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Frank Holt, Justice.
This is a workmen’s compensation case. Appellee fell and sustained a compensable back injury on January 26, 1968, while lifting a casket. After a spinal disc operation, she returned to work on June 24, 1968, and on February 6, 1969, sustained a second injury by a fall. A referee determined that as a result of the first injury, appellee had sustained a 15% permanent partial impairment of the body as a whole and that her second injury did not result in any permanent disability. On appeal the full commission increased the award for the first injury to 25% permanent partial disability to the body as a whole, and also awarded 10% permanent partial disability to the body as a whole as a result of the second injury. The circuit court affirmed the commission and from that adverse ruling comes this appeal.
For reversal the only issue presented questions the sufficiency of the evidence to support the commission’s findings. Appellant argues that the commission completely ignored the basis of the referee’s finding, based upon the medical evidence that appellee’s permanent partial disability was only 15%, and that no competent testimony, except her own, was offered to support a finding of greater disability.
We reiterate our well-established rule that in a workmen’s compensation case, the findings of the referee are without significance on appeal to the circuit court or to this court. Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S. W. 2d 43; Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528 (1963). Also, we have often said that the degree of disputed disability incurred by a claimant as a result of an injury is a question of fact to be determined by the commission and we will affirm its finding if there is any substantial evidence to support it. Potlatch Forest, Inc. v. Smith, 237 Ark. 468, 374 S. W. 2d 166 (1964); Pearson v. Faulkner Radio Serv. Co., 220 Ark. 368, 247 S. W. 2d 964 (1952). We thus review the evidence.
Appellant concedes that appellee incurred a 15% permanent partial disability as a result of the first injury. However, it asserts that after the first injury, appellee returned to work and accomplished her tasks until her second fall which resulted in an injury temporary in nature and totally unrelated to the original injury.
Dr. Canale testified to having seen appellee on February 15, 1968, for the injury she had received on January 26, 1968, and diagnosing her injury as a herniated L-5 disc. He performed an operation and removed the disc. He recommended that appellee should not return to work until June 22, 1968, and that upon her return she should not perform work requiring her to lift over 35 to 40 pounds. He did not see appellee after June 6 until the first of July when she again visited his office, after returning to her work, and complained of- low back pain. He recommended that she continue to work. Dr. Canale next saw appellee after her second injury. He stated that in his opinion appellee had a lumbosacral strain as the result of her second fall, but that she had not suffered any additional permanent disability. However, he also testified to having written a letter to Dr. Deneke (appellee’s treating physician subsequent to her second injury) recommending-that appellee give up her present employment since it was causing her difficulty.
Dr. Deneke stated in a report to the Arkansas Rehabilitation Service that appellee should avoid walking, standing, pushing and pulling; and that she should be trained for work which could be accomplished “in a sitting position” and should not engage in an occupation requiring standing for a whole work period. Dr. Deneke, along with Dr. Tooms (another examining orthopedic specialist), felt that appellee had a 10-15% permanent partial disability based on her first injury and none on her second one. The three doctors appear to agree about appellee’s inability to continue her previous employment with appellant as a result of her second injury.
Appellee is 45 years of age, has completed one-half of the ninth grade, and is without any special training. At the time of both injuries, she sewed linings in caskets for the appellant. This job required her to reach, bend, walk, stoop, and to lift the foot part of caskets. After her first injury she returned to this work for approximately seven months, missing only six and three-quarter days which included days she saw a doctor. About a month after the second injury she again returned to this work. Her back hurt her so much, however, that she was irregular in her work attendance. About two months after appellee returned to her work, appellant terminated her employment because of sporadic absenteeism. It appears that some of- the days she missed (1214 in two months) “were days when she was hospitalized” or undergoing a doctor’s examination. Since then she has been unable to find-other work. Her other work history consists of being a waitress-and shoe store clerk. She applied for a position which was available through the Employment Security Division but was advised by Dr. Deneke not to take it because the position involved stooping, lifting, bending, and standing.
, We have held that permanent partial disability can consist of functional disability or loss in earning capacity or a combination of both. Wilson & Co. v. Christman, 244 Ark. 132, 424 S. W. 2d 863 (1968). There we said:
“The opinions of attending physicians and medical experts are admissible as competent evidence when properly presented in a compensation case, but such opinions are not conclusive. They are only to be considered by the commission along with all other competent evidence, medical and otherwise, in arriving at the degree of permanent partial disability in a compensation case.
Appellant argues that there is no evidence to sustain the commission’s award of 60% permanent partial disability. It is true that no one testified that claimant has a 60% permanent partial disability. Neither did any witness, including the appellee’s own testimony, fix his partial disability at 50% or 70%, but there is substantial evidence in the record that appellee has suffered a disability both in the loss of use of his body as a whole, and in loss of capacity to earn in the same or any other employment, the same wages he was receiving at the time of the injury.”
In that case 30% was the highest amount of permanent partial disability that existed, according to the medical evidence; however, we affirmed the commission’s award of 60%.
Likewise, in the case at bar the medical evidence would limit appellee’s recovery to 15%; however, the commission awarded a total of 35% permanent partial disability as a result of the two injuries. Following the second injury the doctors advised that appellee would be restricted on the labor market to performing tasks only in a sitting position. Dr. Deneke testified:
“* * * she made an honest effort to work, and I felt like that it was proper to recommend that she not continue in this capacity that she was working under at the Dacus Casket Company and recommended that she seek help from the Vocational Rehabilitation Service to learn a new trade and secure a job that would enable her to work in a sitting position rather than in a standing position lifting ten to fifteen pounds of weight in a position that necessitated her back to be in a flexed position.”
Following her second injury appellee applied to Vocational Rehabilitation but that agency did not have any available position allowing her to work in a sitting position. Appellee testified that she sought work with a former employer who had a cashier’s position open but was unacceptable because of her condition. She was refused work as a shoe clerk when the manager received a doctor’s report about her limited physical condition. Appellee also testified that after the second injury she had unsuccessfully tried to sew. She takes pain and sleeping pills provided by Dr. Deneke to alleviate her back pain; otherwise, she can only sleep two to three hours. Her dependent children do her housework.
The question presented in this case is one of credibility and, thus, a matter within the exclusive province of the commission. Kivett v. Redmond Co., 234 Ark. 855, 355 S. W. 2d 172 (1962). The commission reviewed the testimony adduced by the appellant and the appellee, and evaluated the conflicting evidence. Its finding has the same verity as that of a jury. Appellant’s attack upon appellee’s testimony as to the extent of her injuries, being in excess of the medical testimony, and her attempts to obtain employment, even if uncorroborated, is pertinent only to appellee’s credibility.
In the case at bar the appellee suffered two separate injuries in the employment of the-same employer. After the first injury she returned to work for about seven months and apparently performed he-r duties satisfactorily. After the second injury she was terminated a short tíme after returning to work because of sporadic absenteeism occasioned by the disabling effects of this injury. She was then restricted by her doctors to work that could be performed only in a sitting position. Further, she was handicapped by her age, lack of education, and limited work experience. As in Christman, her former employers and prospective employers refused her employment due to doctors’ reports. Certainly it must be said that when we view the evidence most favorably to the commission’s finding, as we must do, and then apply the long-established substantial evidence rule, the total award of 35% to the claimant for both injuries is justified. In the circumstances, we deem it unnecessary, and think it only academic, that we approve the allocation of a separate percentage of disability to either injury.
Affirmed.
Fogleman and Jones, JJ., dissent. | [
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Carleton Harris, Chief Justice.
Appellant, C. C. Decker, instituted suit against Dr. David L. Gibbons, alleging that his forehead was cut when his cattle truck was wrecked, and that he was admitted to the hospital at Ozark where the doctor was called upon to treat Decker; that Gibbons sewed up the cut and left foreign substances in his head. Allegations relating to damages suffered were then set out; a judgment of $35,000 was sought for compensatory damages and $35,000 for punitive damages. On trial, the jury returned a verdict for Gibbons, and from the judgment entered in accordance with the verdict, Decker brings this appeal. For reversal, it is simply urged that Defendant’s—Appellee’s Requested Instructions No. 4 and 5, which were given by the court constituted error, and the judgment should be reversed.
None of the testimony is abstracted, and the objections made to these instructions were only general objections. Accordingly, the objections cannot be sustained unless the instructions were inherently erroneous. Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629. An instruction, of course, is inherently erroneous only when it cannot be correct under any circumstances. Insured Lloyds v. Mayo, 244 Ark. 802, 427 S. W. 2d 164.
Appellant’s principal argument is directed to Defendant’s Instruction No. 4, which reads as follows:
“You are instructed that a physician and surgeon who is requested, and undertakes, to render only first aid emergency treatment to a patient, owes to the patient a duty to exercise only such reasonable skill and care as is ordinarily and reasonably used by physicians and surgeons in good standing in the community in rendering first aid emergency treatment under the same or substantially similar circumstances[ ] ”
Appellant asserts that this instruction is erroneous on its face; that all treatment by physicians and surgeons is more or less of an emergency nature, and it is contended that a physician and surgeon is bound by the same degree of care in an “emergency” case as at any other time. While there might well be fact situations where this instruction would not be proper, we cannot say that it was erroneous in this instance. It must be remembered that not one line of evidence has been abstracted, and we accordingly have not the faintest idea of the facts shown by the testimony. The instruction certainly would, under some circumstances, be proper for emergency treatment does not ordinarily include detailed tests, x-rays, and charts, nor does it afford the time for study of the patient’s history and condition, or consultation with an associate. After all, this instruction is nothing more than a defining of what constitutues reasonable care to be used by physicians and surgeons under all the circumstances existing at the time.
It is also contended that defendant’s instruction No. 5 was erroneous. That instruction reads as follows:
“You are instructed that defendant’s negligence or lack of skill cannot be presumed or inferred merely because of the institution of this action, or the mere failure of his wound to heal properly, or from the fact, that Plaintiff has undergone a subsequent treatment for said injury; such facts, or any of them, are not alone evidence of defendant’s failure to exercise that degree of reasonable skill and care which the law imposes on physicians and surgeons in the treatment of such injuries. Neither can mere surmise or conjecture that there may have been negligence take the place of proof.”
Appellant asserts that this instruction is a comment on the evidence and is argumentative; also he argues that the instruction infers that conjecture and surmise exist and this portion of the instruction stands out. AMI 603 was also given by the court as its instruction No. 6, stating, “The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.” Thus, it might also be argued that No. 5 is somewhat repetitious of this instruction, and thus overly emphasizes the position taken by appellee. Without detailing the specific faults of the instruction, let it be said that it is clearly in conflict with the Per Curiam order entered by this court on April 19, 1965, relative to Arkansas Model Jury Instructions. That order reads as follows:
“If Arkansas Model Jury Instructions (AMI) contains an instruction applicable in a civil case, and the trial judge determines that the jury should be instructed on the subject, the AMI instruction shall be used unless the trial judge finds that it does not accurately state the law. In that event he will state his reasons for re fusing the AMI instruction. Whenever AMI does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when an AMI instruction cannot be modified to submit the issue, the instruction on that subject should be simple, brief, impartial, and free from argument.”
The detailed listing of the situations that would not constitute negligence or lack of skill results in an instruction that is heavily slanted in favor of the defendant, for it emphasizes defenses, rather than being impartial; it appears argumentative, rather than free from argument, and, in addition, it is lengthy rather than brief. If such a specific objection had been made on trial, we would unhesitatingly reverse. However, we are not yet willing to say that an instruction which violates the quoted Per Curiam order is inherently erroneous for that reason.
For this case to be reversed, one of the instructions here under attack must be held to be inherently erroneous. Since we do not agree with appellant that either can be placed in that category, it follows that the judgment should be, and is, affirmed.
It is so ordered.
Smith, J., concurs.
This instruction, word for word, is found in 15 Am. Jur. Pleading and Practice Forms, Form 15: 1081 p. 599. | [
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George Rose Smith, Justice.
The three plaintiff-appellants, Billy N. Harlan, his wife, Cherry Harlan, and their five-year-old son, Robert Harlan, brought this action for personal injuries and property damage sustained when their car ran into the back of a car being driven by the minor appellee, Jan Curbo. The collision occurred on Highway 33 at a point several miles south of Augusta. It was the plaintiffs’ theory that Curbo negligently backed out of a driveway onto the highway and had just started moving forward when his vehicle was struck from behind by the oncoming Harlan car.
The case was submitted to the jury on interrogatories. The jury apportioned the total negligence in the ratio of 40% to Billy N. Harlan and 60% to young Curbo. The verdict fixed the plaintiffs’ total damages at $750 for Billy N. Harlan, $1,000 for Cherry Harlan, and zero dollars for Robert Harlan. In appealing from the judgment upon the verdicts the Harlans contend that the amount of each verdict is demonstrably inadequate. The three appellants present separate contentions, which must be discussed individually.
First: Billy N. Harlan’s verdict for $750. According to the undisputed proof, this verdict is inadequate. It was stipulated that the damage to Harlan’s car amounted to $784.50. In addition, Harlan suffered a deep cut on his scalp, which was closed by 13 surface stitches and a number of additional subcutaneous stitches. The doctor’s original treatment took from 30 to 45 minutes, and Harlan had to return a few days later for the removal of the outer stitches. Yet the jury’s verdict, fixed without regard to any issue of comparative negligence, was less than the stipulated property damage. The judgment therefore falls within the rule that the recipient of a substantial but inadequate award is entitled to a new trial if other prejudicial error is shown. Smith v. Ark. Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411 (1935).
Such other error does appear. Even though Curbo’s car had just begun to move forward, the court gave AMI 902, Civil, with respect to the superior right of the forward vehicle. In the circumstances the giving of that instruction was error, because no specific applicable purpose for which Curbo supposedly had a superior right to the use of the highway existed, and consequently no such purpose was inserted in the instruction. In Smith v. Alexander, 245 Ark. 567, 433 S. W. 2d 157 (1968), we pointed out that such a specific purpose must be inserted whenever the instruction is used.
The court also erred in instructing the jury that in passing upon the question of the plaintiffs’ negligence the jurors might take into consideration the fact that seat belts were available for the plaintiffs’ use. The only evidence about seat belts was a statement that such belts were available, at least for Mr. and Mrs. Harlan, and that the belts were not fastened at the time of the collision. The court had already given AMI 305B, Civil, explaining the duty of all persons involved in the occurrence to use ordinary care for their own safety. The additional reference to the Harlans’ failure to use seat belts not only was an unnecessary duplication but also singled out a particular fact for undue emphasis. Rutland v. P. H. Ruebel & Co., 202 Ark. 987, 154 S. W. 2d 578 (1941).
The two erroneous instructions that we have mentioned may have led the jury to attribute to Billy N. Harlan a greater percentage of the total negligence than should have been the case. Harlan’s judgment must therefore be reversed and the cause remanded for a new trial.
