meaning thereby performance accepted, will suffice. But this rule, as is elsewhere shown, would not apply in a case where a new agreement or promise, instead of the performance thereof, is accepted in satisfaction. ’
“And sections 21 and 22, page 364, of the same authority read as follows:
“ ‘Sec. 21. Accord and part performance do not constitute satisfaction. It is merely executory so long as to its terms something remains to be done in the future. If performed in part only, the original right of action remains, and the party to be charged is allowed what he has paid in diminution of the amount claimed.’
“ ‘Sec. 22. Performance of part and readiness to perform the balance, or performance in part and tender of performance of the balance, are likewise insufficient to constitute a satisfaction.’ ”
These cases are reconciled by the statement of the law contained in the first quotation from Corpus Juris set out above that “Nothing short of actual performance, meaning thereby performance accepted, will suffice. But this rule, as is elsewhere shown, would not apply in a case where a new agreement or promise, instead of the performance thereof, is accepted in satisfaction.”
Here the accord was not satisfied because the consideration on which it was based failed in part and nothing was accepted in lieu thereof. Many cases are cited in the notes to the text quoted in support of the text.
The chancellor prepared an elaborate opinion on the trial of this cause and announced substantially the view we have here expressed and rendered judgment in favor of the bank for the amount of the original debt less the sum paid.
The court also held that the sale of the undertaking business constituted a violation of the Bulk Sales Law; and we think that finding should also be sustained. We held in the case of Stuart v. Elk Horn Bank & Trust Co., 123 Ark. 285, that the purchaser of a stock of merchandise and fixtures in bulk who failed to comply with the Bulk Sales Law became liable as a receiver of the stock of goods to all the creditors pro rata. The court below gave judgment in favor of the bank against Mrs. Ledwidge for the full value of the goods she received, and in this respect error was committed. The court should have ascertained the full amount of indebtedness due by the business which Mrs. Ledwidge purchased and '-he per cent, to which each would have been entitled had their claims not been otherwise settled and judgment rendered in favor of the bank for that sum only. It does not appear that we can make this calculation from the record before us, and the cause will be remanded to the court below to hear such testimony as is deemed necessary to enter a decree in accordance with this opinion. | [
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SMITH, J.
The appellant is engaged in the business of executing surety bonds, and executed a bond as surety for Alonzo Hamilton, as guardian of certain minors. With the funds of his wards Hamilton purchased an automobile from Yann & Sons for the sum of $750. Upon the final settlement of the guardian’s accounts a judgment was rendered against him and his surety for about two thousand dollars. This sum was paid by the surety company, whereupon it sued Yann & Sons for the money misappropriated by the guardian in the purchase of the automobile. The complaint alleged that the automobile was purchased by the guardian for his own personal use and paid for with the funds of his wards, and that these facts were known to Yann & Sons at the time of the sale. A demurrer was sustained to the complaint, and, the surety company electing to stand thereon, the cause of action was dismissed, and this appeal has been duly prosecuted to reverse that action.
This cause is ruled by the opinions in the cases of Carroll County Bank v. Rhodes, 69 Ark. 43, and Boone County Bank v. Byrum, 68 Ark. 71. It was held in those cases that a surety who pays a sum of money for his principal is subrogated to the rights of the beneficiary to maintain an action for the money so paid. Those cases are also to the effect that one who receives trust funds from a trustee with knowledge of the fact that the trustee has wrongfully converted these funds to his own use becomes liable therefor to the beneficiary of the trust. Under the allegations of the complaint Yann & Sons became parties to the conversion of these trust funds, and were liable to the minors for the sum so received, who could have maintained an action therefor. The surety upon the bond of their guardian is subrogated to this right, and the court should not have sustained the demurrer.
The judgment of the court below is, therefore, reversed with directions to overrule the demurrer.
If, upon the remand of the cause, the relief prayed is of an equitable nature and that objection is made, it can be met by the transfer of the cause to the chancery court, for, in the case of Moss v. Adams, 32 Ark. 562, it was held that a mistake as to the kind of action is no ground for sustaining a demurrer to a complaint and dismissing it. In such a case the pleadings should, be amended and the cause transferred to the proper docket, and, in the absence of a motion to this effect, the objection will be deemed waived. Rowe v. Allison, 87 Ark. 211; Grooms v. Bartlett, 123 Ark. 258; Ford v. Collison, 128 Ark. 123. | [
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SMITH, J.
This suit involves a controversy over the title to a strip of land which the appellant Porter claims by purchase and the city claims as an alley. Porter, who was the plaintiff below, claims title by virtue of a chain of conveyances beginning with one by the admitted owner and coming down to himself, in which the land conveyed is described by metes and bounds and included the strip in controversy. The city claims title to it as an alley under a plat which was filed in the office of the recorder of Arkansas County on February 28, 1887. The plat bears' a certificate of the county surveyor that it “is á true copy of lots laid off on Har per’s land. ’ ’ Unless the fact that he made the certificate implies that he filed the plat, there is nothing on its face to indicate who did file it.
The complaint alleges that Porter is the owner of the tract, and that he acquired title by a conveyance from C. M. Johnson and wife, and that Johnson had acquired title by a conveyance from Henry Flood, dated June 26, 1902, Flood having acquired title by mesne conveyance from the Government. That Porter had had adverse possession for more than seven years, and that in addition to his paper title he had acquired title by virtue of his possession. That the city claimed a strip through it as one of its alleys and had authorized its marshal and street commissioner, who were made defendants, to open it as an alley for public use. That plaintiff Porter was then in possession and had been using it for more than seven years as a lumber yard and had a shed extending over a part of it, and that it was, and during all that time had been, a part of his lumber yard. That the officers of the city were about to remove his lumber and open the alley for public use and travel. That the alley had not been dedicated or conveyed to the city by the owner thereof- or used by the public as an alley or thoroughfare. There was a prayer for a restraining order enjoining the defendants from entering upon the land or interfering with the plaintiff’s use of it, and that his title be quieted against the city.
The answer denied that Porter was the owner of the land or that he had been in the actual, continuous and adverse possession thereof for more than seven years. It admits that it claimed the land in question as an alley and had directed its officers to open it to the public use as such.
An agreed statement of facts was filed which contained the following recitals: That the incorporated town of Stuttgart was made a city of the second class on December 23, 1897, and that it continued as a city of the second class until February 22, 1917, when it became a cdty of the first class.
' That an exhibit attached thereto was a true copy of the original plat of blocks 1, 2 and 7 of I. N. Harper’s Addition to the City of Stuttgart, embracing and including blocks 1, 2 and 7 in said Harper’s Addition, and showing the dedication of the streets and alleys, the blocks and lots numbered thereon, and that the alley in said block 1, which is the subject of this suit, is shown thereon.