Second: Cherry Harlan’s verdict for $1,000. With respect to this verdict there is no prejudicial error. The two erroneous instructions already discussed were not prejudicial to Mrs. Harlan, because the court ruled that Mrs. Harlan, as a passenger in the car, was not guilty of negligence. Therefore the court did not submit the issue of her possible negligence to the jury. Since the two erroneous instructions touched only upon the matter of negligence, they did not adversely affect the jury’s consideration of Mrs. Harlan’s claim. (It is true that the seat belt instruction should have referred to Billy N. Harlan only, rather than to “the plaintiffs.” That inaccuracy of wording would doubtless have been corrected had a specific objection been made, but no such objection was interposed.)
Thus in Mrs. Harlan’s case the jury returned what she considers to be an inadequate award, though it is substantial. No other error appears. If Mrs. Harlan had any damages that were subject to exact pecuniary measurement, their total amount was decidedly less than the jury’s award of $1,000. Hence her case falls within the statutory ban against the granting of a new trial when the only asserted error is the inadequacy of a verdict upon a claim for damages not subject to precise measurement. Ark. Stat. Ann. § 27-1902 (Repl. 1962); Munson v. Mason, 245 Ark. 686, 434 S. W. 2d 815 (1968).
Third: The jury’s failure to award any damages to Robert Harlan. According to the undisputed proof this child suffered only minor bruises that required neither treatment nor medication. The jury evidently found the injuries to be so trivial as not to justify an award of compensatory damages. Hence in Robert’s case the jury inserted in the form of verdict a finding of zero damages.
It is now insisted that Robert was entitled at least to nominal damages. In the only case cited by counsel, however, we were dealing with a property right stemming from the plaintiffs’ ownership of land. Adams v. Adams, 228 Ark. 741, 310 S. W. 2d 813 (1958). In that situation an award of nominal damages serves a real purpose, for it establishes the property right in issue and lends force to the decree as a final adjudication in favor of the prevailing party. See, for example, Brown v. Bradford, 175 Ark. 823, 1 S. W. 2d 14 (1927), where we observed that “a new trial will not be granted for a failure to assess nominal damages where no question of a permanent right is involved.”
In the case at bar no permanent right is involved, the only asserted cause of action being for an injury caused by negligence. Robert Harlan suffered an injury so slight that the jury did not see fit to dignify it by an assessment of compensatory damages. We must therefore adhere to our usual rule, that the trial court’s failure to award nominal damages is not reversible error. Reese v. Haywood, 235 Ark. 442, 360 S. W. 2d 488 (1962); Wells v. Adams, 232 Ark. 873, 340 S. W. 2d 572 (1960).
Reversed as to Billy N. Harlan; affirmed as to Cherry Harlan and Robert Harlan. | [
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George Rose Smith, Justice.
This case is a sequel to an earlier one in which we held that the appellee Bierman was the owner of a certain house and lot, subject to the appellant’s option to repurchase the property from Bierman for $2,100. Berry v. Bierman, 248 Ark. 440, 451 S. W. 2d 867 (1970). That opinion was delivered on April 6, 1970, and became final 17 days later. Ark. Stat. Ann. § 27-2142 (Repl. 1962); Supreme Court Rule 20 (a). Our mandate to the trial court was duly issued on April 24, 1970.
On July 14, 1970, which was 82 days after our decision became final, the dwelling house in question was destroyed by fire. On March 3, 1970, Bierman had obtained and paid for a $7,000 fire insurance policy upon the house. After the fire the appellant, who had not previously exercised her option to repurchase, claimed the proceeds of the fire insurance policy, which the in surer paid into court. This appeal is from a decree awarding the money to Bierman.
In seeking a reversal counsel for the appellant misconstrues our decision in the earlier case, by saying that we held "that Mrs. Berry was the fee simple title holder to the property and that Bierman had no title, or color of title, to the property, whatsoever.” That was not the effect of our decision, as a review of the facts will demonstrate.
In 1955 Mrs. Berry conveyed the property to Bier-man (her brother) for $2,100, reserving in the deed an option to repurchase the property for the same price' at any time after four years from the date of the deed. In 1969 Bierman filed the complaint in the first case, asking that the deed be reformed by a cancellation of the option to repurchase. Mrs. Berry filed a counterclaim in which she sought to enforce the option to repurchase. Bierman then amended his complaint by seeking to recover the value of his improvements if Mrs. Berry were allowed to repurchase the property. The effective part of the decree in that case consisted of these three paragraphs:
1. That plaintiff’s prayer for reformation of the deed introduced into evidence at the trial is denied.
2. That plaintiff, Clarence C. Bierman, has made improvements upon the land ... in the sum of $1,500.00 and that Dora Berry must pay Clarence C. Bierman the sum of $3,600.00 to exercise her option in the repurchase of the property . . .
It is, therefore, by the Court, considered, ordered and adjudged that plaintiff’s prayer for reformation of the deed ... is hereby denied, and that Dora Berry must pay Clarence C. Bierman the sum of $3,600.00 in order to repurchase the property described in the complaint of the plaintiff and exercise her option.
Bierman did not appeal from the chancellor’s denial of his prayer for reformation. Upon Mrs. Berry’s appeal we held that the chancellor was in error in allowing Bierman $1,500.00 for his improvements. After referring to the betterment statute, Ark. Stat. Ann. § 34-1423 (Repl. 1962), we concluded our opinion in these words:
The deed in question does not fall in the category of a “color of title” instrument as that phrase is used in the betterment statute. See Thompson, The Law of Real Property, § 2650 (1940). On its face the deed from Berry to Bierman contains a right of redemption or repurchase which limits the fee simple conveyance.
We reverse and remand with directions that appellee be relieved of any liability for the improvements.
In the section of Thompson’s treatise which we cited, the author makes it clear that color of title is actually no title at all: “ ‘Color of title’ is anything in writing which, upon its face, professes to pass title, but which does not do it ... It implies that a valid title has not passed to the claimant. . . . Color of title is not, in law, title at all. It is a void paper, having the semblance of a muniment of title, to which, for certain purposes, the law attributes certain qualities of title.” Thompson, supra.
Hence when we said that the Berry-Bierman deed was not color of title, our reasoning was that the deed conveyed actual title (subject to' the option to repurchase) rather than a mere semblance of title. In that view Bierman was the owner of an insurable interest in the dwelling house when he obtained the fire insurance policy upon that structure. Mrs. Berry had not exercised her option to purchase when the house burned. To the contrary, the trial court’s decree in the first case, which we merely modified, declared that “Dora Berry must pay Clarence C. Bierman the sum of $3,600.00 in order to repurchase the property described in the complaint of the plaintiff and exercise her option.” The decree, significantly, did not direct Mrs. Berry to exercise her option; it merely recognized her right to do so if she chose. If the house had been uninsured when it burned, Bierman could not have compelled Mrs. Berry to pay $2,100 for the vacant lot.
Mrs. Berry had not exercised her option to repurchase when the house was destroyed by fire more than 80 days after our decision became final. Consequently Bierman was still the owner of the property and is entitled to the proceeds of the insurance policy which he bought and paid for. We need not discuss the appellant’s offer to prove at the trial that Bierman had orally agreed back in 1955 to keep the property insured. Not only would such an agreement «violate the parol evidence rule, as the trial court held, but also the point is not argued in the appellant’s brief.
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Frank Holt Justice.
Appellant was convicted of robbery by a jury which assessed a penalty of twelve years’ imprisonment in the State Penitentiary. From a judgment entered on that verdict appellant brings this appeal. Appellant’s present counsel, who did not participate in the trial, was then appointed for appeal purposes.
Appellant first contends that the lower court erred in failing to hear evidence concerning the admissibility and voluntariness of his confession out of the presence of the jury. Appellant cites Ark. Stat. Ann. § 43-2105 (Supp. 1969) which provides that the trial court shall determine by a preponderance of the evidence the admissibility and voluntariness of a confession out of the jury’s presence “when the issue is raised by the defendant.” A hearing on the voluntariness of appellant’s confession was conducted in the presence of the jury. The court determined the confession to be voluntary before admitting the confession into evidence. Appellant did not object nor request a hearing out of the jury’s presence. In fact, appellant acquiesced in the procedure and cross-examined the proffered witness in the jury’s presence with respect to the circumstances surrounding the confession. The issue was not “raised by the defendant.” This is in accord with Pinto v. Pierce, 389 U. S. 31 (1967). There the court said: “Since trial counsel consented to the evidence on voluntariness being taken in the presence of the jury, and the judge found the statement voluntary, respondent was deprived of no constitutional right.” Therefore, we find no merit in appellant’s contention.
Appellant next contends that the lower court erred in admitting the testimony of an F. B. I. agent concerning a purported confession while appellant was in custody. We find no error. An F. B. I agent questioned appellant in a New Orleans jail for the purpose of identifying him in connection with a federal warrant for his arrest. The agent testified that he advised appellant of his constitutional rights as is required by Miranda v. Arizona, 384 U. S. 436 (1966) and that after the Miranda warnings had been read and fully explained to him, appellant signed the “advice of rights” and “waiver of rights” form and voluntarily confessed to having committed this alleged robbery. Further, that appellant was not threatened or abused by him or anyone else to his knowledge. Appellant admits signing the statement to the effect that proper warnings had been given; he denies, however, that the warnings were explained to him and says that he signed the statement without reading it. He further stated that the confession made to the agent was involuntary. According to him, it was made because he had been physically abused by the New Orleans police and he concocted the confession in order to avoid possible prosecution in Louisiana. He denied the alleged offense. Reconciling discrepancies and conflicting testimony and weighing the evidence are within the exclusive province of the jury and it is the jury’s prerogative to believe or disbelieve the witnesses. Houpt v. State, (Ark. Nov. 16, 1970) 459 S. W. 2d 565. A full review of the record convinces us that the court was correct in permitting the officer to orally recite his version of appellant’s confession which was restricted to this alleged offense.
Appellant’s next contention is that the court erred "in failing to have a witness requested by the defendant appear to testify in his behalf.”
On'the morning of the trial, appellant made a motion for a ten-day continuance for the purpose of obtaining a witness (in the Tennessee Penitentiary) to testify in his behalf. At the time this motion was made, appellant did not offer proof of the testimony to be adduced by the absent witness. This court has often said that the granting of continuances is within the sound discretion of the trial court and its action will not be reversed on appeal without a showing of an abuse of discretion. Nash v. State, (Ark. Mar. 23, 1970) 451 S. W. 2d 869. Furthermore, we held in Davis v. State., 95 Ark. 555, 129 S. W. 530 (1910) that the refusal to grant a continuance is not an abuse of discretion where there is no proof of the testimony to be offered by the absent witness. Appellant’s contention is, therefore, without merit.
Affirmed. | [
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Lyle Brown, Justice.
Appellant Charles Shinsky was charged with aiding four persons to escape from the county jail by supplying them with hacksaw blades. He was convicted, fined, and given a jail sentence. Ark. Stat. Ann. § 41-3511 (Repl. 1964). Appellant contends that his motion for a continuance should have been granted, that the court erred in compelling one of the escapees to testify against the wishes of the escapee, and that the evidence was insufficient to support a verdict.
During the night of August 23, 1970, four prisoners lawfully in custody escaped from the Baxter County jail. A string from a mattress was lowered out the window and someone on the ground tied two hacksaw blades thereto. When a sufficient opening was made the prisoners lowered themselves to the ground by means of a rope made from quilting. The four escapees were captured the next day. They were Leonard O. Naugle, Howard L. Estes, Glenn Sheley, and Ronald Smith. Three of the four men testified for the State. Since the sufficiency of the evidence is attacked we will relate the essential testimony and in the light most favorable to the State.
Leonard Naugle testified that he gained his freedom by the use of hacksaw blades; that they were tied to a string by some person unknown to him; and that one of the blades was found on his person at the time of arrest. Glenn Sheley said that early in the night he talked to Charles Shinsky about bringing some hacksaw blades to the jail but received no reply. He denied having made a statement to the deputy prosecutor that Shinsky brought the blades to the jail. He said he stated that if Shinsky in fact brought the blades there he probably got them from the elder Shinsky’s cabinet shop.
The third escapee called as a witness by the State was Howard Estes. He was asked if he was one of the escapees of August 24 and he declined to answer “on the grounds that it might incriminate me.” That statement resulted in a hearing in chambers. There it was revealed that Estes was charged in the same court with violating the escape statute and had not yet been tried. Ark. Stat. Ann. § 41-5513. He did not want to testify in the instant case because he was fearful his testimony would tend to prejudice him in his case. It was also shown that Estes had, prior to trial, signed a waiver and had given a written statement to the prosecuting attorney. The waiver and statement were given on advice of Estes’s attorney. When those circumstances came to light, Estes’s attorney, who was present at the hearing, withdrew any objection to Estes testifying. Back on the witness stand Estes still refused to answer those questions which he thought might result in prejudice to him. Then he was asked about his signed statement in which he recited that Sheley asked Shinsky to bring the blades and that Shinsky returned in a few minutes with them. The statement fur ther recited that Estes threw a string out the window and pulled it back up after Shinsky tied the blades to it. When asked by the prosecutor if he made those statements he replied “that’s what it reads there.” There was no objection by appellant to the described line of questioning.
Douglas Shutt testified that on the night of the escape he drove to the jail accompanied by Shinsky; that Shinsky wanted to talk to Glenn Sheley; that Shinsky got out of the car and went over near the jail and conversed with Sheley; and that Sheley told Shinsky to bring some hacksaw blades to Sheley, to which request Shinsky nodded in the affirmative. After that conversation Shutt said he drove to Shinsky’s house trailer. Shutt said he asked Shinsky if he was going to take the blades to the jail and that Shinsky responded “I don’t know.” Shutt left alone.
We have no hesitancy in saying there is no merit in appellant Shinsky’s contention that there is no substantial evidence to support the verdict.
Appellant’s contention that the trial court erred in refusing to grant a motion for continuance is likewise without merit. Appellant was arrested August 24, 1970. He was freed on bond within three days. On September 3 he appeared in court with his attorney and entered a plea of not guilty. On the eve of trial he filed his motion for continuance, asserting that his attorneys needed more time to prepare his defense. That motion was overruled and appellant was put to trial on September 16. From the date of appellant’s arrest until the trial date almost four weeks intervened in which he could prepare for trial. The motion for continuance simply stated the conclusion that appellant’s counsel “have not had adequate time in which to prepare a defense.” We find no abuse of discretion. Nash v. State, 248 Ark. 323, 451 S. W. 2d 869.
We now come to the third and final point for reversal. ■ It is contended that the trial court erred in compelling Howard Estes to testify against appellant when Estes claimed his constitutional right to remain silent. The right to claim the privilege was personal to Estes and appellant cannot claim the privilege or take advantage of any error of the court in denying the privilege to the witness Estes. 8 Wigmore, Evidence § 2196 (McNaughton rev. 1961); Bowman v. United States, 350 F. 2d 913 (1965); United States ex rel Berberian, 300 F. Supp. 8 (1969). There are a host of other cases to the same effect and they can be found in the cited authorities.
Affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by U. t>. Moore et al, from a decree of the Pulaski County Chancery Court denying their petition for an injunction to prevent the Little Rock Airport Commission from entering into a contract with the Arkansas Power & Light Company for the installation of electrical power facilities and the furnishing of electrical energy for the lighting of a new parking lot and air terminal for the City of Little Rock without advertising for bids under the provisions of Act 159 of 1949. (Ark. Stat. Ann. § 14-611 [Repl. 1968]).
The City of Little Rock intervened contending that the Airport Commission is simply an agency of the city and that the agreement it contemplates with the Arkansas Power & Light Company is an agreement for electrical distribution and services not within the provisions of Act 159 of the Acts of 1949; and that the arrange ment contemplated by the Commission is simply an extension of the city’s agreement with the Arkansas Power & Light Company entered into in September, 1958, for the furnishing of lighting service to public streets and ways in the City of Little Rock.
The chancellor dismissed the petition with prejudice and on appeal from the chancellor’s decree, the appellants rely on the following point for reversal:
“The making of a contract by a city for the construction and installation of lighting fixtures and facilities for a parking lot at a cost in excess of $10,000.00 is subject to the requirements of Act 159 of 1949, and the chancellor erred in holding to the countrary.”-
Act 159 of 1949, as digested in Ark. Stat. Ann. § 14-611 (Repl. 1968), reads as follows:
“No contract providing for the making of major repairs or alterations, or for the erection of buildings or other structures, or for making other permanent improvements shall be entered into between the State, or any agency thereof, or any county, municipality, school district, or other local taxing unit, with any contractor in those instances where the estimated cost of such work shall exceed the sum of $10,000.00, unless such taxing unit shall have first published notice of its intention to receive bids therefor once each week for not less than two [2] consecutive weeks in a newspaper of general circulation published in the county in which the proposed improvements are to be made, or in a trade journal reaching the construction industry. The date of publication of the last of such notices shall be not less than one [1] week before the day fixed therein for the receipt of bids. If there be no such newspaper regularly published in the county in which the proposed work is to be done, the notices may be published in any newspaper having a general circulation in such county. Nothing in this Section contained, however, shall be construed as limiting to two [2] the number of weeks the notices may be published.”
The action which brought on this litigation was the action authorized by the Little Rock Airport Commission as indicated by excerpts from the minutes of a regular meeting of the Commission on January 12, 1970, as follows:
“Mr. W. M. Alley, representing Arkansas Power and Light Company, presented a choice of several proposals whereby the Arkansas Power and Light Company would install street and parking area lighting in the new terminal area. These proposals follow for the record.
Mr. Carl Harris spoke to the Commission in opposition to Arkansas Power and Light Company’s proposal, advising the Commission that in his judgment the lights should be installed by private contractors. City Attorney Joe Kemp advised the Commission that in his opinion installation of street and parking area lighting in the new airport terminal area by Arkansas Power and Light Company was legal. Thereupon, Mr. Beauchamp moved that plan III of Section ‘B’, providing for the lighting of parking area and the streets adjacent to the terminal, requiring a monthly cost of $436.70, be adopted by the Commission and that the Airport Manager be authorized and directed to notify proper officials of the City of Little Rock the recommendation of the Commission in this respect. The motion was seconded by Mr. McLean and carried unanimously.”
It was stipulated by the parties that on September 30, 1958, the City of Little Rock entered into a contract with the Arkansas Power & Light Company under which the city, in effect, went out of the electric power distribution business, and Arkansas Power & Light Company took over the electrical distribution system then owned by the City of Little Rock. Under this agreement, Arkansas Power & Light Company be came the owner of the facilities and agreed to repair, maintain and expand the street lighting system in the City of Little Rock. The contract was for a period of 20 years, and was renewable for five year periods. In the event the contract should expire and not be renewed, Arkansas Power & Light Company had a right to dismantle and remove the facilities.
The appellees contend that the contract now contemplated is only an extension of the original street lighting contract, and the appellants contend that it is immaterial whether the contract they seek to enjoin is an extension of the old contract or a completely new one; they both are covered by Act 159 and that bids must be taken and the contract let to the lowest competent bidder as provided in the act.
In support of the petition for the injunction, Mr. Moore testified that he is a resident of Little Rock and is an electrical contractor. He says that he is familiar, to some degree, with the proposed expansion of the Little Rock Municipal Airport, and that part of the plans for such expansion is to provide lighting fixtures, wiring and so forth. He testified that he would be willing to bid on such project on the basis of furnishing it on a monthly rental basis as distinguished from selling it to the city outright. He testified that he had never been offered the opportunity to do so.
On cross-examination Mr. Moore testified that in order for him to furnish electrical energy for the illumination of lamps to be installed under the proposed contract, it would be necessary for him to purchase it from the Arkansas Power & Light Company or the servicing utility. He says that it is possible for him to do this however, and he supposes he would be permitted to resell it to the City of Little Rock.
“Q. You suppose or do you know?
A. No, I don’t know. I would assume it is. I would assume that if we installed an electric service out there and paid the deposit, neces sary deposits and signed a contract for service they would be obligated to serve us.”
Mr. O. V. Holeman, director of rates and research for the Arkansas Power & Light Company, testified that he was familiar with the proposed plans for expansion of the Municipal Airport and of the lighting requirements. He testified that under the proposed contract, the lighting facilities would be of the normal type of ornamental facilities supplied by an underground distribution system, and that the system would be permanent in nature but capable of being removed. He testified that the proposals that the Arkansas Power & Light Company and the city had under consideration would be for lighting service to the airport area, including the streets adjacent to the new airport; and that the proposals were made pursuant to the provisions of their municipal street lighting rate schedule which became effective November 10, 1966. Mr. Hole-man then explained that the lighting installation and service would consist of approximately ninety, 400 watt mercury vapor street lighting fixtures mounted on 40 ornamental standard poles approximately 55 feet in height. He then testified as to the cost in monthly charge under the standard street lighting rate schedule for servicing each unit. He testified that under the proposed contract the Arkansas Power & Light Company would install, own and maintain the facilities, and that in the event the term of the contract should end and should not be renewed, the facilities would be dismantled and removed by the company. He testified that the rate schedule under which the city would be charged for service would be the rate schedule approved by the Arkansas Public Service Commission for such service and would cover the cost of production and distribution necessary in furnishing street lighting service, including the purchase and depreciation of steel poles and underground cables and conduits. He testified that the rate schedule base included the annual cost of owning, operating and maintaining the facilities, together with the cost of producing the energy that supplies the street lighting.
On cross-examination Mr. Holeman testified that if the city should install the facilities and own them, that Arkansas Power & Light Company would furnish electrical current and at a lower rate than if the company installed and owned the facilities and were required to maintain and service them. He testified that the electrical energy supplied to cities for street lighting purposes is distributed in exactly the same manner as to residential customers, but at a different rate and under a different schedule approved by the Arkansas Public Service Commission.
We agree with the chancellor that neither the original contract entered into on September 30, 1958, nor the proposed contract for servicing the new airport terminal, access routes and parking area, comes within the provisions of Act 159 of 1949, § 14-611.
It is difficult to tell from the record before us whether the appellants are attempting to force the city into installing, owning and maintaining part of a public utility distribution system, or whether they are attempting to force the city to put them into the public utility distribution and maintenance business. The effect of the appellants’ contention would amount to one or the other.
If Act 159 applies to the contract under consideration, there is no reason why it should not also apply to contracts for natural gas and telephone service.
The above testimony as to the type of installation and the cost to the city is beside the issue in this case. The issue is not whether the city could more economically install, own and maintain its own electrical distribution system. The issue is whether the proposed contract comes within the provisions of Act 159, and the determining factor is the ownership of the facilities to be erected or installed, or the improvements to be made under the proposed contract.
We are of the opinion that Act 159 could only apply to such contracts as the city is authorized to make for major repairs or alterations, or for the erection of buildings or other structures, or for making other permanent improvements. The city only has such contractual power and authority as is granted to it by the legislature, and the legislature has never granted to cities the power or authority to enter into contracts for the repair or alteration of property, or for the erection of buildings or other structures, or for making other permanent improvements, on or to other peoples’ property, including that of utility companies.
The decree is affirmed.
Byrd, J., not participating. | [
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Frank Holt, Justice.
Appellant corporation applied for a Class 1 Permit to operate a retail liquefied petroleum gas outlet designed to service an area of 2,490 square miles (later revised to 2,060 square miles) surrounding Brinkley, Arkansas. The organizer and principal stockholder of appellant corporation is Mr. Edwin Gray who is also the owner and operator of other liquefied petroleum businesses and a former member of appellee Board. Mr. Gray testified in behalf of appellant corporation, and two witnesses testified in behalf of protestants, at a hearing before the Board which resulted in an order denying the application. Appellant then appealed by filing with the circuit court a petition to review the action of the Board. From a judgment by the circuit court affirming the order of the Board, appellant brings this appeal.
The thrust of appellant’s argument for reversal is basically that there is no substantial evidence to support the findings of the Board. It is true that orders of administrative boards are to be reversed if not supported by substantial evidence of record [Ark. Stat. Ann. § 5-713 (Supp. 1969)]; however, the position of the Board is simply that appellant “has not submitted sufficient evidence of adequate safeguard and protection of the public to justify the granting of a permit. . . as applied for.”
Two of the Board’s findings, for example, are:
The Board does not believe that the safety of the public is adequately protected and safeguarded by one serviceman in an area of two thousand and sixty square miles.
Applicant would start business with one or two trucks.
Appellant first attacks these findings on the basis that there is no evidence that one serviceman and one or two trucks could not adequately service the area. But this evades the real issue; there is no burden on the Board to present evidence that the proposed personnel and equipment are not adequate, rather it is appellant’s burden to demonstrate to the satisfaction of the Board that the operation will assume safety to the public. We have observed on a prior occasion: “The safety of the public and the assurance that the applicant can render competent service are by Act 31 [Ark. Stat. Ann. §§ 53-701—729 (Supp. 1969)] made primary; the right of an individual to possess a permit is declared secondary.” Summers Appliance v. George’s Gas Co., 244 Ark. 113, 424 S. W. 2d 171 (1968).
Appellant then argues that there is no evidence that it intends to begin business with only one serviceman, particularly in light of Mr. Gray’s testimony that he can “move in” qualified personnel, as the needs arise, from other gas outlets which he owns and operates in the state. However, this testimony reflects that business would be commenced with “a serviceman”; it was never indicated that more than one serviceman would initially be employed. Again, the asserted argument incorrectly imposes some illusive type of burden upon the Board, as a condition of denying the permit, to offer proof of the absence of that which it is properly appellant’s duty to demonstrate the presence of— i. e., adequate safeguard and protection of the public. The possibility of moving in qualified personnel from other outlets lacks significance unless it is shown this could be accomplished without jeopardizing the safety of its other operations. As the Board correctly found, this showing was not made.
Similarly, appellant contests the finding that:
The Board does not consider the safety of the public adequately protected by the employment of a safety supervisor who does not live in the district and who flies into the district from some other district even though the flight may be made in one hour.
Appellant argues “there is absolutely no evidence in the record that the safety of the public would be in any manner affected by the residence of the safety supervisor.” Once again the burden is appellant’s to demonstrate the contrary. Moreover, it does not seem unreasonable that the Board should be skeptical about the efficiency and effectiveness of a “Safety Supervisor,” as described in § 53-723 (A) (6) (Supp. 1969), who could be on the scene only after a one hour flight plus time to and from the airport, should weather and availability of air transportation permit.
The tenor of appellant’s argument appears to reflect an underlying presupposition that mere compliance with the mandatory provisions of the Liquefied Petroleum Gas Board Act [§§ 53-701—729] ipso facto assures safe operation and, therefore, absent a “clear and convincing showing of lack of safety,” entitles an applicant to a permit. Appellant expressly states:
The fulfillment of the mandatory requirements in and of itself assures that [appellant] will conduct a safe, efficient retail outlet. This does not mean to imply that the Liquefied Petroleum Gas Board has no investigatory responsibilities after the mandatory requirements have been fulfilled. The Act clearly provides to the contrary. It is submitted, however, that compliance with the mandatory provi sions forms a solid base for a safe operation. A denial of a permit after compliance with the mandatory provisions should be done only upon a clear and convincing showing of lack of safety. Compliance with the mandatory provisions of the Act by itself entitles [appellant] to the permit for which [it] has applied, because there was no showing of lack of safety at the hearing before the Board.
This position is not well founded for two reasons. First, as previously indicated, it erroneously shifts onto the Board the burden of establishing that the proposed retail operation would be detrimental to public safety. Secondly, it significantly narrows, if not completely divests, the Board of its recognized discretion which is so necessary for its effective functioning and proper discharge of its responsibilities. It appears that the members of the Board are experienced in the liquefied petroleum industry and possess an expertise with reference to their duties and responsibilities. If mere compliance with all mandatory requirements were sufficient to entitle an applicant to a permit, then the Board would have no discretionary powers and, therefore, there would be no need for the Board. We have said in Summers Appliance v. George’s Gas Co., supra:
The discharge of the enumerated responsibilities, as well as the others pertaining to issuing a Class 1 Permit, are not purely ministerial acts. Most of them require the exercise of considerable judgment and discretion.
Of course, this is not to be interpreted as granting the Board license to arbitrarily and capriciously exercise its powers.
We do not think that the Board abused its discretion in the case at bar, nor do we find merit in appellant’s contention that the Board’s findings were not supported by substantial evidence.
Affirmed.
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J. Fred Jones, Justice.
Mrs. Irmagard K. Corbin taught school in the Special School District of Fort Smith under a contract running from August, 1969, to May 29, 1970. On June 1, 1970, she was advised by the school board that she would not be employed for the ensuing school year. Mrs. Corbin filed a complaint in the Sebastian County Circuit Court for a declaratory judgment holding the district subject to, and in violation of, the provisions of the Administrative Procedure Act (Ark. Stat. Ann. §§ 5-701—5-714 [Supp. 1969]) She contended that the regulations promulgated by the board under which her contract was not renewed were void, and that she is still an employee of the district under her teacher’s contract. She sought judgment for salary allegedly due her and for an order reinstating her as a teacher in the Fort Smith Special School District.
The school board demurred to the complaint, the demurrer was sustained by the trial court and the complaint dismissed. On her appeal to this court Mrs. Corbin relies on the following points for reversal:
“The Arkansas Administrative Procedures Act applies to the adoption of regulations by School Districts.
The Board has no authority to adopt the regulation disqualifying plain tiff from teaching.
A School Board may not terminate a teacher arbitrarily.”
In January, 1970, the board of directors of the district adopted a resolution which reads as follows:
“The spouse of the superintendent, the assistant superintendent, and the director of finance and business affairs shall not be employed by the Fort Smith Schools in any capacity.”