The said plat with the - streets and alleys shown thereon and so subdivided, showed the strip of land in litigation to be a part of one of the alleys and was filed December 27, 1886, and has been at all times since recognized as the subdivision into blocks, lots, streets and alleys of the incorporated town of Stuttgart, and subequently the City of Stuttgart as a city of the second class, and now the City of Stuttgart as a city of the first class.
That the officers of the incorporated town of Stuttgart, and afterwards the City of Stuttgart, have at all times dealt with and recognized said plat and subdivision, showing the blocks, lots, streets and alleys therein described as the blocks, lots, streets and alleys in said incorporated town and city, and that all persons owning lots in blocks 1, 2 and 7 and other blocks in I. N. Harper’s Addition, as shown by said plat, have separately assessed the lots therein shown for taxation, executed and accepted conveyances by deeds and otherwise to the respective lots numbered and described and shown by said plat, and that J. I. Porter has executed deeds and purchased lots in .said block 1 and other blocks in said I. N. Harper’s Addition as shown by said. plat.
It was further, stipulated and agreed that the town of Stuttgart, prior to 1897, was comparatively a small place in point of population.; that it .has'grown from 1897 to this dateruntil it is a city of the first,class having a population of five thousand people.
It was also agreed that neither Harper nor any one else had filed any dedication deed.
There'was offered in evidence the'petition to incorporate the town of Stuttgart, from which it appears that one Henry Flood was a signer of the petition and that three days after the order of incorporation he acquired title to the area in controversy, it being included in the conveyance to him of a five acre tract of land. The judgment of the county court incorporating the town was entered of record August 5,1889.
The prayer of the complaint was that the officers of the city be restrained from interfering with the land in question. But the court below refused the relief prayed. It found that the petition by Flood and others to the county court and its orders thereon ’ was an express dedication of all the streets and alleys through any and all of the lands mentioned in the petition which Flood and others had at that time or afterwards acquired, and held as a matter of law that Porter, by recognizing said plat and making .and accepting conveyances according to it, is estopped from objecting to it or to any claim on behalf of the city to it, and declared the law to be that if an owner of land, who plats and sells it according to the plat, dedicates the streets and alleys, that a Subsequent owner, who sells according to the plat, thereby adopts such dedication as his own.
[We do not find it necessary to approve the law thus broadly stated by the court to approve the decree of the court below refusing to enjoin the officers of the city from opening up. the alley. Porter did not appropriate the land to his exclusive, use until after Stuttgart became a city of the second class. He took possession of a portion of the alley in 1908, but there was testimony that even thereafter the public continued such use as it desired to make of the alley until 1910, when it was enclosed. Porter obtained his deed July 17, 1907, which was about ten years after Stuttgart became a city of the second class and eighteen years after it was first incorporated and twenty-one years after the filing of the plat. During all this time Stuttgart was growing rapidly and all of the numerous conveyances of town lots were made with reference to the plat above referred to. A number of such conveyances were to and from Porter himself. It was shown that -the city did not improve the alley, but it was not shown that any improvement was necessary to adapt it to the public use as an alley.
It is apparent that Porter did not acquire title by adverse possession, for it was provided by statute, during the period of his occupancy, that title could- not be thus acquired against cities of the first or second class. Kirby’s Digest, sec. 5593, subdivision 3.
The court below assumed the facts to be, in the absence of proof to the contrary, that the plat in question had been filed by the owner. If the correctness of this assumption were conceded, there could be no question about the dedication. Such action on the part of the owner is an express dedication, and when once made is irrevocable. But, as has been said, we do not find it necessary to go to the extent to which the court below went in its declaration of law to support its decree. A dedication may be implied as well as expressed, and one may estop himself to deny that there has been a dedication, and we think that doctrine is applicable here. The following -are cases substantially to that effect: Hope v. Shiver, 77 Ark. 177; Davies v. Epstein, 77 Ark. 221; Brewer v. Pine Bluff, 80 Ark. 489; Stuttgart v. John, 85 Ark. 520; Paragould v. Lawson, 88 Ark. 478; Frauenthal v. Slaten, 91 Ark. 350; Matthews v. Bloodworth, 111 Ark. 545; Brookfield v. Block, 123 Ark. 153; Mebane v. City of Wynne, 127 Ark. 364; Holly Grove v. Smith, 63 Ark. 5.
Here the testimony does not show who filed the plat, but it does show that this plat defines the lots and blocks and streets and alleys of the City of • Stuttgart and that it has been so accepted by every one since the time it was filed. This acquiescence has been without exception and Porter along with all others has treated it as the authentic and correct plat of Stuttgart. Interminable confusion might now arise if this plat were disregarded because its original authenticity is not established.
After stating the law to be that dedication of streets and alleys may be made by the filing of a plat showing the existence of such streets and alleys as well as by executing and recording a deed for that purpose, 8 R. C. L. page 894, states the law to be “That plat need not be made by the owner, and where he sells lots in conformity to the city map on which his property is laid out into blocks, streets, avenues and squares, such recognition of the plat is a dedication to public use; he adopts the map by reference thereto.” See also Hope v. Shiver, 77 Ark. 177. And in the same volume of R. C. L. in the article on Dedication, page 906, it is said: “A common law dedication does not operate as a grant, but by way of estoppel in pais. This doctrine is adopted from necessity for lack of a grantee capable of taking. The dedication, therefore, is regarded not as transferring a right, but as operating to preclude the owner from resuming his right of private property, or indeed any use inconsistent with the public use. The ground of the estoppel is that to reclaim the land would be a violation of good faith to the public and to those who have acquired private property with a view to the enjoyment of the use contemplated by the dedication, and, in case of sale with reference to plat, that the easements and servitudes indicated by the plat constitute a part of the consideration for which all conveyances referring to the plat are made, and therefore no person, while claiming under the conveyances, can be permitted to repudiate them or to deny that they exist where they are capable of existing. ’ ’ A number of cases are cited in support of the text, several of which are annotated cases.
A similar statement of the law is contained in Volume 1, Elliott, Roads and Streets (3 ed.), sec. 137.
We conclude, therefore, that under the facts of this case Porter is now estopped to question the authenticity of this plat, and the decree of the court below is therefore affirmed. | [
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SMITH, J.
Appellant prosecutes this appeal to reverse a judgment of the trial court sentencing him to life imprisonment for the crime of rape, alleged to have been committed upon the person of Carl Bowman, a seventeen year old girl, on the night of February 11, 1918. Miss Bowman had gone on an automobile ride on the West 12th street pike out of the city of Little Bock with Gladys Terhune, her companion, a girl of her own age, and two young men about grown. After driving several miles out of town they turned around to return, when a report was heard, which the occupants of the car mistook to be a blowout of a tire, and they stopped to examine the tire and while so engaged a young negro man approached the car with a pistol in his left hand and who, when asked if he wanted money or jewelry, answered that he did not; that he wanted the girl on the rear seat who was Miss Bowman. The negro stepped on the running board of the car, seized hold of Miss Bowman’s hand and dragged her from the css*. She testified that either or both of her male companions could have seized the negro and that either was larger than the negro, but that they, were too cowardly to do anything in her defense, and she was compelled to leave the car and was taken a short distance from the road and ravished. The other occupants of the car left Miss Bowman to her fate and drove rapidly to the city, where they gave the alarm, and then returned to the scene of the crime with the officers who had been notified of its commission. Miss Bowman and the other occupants of the ear positively identified appellant as the guilty man, although he proved to be a smaller man than they in their fright had taken him to be. One or more of the occupants of the car had the impression that Miss Bowman’s assailant was cross-eyed or had some defects in his eyes which made them peculiar; but in this they were also mistaken. Notwithstanding this discrepancy the witnesses were positive in their identification, and there can be no question about the legal sufficiency of the testimony to support the verdict.