Mrs. Corbin is the wife of Chris D. Corbin, the superintendent of schools in Fort Smith. Mrs. Corbin taught in the Fort Smith Schools from September, 1963, through May, 1966. She took a leave of absence; obtained a master’s degree, and was re-employed as an elementary teacher by the Fort Smith School District under a written contract for the school year 1969-70. The contract was for the period from August 25, 1969, to May 29, 1970, at a total salary of $8,132, to be paid in monthly installments. The contract provided for termination by either party “pursuant to the Continuing Contract Law (Ark. Stat. Ann. § 80-1304 [Supp. 1969]).”
On June 1, 1970, the Fort Smith School Board notified Mrs. Corbin of its intent not to re-employ her in a letter reading as follows:
“In conformity with the Arkansas continuing contract law, I am notifying you that on May 11 the Fort Smith School Board voted not to renew your contract for the school year 1970-71.
The Board stated as a reason for not renewing the contract that it would be against School Board policy. The policy referred to was presented and voted on at the January 26, 1970, meeting of the Board and is as follows:
‘The spouse of the superintendent, the assistant superintendent, and the director of finance and business affairs shall not be employed by the Fort Smith Schools in any capacity.’ ”
In her complaint Mrs. Corbin attacks the resolution of the board on the grounds that it was not adopted in the manner. as required by the provisions of the Arkansas Administrative Procedure Act (Ark. Stat. Ann. §§ 5-701—5-714 [Supp. 1969]). The demurrer filed by the school board alleges that the complaint does not state facts sufficient to constitute a cause of action.
It appears conceded by the parties that the Administrative Procedure Act (Act 434 of 1967; Ark. Stat. Ann. §§ 5-701—5-714 [Supp. 1969]) applies only to state agencies. So, the question presented under the appellant’s first point is whether the Special School District of Fort Smith is an “agency” within the meaning of the Act. We agree with the trial court that it is not. “Agency,” as defined in § 1 (a) of Act 434 and as digested in § 5-701 (a), is as follows:
“ ‘Agency’ means each board, commission, department, officer, or other authority of the government of the State of Arkansas, whether or not within or subject to review by another agency, except the General Assembly, the courts, and the Governor. Nothing in this Act shall be construed to repeal delegations of authority as provided by law. Provided, the word ‘agency’ as used in this Act shall not include the Arkansas Public Service Commission, the Arkansas Commerce Commission, the Arkansas Pollution Control Commission, the Contractors Licensing Board, the State Health Board and the Arkansas Workmen’s Compensation Commission, it being hereby determined by the General Assembly that the existing laws governing such agencies provide adequate administrative procedures for said agencies.” (Emphasis supplied).
It is obvious that the primary purpose of Act 434 of 1967 was to consolidate and recodify the provisions of Act 183 of 1953 and Act 103 of 1963, because § 16 of Act 434 of 1967 provides as follows:
“All acts or parts of acts in conflict with this Act are hereby repealed, but such repeal shall not affect proceedings pending on the effective date of this Act. Without limiting the generality of the foregoing, the following acts are expressly repealed.
(1) Act 103 of 1963, codified as Sections 5-701 through 5-725 of the Arkansas Statutes Annotated;
(2) Act 183 of 1953, codified as Sections 5-501 through 5-505 of the Arkansas Statutes Annotated.”
Act 183 of 1953 was entitled an Act to “provide for the filing and publication of regulations of agencies, departments and branches of state government; to provide for the effect on failure to comply with the Act; to declare the inapplication of the Act; to provide an effective date; and for other purposes.” This Act simply provided that:
“All agencies, departments or branches of the State government now or hereafter authorized to promulgate regulations under authority of law shall perform the following Acts before such regulation or regulations become effective:
1. File certified copies of such regulation or regulations with the following:
(a) The Governor of the State of Arkansas.
(b) The Secretary of State of the State of Arkansas.
(c) The Recorder of each County in Arkansas.”
This 1953 Act then required each agency, department or branch of state government to keep on file for public inspection during regular business hours any regulations promulgated. It also provided that the Act would not apply to any agency, department or branch of the State government which would be excluded from its operation by authority of the Constitution of Arkansas or amendments thereto.
The other repealed Act, 103 of 1963, was entitled an Act to “establish uniform administrative procedures for occupational and professional licensing boards and commissions; to prescribe a uniform procedure for taking appeals from such boards and commissions; and for other purposes.” Section 1 of this Act provided as follows:
“For the purpose of this Act the term ‘board’ shall mean and include the following:
Abstractors’ Board of Examiners,
Arkansas State Board of Architects,
Arkansas Athletic Commission * *
Then follow 26 other designated boards and commissions, ' none of which included the board of directors of local school districts. Section 1 of this Act did end, however, with the following two paragraphs:
'“Any other state board, commission or agency hereafter created with authority to exercise control over the licensing of any occupation or profession, unless it is expressly excepted in whole or in part from the provisions of this Act.
Provided that all licensing boards in existence on the effective date of this Act and not specifically enumerated herein shall be exempt from the provisions of this Act.”
While Act 103 of 1963 defined the designated boards and commissions under the term “board,” Act 434 of 1967 uses the term “agency” to mean each board, commission, department, officer or other authority of the government of the State of Arkansas, whether or not within or subject to review by another agency, except the General Assembly, the courts, and the Governor.
’ We are of the opinion, and so hold, that the Uniform Administrative Procedure Act applies only to state agencies; that local school districts are political subdivisions of the state and are not state agencies within the meaning of the Act. (Muse v. Prescott School District, 233 Ark. 789, 349 S. W. 2d 329).
As to appellant’s second point, we do not share the appellant’s interpretation of the effect the regulation adopted by the board had on Mrs. Corbin’s qualifications for teaching. All the resolution amounted to, as we interpret it, was an agreement between the members of the board, and announcement in the form of the resolution, that the board would not employ the spouse of a superintendent, assistant superintendent or the director of finance and business affairs. This resolution had nothing whatever to do with Mrs. Corbin’s qualifications to teach; it had no more effect on Mrs. Corbin’s qualifications to teach than it did on Mr. Corbin’s qualifications to serve as a school superintendent. By the board’s compliance with its resolution, the only effect it had on the Corbins was to prevent both of them being employed in the Fort Smith Special School District at the same time, with one of them being employed as superintendent, with the attending superintending control over the other.
The appellant argues that the legislature has delegated no such broad powers to boards of directors of school districts that would enable such boards to set standards of qualification of teachers inconsistent with that fixed by the legislature. We agree with the appellant in this argument, but that is not the case before us. As already stated, the resolution complained of did not go to the qualifications of the teacher at all—it went to the district board’s discretion in the employment of teachers and other necessary employees as authorized in § 80-509 (d) (Supp. 1969), and in doing all things necessary and lawful for the conduct of an efficient free public school or schools in the district as authorized by subsection (m) of the same section.
In Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538, the board of directors of a school district had adopted, and required the enforcement of, a set of rules, one of which forbade the use of paint or cosmetics by female students. An 18 year old female student appeared in school wearing “talcum powder” on her face and she was denied admittance until she complied with the rules. While the rules were suspended by the board during the pendency of the appeal, in upholding the authority of the board in making such rules, this court at page 252 of the Arkansas Report said:
“The question therefore is not whether we approve this rule as one we would have made as directors of the district, nor are we required to find whether it was essential to the maintenance of discipline. On the contrary, we must uphold the rule, unless we find that the directors have clearly abused their discretion, and that the rule is not one reasonably calculated to effect the purpose intended, that is, of promoting discipline in the school, and we do not so find.”
We see no reason why the same reasoning should not apply in the case at bar. We are of the opinion, and so hold, that the board had the authority to adopt and enforce the resolution as incidental to its unquestioned and specifically delegated authority to hire teachers and “do all things necessary and lawful for the conduct of an efficient free public school ... in the district.”
In Safferstone v. Tucker, 235 Ark. 70, 357 S. W. 2d 3, this court said:
“The law involved appears to be well settled. In this State a broad discretion is vested in the board of directors of each school district in the matter of directing the operation of the schools and a chancery court has no power to interfere with such boards in the exercise of that discretion unless there is a clear abuse of it and the burden is upon those charging such an abuse to prove it by clear and convincing evidence.”
And in White v. Jenkins, 213 Ark. 119, 209 S. W. 2d 457, we said:
“It is well settled that courts may not intervene to control matters in the discretion of administrative bodies such as school boards, in the absence of a showing of an abuse of such discretion. Necessarily, some latitude in the exercise of this discretion must be given to these boards. They represent the people of the locality affected and naturally are closer to the problems to be solved than any court or other agency could be.”
The board having the authority to exercise its discretion, the question then, is whether the action taken by the board in the case at bar was arbitrary, unreasonable, capricious, wrongful, discriminating or oppressive. We cannot say from the record before us that it was. The board of directors was elected by the people of the district and was charged with the responsibility of hiring superintendents, teachers and other necessary employees, and in doing all things necessary and lawful for the conduct of an efficient free public school in the district.
What effect the employment of the spouse of a superintendent who would work under his supervision would have on the morale and efficiency of other teachers, and the efficient conduct of a free public school the board was required to maintain, we do not know; nor are we required to ascertain. We find no evidence in the record that the board abused its discretion, and we hold that the trial court was correct in refusing to interfere with the exercise of the discretion of the board in matters confided to its judgment.
As to appellant’s third point, the language of the statute as well as that of the contract is plain. Ark. Stat. Ann. § 80-1304 (b) (Supp. 1969) provides as follows:
“Every teacher in the State shall be employed by written contract. In districts which include cities of 10,000 or more population, according to the last Federal census, school boards may elect the superintendent for a period not to exceed 3 years. In other school districts employing a superintendent, school boards may elect the superintendent for a period of not to exceed 2 years. All other teachers and personnel of school districts shall be employed by written contract annually.
* * *
Every contract of employment hereafter made between a teacher and a board of school directors shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the school year next succeeding the date of termination fixed therein, which renewal may be made by indorsement on the existing con tract instrument; unless during the period of such contract or within ten (10) days after the termination of said school term, the teacher shall he notified by the school board in writing delivered in person or mailed to him or her at last and usual known address by registered mail that such contract will not be renewed for such succeeding year, or unless the teacher during the period of the contract or within ten (10) days after close of school shall deliver or mail by registered mail to such board his or her written resignation as such teacher, or unless such contract is superseded by another contract between the parties. Provided that no contract for the succeeding school year shall be entered into between the school board and any person prior to the beginning of the second semester of the current school year. If a teacher quits or refuses to teach in accordance with his or her contract without just cause, he or she is hereby prohibited from teaching elsewhere during the time for which he or she had been employed. Provided, that nothing herein shall prohibit any school board from entering into a two. [2] year or three [3] year contract as authorized in the first paragraph of this subsection.” ‘Emphasis supplied).
The contract between Mrs. Corbin and the district provides as follows:
“TIME: The time period covered by this contract is: 9 Months of school; 182 Days of school; 9+ Calendar months; From August 25, 1969, to May 29, 1970.
lU, IS1» *U* •5P TP -JP
TERMINATION: By either party pursuant to the continuing contract law (80-1304).”
Mrs. Corbin’s contract expired by its terms on May 29, 1970. It could have been automatically renewed by endorsement for an additional term, ,had not Mrs. Cor-bin or the district given notice to the other during the term of the contract, or within 10 days after its termination, that the contract would not be renewed for the ensuing year. The board of directors of the district did notify Mrs. Corbin on June 1, 1970, (within 10 days after the termination of her contract) that the contract would not be renewed.
We are of the opinion that Mrs. Corbin’s rights in this case are governed by her contract and the statutory law relating thereto, and not on “an expectancy of continued employment” by the Fort Smith Special School District while her husband is superintendent of schools in that district.
The judgment is affirmed. | [
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George Rose Smith, Justice.
This is an action for personal injuries brought by the appellant, Hoyt Brown, against the three appellees, Diamond G. Ranch, Inc., and its officers or agents, Mr. and Mrs. Austin Gatlin. The plaintiff alleged that he was hurt when his truck struck a horse which the defendants had negligently allowed to run at large upon the public highway. Upon trial the jury returned a verdict in favor of the defendants.
Brown filed a motion for a new trial, asserting that Raymond Beshears, who served as foreman of the jury, had, on voir dire, wrongfully concealed his involvement in a similar situation in which the claimant had been represented by Brown’s attorneys, the firm of Garner & Parker. After a hearing the trial judge denied the motion for a new trial, finding that “Mr. Beshears openly answered the questions propounded to him by the court, and he was not guilty of concealment.”
While the jury was being empaneled two of the veniremen, Boone and Beshears, gave affirmative answers to the court’s inquiries about the jurors’ possible connection with similar incidents. After the court had explained the nature of the lawsuit being tried, the interrogation of the panel proceeded as follows:
The Court: First, let me ask you, have any of you ever owned horses, animals or stock which the law says must be enclosed . . .? Have you owned any stock that has gotten on the highway, and you’ve either been sued or claim for damages against you?
Ward Boone: I had some cattle get on the highway at one time but it was settled out of court. There was no damages paid either way.
The Court: How long ago was that, Mr. Boone?
Mr. Boone: About twelve years ago.
The Court: Did that happen in this area?
Mr. Boone: Yes, sir, just five miles west of here.
The Court: Were any personal injuries involved?
Mr. Boone: No, sir.
* # #
The Court: Do you feel that the fact that you had this experience, would that tend to influence you one way or another if accepted as- a juror in this case?
Mr. Boone: No, sir, I don’t think it would.
.V. . W. -V. *?r *J{* TV
The Court: There is another gentleman, Mr. Raymond Beshears.
Mr. Beshears: I had the same experience as Mr. Boone except there wasn’t any lawsuit.
The Court: There wasn’t any lawsuit. Were there any personal injuries involved?
Mr. Beshears: No, sir.
The Court: How long ago, Mr. Beshears?
Mr. Beshears: A couple of years, I guess. Year and a half.
The Court: Do you feel that this experience would influence you if accepted as a juror in the case?
Mr. Beshears: No, sir.
At the hearing on the motion for a new trial it was shown that in 1967 Douglas Griffin, driving on the highway, ran into a pony owned by Beshears. Griffin’s insurance company paid his property damage and turned the subrogation claim over to Garner & Parker. A lawyer who was then associated with the firm wrote to Beshears, asking him to get in touch with the firm about Griffin’s claim for $519.15. Beshears turned the letter over to his own insurance company, which eventually settled the claim by the payment of $100. Beshears took no part in the negotiations and had nothing to do with the settlement. Quite the contrary, Beshears’s insurer, in making the settlement, refused to even ask Beshears for a release, because “he might later feel that we had misinformed him in some manner regarding his claim for damages to his animal.”
The trial court, as we have said, expressly found that Beshears openly answered the questions on voir dire and was not guilty of concealment. Brown’s attorney did not see fit to ask Beshears any additional questions about the earlier incident. There is no showing that Beshears remembered that the letter to him had been signed by Garner & Parker; in fact, Beshears was not called as a witness at the hearing upon the motion for a new trial. It does affirmatively appear that Beshears had no knowledge of the terms of the settlement that was eventually reached between the two insurance companies. Upon the record we find no abuse of discretion on the part of the trial judge in refusing to grant a new trial. Oliver v. Paul N. Howard Co., 249 Ark. 427, 460 S. W. 2d 91.