Appellant denied his guilt and undertook to prove an alibi. His theory of the case is that Jack Padgett, one of the occupants of the car and the man who drove it, had carried the young ladies out the pike pursuant to an understanding to that effect between him and Miss Bowman’s assailant; but no substantial testimony was offered in support of that theory.
The court gave an elaborate charge which fully and fairly covered all the issues presented by the testimony.
It is insisted by appellant, however, that instruction numbered 13, which dealt with the defense of an alibi, was erroneous, in that it told the jury that the burden of proof on this issue was upon the appellant. It is true the instruction so stated; but it also stated “that this burden is discharged if the proof raises a reasonable doubt in your mind as to whether he was at the place where the crime was committed or at some other place, because if he was not there he could not be guilty.” The instruction also stated that “if the proof raises a reasonable doubt as to whether he was there, that raises a reasonable doubt of his guilt. ’ ’ The instruction as given was a correct declaration of the law. Ware v. State, 59 Ark. 379; Wells v. State, 102 Ark. 627.
Exception was saved to the action of the court in giving to the jury an instruction numbered 20, which reads as follows: “Gentlemen of the Jury: If you go out and say '¡We, the jury, find the defendant guilty of rape as charged in the indictment,’ and do not say anything about the punishment, the court will have to fix his punishment at death. I submit to you that in the event you find him guilty you will realize that under the law you have the right to fix his punishment yourself at death, or life imprisonment; but unless you do that it is the duty of the court to fix it at death. ’ ’
The basis of the objection to this instruction appears to be that it was given under circumstances which might have caused the jury to attach special significance to it. It is recited in the record that after the first nineteen instructions had been given to the jury the “court and counsel for the State and the defendant retired to the judge’s chambers, and upon their return to the court room, the judge resumed the bench and gave the instruction set out above.” We think the objection made is not tenable. It is true that the instruction numbered 19, which had already been given, told the jury that if they found the defendant guilty they might fix his punishment at death or at life imprisonment in the State penitentiary ; but they had not been instructed, prior to the giving of instruction numbered 20, as to the effect of a verdict merely finding the defendant guilty as charged in the indictment. In giving this instruction numbered 20 the court evidently had in mind the opinion of this court in the case of Kelley v. State, 133 Ark. 261. The opinion in that case was handed down just a short time before appellant’s trial in the court below, and we there construed section 1 of Act No. 187, of the Acts of 1915, page 774. In the Kelley case, supra, the jury had found the defendant guilty of murder in the first degree as charged in the indictment but had not fixed the punishment to be imposed, and it became necessary to construe the act of 1915 to determine the correctness of the action of the trial court in that case in imposing the death sentence upon the rendition of that verdict. The language of the Act of 1915 is set out in that opinion and reads as follows: “That the jury shall have the right in all cases where the punishment is now death by law, to render a verdict of life imprisonment in the State penitentiary at hard labor.”
In construing that statute we said that it was the legislative intent to extend a privilege or right to the jury to impose a lighter punishment than death; but that in the event this clemency was not extended by the jury the punishment fixed by law would follow the verdict, and that, therefore, the death sentence was the proper one to be imposed in that case. The trial judge no doubt had in mind that the jury here might return a verdict similar to the one returned in the Kelley case, in which event it would become his duty to impose the death sentence, and the court accordingly told the jury that the punishment would be death unless the jury fixed the punishment at life imprisonment. We think the instruction was clearly given in the interest of the appellant and was prompted by the humane impulse of the trial judge to give the jury an opportunity ta save appellant’s life if they so desired, and the verdict returned would indicate that the instruction given might have been instrumental in accomplishing that result.
It is finally insisted that error was committed by the trial court in refusing to grant appellant a new trial upon the ground of newly discovered evidence. But in opposition to this contention it is insisted on behalf of the State that the testimony is cumulative of other testimony in the case, and that a lack of diligence was shown by appellant in discovering this testimony prior to his trial. The most important of this testimony was that of a street car conductor, and it is illustrative of the other testimony referred to in the motion. It is pointed out in the brief of the State that there are certain inconsistencies in the recital of the statement of what the testimony of this witness would have been which would have caused the jury to wholly disregard it had it been heard at the trial. So far as that contention is concerned, however, it may be said that the witness at the trial might have explained these apparent contradictions, and we do not, therefore, base our decision of this question on that ground. The testimony of this conductor would have tended to show that appellant was a passenger on a Highland car at a time when it would have been very difficult, if not impossible, for him to have thereafter been at the scene of the crime at the time of its commission. But, as has been said, this testimony was cumulative to much other testimony on the alibi. Moreover, defendant knew that he was a passenger on the street car, if such was the case, and he should, therefore, before his trial, have inquired of the conductor what knowledge he had concerning the case. Russell v. State, 97 Ark. 92; Adams v. State, 100 Ark. 203; Young v. State, 99 Ark. 407; Osborne v. State, 96 Ark. 400. Judgment affirmed. | [
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SMITH, J.
Appellees were indicted for the crime of larceny, alleged to have been committed by stealing ‘ ‘ a certain quantity of oats growing on the farm and soil of W. H. Montgomery.” The indictments were returned under section 1900 of Kirby’s Digest, and testimony was introduced tending to show that appellees were guilty as charged except that Montgomery was not the owner of the land from which the oats were cut and. removed. The land belonged to John Dozier, and Montgomery was a tenant of Dozier, and under his contract was to pay as rent for the land ‘ ‘ one-third of the oats harvested. ’ ’ But Montgomery had the exclusive possession of the land on which the oats were growing, and it was his duty under his contract with Dozier to harvest the oats, and he had the exclusive possession of the land for this purpose.
The court directed the jury to return a verdict of not guilty, upon the theory that there was a variance between the testimony and the allegations of the indictment, and the State has prosecuted this appeal.