Affirmed. | [
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George Rose Smith, Justice.
The appellant, aged nineteen, was convicted of having robbed a filling station operator, at pistol point, of $250. The jury fixed his punishment at confinement for eighteen years. He now asserts two points for reversal.
First, we find no merit in his contention that a confession which he made after his arrest was not voluntary. Two officers testified that Gray voluntarily signed a confession after he had first been properly informed of his constitutional rights. Gray, at an in-chambers hearing, contradicted the officers’ testimony by stating that he was not allowed to make a telephone call to arrange for the services of an attorney. We cannot say from the record that the trial judge was wrong in finding the confession to have been voluntarily made.
Secondly, the court erred, however, in allowing the State to introduce proof of other armed robberies com mitted by Gray, the offenses extending over a period of about three months. The other robberies were detailed by Gray in his confession and were also proved by the testimony of the persons whom Gray robbed, each of whom identified him in the courtroom as the guilty person. The court instructed the jury that the proof of similar crimes was introduced only to show guilty knowledge, criminal intent, and a common scheme. We discussed the matter of proving intent in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804 (1954), and the matter of proving a scheme or design in Moore v. State, 227 Ark. 544, 299 S. W. 2d 838 (1957). For the reasons stated in those opinions the testimony introduced in the case at bar was clearly inadmissible and should not have been allowed to go to the jury.
Reversed.
Fogleman, J., not participating. | [
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Butler, J.
The Lewis Supply Company, hereinafter referred to as appellant, a dealer in automobiles in the city of Helena, brought suit in the municipal court of that city against appellee to recover from her $451.92, the balance alleged to be due upon the sale of an automobile. The balance of purchase money was evidenced by a number of small notes payable monthly and each within the jurisdiction of the municipal court. A number of these notes had been executed to-appellee’s order by a third party and by her indorsed to appellant.
Appellee filed an answer, in which she admitted the purchase of the automobile for the ‘agreed price of $870, and upon which there was due the balance alleged. By way of defense she pleaded that the automobile had been sold “under the usual ninety day dealer’s guaranty as to soundness of the car” and upon the express warranty that the car was “free from defective workmanship and mechanism.” She alleged that the car had a defective wheel, which collapsed and caused it to run off of an embankment, thereby being demolished and its value destroyed. She therefore denied that she was indebted to appellant in any sum.
Inasmuch as appellee claimed damages, on account of the alleged breach of the warranty, in a sum in excess of the jurisdiction of the municipal court, she filed a separate suit for the amount thereof in the circuit court, in which suit she prayed judgment for the payments made by her and for the return to her of her notes or the value thereof.
Upon an appeal being perfected from the judgment of the municipal court, that cause was, by consent, consolidated with the suit brought originally in the circuit court by appellee, and from a judgment in appellee’s favor is this appeal.
Appellee had the right to institute a separate suit to recover her damages; indeed, she could not have interposed this demand as a set-off without remitting so much thereof as would bring it within the jurisdiction of the municipal court. Kilgore Lbr. Co. v. Thomas, 95 Ark. 43, 128 S. W. 62.
According to the testimony on behalf of appellee, she was driving on one of the State’s highways, about twenty-five miles per hour when the rig’ht rear wheel collapsed, and the car ran off the road and rolled down an embankment, turning over twice as it did so. This completely demolished the car and totally destroyed its value. This wheel was later examined and its spokes were found to be defective. Witnesses testified that the spokes “were brashy and some of them were decayed,” and that they had been made of timber “mixed between the white and the heart of the timber,” and were worm-eaten.
The testimony was conflicting as to the cause of the wreck, that on the part of the appellant company being to the effect that appellee was driving at an excessive speed. The testimony was also conflicting as to the condition of the spokes, but a witness who testified as an expert on behalf of appellant in regard to the spokes stated that spokes were of three grades, A, B and C, the latter being the lowest grade, and as to the spokes of this car he stated, “That would be about ‘O’. If you could work one of those in without the man knowing it.”
Upon the whole case we think the testimony sufficient to support the finding that there had been a breach of the “general sales guaranty as to the soundness of the car” and of the special warranty that the car was free from defective workmanship.
After the demolition of the car it was examined by a representative of the appellant, to whom appellee stated: “That car is yours; it isn’t mine.” The car appears however after the wreck to have been of so little value that no one wanted it:
It is insisted that appellee waived the breach of the warranty through the following facts: As a part of the purchase price appellee executed to appellant four notes for $17.50 each, and paid one of those notes when due, but payment of the other- three was refused. These three unpaid notes were included in the suit in the municipal court, where judgment was rendered thereon. This judgment was paid by appellee. This was no waiver, as appellee was compelled to pay this judgment, and she was asking for her damages in a separate suit, and she did not elect to remit her demand to a sum low enough to be within the jurisdiction of the municipal court, thereby defeating a recovery in that case.
In the case of Parrett Tractor Co. v. Brownfiel, 149 Ark. 566, 233 S. W. 706, it was held not to be error to refuse an instruction, in substance, that an unconditional promise to pay the balance of the purchase price of goods with knowledge of a breach of warranty constituted a waiver of the breach, it being there said that where there is a breach of an express warranty, the vendee may rescind the contract, or he may affirm the contract, keep the property, and, when sued for the price, set up the false warranty by way of recoupment.
Appellee did not elect to keep the property, and so advised appellant. If there was, in fact, a breach of the warranty, and the jury has so found under the instructions correctly submitting that issue, appellee had the right to rescind the sale and to demand a return of so much of the purchase money as had been paid. This is the remedy which appellee elected to pursue, as soon as she was advised of the breach of the warranty, and she was within her legal rights in so doing. Neel v. West-Winfree Tobacco Co., 142 Ark. 505, 219 S. W. 326. This offer to rescind must be made within a reasonable time. Here it was made immediately, although it has been held that where the property is entirely worthless and wholly unfit for the intended use, an offer to return the property, in order to rescind, is not essential. The Neel case, just cited, so holds.
In the judgment from which this appeal comes it was adjudged that appellee recover the amount paid, and as to the notes held by appellant it was adjudged that they “are without consideration and are ordered canceled and held for naught.”
Under the verdict of the jury, which we find was returned upon testimony legally sufficient to support it, the judgment must be affirmed, and it is so ordered. | [
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Butler, J.
On the 28th day. of March, 1930, two model T' Ford cars, loaded with students of the Hot Springs Junior High School, left the school grounds at the noon hour to he driven about the city during the noon intermission. There was no understanding between the two groups of students, each acting independently, but the common purpose was to return in time to be present at school at the termination of the noon recess. The first car to leave the school grounds was a Ford sedan driven by Paul Pittman, 15% years old. In this car was another boy, 15 years of age, and three girls, two of them 13 and one 14 years old. In the second car, which left the school grounds within a short interval and continued behind the first car at a little distance, was Ewell Johnson, the driver, who was seventeen years old, and two other boys, one 14 and the other 15 years of age,. The two cars were driven about the town for a short time and finally entered upon Washington Avenue, which runs from east to west. They turned west on this street, thinking it would lead them to a street by which they could return to school, and, after going a short distance, ran into an excavation or cut in which the railroad of appellant company ran, with the result that one of the boys was killed and the other students injured to a greater or less degree.
Eight separate suits were brought against the appellant company to recover damages because of the injuries sustained, which suits were consolidated for trial in the court below, and as consolidated are here on appeal from verdicts and judgments in favor of the appellees.
In the complaints the allegation of negligence against appellant was that it made an excavation across Washington Avenue about thirty feet deep, and as many wide and left the same unprotected and unguarded. It was further alleged that, while driving along Washington Avenue, and in the exercise of ordinary care, by reason of the negligence of the appellant in leaving the cut unprotected, the automobiles fell into the cut, demolishing them and causing the injuries to the occupants thereof.
The appellant answered, denying the allegation of negligence, and set up as an affirmative defense (1) that the accident was occasioned by the contributory negligence of the drivers and the occupants of the cars, and (2) that whatever injuries were sustained were due to the negligence of the city of Hot Springs in not placing a barricade or guard to warn persons using the street of the existing danger.
The evidence introduced tended to establish the following facts; Prior to the year 1900 Washington Avenue and "Hendrick Street had been laid off and established, and in that year the predecessor of the appellant company obtained the right from the city to lay its track or railway through the city and across the intersection of Washington Avenue and Hendrick Street. Washington Avenue running east and west and Hendrick Street crossing it approximately at a right angle. The line of railway at this point ran about north and south, and at the intersection of the two streets a deep cut was made, taking a part of Hendrick Street and crossing Washington Avenue. After the excavation was made, Washington Avenue seems not to have been worked westward, but was maintained as a street eastward, being worked for a number of years by laborers with pick and shovel to within a short distance of the cut, estimated at from 35 to 65 feet. After the city procured road machinery the street was worked with tractors and graders. The last time it seems to have been worked was about two or three months before March 28, 1930. Within a short distance of the cut, on either side of Washington Avenue, houses had been built which had been standing for many years, and on the date of the accident in question the roadway was smooth and adapted to vehicular traffic, but had small hills and valleys between, there being two small hills with an intervening valley just before reaching the cut. The crest of the last hill was about 65 feet from the cut.
Forty-two assignments of error were presented in the motion for a new trial, and are argued by appellant in its brief. It will be impracticable to take up and discuss each of these assignments in detail or to review all of the testimony. To do so would unduly extend this opinion, and such evidence as is necessary for an understanding of the case will be briefly set out.
Exception was saved to the qualifications of one of the jurors on the panel because it was shown upon his examination that he was a member of the 'board of aider-men of the city of Hot Springs. The exception to the competency of the juror was based on the theory that the negligence of the city was the proximate cause of the injuries, and, as the city was interested, the fact that the juror was an alderman disqualified him. It is not necessary to say whether or not this juror was disqualified, for there is no showing of prejudicial error, since it is not shown that the appellant had exhausted all of its peremptory challenges. Polk v. State, 45 Ark. 165; St. L., I. M. & S. R. Co. v. Aiken, 100 Ark. 437, 140 S. W. 698; Caughron v. State, 99 Ark. 462, 139 S. W. 315.
Certain exceptions were saved to the ruling of the court on the admission of the testimony of the witness Annen and of witnesses who were permitted to testify that the two boys who were driving the oars were careful and competent drivers. Annen was asked the question if while he was city engineer he did anything to protect travelers on the avenue from the dangers of the cut, and answered that he did nothing. The court held this testimony immaterial, and'refused to admit it. The action of the court was proper because Annen had no connection with the city at the time of the accident or for a considerable period before, and it is also undisputed that neither the city nor the appellant company placed any barricade or danger signal to warn the public of the existence of the excavation before March 28, 1930.
On the question of contributory negligence of the occupants of the cars, the allegation was made that the drivers were incompetent because of immature age and lack of experience. This raised the question of competency, and it was not error on the part of the court to permit witnesses who were acquainted with the skill and experience of the drivers of the cars to testify that they were careful and competent drivers. This was not an expression of a mere opinion, but of the knowledge of the witnesses acquired from full opportunity to observe. Bush v. Brewer, 136 Ark. 246, 206 S. W. 322; Cahill v. Bradford, 172 Ark. 69, 287 S. W. 595.
Exceptions were saved to the instructions given by the court at the request of the appellees, and also to the court’s refusal to give a number of instructions asked by the appellant. The objections made to the instructions given for the appellees and those refused on behalf of the appellant appear to be based mainly on the theory that the appellant was not culpable because it was the duty of the city authorities to safeguard the streets for the traveling public, and that such omission absolved the appellant from blame. We are of the opinion that there was no error in this regard. If there was negligence on the part of the city, it was not an intervening efficient cause, but a concurrent one. We think that the instructions given at the request of the appellant fully and fairly presented to the jury the issues properly to be submitted to them.
A statement of the applicable law is made in the case of St. L. & C. R. Co. v. Aven, 61 Ark. 141, 32 S. W. 500, where, in speaking of the duty of railroads to travelers on highways which are crossed by their lines, the court said: “They are not insurers of the safety of travelers, and are not bound to provide against everything that may happen on the highway, ‘but only for such things as ordinarily exist, or such as may be reasonably expected to occur. ’ Where no danger may be anticipated, on account of the peculiar location of the highway, no vigilance is required for protection against liability for injuries; but where the road, bridge, or other public highway, by reason of its proximity to or construction over excavations, declivities, streams of water, or other places of peril, is manifestly so unsafe as to imperil the life or body of the traveler, it is the duty of the corporations or persons whose duty it is to keep it in repair to do whatever is practicable and reasonable to avert the threatened danger. If rails, guards or barriers be reasonably necessary for that purpose, and practicable, it is their duty to construct and maintain them in the places needed. ’ ’
The evidence in this case is undisputed that the appellant and its predecessor operated the railroad for many years through a deep cut across Washington Avenue at its intersection with Hendrick Street, during all of which time it failed to erect any barrier at the edge of the cut across the avenue or to place any danger signal to warn approaching travelers of the presence of the out. There is also evidence tending to show that this street was used by horse-drawn vehicles before the age of the automobile, and for some time before the injuries to the children on March 28, 1930, it was adapted to travel by automotive vehicles. This raised the question as to whether or not the appellant should have anticipated danger to travelers, and whether its failure to erect danger signals or other safeguards was negligence. This issue, we think, was properly presented to the jury in instructions given on motion of the appellees.
The appellant argues that, because its line of railroad and the excavation were lawfully made on due authority from the city of Hot Springs, therefore there was no obligation on its part to warn of the existence of the excavation, but that this was the duty of the city. This contention is unsound. In Strange v. Bodcaw Lumber Co., 79 Ark. 490, 96 S. W. 152, 116 Am. St. Rep. 92, a drain over a highway crossing was dammed by the permission of the county judge, so that a pond was formed on each side of the highway into which drain a horse fell and was drowned. The case was defended on the ground, among others, that the pond was made under rightful authority, and that to protect travelers on the highway the defendant would be obliged to enter on the same to erect protecting barriers, which it had no authority to do. In dismissing this contention, the court said:
“The fact that the pond was put there by permission of the county judge does not alter the case, for the permission of the county judge cannot authorize acts dangerous to the public, or relieve the defendant from the consequences of its own negligence. Nor is it any defense for defendant to say that it had no authority to enter on the public highway to erect guard-rails or barriers. If the danger to travel on the highway from this pond was of such a nature as to make it necessary to erect barriers to protect the public from danger, then the defendant would either have to erect the barriers or drain the pond. •But it is not shown that it applied for permission to erect barriers, nor is there any ground to believe that a request of that kind would have been denied had it been made to the proper authorities, so we need not speculate upon what would have been the position of defendant if, before the accident happened, it had applied for permission to erect barriers between the pond and the highway, and this permission had been refused.”