The court erred in directing a verdict of not guilty. It has been .several times held by this court that a special ownership which entitles one to the exclusive possession and control of the stolen property is sufficient to support an allegation of ownership. It is true the land was owned by Dozier, and not by Montgomery, but Montgomery had such special interest in the land by virtue of his tenancy as entitled him to the custody and possession of the crops growing thereon, and it is the purpose of the statute to protect such possession. Montgomery’s tenancy and possession of the land gave him such an interest in the oats, until they had been harvested- and a division thereof made, as entitled him to their exclusive possession, and such ownership and possession sufficiently supports the general allegation of ownership. Merritt v. State, 73 Ark. 32; McCowan v. State, 58 Ark. 17; Cook v. State, 80 Ark. 495; Scott v. State, 42 Ark. 73; Blankenship v. State, 55 Ark. 244.
The court was, therefore, in error in directing a verdict of not guilty. | [
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WOOD, J.,
(after stating the facts). The complaint and answer disclosed the fact that a majority of the owners of real property within the districts created desired to pave the streets within said districts, and also desired to build storm-sewers, curbs and gutters; that if the work were undertaken by one improvement district and were therefore considered as a single improvement, the cost of same would exceed 20 per cent, of the value of the real property in the district, as shown by the last county assessment, and would therefore be in violation of section 5683 of Kirby’s Digest, which provides that: “No single improvement shall be undertaken which alone will exceed in cost twenty per centum of the value of the real property in such district, as shown by the last county assessment.”
The ruling of the court, therefore, on the demurrer to the complaint and answer presents the issue as to whether or not two separate improvement districts could be created — the one for the purpose of grading and paving certain streets and the other for the purpose of curbing, guttering and storm-sewering the same streets.
Property owners may elect to include different improvements that are entirely dissimilar in character into one improvement district. When the improvements are thus undertaken by one improvement district, they must be treated as a single improvement and their cost, considered as a single project, must be brought within the statutory limit for a single improvement. Wilson v. Blanks, 95 Ark. 496; Bateman v. Board of Commissioners Improvement District No. 1 of Clarendon, 102 Ark. 306.
But, it does not follow conversely from these decisions that the statute authorizes the creation of more than one district for the purpose of making what is in fact but a single improvement. In other words, under the above decisions, more than one and different improvements can be united and treated as but one and undertaken by the creation of an improvement district for that purpose. But on the other hand, where there is really but one improvement, it can not be divided into separate parts and improvement districts created for the completion of the work of these separate parts. This, as we construe it, would be a palpable evasion, and in violation of the statute which is intended to limit the cost of any one or single improvement to 20 per cent, of the assessed value of the real property in the district where the improvement is contemplated. See Harnwell v. White, 115 Ark. 95.
In the case of Board of Improvement Paving District No. 7, Fort Smith v. Brun, 105 Ark. 65, we held that, “The power given to an improvement district to pave a certain street, included the power to furnish and to do all that is necessary, usual or fit for paving, including the construction of the improvement in a way that will also successfully drain the street.” That case shows that where the commissioners are not specifically limited or restrained by the petition for, and the ordinance creating the district, under the power to pave it would be within the discretion of the board to construct curbing, gutters and even storm-sewers in the absence of the allegations showing such curbing or guttering or storm-sewers were not necessarily incident to the construction of the improvement contemplated.
In that case it was alleged in the petition seeking to restrain the commissioners from making the improvement, that the ordinance creating the district contemplated the paving of Garrison avenue in the city of Fort Smith and that the commissioners were undertaking, as a part of such paving, to construct storm-sewers. The contention of the petitioners was that the construction of the storm-sewers, or underground drainage system, was not within the power conferred upon the commissioners to pave the street. In answer to the contention we said: “It can not be said as a matter of law that they (the commissioners) have exceeded their powers under the authority given them of paving the streets by providing that the surface waters shall be carried off by underground drainage, instead of by gutters. This is the extent of the allegations made in the complaint. * * * The mere allegation that storm-sewers are not incident to a pavement improvement is not sufficient to show that its construction is unauthorized. The power to pave a street may include the power to construct drainage thereunder, and it will be considered incident thereto when exercised by the board of improvement, unless it is alleged and proved that the surface-waters can be as successfully carried off by gutters.”
Appellant cites and relies upon the case of Improvement District v. Brun, supra, as authority for his contention, that the districts herein challenged were created to complete what was in fact but a single improvement. The case does not support appellant’s contention. There was no allegation that the underground drainage was unnecessary and not incident to the work of paving. But here the allegations of fact in the answer are that “the storm-sewers are not an essential part of the pavement but are entirely separate.” That “the pavement could be made without the storm-sewer.” * * * That “the curbing is no part of the paving, * * * nor is the gutter an essential part of the pavement.” These allegations were properly pleaded and the demurrer to the an swer admitted the truth of them. Moreover, in the case of the Board of Commissioners v. Brun, supra, only one improvement district was created and the work of paving and storm-sewering, which was held to be incident thereto, was being done as a single improvement; and, as we have already seen, no matter how dissimilar the improvements may be, if undertaken by the creation of one district and as a single improvement, the same will be valid, unless the cost thereof exceeds the statutory limit. While the power to pave will apply to and include the cost of curbing and guttering, where the latter are necessary and incident to the paving, as shown in the case, of Commissioners v. Brun, supra, and the cases therein cited, and while curbing and guttering, even though not necessarily incident to the paving may be very appropriately included in an improvement district for paving, yet it is easy to see that they are not convertible terms and do not necessarily include each other and therefore constitute a single improvement.
The petition of the property owners for, and the ordinance pursuant thereto creating the two districts, are at least prima facie evidence that the petitioners and the town council considered that the improvements provided for did not constitute a “single” improvement, as designated in the statute. The facts stated in the answer and admitted by the demurrer of appellant to be true show that they were not essentially one improvement.
The case of Harnwell v. White, supra, also relied upon by appellant is not applicable here, for the reason that an improvement district was created upon the petition of property owners for the purpose of grading, curbing, guttering and macadamizing the streets within the town of Pulaski Heights. After the creation of the district commissioners were appointed, they reported that the improvements could not be constructed at a cost within the statutory limits. Thereupon the council undertook to create four separate improvement districts for doing the different parts of the work upon the original petition.
We held, under those circumstances, that the ordinances for the establishment of the different districts were without authority and therefore void.
The ruling of the court was correct and its decree dismissing appellant’s complaint is therefore affirmed.
HART and SMITH, JJ., dissenting. | [
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John A. Fogleman, Justice.
This case involves the contest of the will of Grace Abel Evans by her 74-year- old brother C. W. Abel. Mrs. Evans died in the Ouachita County Hospital on April 12, 1969, when she was 81 years of age. She was a widow without any children and survived only by appellant with whom she had lived for many years. Abel had never been married. Mrs. Evans had successfully operated cafes and boarding houses. Because of a heart attack, high blood pressure and failing eyesight, she retired from the operation of a coffee shop in Chidester three years before her death. She was not able to operate her automobile. She and her brother lived on a farm about Wz miles from Chidester for over 15 years. Abel had farmed the lands for over 20 years. This land was conveyed to Mrs. Evans by her mother, shortly before the latter’s death. Mrs. Evans employed Mrs. Belton Stinnett, who was not a relative, to drive her automobile for her, and to mow and keep her downtown lots and other yards, and care for her flowers. She paid Mrs. Stinnett $1 per hour for her services.