This position taken by the appellant that it was the duty of the city authorities to safeguard the highway' and its failure to do so exonerates the appellant is not tenable. Assuming that it was the duty of the city to warn those traveling west along Washington Avenue of the danger ahead, its failure to do so did not relieve the appellant from responsibility, for it was its active agency which brought into being the dangerous situation, and it was bound to take cognizance of the natural consequences to those traveling along the avenue who might be ignorant of the situation and have no warning as they approached. So. Exp. Co. v. Texarkana Water Co., 54 Ark. 131, 15 S. W. 361; City Elec. Ry. Co. v. Conery, 61 Ark. 381, 33 S. W. 426, 31 L. R. A. 570, 54 Am. St. Rep. 262; St. L. S. W. Ry. Co. v. Kendall, 114 Ark. 224, 169 S. W. 822; Jenkins v. Midland Valley Ry. Co., 134 Ark. 1, 203 S. W. 1. In these cases the general rule is stated that, where the negligent act of two persons concur to produce an injury, the author of either negligent act is liable to the injured party for the damages sustained. See also Jonesboro, L. C. & E. R. Co. v. Wright, 170 Ark. 815, 281 S. W. 374.
On the question of contributory negligence of the drivers and occupants of the cars, the testimony is in conflict. There was testimony on the part of the appellant tending' to show that the cars were being driven from 25 to 30 miles an hour without heed as to the way ahead, and that driving beyond the end of the avenue and into the cut was the result of excessive speed and heedless conduct. On the other hand, there was testimony of the occupants of the cars themselves, corroborated by the testimony of other witnesses, to the effect that they were driving not faster than fifteen or twenty miles an hour, looking ahead, and that they were unacquainted with Washington Avenue and ignorant of the excavation across it; that their view was obscured by the crest of.the hill -until they reached its summit and then first saw the cut; that they did all they could to check the speed of the cars and avert the disaster; that the brakes were applied, hut the momentum already acquired and the nature of the ground was such that the cars “slided” down into the cut. This presented a question of fact as to whether or not the drivers and occupants of the cars were in the exercise of ordinary care, which question the jury considered under proper instructions.
The amount of the damages awarded to the several parties injured and to their parents is not questioned, and as we find no error, and the testimony is sufficient to support the verdicts, the judgments must he affirmed. It is so ordered. | [
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Smith, J.
Appellants, who are citizens and taxpayers of Washington County, filed a complaint on October 7, 1931, in which they alleged that on July 6, 1931, a day of the July, 1931, term of the county court, there was entered upon the records of that court the following order:
“NOTICE
“The Washington County Court, July term, 1931, first day, July 6,1931, in the matter of the debt of Washington County, Arkansas, due December 7, 1924.
“Declaration of indebtedness and order.
“This, the Washington County Court, having made a thorough examination and investigation of the indebtedness of Washington County, Arkansas, existing on the 7th day of December, 1924, being the day when amendment No. 11 to the Constitution of the State of Arkansas was adopted and became effective, finds and declares that the indebtedness of Washington County existing on the 7th day of December, 1924, amounted to the sum of $65,-000, still exists, is still outstanding, and. on this date remains unpaid.
“The clerk of this court is directed to. publish for one insertion, in some newspaper having a bona fide circulation in the county, a copy of this order, to the end that any person who desires to question the correctness of the finding here made may bring suit for that purpose within thirty days after such publication.
“Done and ordered in open court, this the 6th day of July, 1931.
“J. Lona Slaughter Judge.”
A copy of this order, duly certified by the clerk of the county court, was published in a weekly newspaper published in that county on July 6, 1931, and on August 10, 1931, bonds were issued in the name of "Washington County in the sum of $65,000, and sold for that amount.
On the date of the issuance and sale and delivery of these bonds, the following order was made and entered of record in the county court:
“Washington County Court, July term, 1931, August 10, 1931. In the matter of the transfer of surplus funds in the bond account to the county general account.
“Now on this, the 10th day of August, 1931, comes on to be heard the matter of transferring funds from the bond account to the county general account, and the county treasurer, Chas. S. Stearns, being present in person, and, upon the evidence adduced at the hearing, the court finds:
“That on August 10,1931, a bond issue was made for Washington County, Arkansas, in the sum of $65,000, and that on the 10th of August, 1931, the treasurer of said county received the proceeds of said bond issue in the sum of $65,000; and the court further finds that the purpose of said bond issue was to pay off the indebtedness of said county as of date December 7,1924, and that warrants issued and then existing for said indebtedness have heretofore been paid by the treasurer of said county out of the general funds belonging to said county, and that there is now a surplus in the bond account in the sum of $65,000, and that there is now no outstanding warrants against said account, and that by virtue" of the authority of act No. 30, of the Acts of the General Assembly for the State of Arkansas, in the year 1927, and under the law, said bond account should be transferred to the county general account and the county reimbursed.
“That the warrants drawn on the following funds are payable out of the county general account, county general, pauper, jail and inquisition, justice of the peace and circuit court funds.
“Therefore it is considered, ordered and adjudged by the court that the sum of $65,000, together with the interest on daily balances on said amount since the 10th day of August, 1931, be and the same is hereby transferred, and the county treasurer is hereby ordered to transfer on his books said amount from the bond account to the county general account and pay warrants drawn on the above named funds out of the county general account.
“J. Lona Slaughter, Judge.”
It was alleged by the citizens and taxpayers in their complaint that this order of July 6, 1931, was false and fraudulent, in that there was no indebtedness then outstanding of the county which had been incurred prior to December 7, 1924. It was prayed that the court appoint a master to inquire into and report upon the state of the county’s finances, and that the order of the county court be held to be illegal, fraudulent and void, and that the county treasurer be enjoined from paying any of said bonds.
A demurrer was filed alleging five grounds therefor, and the court sustained the 3d, 4th and 5th grounds. The demurrer reads as follows:
“Come now the defendants in the above entitled action and demur to the complaint as amended of the plaintiffs in said action upon the following grounds:
“1st. That the court has no jurisdiction of the persons of the defendants or of the subject-matter of the action.
“2d. That there is a defect of parties defendant.
“3d. That the complaint does not state facts sufficient to constitute a cause of action.
“4th. That the complaint shows upon its face that the cause of action attempted to be stated by the complaint as amended is barred by the statute of limitations.
“5th. That the complaint shows upon its face that the alleged cause of action attempted to be stated therein has been adjudicated by the county court of Washington County, Arkansas.”
From the decree of the court sustaining the demurrer to the complaint upon the g'rounds above stated is this appeal.
This appeal challenges the validity of the bonds issued and sold on August 10,1931, pursuant to the order of the court made and entered on July 6,1931.
In making the order of July 6, 1931, the court acted under the authority of the amendment to the Constitution adopted at the general election held in 1924, and which has frequently been referred to as amendment No. 11. Owing to the confusion arising from the fact that certain amendments to the Constitution had been numbered in the order of their submission, rather than in the order of their adoption, the Secretary of State has compiled a list of the amendments now in force, and this list, as thus compiled, has been published in vol. 184 of the reports of this court, pages XIX, et seq., and the amendment heretofore frequently referred to as No. 11 has been given No. X, and we employ that number in referring to it.
It was held in the case of Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22, that amendment No. X. (there referred to as amendment No. XI) became effective December 7,1924, and that it was self-executing, even without an enabling act.
By this amendment to the Constitution, the counties of the State (as well as cities and incorporated towns) were given authority * * * “to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, * * by issuing interest-bearing certificates of indebtedness or bonds, for the payment of which authority was conferred to levy a tax, in addition to the taxes theretofore authorized, not exceeding three mills, and to levy and collect such tax until such indebtedness was paid.
At the ensuing session of the General Assembly an enabling act was passed, entitled, “An Act to Facilitate the Funding of the Debts of Counties, Cities and Incor porated Towns.” Act 210, Acts of 1925, page 608. Section 1 of this act provides as follows:
“Before the issue of any county or city bonds under this act, the county court shall, by order entered upon its records, declare the total amount of such indebtedness or the city or town council shall by ordinance declare the total amount of such indebtedness. Such order of the county court shall be published immediately for one insertion in some newspaper published in the county, and such ordinances of the city or town council shall be immediately published in some newspaper issued in such city or town, if there be one, and, if not, in some newspaper published in the county; and any property owner who is dissatisfied may, by suit in the chancery court of the county, brought within thirty days after the publication of such order or ordinance, have a review of the correctness of the finding made in such order or ordinance ; but if no such suit is brought within thirty days, such finding shall be conclusive of the total amount of such indebtedness, and not open to further attack, and if said suit is brought the adjudication shall settle the question, and appeal therefrom must be taken and perfected within thirty days. If any officer of such county, city or town shall wilfully make any false statement as to the amount of its indebtedness, he shall forfeit his office and be ineligible to hold any other office of profit or trust in this State. ’ ’
Other sections of the statute provide that the bonds thus authorized to be issued shall be negotiable coupon bonds, payable serially, through a period not exceeding-forty years, and shall bear interest at a rate not exceeding six per cent.; that the bonds shall not be sold at less than par, but with the privilege of converting into bonds bearing a lower rate of interest, and for the levy of a tax to pay the bonds.
A penalty is prescribed against any officer who shall include in the debt to be funded any debts which were not due in g*ood faith at the time of the adoption of the amendment, and the fiscal year is made coincident with the calendar year.
These provisions are not here involved and need not be enlarged upon.
It will be observed that, under § 1 of the act of 19'25, copied above, the county court (in case of counties) is required, before issuing bonds, to ascertain the outstanding indebtedness of the county on the date upon which the amendment became effective, which, as has been said, . was December 7, 1924, and, after ascertaining that fact and entering' an order of court evidencing that finding, notice thereof shall be given in the manner there provided.
The making of this finding and the publication thereof is made a condition precedent to the exercise of the power to issue bonds, and, while the amendment does not require that the notice shall announce this purpose, the publication of the notice is made tantamount to a declaration of that intention.
The act provides that “any property owner who is dissatisfied may, by suit in the chancery court of the county, brought within thirty days after the publication of such order or ordinance, have a review of the correctness of the finding made in such order or ordinance; but if no such suit is brought within thirty days, such finding shall be conclusive of the total amount of such indebtedness, and not open to further attack, and if said suit is brought, the adjudication shall settle the question, and appeal therefrom must be taken and perfected within thirty days.”
The property owners in' the instant case seek to excuse their delay of over thirty days after the publication of the court order before bringing suit by alleging that they were unaware of its publication until after the thirty days had expired. But the act does not authorize suit within thirty days after knowledge had; on the contrary, the act requires-that the suit be “brought within thirty days after the publication of such order.”
Inasmuch as the complaint concedes that the suit was not brought within the time limited by the act, the validity of the bond sale depends upon the validity of the act, for, if this suit must be brought within thirty days after the publication of the court order, and not thereafter, the instant suit was not brought within that time, and the demurrer was properly sustained for that reason, if the act itself is valid.
For the reversal of the decree of the court sustaining the demurrer, it is insisted that, under the allegations of the complaint, the county court was without jurisdiction to make the order, that there was no authority to issue bonds unless there was an outstanding indebtedness on December 7, 1924, .and, as the complaint alleged there was no indebtedness as of that date, the truth of which allegation the demurrer confessed, there was no authority to issue bonds, and the action of the county court was therefore coram non judice, and is open to the attack here made upon it.
We do not concur in this view. The county court had the jurisdiction conferred by the amendment and the enabling act passed pursuant thereto to issue bonds to discharge the indebtedness named, and the court was required to find, before exercising this jurisdiction, that there was such debt, and the amount thereof, and, having made that finding, to publish notice thereof, to the end that property owners who were dissatisfied with such finding might have a review of the correctness of it made in the chancery court. In order to make the bonds salable, by having this question put at rest, the right of the property owner to raise the question was limited to thirty days, this being regarded by the G-eneral Assembly in the passage of the enabling act as a reasonable time within which to raise that question. The notice was given, and more than the time limited was allowed to expire before this right was exercised, and in the meantime the bonds were sold and paid for, and the rights of the bondholders have intervened. These bonds were sold and paid for under an order apparently valid upon its face, and the rights of the holders of these bonds must be protected unless the proceeding leading to their sale is void.
It is no new doctrine to hold that, when the right of a court of superior jurisdiction to exercise a jurisdiction conferred is dependent upon the existence of a given state of facts, the court has the right and is under the duty to ascertain whether those facts exist, and its finding upon that question is not subject to a collateral attack.
For instance, the case of Whitford v. Whitford, 100 Ark. 63, 139 S. W. 653, was one in which there was a contest between the mother and the alleged wife of a decedent to recover compensation for his wrongful death. The decision of this question turned upon the validity of a decree for divorce, it being contended by the mother that the alleged widow was not the lawful wife of her son, for the reason that she had obtained a divorce from a former husband, before marrying’ her son, without having first resided in this State for one year before instituting the suit for divorce, as required by the laws of this State.
The statute then in force provided that “The plaintiff, to obtain a divorce, must allege and prove, in addition to a legal cause for divorce: First. A residence in the State for one year next before the commencement of the action.” As a condition upon which the jurisdiction of the chancery court might be invoked to grant a divorce, the plaintiff was required to allege and prove a residence in this State for a year next before the commencement of the action, and the mother insisted that as such proof could not have been truthfully made, the decree of the chancery court granting a divorce was void.
The reasoning of the court in overruling that contention is apposite here, and we quote from it as follows:
“In determining the sufficiency of a judgment against collateral attack, a distinction must be observed ‘between those facts which invoke the jurisdiction of the court over the parties and subject-matter and those quasi jurisdictional facts, without allegation of which the court cannot properly- proceed and without proof of which decree should not he made; absence of the former renders the judgment void and assailable collaterally, but not so as to the latter.’ (23 Cyc., 1074.) ‘Where the court judicially considers and adjudicates the question of jurisdiction, and decides that the facts exist which are necessary to give jurisdiction of the case, the finding is conclusive, and cannot be controverted in a collateral proceeding.’ (Id. 1088.) ‘A judgment cannot be impeached collaterally on account of any defects in the pleadings. Its validity cannot be impugned, for instance, by showing that a wrong form of action was chosen, or that the complaint does not state facts sufficient to constitute a cause of action.’ Id., 1094; Warner v. Hess, 66 Ark. 113, 49 S. W. 489.
“It seems to be well settled that a judgment rendered by a court having power to deal with the general subject of the action, although against the facts or without facts to sustain it, is not void as rendered without jurisdiction and cannot be questioned collaterally. 14 Cyc. 723.
“ ‘The fact of required residence of plaintiff in a divorce suit cannot be collaterally questioned if it was a jurisdictional question necessarily passed on by the court in its finding and decree.’ Hilbish v. Hattle, 33 L. R. A. 783.”