The will was not probated or its existence disclosed to appellant until after Mrs. Stinnett’s death in an automobile collision one month after Mrs. Evans’ death although he testified that Mrs. Stinnett frequently came out to the house, where he and his sister had lived, after Mrs. Evans’ death and that she borrowed his sister’s car (which she was using at the time of her death) from him on several occasions. After Mrs. Evans’ death Mrs. Stinnett’s son disclosed that the will was in his mother’s purse. Later the will was delivered by Henderson Stinnett, the widower of Mrs. Belton Stinnett, to Carl Dickinson, the executor nominated therein. Dickinson caused a copy of the will to be made, which he delivered to appellant. Later he took the original to its scrivener, Mr. Thomas Gaughan, an attorney at Camden, who offered it for probate.
The will directed payment of Mrs. Evans’ debts, devised a life estate in a 40-acre tract and a 2-acre tract of land to appellant, with remainder to Charles Franklin Stinnett, one of the sons of Mrs. Stinnett, and devised lots in Chidester to Mrs. Stinnett. Carl Dickerson [Dickinson] was nominated as executor. No mention was made of personalty and the will contained no residuary clause, although Mrs. Evans owned her automobile, an interest in her mother’s furniture and other personal property. Mrs. Evans had no close relatives, other than her brother. Neither Mrs. Stinnett nor her son was related to Mrs. Evans by blood or marriage.
The probate judge found that the evidence was insufficient to show that Mrs. Evans was incompetent to make a will at the time of its execution, that a preponderance of the evidence showed that she was of sound and disposing mind and memory and fully competent to dispose of her property and estate by last will and testament, and that she was not acting under the influence of Mrs. Belton Stinnett or any person whatsoever in the making or publication of the will.
Appellant’s first point for reversal is that the court failed to exclude the lots in Chidester from the will. He contends that his sister did not own the lots since he was the owner of an undivided one-half interest as a tenant in common, as the only heir of his mother beside Mrs. Evans. The lawyer who drafted the will explained that he failed to note that the ownership of this property indicated on the tax receipts given him to identify Mrs. Evans’ property was listed in the names of both Mr. Abel and Mrs. Evans. Resort to tax receipts and deeds of a testator to determine what he meant by a land description he employed is proper. Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176. Appellees conceded that this one-half interest was never owned by Mrs. Evans and has never been claimed as a part of her estate. They also concede in their brief here that the will devises only the undivided one-half interest of Grace Abel Evans. If there was any error in this regard, it is harmless, because appellees could not hereafter require appellant to elect whether he will retain his own property and repudiate his sister’s will or conform to the will and permit Stinnett to keep the full title to the lots, as otherwise might be the case under such decisions as McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L.R.A. (n.s.) 657.
Appellant next contends that the will is so unreasonable as to overcome the presumption of testamentary capacity and so unnatural as to give rise to an inference that it resulted either from lack of testamentary capacity or undue influence. The fact that a will is unjust, unreasonable or unnatural does not affect its validity. Blake v. Simpson, 214 Ark. 263, 215 S. W. 2d 287. No relative, however near or however deserving of a testator’s bounty he may be, has any claim which can be asserted against a legally executed will. Blake v. Simpson, supra. One possessed of testamentary capacity, acting free from inducement by fraud or undue influence, may make testamentary dispositions of his property to whomever he chooses, no matter how capricious or frivolous they may seem to others. Hiler v. Cude, 248 Ark. 1065, 455 S. W. 2d 891. It is not necessary that the objects of a testator’s bounty be meritorious in order for a will to be valid. It is only essential that it be the free and voluntary act of a mind having testamentary capacity. Jones v. Jones, 234 Ark. 163, 350 S. W. 2d 673.
We have held, however, that the courts may consider that the provisions of a will are unjust, unnatural and unreasonable as a circumstance in determining the mental capacity of the testator. See Brown v. Emerson, 205 Ark. 735, 170 S. W. 2d 1019. This does not mean that this circumstance alone overcomes the natural presumption of sanity or testamentary capacity or creates any presumption of lack of testamentary capacity or of the existence of undue influence. The disposition made by a testator may give rise to an inference of mental illness or undue influence, but not to any presumption. See Scott v. Dodson, 214 Ark. 1, 214 S. W. 2d 357; cf. Alford v. Johnson, 103 Ark. 236, 146 S. W. 516. Evidence of an unjust, unreasonable and unnatural disposition is admissible only as a help to be considered with other evidence, as tending to show an unbalanced mind or one easily susceptible to undue influence. Howell v. Miller, 173 Ark. 527, 292 S. W. 1005. A court cannot strike down a will in favor of what it deems to be a more equitable disposition of the testator’s property, unless it appears from the evidence that it was induced by undue influence or that the testator lacked testamentary capacity. Toombs v. Blankenship, 215 Ark. 551, 221 S. W. 2d 417.
We are unable to say that a preponderance of the evidence shows that the disposition made by Mrs. Evans by her will was unjust, unnatural or unreasonable. It is only where a testamentary disposition is unaccountably unnatural that less evidence is required to establish undue influence. Dunklin v. Black, 224 Ark. 528, 275 S. W. 2d 447.
This is not a case where a parent attempted to disinherit her only child in favor of her youngest brother, a successful 40-year-old businessman of independent means, as was the case in Brown v. Emerson, supra, or a case where the testatrix disinherited a sister for whom she had great affection and who had given her part of their mother’s estate to the testatrix by favoring a male business associate with whom she had become infatuated as was the case in Howell v. Miller, supra. It is unexplained inequality and unreasonableness which do violence to natural instincts of the heart, to the dictates of affection, to natural justice, to solemn promises and moral duty that are entitled to weight in considering questions of testamentary capácity and undue influence. Brown v. Emerson, supra. If a disposition can be rationally explained, it cannot be said to be unnatural. In re Llewellyn’s Estate, 83 Cal. App. 2d 534, 189 P. 2d 822 (1948); In re Walther’s Estate, 177 Ore. 382, 163 P. 2d 285 (1945). See Scott v. Dodson, 214 Ark. 1, 214 S. W. 2d 357; Dunklin v. Black, 224 Ark. 528, 275 S. W. 2d 447. The expression “unjust and unnatural will” is usually applied when a testator leaves his estate, or a large portion of it, to strangers, to the exclusion of natural objects of his bounty without any apparent reason. In re Shay’s Estate, 196 Cal. 355, 237 P. 1079 (1925). See Scott v. Dodson, supra. A will cannot be said to be unnatural because a testator preferred one for whom she had developed a close and affectionate relationship [In re Walther’s Estate, supra; see Scott v. Dodson, supra; see also In re Ewart’s Estate, 246 Pa. 579, 92 A. 708 (1914)], or when the natural objects of the testator’s bounty are in no need of funds, aid or assistance. In re Llewellyn’s Estate, supra. A will is unnatural in the legal sense only when it is contrary to what the testator would have been expected to make in the light of his feelings and intentions at the time, even though they may be prejudiced, however much it may differ from the ordinary actions of people in similar circumstances. In re Ewart’s Estate, supra.