Counsel for the mother in that case conceded the principle that courts of general jurisdiction, having decided in favor of their jurisdiction, are presumed to have acted upon evidence justifying such decision, but it was contended that ‘ ‘ such presumption is indulged only where the record is silent; where the evidence appears in the record with respect to the jurisdiction on which the decree is based, no presumptions are indulged in.” In answer to this argument, the court said: “But this, we think, must necessarily be confined to questions of jurisdiction which arise in regard to the person or subject-matter of the action. Otherwise, every judgment rendered by a court where its jurisdiction rested upon its having determined the existence of a certain fact upon the existence of which its jurisdiction to proceed to judgment must depend rests forever upon the dubious proposition as to whether every other court whose proceedings encounter it will take the same view of what was established by the evidence before the court that rendered it.”
It is true the instant case is not one in which there are adversary parties, and is one in which the public generally has an interest. Upon tliis question the court, in the Whitford case, supra, said: “We do not overlook the fact that a divorce proceeding is one in which the public is interested. The parties can waive nothing essential to the validity of the proceeding, and all statutory requirements must be observed; but, in determining upon collateral attack, whether such has or has not been the case, we know of no reason why the same verity should not be imported to a decree for divorce which guards the sanctity of a decree rendered by a superior court having jurisdiction of the parties and the subject-matter.”
The instant proceeding was commenced as an ex parte case, but it was one in which any property owner had the right to intervene, provided he did so within the time limited for that purpose. We have before ns a record containing a recital of the jurisdictional fact which the court was required to find, to-wit, that there was an indebtedness, before exercising its jurisdiction, and, as no one has questioned that finding within the time and manner allowed by law, it has become final.
In the case of Blanton v. Forrest City Mfg. Co., 138 Ark. 515, 212 S. W. 330, it was said: “In determining the validity of a judgment upon a collateral attack, a distinction must be observed between those facts which involve the jurisdiction of the court over the parties and subject-matter, and those quasi jurisdictional facts, without allegation of which the court cannot properly proceed and without proof of which a decree should not be made. The absence of the former renders the judgment void upon collateral attack.” See also Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 421.
Here there were no parties unless property owners made themselves such, and the jurisdiction of the court over the subject-matter is not denied.
This is not a case where an order was entered which the court was without power to make. It had that power, and the only question presented is that of the existence of the quasi jurisdictional fact which the court was required to find, and did find, before exercising its power to sell bonds, to-wit, the existence of the indebtedness.
It was said in the case of Stumpff v. Louann Provision Co., 173 Ark. 196, 292 S. W. 196, that “The county court is a court of superior jurisdiction, and its judgment, rendered in pursuance of jurisdiction rightfully acquired, cannot be attacked collaterally. Sharum v. Meriwether, 156 Ark. 331, 246 S. W. 501.”
We do not pursue the discussion of this subject further, as a concrete application of the principles involved have been made in identical proceedings.
In the case of Stahl v. Sibeck, 183 Ark. 1146, 40 S. W. (2d) 442, it was said: “The order of the county court in 1925 found that the county was indebted in the sum of $350,000. No person brought any suit to review the finding within the time limited, and it thereupon became ‘ conclusive of the total amount of such indebtedness, and not open to further attack,’ and is res judicata.” See also Stranahan, etc., Inc., v. Van Buren County, 175 Ark. 678, 300 S. W. 382.
It is finally insisted that, if the statute be construed as we have here construed it, it is unconstitutional as being arbitrary and unreasonable and inadequate to afford the property owners an opportunity to resist the proceeding. This contention may be disposed of by saying that statutes have been frequently upheld by this court, some of which provide even less than thirty days’ notice of proceedings whereby taxes were imposed which became liens upon the lands of the territory affected. Among these are: Luck v. Magnolia-McNeil Road Imp. Dist. No. 1, 141 Ark. 603, 217 S. W. 781; House v. Road Imp. Dist. No. 2, 158 Ark. 330, 251 S. W. 12; Howell v. White River Levee Dist., 174 Ark. 381, 295 S. W. 381.
As it appears from the allegations of the complaint that this proceeding to question the order of the county court was not begun within the time limited by law for that purpose, and no ground of avoidance was shown, the right to proceed was properly raised by demurrer. Smith v. Missouri Pacific R. R. Co., 175 Ark. 626, 1 S. W. (2d) 48.
It follows, from what we have said, that the demurrer was properly sustained, and the decree is therefore affirmed. | [
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Smith, J.
The two appeals here consolidated question the validity of the real estate assessments in St. Francis and Phillips counties, respectively, for the year 1931. The facts in both cases are substantially identical, and a statement of the facts in one case will suffice to present also the question for decision in the other.
The equalization board of St. Francis County organized in the time and manner provided by law. Numerous conferences were held by the members of the board in regard to the real estate assessments, and certain property was inspected. The board reached the conclusion that, owing to the general depression, there had been a considerable deflation in all values, and in the value of real estate in particular, especially as compared with the valuations existing at the time of the assessment for the year 1929 was made. After considering each parcel of city property and real estate separately, the board reached the conclusion that a separate and several reduction of the assessed value of each city lot and tract of land in the entire county of 25 per cent, should he made, and the county clerk was directed to extend the assessed valuations against each city lot and tract of land upon the tax books, in accordance with this decision.
Having reached this conclusion, the board of equalization made the following order:
“The assessment of all real estate in St. Francis County, including lands and toAvn lots located in said county, and which is assessed by the assessor for St. Francis County, is hereby ordered to be reduced twenty-five per cent. (25%) from the assessment as determined by the tax assessor and equalization of such assessment as heretofore made, and the clerk of the county court is hereby ordered and directed to place opposite each parcel or tract of land in St. Francis County, after the assessment against said land, town or city lot, a sum equal to seventy-five per cent. (75%) of the assessment as now extended on said assessor’s book, and that the assessment so reduced be copied into the tax books when the same is made up for the use of the collector of the revenue for St. Francis County for the year 1931.
“This order has no application to any property under the jurisdiction of the State Tax Commission for assessment.”
Upon being furnished a copy of this order in the manner provided by law, the Arkansas Tax Commission made an order relating thereto. This order recited the action of the board of equalization, and contained the following direction to the county clerk:
“Wherefore, premises considered, said order of St. Francis County Equalization Board is held for naught, and it is hereby ordered and directed that the St. Francis county clerk ignore said order of said St. Francis County equalization board, .as filed with said clerk under date of September 18, 1931, and that said St. Francis County clerk extend taxes on all real estate in said county for the year 1931, upon such valuations as returned by the assessor and adjusted by said county equalization board before having ordered said 25 per cent, blanket reduction, unless otherwise ordered and directed by the StateEqualization Board or a court of competent jurisdiction, and
“It is further ordered and directed that a certified copy of this order be immediately transmitted to the St. Francis county clerk, and copies be transmitted to the equalization board, county judge and county assessor.
“Done this the 21st day of September, 1931, under authority of § 12 of act No. 129, of the Acts of the General Assembly of 1927.”
The county clerk announced his intention not to comply with the order of the Tax Commission, whereupon that body filed a petition in the St. Francis Circuit Court for a writ of mandamus requiring that officer to comply with its order, and similar action was taken in regard to the assessments in Phillips County.
Upon hearing the petition in each case, the circuit court denied the prayer thereof, and these appeals are froin those judgments.
It is first insisted for the reversal of the judgments of the circuit courts that the orders of the boards of equalization were void under the authority of the case of Summers v. Brown, 157 Ark. 509, 248 S. W. 571. In that case the quorum court had, at the instance of the board of equalization, entered a “blanket reduction of the assessed valuation of the lands in the county.” The equalization board had not in that case made an equalization and reduction of the separate assessments of each piece of real property in the county, but had made an order reducing the assessments of all real estate in the county. We held that neither the equalization board nor the quorum court had the power to make this blanket reduction. We held, however, that the property owners were not prejudiced by this order, as it'had been made for their benefit.
Here, however, the facts are that the equalization boards did not make a single order applicable to the entire county, but found and directed that the assessment of each particular tract of real property, both urban and rural, be reduced 25 per cent. The question for decision is therefore whether the Tax Commission had the right to review this action, of the equalization boards and to order its rescission.
We- think the answer to this question is found in act No. 129 of the Acts of 1927 (Acts 1927, pag’e 400) and act No. 172 of the Acts of 1929 (vol. 2, Acts 1929, page 841).
By the act of 1929 it is provided that real property, situated within the boundaries of any city or town, shall be assessed biennially, beginning in 1929, in the odd-numbered years, and that other real estate, beginning in 1930, shall be assessed biennially in the even numbered years. The assessments here under review, having been made in an odd numbered year, there was no assessment of real property except that within the boundaries of the cities and towns to be equalized, and the equalization board had therefore no function to perform in regard to the assessment of other real estate. It was said in the case of Summers v. Brown, supra, that the equalization board had no power to equalize assessments except -for the year in which they were made.
The act of 1929 does make provision for the assessment of both urban and rural property, in either odd or even numbered years, in certain cases. By § 4 of this act, § 9918, Crawford & Moses’ Digest, is amended to permit the assessment each year of forfeited lands that have been redeemed, and lands previously exempt from taxation which have become subject to taxation, all new improvements exceeding one hundred dollars in value, all acreage lands that have been. platted as city or town lots, and all real estate or improvements thereon which have been damaged by fire, flood, tornado or other act of God. But it is not contended that the action of the equalization board in either county is related to or derived from this power of special assessments. Nor is it contended that the deflated values of either county was caused by any other condition peculiar to those counties. The depression about which the members of the equalization board testified, which had caused the deflation in values and which induced their action, prevails throughout the State, and is not confined to its boundaries.
The Constitution (§ 5, article 16) provides that “all property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.”
While it is required by the Constitution and the statutes enacted pursuant thereto that each particular parcel of real estate shall be separately assessed, it is also contemplated that there shall be uniformity in the assessment of these values so far as practical, and, to accomplish this end, the Arkansas Tax Commission was created by act No. 129 of the Acts of 1927, supra. Section 12 of this act defines the numerous powers conferred upon the State Tax Commission, and the order to the county clerk here involved was made pursuant to the authority therein conferred.
Subdivision (a) of this section provides that the commission shall have and exercise general and complete supervision and control over the valuation, assessment and equalization of all property; the collection of taxes and enforcement of the tax laws of the State, and over the several county assessors, county boards of review and equalization, tax collectors and other officers charged with the assessment or equalization of property or the collection of taxes throughout the State, to the end that all assessments on property in the State shall be made in relative proportion to the just and true value thereof, in substantial compliance with law.
Subdivision (d) of the same section confers upon the State Tax Commission the power “to confer with, advise and direct all assessors, county boards of review and equalization, county judges, county clerks and collectors of State and county taxes, concerning their duty with respect to the revenue laws of this State.”
Subdivision (s) of the same section confers on the Tax Commission the power “to require any county board of equalization * * * to make such orders as the commission shall determine are .just and necessary, and to direct and order such county boards of equalization to raise or lower the valuation of the property, real or personal, in any township, district or city, and to raise or lower the valuation of the property of any person, company or corporation; and to order and direct any county board of equalization to- raise or lower the valuation of any class or classes of property; and, generally, to do and perform any act or to make any order or direction to any county board of equalization, or any local assessor, as to the valuation of any property, or any class of property in any township, district, city or county which, in the judgment of the commission, may seem just and necessary, to the end that all property shall be valued and assessed in the same manner and upon the same basis as any and all other taxable property, real or personal, wherever situated throughout the State.”
A number of the subdivisions of this § 12 of the act of 1927 were reviewed'in the case of State ex rel., Attorney General v. Standard Oil Co. of La., 179 Ark. 280, 16 S. W. (2d) 581, in a consideration of the general powers of the Tax Commission, and it was there said that “it was evidently the intention of the Legislature to place upon the Tax Commission the full responsibility for the enforcement of our tax laws.”
We conclude therefore that the Tax Commission had the power and authority to make the orders which the county clerks have refused to obey, and that it was the duty of these clerks to obey those orders.
The judgment of the circuit court in each case is therefore reversed, and writs of mandamus will be issued as prajred. | [
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Butler, J.
These cases were consolidated in the court below for the purpose of trial, and as consolidated are here on appeal.
These are the facts material to the decision of the case: One Luebke, to secure loans from the appellants, executed to each of them mortgages on identical lands, which were duly filed for record on January 29, 1919. Subsequent thereto, being indebted to appellee bank, he executed a mortgage on the same lands to it, subject to the first mortgages, to secure it therefor. All of these debts remaining unpaid, appellants brought their several suits on March 2, 1929, for judgment on their debt and for foreclosure of the mortgage securing them. A decree was rendered in this suit on March 30, 1929, and on May 3d, following, the lands were sold by virtue of the decree and purchased by the appellee for the debts and interest named in the decree and the costs that had accrued. '■
Between the date of the decree of foreclosure and the date of the sale and purchase of the lands by appellee, appellant paid, to-wit, on April Í3,1929, the taxes on the lands which had become due January 1 preceding' in the sum of $331.87.
The report of the sale was duly made, and the sale confirmed, and a commissioner’s deed executed and approved in open court on Juné 10, 1929, by the terms of which deed the lands were conveyed to the appellee in consideration of the payment of the debt, interest and costs aforesaid.
' On the 29th day of September, 1929, the appellants brought this suit against the appellee to recover the amounts of taxes paid by them as aforesaid and asked that they have a lien declared on the lands for the payment thereof. On the hearing' of the case, the above state of facts, was developed, and the chancellor made a s-eneral finding: in favor of the defendants.
■Generally in judicial sales the rule of caveat emtptov applies by reason of which the purchaser is charged with full knowledge of all of the facts affecting the title to the lands purchased and takes it subject to ail legal or equitable incumbrances. Guynn v. McCauley, 32 Ark. 112; Green v. Maddox, 97 Ark. 403, 134 S. W. 931; Miller v. Henry, 105 Ark. 265, 150 S. W. 700, Ann. Cas. 1914D, 754.
The taxes which became due January 1 were a lien on the land (Crawford & Moses’ Digest, § 10023) and in discharging this lien appellants were not volunteers as contended by the appellee, for the reason that the payment of the taxes was necessary to protect their interest, and ordinarily they would be entitled to be subrogated to the State’s lien for reimbursement. N. Y. Life Ins. Co. v. Nichol, 170 Ark. 791, 281 S. W. 21; First National Bank of Mineral Springs v. Hayes-McKean Hdw. Co., 178 Ark. 429, 10 S. W. (2d) 866; Federal Land Bank of St. Louis v. Richland Farming Co., 180 Ark. 422, 21 S. W. (2d) 954.