Facts which mitigate against a finding that Mrs. Evans’ will was unjust, unnatural or unreasonable are appellant’s advanced age, his and the testatrix’s childlessness, the absence of any other close relatives, the provision for a life estate for Abel, his inheritance of any personal property of his sister remaining after payment of debts and expenses of administration, his succession to three joint bank accounts (once amounting to at least $22,000) established by the testatrix, and the relationship that had developed between Mrs. Evans and Mrs. Stinnett. Among Mrs. Evans’ personal belongings was a collection of antiques and of her own works of art, some of which were shown to have some value. She also owned some stocks, which Abel said had been "cashed out” after her death. Not only does it clearly appear that Mrs. Stinnett performed well the services for which she was employed by Mrs. Evans, it is also obvious that these two ladies shared a warm affection for each other. Abel himself testified that Mrs. Stinnett "loved his siter to death,” “petted her all the time,” and would sit down and talk and “gossip” with her nearly every day of the week during Mrs. Evans’ entire three years’ illness. Abel said that Mrs. Stinnett visited his sister on occasions when she was "not on the payroll.” Charles Franklin Stinnett, her son, was a pallbearer at Mrs. Evans’ funeral. He testified that he visited Mrs. Evans about once a month during the two or three years preceding her death. He said that she had loaned him money and given him advice about saving money. Etheleen Garrison, Ouachita County Health Nurse, observed that Mrs. Evans became more and more dependent on others. The nurse rarely met any social visitors when she made at least semi monthly professional calls on Mrs. Evans. We cannot say that Abel was in need of his sister’s bounty or that Mrs. Evans’ bounty to Mrs. Stinnett and her son is not rationally explained or that it is unaccountably unnatural.
Giving the disposition made by Mrs. Evans its strongest probative force, however, we still could not say that the chancellor’s findings are clearly against the preponderance of the evidence.
For proof of lack of testamentary capacity, appellant relies upon Mrs. Evans’ age, her being an invalid for two or three years and her loss of memory which he claimed to have resulted from a stroke about one month before the will was made, in addition to the alleged unnatural disposition of her real property. He depends for the most part on his own testimony, particularly as to the alleged stroke. He concluded that an illness suffered by his sister was a stroke because when she awakened him about 1:00 a.m. she was lying in the bed with her eyes open and in such condition that he knew something was badly wrong, causing him to get help to get an ambulance to take her to a hospital where she remained for two weeks. His conclusion was contradicted by the testimony of a supervising nurse at the hospital where Mrs. Evans was a patient. This witness, called by appellant, testified that there was no diagnosis of a stroke prior to Mrs. Evans’ death, that she did not see anything like that on the patient’s chart, and did not observe any personality change in the testatrix after a time at least one month prior to the alleged stroke.
Dr. J. L. Dedman was Mrs. Evans’ physician for about five years, beginning July 7, 1964. He attributed her death to heart failure. For four or five years she was in his office every month or so. She was under his care in the hospital approximately a dozen times. Before her death, she was coming to the doctor’s office every three or four weeks. Each of her visits was for a period of five to ten minutes. He described her mental condition as “sharp as a tack.’’ He identified a nota tion on her will dated April 18, 1968, that Mrs. Grace Evans was mentally able to take care of her business as having been written and signed by him. Although he said that Mrs. Evans was getting worse and weaker all the time, and was “going downhill” after February 1968, he saw her thereafter on March 12, and found no difference in her mental condition. He attributed her hospital visits tó the necessity for draining fluid that accumulated in her system because of a heart weakened by high blood pressure and hardening of the arteries. He stated that Mrs. Evans did not have a stroke during his treatment of her. He stated that he knew nothing of her mental ability to know the nature and extent of her property or the just deserts of her different kinsmen.
Mr. Thomas Gaughan, a practicing attorney at Camden since 1934, was the scrivener. The will was dated February 26, 1968, and prepared in his office to which Mrs. Evans and Mrs. Stinnett came on that date. He testified that Mrs. Evans asked him to prepare her will, and told him the disposition she wanted to make of her property. He had not known either Mrs. Evans or Mrs. Stinnett prior to this occasion. He observed that the testatrix was approaching 80 years of age. He discussed the matter with the two ladies, who remained in the room while he dictated the will to his secretary. He said that Mrs. Evans looked at the will before signing it. According to him, Mrs. Evans was in his office VA to 2 hours. He testified that he evaluated Mrs. Evans as having testamentary capacity, or he would not have prepared the will. His consultation revealed nothing to him abnormal or subnormal, except for her advancing years, and he was of the opinion that she knew her property.
The burden of showing lack of testamentary capacity lay upon appellant. Hilter v. Cude, 248 Ark. 1065, 455 S. W. 2d 891. We are unable to say that evidence adduced by appellant preponderates over the testimony of the physician and the attorney, whose respective actions strongly corroborate their testimony. For the most part, it consisted of: Abel’s testimony that Mrs. Evans was unable to see without her glasses, that she had the mind of a 10-year-old child after her “stroke” that she did not recognize people and that she was forgetful; the testimony of Juanita Norwood that for the last two years Mrs. Evans was failing with regard to her mental state, and had poor memory; and the testimony of Etheleen Garrison, Ouachita County Health Nurse as to Mrs. Evans’ gradual decline after February 1968, her deteriorating mental condition from 1967 until her death, her increased dependency on others, her inability at times to complete a statement or remember what she was talking about, her forgetfullness, and her discarding of two checks received in the mail about a year prior to her death. Complete sanity in a medical sense was not essential to testamentary capacity, if the power to think rationally existed when the will was made. Hiler v. Cude, supra. Awareness of her relatives, of the property owned and of the disposition made of it is the critical factor. See Rogers v. Crisp, 241 Ark. 68, 406 S. W. 2d 529. It was not shown to be lacking.
This leaves the question whether the preponderance of the evidence shows that Mrs. Evans’ will was induced by the undue influence of Mrs. Belton Stinnett. While the burden of proof on this issue was upon appellant, he seeks to shift it, just as the appellants did in Hiler v. Cude, supra, and Sullivant v. Sullivant, 256 Ark. 95, 564 S. W. 2d 665. He relies upon the rule that where the will is drawn or procured by a beneficiary, there is a presumption of undue influence, making it incumbent upon the proponents of the will to show beyond reasonable doubt that the testator had both the requisite mental capacity and freedom of will and action to render the will legally valid. See Orr v. Love, 225 Ark. 505, 285 S. W. 2d 667. This rule, however, does not shift the burden of proof, in the sense of ultimate risk of nonpersuasion, from the contestant, although it may shift the burden of going forward with the evidence. Hiler v. Cude, supra. Of course, there are two essential elements necessary to establish undue influence. First, the influence must not be that which springs from natural affection or is acquired from kind offices, but must be such as results from fear, coercion, or other cause that deprives the testator of his free agency in the disposition of his property. Second, it must be directly connected with the execution of the will and specially directed toward the object of procuring a will in favor of particular parties. Thiel, Spec. Admr. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507. The presence of Mrs. Stinnett in the attorney’s office was not sufficient to shift the burden of proof, if the will was drafted according to explicit directions of Mrs. Evans, given without prompting or instructions by Mrs. Stinnett. Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665.
Appellant relies upon the fact that one of the principal beneficiaries of the will, who was the mother of the other, drove Mrs. Evans’ automobile to the office of the scrivener, helped her into the office, and engaged in discussions about the terms of the will. There was, as appellant admits, no element of fear or duress involved. Furthermore, there is no actual proof that Mrs. Stinnett procured the will or directed its making. The mere fact that a beneficiary is present when the will is made does not give rise to any presumption of undue influence when there is no evidence that he induced or procured the execution of the will. Jones v. National Bank of Commerce, 220 Ark. 665, 249 S. W. 2d 105. Appellant testified that the undue influence Mrs. Stinnett exercised consisted of petting his sister to death and running out all the time and getting every dollar she could out of her. He only suspected that Mrs. Stinnett “carried the ball’ while some unidentified person gave her plenty of help. Of course, the testimony of the scrivener is of vital importance. Certainly a practitioner of his long experience would be particularly alert to any attempt on the part of Mrs. Stinnett to dictate or direct the terms of the will. He could not recall any particular comment she made while the three were discussing the will. He said that it did not appear to him that Mrs. Evans was under duress, compulsion or restraint or in fear. His testimony as to directions given by Mrs. Evans and her insistence on paying for his services immediately tends to negate any undue in fluence on her. He testified that after Mrs. Evans directed that the will provide for a remainder dn the 42 acres of land in Charles Franklin Stinnett, either she or Mrs. Stinnett or both explained to Gaughan that Mr. Abel was unmarried and without descendants and that the testatrix had no children. This fact is not indicative that Mrs. Stinnett was directing the action or procuring the particular testamentary disposition. After the will was typed, Mr. Gaughan read it to both ladies, before he handed it to Mrs. Evans. He testified that Mrs. Evans was not told what to do or given any commands while in his office. Appellant sought to discredit the testimony of this lawyer by showing alleged inconsistent statements made to a friend of appellant. These statements were denied by Mr. Gaughan. We cannot say that the probate judge erred in according greater credibility to the scrivener’s testimony. Neither can we say that Mrs. Stinnett was the procurer of the will nor that the probate judge’s finding on undue influence is against the preponderance of the evidence. | [
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Carleton Harris, Chief Justice.
This litigation arises out of a sale made by Lowell Perkins Agency, Inc., automobile dealers and appellant herein, to Velma J. Jacobs, appellee herein. On July 22, 1969, Mrs. Jacobs purchased a 1969, 4 door, 8 cylinder, Rebel automobile from the appellant for the sum of $3,044.20. This automobile was in the category of what is generally known as a “factory” car, being a vehicle that the manufacturer had rented to an agency and then, after a few thousand miles had been driven, was reclaimed by the manufacturer and reconditioned. Such cars carry a full new car warranty. At the time of the transaction between the parties, Mrs. Jacobs traded in a 1966 Rambler automobile as a down payment of $645.00, and executed a purchase contract and note for the balance, this contract and note being hypothecated the following day to the Universal C.I.T. Credit Corporation in the usual course of business. On the same day, the purchased automobile was delivered to Mrs. Jacobs in Augusta, together with the papers, and the title and transfer papers were obtained from appellee for the 1966 Rambler. Thereafter, apparently also on the 23rd, Mrs. Jacobs applied for a license but was told by the revenue office that she would have to pay sales tax on the car, this tax amounting to $86.00 or $87.00. She then took the papers back to the salesman and advised that she did not want the automobile. Appellee went to see the manager of the automobile agency, Jack Stubbs, and learned that Mr. Perkins was in Little Rock. She advised that she would go home and wait for him to call, and that if he called by 3 p.m. and said that he would pay the tax, she would keep the car. No call was received and the following morning appellee called Perkins, told him that she was bringing the car over, and was going to have Universal C.I.T. cancel it. She said that he advised her that he could not cancel it and that he was not going to pay the tax on it. She then went to the Universal office and, according to her testimony, which will be subsequently discussed, was told by a Mr. Weir that the contract would be cancelled. Appellee returned to the automobile agency, parked the car in the driveway, and gave the keys to the manager’s wife.
Mrs. Jacobs, on August 19, instituted a replevin action for the 1966 Rambler, simply alleging that appellant was in possession of this property which belonged to her. However, no order of delivery was issued and no bond was made.
The first payment to Universal C.I.T. was due on August 22; Mrs. Jacobs had already sent a letter saying that she was not going to pay for the car, and on September 9, this company sent notice to appellee, in compliance with the Commercial Code, that unless she paid the amount due under the contract, including expenses of repossession and delinquent charges, within seven days, the car would be sold at private sale. Mrs. Jacobs received the notice, but made no payment. Perkins was then requested by the finance company to repurchase the contract, which was done, and thereafter this car was sold by appellant on October 22, for $2,565.78. The car traded in by appellee had been sold on September 3rd. Witnesses were not sure of the sale price but it is pretty well agreed that the value of the car was $600.00.
With reference to the suit filed by appellee, appellant moved to make the complaint more definite and certain and appellee amended to allege that appellant’s agent had stated that no taxes would be due or payable on the automobile when the license was purchased; that she discovered that taxes would be due and payable and returned the vehicle “and rescinded the contract”. An answer was filed denying the allegations of the complaint and both parties then moved to transfer the case to chancery court, which was done. There, appellee amended her complaint to allege unjust enrichment on the part of appellant company. On trial, the court found:
“1. On July 22, 1969, the parties entered into an agreement whereby the Plaintiff was to purchase a 1969 vehicle from the Defendant, and the Plaintiff traded in a 1966 vehicle of a value of $600.00.
2. Subsequently, the Plaintiff rescinded the contract by her actions, and the Defendant sold both of the vehicles.
3. It is the finding of the Court that the Plaintiff should recover from the Defendant the sum of $600.00, the value of the 1966 vehicle which she transferred to the Defendant.”
Judgment was then entered against appellant for $600.00 together with interest and costs from which judgment (decree) appellant brings this appeal. For reversal, it is simply asserted that the evidence was insufficient to sustain a judgment for appellee.
We agree with appellant that the evidence is insufficient to sustain the decree. Of course, there is no evidence of mutual mistake, and so the sole question is when rescission is proper for a unilateral mistake. In Hubbert v. Fagan, 99 Ark. 480, 138 S. W. 1001, it is •said:
“Where relief is given because of the mistake of one party alone, it is where it is induced by the conduct of the other party or because the other seeks unconscionably to take advantage of it, and the ground of jurisdiction is really fraud.”
Likewise, in American Laundry Machinery Company v. Whitlow, 198 Ark. 175, 127 S. W. 2d 817, this court commented:
“In 12 American Jurisprudence 624, § 133, it is held, as the rule sustained by practically universal authority, that a unilateral mistake alone will not justify a rescis sion. May it not be sufficient to say the law upon this subject is black type textbook law.”
In Gall v. Union National Bank of Little Rock, Trustee, 205 Ark. 1000, 159 S. W. 2d 757, we quoted from Black on Rescission and Cancellation, 2d Ed., Vol. I, § 128, p. 597, as follows:
“The generally accepted rule is that rescission cannot be enforced or ordered on account of the mistake of one party only/ which the other did not share, but for which he was not responsible, unless some special ground for the interference of a court of equity can be shown. That is, there can be no rescission on account of the mistake of one party only, where the other party was not guilty of any fraud, concealment, undue influence, or bad faith, did not induce or encourage the mistake, and will not derive any unconscionable advantage from the enforcement of the contract.”
What does the evidence show in the case before us? In the first place, the original complaint simply contained the allegations that the car belonged to appellee, and was being held by appellant. The amended complaint stated that she was told no taxes would be due or payable on the automobile when the license was purchased. This is the only allegation that bears on fraud or concealment, and the evidence, hereafter discussed, does not support that allegation. What is the evidence on this point? Mrs. Jacobs first testified that she was satisfied with the trade, and that title papers were delivered to her for the new car; she turned in the papers for the old one and said she thought she was getting a “good buy”. She was then asked the following question “When you found out you had to pay the sales tax you wanted to rescind your contract?” The answer to that question is, we think, most pertinent, her reply being, “No I didn’t. I thought it wasn’t fair. He should have told me I had sales tax to pay on this car [Our emphasis] and I would have took the car had he agreed to pay the sales tax”. Further,
“Q. He did not mislead you about that in any way?
A. No but he did not tell me either. * * * He should have made it clear to me. * * *
Q. That is the reason you decided you were not going to take the car or pay for it?
A. I agreed to pay for the car if he would call me about three o’clock but he did not have the courtesy to call me.
Q. It is not the tax but because he did not call you?
A. No if he had called me by three o’clock and said he would pay the tax, and he didn’t call me.
Q. That was the condition you were making?
A. Yes.”
It is thus apparent from the evidence of appellee herself that no one told her that she would not have to pay the sales tax. It was simply an assumption on her part. Certainly no fraudulent statements were made, nor was there undue influence, nor does the record indicate that the sales tax payment was intentionally concealed. Also, Mrs. Jacobs had every opportunity to acquire any information needed before the contract was signed, or to ask any question desired, for this apparently was no “hurried up” affair. It appears that while Mrs. Jacobs was conversing with Mr. Perkins in closing the transaction, that another lady came in who was bitten by the Perkins’ dog, and this occasioned some delay in completing the transaction. The statute (Ark. Stat. Ann. § 84-1903 [Repl. I960]) provides who shall pay the tax, and we are unwilling to place the additional requirement that every purchaser must be told who will pay the tax or else his contract will be subject to rescission. For that matter, from the testimony of Mrs. Jacobs, it appears that the fact that she was due to pay the tax was not the sole reason she attempted to revoke the contract; also, she gave him a “deadline” of calling her by three o’clock and telling her that he would pay the tax “and he didn’t call me”. Actually, the testimony reflects that subsequently appellant company did agree to pay it. Marlin Stubbs, who had sold appellee the car, stated that the subject of who would pay the sales tax was never mentioned, but when she returned the day after the transaction, she wanted appellant to pay this tax; that the company had consented to pay one-half, but she replied that that was not good enough. She subsequently called again, and his father, Jack Stubbs, “told her we would pay the sales tax on it. Then she said 'Well, if you are willing to pay the sales tax, there is bound to be something wrong with the car’ I said ‘I guess you know the car is backed by five years, fifty thousand mile warranty. You have no right to be scared of the car.’ ”
The record reflects that the provisions of the Commercial Code were followed in selling the repossessed automobile, following Mrs. Jacobs leaving it at the company agency, and, of course the car which she was trading in was daily losing value from depreciation as it remained on the lot. The sale of this car could have been prevented simply by the making of a bond, but this was not done by appellee.
Appellee argues that her claim was for unjust enrichment and that the court properly found that appellant was enriched and “very unjustly”. We do not agree with this contention. There can be no “unjust enrichment” in contract cases. In Materese v. Moore-McCormack Lines, 158 F. 2d 631, the matter is stated very succinctly as follows:
“The doctrine of unjust enrichment or recovery in quasi-contract obviously does not deal with situations in which the party to be charged has by word or deed legally consented to assume a duty toward the party seeking to charge him. Instead, it applies to situations where as a matter of fact there is no legal contract, but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain, but should deliver to another.”
In 17 C. J. S. Contracts § 6 p. 574, we find:
“It is generally held that where there is an express contract the law will not imply a quasi or constructive contract. The courts will not indulge in the fiction of a quasi or constructive contract where contracts implied in fact must be established, and will not substitute one promisor or debtor for another.. A quasi-contractual principle of unjust enrichment does not apply to an agreement deliberately entered into by the parties, however harsh the provisions of such contract may seem in the light of sdbsequent happenings.”
This court has recognized this principle at least as far back as 1860, where in Jackson v. Jones, 22 Ark. 158, we stated that the law never accommodates a party with an implied contract when he has made a specific one on the same subject matter.
It is apparent from what has been said that we find the judgment entered to be erroneous, and the decree of the White County Chancery Court is accordingly reversed.
It is so ordered.
Though the name of Mr. Jacobs appears as an appellee, the suit having been brought in his name as well as his wife’s, he does not appear to have any interest in the proceedings. The contract of sale was strictly between the agency and Velma J. Jacobs, and she testified that the car belonged to her; accordingly, this opinion will only refer to the appellee.
Marlin Stubbs, a car salesman for appellant, testified that such an automobile is handled like a demonstrator, and that customarily i. e., meaning in the absence of an agreement, the purchaser pays the sales tax; the car comes from the manufacturer, and bears a dealer’s tag.
No “Mr. Weir” testified, but Mr. Billy Robinson, district manager for the company, testified that such a contract cannot be can-celled except by the dealer, who, of course, has to repurchase the car.
From the record of the testimony of Mrs. Jacobs: “But I stayed there four hours trying to get this contract signed while he called his lawyer, his wife and everybody else in the country about this dog bite. By that time I was getting a little bit unhappy but I really wanted the car and they knew it.” | [
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