This rule does not apply, however, in cases where taxes are due on real estate when it is sold at judicial sale. By act of the General Assembly of 1883, at page 199 of the acts' of that year, digested in § 10056 of Crawford & Moses’ Digest, provision is made that “when any real estate shall be sold at judicial sale, * * * the court shall order the taxes and penalties and interest thereon against such lands to be discharged out of. the proceeds of such sale.” This court, in the case of Miners’ Bank v. Churchill, 156 Ark. 191, 245 S. W. 829, construed this language to apply to all judicial sales. In that case the question under consideration was whether, under a sale to foreclose a mortgage on real estate, the taxes which had fallen due prior to the date of the sale could ¡be treated as an incumbrance on the land to be borne by the purchaser, or whether it should be paid out of the proceeds of the sale. We there said: “Our statute provides that a lien for taxes as between grantor and grantee shall attach on the first Monday in January of each year. Crawford & Moses ’ Digest, § 10023. At the time of the sale there was then unpaid taxes due on the land which constituted a lien in favor of the State and county. It was well established at common law that the rule of caveat emptor applied to purchasers at judicial sales, and that the purchaser took the land subject to all incumbrances existing at that time, including tax liens. This rule was changed as to tax liens, however, by statute which is a part of the general revenue laws enacted by the General Assembly of 1883. * * * The question suggests itself as to when, under the statute, the order of the court must be made, whether at the time of the decree or later, before the fund is paid out by the commissioner. We think that the statute itself declares that the tax shall be paid out of the proceeds of the sale, and it is not essential that the original decree directing foreclosure shall contain a direction for such payment, but the court may direct the payment at any time before the fund is disbursed.”
In the case at bar the taxes were due at the time of the institution of the suit and at the date of the decree of foreclosure, and therefore the court might have ordered these paid out of the purchase money. It may be argued that, as the taxes were not included in the judgment of the court, and were paid by appellant to protect the land after the date of the decree of foreclosure and before the sale, the statute would not apply. But this is not so. The appellants might well have discharged the liens at any time before the final decree and secured their reimbursement by amendment to their complaints, and, having failed to do this, might have appeared on the day of sale and themselves bid an amount sufficient to cover the sum named in the decree together with the taxes they had paid. They could not, however, avoid the effect of the statute by neglecting to do this and, after confirmation of the sale and the execution of the commissioner’s deed, enforce the payment by the method undertaken. This is especially true when the proceeds of the sale are paid to them, since the court might have made the order for the payment of the taxes out of the purchase money at any time before the fund was distributed, and since they, themselves, have received it, they are in no attitude to complain.
The decree of the trial court is correct, and is therefore affirmed. | [
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Smith, J.
This suit was brought at law to recover possession of a life insurance policy which was issued upon the life of C. H. Purvis on December 31, 1894. for $2,500.
On January 8, 1900, Purvis became indebted to S. H. Hornor in the sum of $1,650, evidenced by two notes each for the sum of $825. These notes represented a portion of the purchase price of a home that was then being purchased by Purvis, and were secured by a second mortgage on that property. Purvis and Hornor had numerous other financial transactions. It was shown, and not denied, that the home which Purvis was purchasing was mortgaged to a building and loan company, and that this loan was discharged by monthly payments made by Hornor extending over a period of years in accordance with the building and loan plan of payment.
On January 9, 1900, the insurance policy was twice assigned to Hornor. One of these assignments appears to have been made by filling in the blank spaces printed on the policy designed for use in case of assignment, a copy of which was sent to the insurance company. This assignment reads as follows:
“For value received I do hereby assign, transfer and set over the above-described policy of assurance, and all sum or sums of money, interest, benefit, and advantage whatsoever, now due or hereafter to become due by virtue thereof, unto S. H. Hornor as his interests may appear.
“Subject to all the terms and conditions expressed in said policy.
“Witness my hand and seal this 9th day of January, 1900.
(Signed) “C. H. Purvis.
“Signed in presence of
“B. A. Dunlap.”
In the space reserved for the name of the assignee in the blank upon which the above assignment was made there was a * calling attention to a direction at the bottom of the assignment as to how the assignment should be made, which reads as follows:
“*Insert here full name and relationship of person to whom policy is assigned, and, if a creditor, state amount of indebtedness.
“The company does not guarantee the validity of any assignment.”
Attached to this assignment were two canceled internal revenue stamps of one dollar each.
On the back of the policy there was written the following assignment:
“For value received I hereby assign, transfer and set over to Sidney H. Hornor and authorize the payment of the within policy to him or his assigns, whenever the same becomes due under the terms of said policy. This January 9th A. D., 1900.
“Signed in duplicate.
(Signed) “C. H. Purvis.
“Witness:
“B. A. Dunlap.”
It thus appears that there are two assignments indorsed upon the policy, both under date of January 9, 1900, and each was witnessed by B. A. Dunlap. One is conditional; the other is unconditional. - The conditional assignment was written with pen and ink, and was shown to have been in the handwriting of J. J. Hornor, who at that time was one of the leading lawyers of the State. J. J. Hornor died in 1905. S. H. Hornor, the assignee, died November 18,1900, and Dunlap, the witness to both assignments, died some years before this suit was begun, and. only the assignor, the plaintiff in the case, is now-living. It was shown, and not disputed, that all premiums on the policy were paid after its assignment by the representative of the estate of S. H. Hornor.
No explanation was made by Purvis of the two assignments except that the purpose of both was to secure the indebtedness of Purvis to Hornor. Much testimony was offered as to the state of the accounts between them. The testimony on behalf of Purvis was to the effect that the policy was assigned as additional security for the current debts of Purvis to Hornor, and that the indebtedness thus secured was finally paid in full. The testimony on behalf of the defendant, who is the son of S. II. Hornor,.and who claims the right to retain the policy as a part of his father’s estate, was to the effect that the assignment was unconditional, and that the entire indebtedness due from Purvis to Hornor had never, been paid.
Upon this issue of fact the court charged the jury at the request of the plaintiff that, if the policy had been assigned as security for debt, and the debt had been paid, the. plaintiff was entitled to the possession of the policy. The court also charged the jury upon his own motion that this finding might be made by a preponderance of the evidence.
The court gave, at the request of the defendant and over the objections of the plaintiff, two instructions, which read as follows:
“II. The undisputed evidence in this case shows that one of the assignments of the policy sued for herein, absolute in its terms, was executed by the plaintiff to S. H. Hornor, January 9, 1900. The plaintiff seeks to avoid the effect of such absolute assignment by the introduction of evidence to the effect that such assignment was, in fact, made for the purpose of securing an indebtedness which then existed between him and the said S. H. Hornor, which said indebtedness was afterwards discharged by him. You are instructed that the law presumes an instrument to be what it seems to be upon its face, in this case, an absolute assignment and not an assignment to secure an indebtedness. Therefore, before you could be warranted in returning a verdict for the plaintiff herein, the evidence that the absolute assignment was in fact not an absolute assignment, but conditional for the purpose of securing an indebtedness, the evidence to that effect must be clear, satisfactory and convincing to your minds.”
“V. You are instructed that the assignment ‘to S. H. Hornor as his interest may appear’, shown on the policy herein, is merged into the absolute assignment appearing on the policy in the handwriting of J. J. Hornor dated January 9, 1900, unless you find that the intention of the parties at the time of the absolute assignment was to secure the payment of the plaintiff’s indebtedness to the said >S. H. Hornor.”
We think these instructions are erroneous under the testimony in this case. It must be remembered that there were two assignments, and that they both bore the same date, and the case presents just two questions of fact. The first is, which assignment reflected the intention and agreement of the parties? and the second is, whether the indebtedness which the policy was pledged to secure has been paid, if the assignment was, in fact, conditional?
If the second assignment set out above had been the only assignment, it would, of course, have been proper to tell the jury that it could not be treated as a mere pledge unless the testimony to that effect was clear, satisfactory and convincing. But there is another assignment, and, according to it, the policy was pledged as security for debt, and was not transferred in satisfaction of the debt.
It would be true, of course, that the plaintiff could not recover possession of the policy unless the debt had been paid, even thoug’h it had been transferred conditionally, as plaintiff insists.
The jury should have been permitted to find from a preponderance of the testimony only which assignment reflected tlie agreement between the parties, and then, if it be found that the assignment was conditional, and not absolute, whether the condition had been performed— that is, whether the debt which it was intended to secure had been paid.
The testimony is legally sufficient to support a finding either way on these questions, and the verdict of the jury would be conclusive of these questions of fact, had the instructions not imposed the requirement that the plaintiff must establish his case by testimony that was clear, satisfactory and convincing.
In our opinion a preponderance of the testimony only was required, and for this reason the judgment must be reversed, and it is so ordered. | [
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Smith, J.
This suit was brought by Sprague and his wife to foreclose a mortgage given to them by W. W. Mahan and wife to secure a note payable to their order for the sum of $400, dated March 8,1916, and due twenty-four months after date. The complaint was filed April 14, 1930, and alleged that the property mortgaged was an undivided one-eighth interest in the land described, which Mahan had inherited from his father, W. Mahan. On the back of the note there appeared the following indorsements: “$80 Sept. 26, 1918. Rec’d of F. L. Wagner eighty dollars. (Signed) Herbert Sprague. April 4, 1920. Rec’d of F. L. Wagner forty dollars. (Signed) Herbert Sprague. May 27, 1921. $140. Rec’d of F. L. Wagner one hundred forty dollars. (Signed) Herbert Sprague. $60. Dec. 15,1922. Rec’d of F. L. Wagner sixty dollars. (Signed) Herbert Sprague. $50. Nov. 23, 1925. Rec’d fifty dollars.”
It is apparent that, but for this last payment, the note was barred by the statute of limitations when the suit was brought. It will also be observed that all the payments were signed as having been received by Herbert Sprague, whereas the last payment is not so signed, and was written in pencil, and the other payments are indorsed in ink. The mortgage was also made an exhibit to the complaint, and it appears to have been filed for record March 16, 1916, and to have been duly recorded.
An intervention was filed July 14, 1930, by the Bank of Mulberry, in which it was alleged that F. L. Wagner had purchased the interests of all the heirs of W. Mahan, and had on June 5, 1927, mortgaged the entire tract to the bank to secure a note due June 15, 1930, on which there was due an unpaid balance of $1,261.21. This mortgage was not introduced in evidence, but its execution and validity were admitted in open court.
The intervener alleged that the mortgage sought to be foreclosed was barred by the statute of limitations, and prayed the court to adjudge that fact, and that intervener’s mortgage be declared a first lien, and that it be ordered foreclosed as such.
Wagner filed an answer, in which he adopted the recitals of the intervention, and specifically denied that he had made the alleged payment, or any payment, credited on the note as having been made on November 23, 1925. Counsel for plaintiff offered the note in evi dence, but no witness gave any testimony concerning it, and no one testified that the alleged payment of November 23, 1925, had in fact been made.
Only three witnesses testified in the case, but, before calling any witness, plaintiff introduced three letters from Wagner to Sprague, but no witness testified that Wagner had written them, or that Sprague had received them. These letters relate to the debt to Sprague, and promised to pay it, and two of them refer to remittances therein made. The last of these is dated 12-15, 1922, and stated that a check for $60 was enclosed. There is no reference to the alleged payment made in 1925 in any of these letters; in fact, none of them bore a date later than 1922.
The first' witness called was the clerk and recorder, who identified the mortgage record in which the mortgage to Sprague was recorded, and he stated that there appeared on the margin of the record the same indorsements which were found on the back of the note, set out above. This marginal indorsement was not signed by Sprague, or his wife, or by any one for either of them, or by any other person, and was not attested by the clerk or his deputy. No name whatever was signed on the record. The clerk testified that he knew nothing about these indorsements except that they were on the record, and that he had just seen them on the day of the trial for the first time.
A vice president of the bank was the next witness called. He introduced the note of Wagner to the bank, and stated the balance due on it.
The third and last witness called was J. D. Mcllroy, who testified that he had been a deputy clerk for fifteen years, but had “quit working the 14th of February, 1927, or 1928.” This witness was shown the indorsements on the margin of the record and stated that they were in his handwriting. But he did not remember when or by what authority he made the indorsements. Being asked when the indorsements were made, he answered that he did not know, and, when asked about “How many years back”? he answered: “I cannot say.” He knew nothing whatever- about the payments, and could only identify his writing, but stated that “Some one gave me the information.” He did not recall why he had failed to attest the indorsement on the record.
This is a brief but complete summary of the pleadings and testimony in the record before us, and upon this record a decree was rendered ordering the foreclosure of plaintiff’s mortgage as prior to that of the bank, and this appeal is from that decree.
The decree of the court below contains the recital that Wagner had purchased “subject to the note and mortgage of the plaintiff and assumed the payment of plaintiff’s mortgage in writing as a part of the purchase price of the lands mentioned in plaintiff’s mortgage.” No pleading filed in the case contained any such allegation, and there was no testimony on that subject except only the unidentified letters addressed to Sprague and signed by Wagner. The deed to Wagner from Mahan was not offered in evidence, and no testimony was offered concerning that instrument.
The letters from Wagner to Sprague, above referred to, were offered in evidence without objection, and, if it be said that this failure to object to their introduction rendered them competent, they prove only that WTagner recognized that the mortgage to Sprague from his grantor of an undivided eighth interest was then a subsisting lien on the land, it not then being barred by the statute of limitations. He bought this eighth interest subject to this mortgage, because that mortgage was of record when he purchased, and it was, of course, necessary for him to pay the debt there secured, or cause it to be paid, to clear his title of this outstanding incumbrance. However, the last of these letters was written more than seven years before the suit was filed to foreclose the mortgage.
Laying aside all questions of pleadings and of evidence, and, assuming that all testimony offered was competent, and that all pleadings were amended to conform thereto, although no request to that effect was made, we have left certain questions of law.
The first of these relates to the alleged payment of November 23, 1925, the only payment made within five years of the date of the filing of the suit. The complaint alleges that this payment was made. The answer denied that fact. Neither pleading was verified. The note itself showed only that the payment was indorsed on its back. No witness testified concerning this payment. This payment having been alleged and denied, the burden was on the plaintiff to show that it had, in fact, been made.
In the case of Taylor v. White, 182 Ark. 35, 31 S. W. (2d) 745, it was said: “The fact of a part payment, which was relied upon to stop the running of the statute of limitations, was denied by (defendant) 'White, and the burden was therefore upon the plaintiff to prove that fact.” A number of cases were there cited in support of this statement of the law, and many others to the same effect might also be cited.
There is no proof that the payment was made except the indorsement thereof on the note, and this does not suffice to prove the payment. It was held in the case of Johnson v. Spangler, 176 Ark. 328, 2 S. W. (2d) 1089, 59 A. L. R. 899, to quote a headnote in that case, that: “'Where payments were relied upon to stop the running of the statute of limitations, the burden of proof is on the party alleging it to show by other evidence, in addition to the indorsement on the note, that the payment was in fact made.” See also, to the same effect: Alston v. State Bank, 9 Ark. 455; Slagle v. Box, 124 Ark. 43, 186 S. W. 299.
We are therefore of the opinion that the note from Mahan to Sprague was barred under the record thus ■made by the statute of limitations at the time of the institution of the suit to foreclose the mortgage given to secure it, and for this reason the decree of the court below must be reversed.
We are also of the opinion that the mortgage from Mahan to Sprague was barred, as against the intervener, the Bank of Mulberry, through failure to comply with the provisions of § 7408, Crawford & Moses’ Digest, under the record before us.
It is provided by this § 7408, Crawford & Moses’ Digest, that in suits brought to foreclose mortgages or deeds of trust it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt for the security of which they were given, with the proviso, however, that where payment has been made on such indebtedness before the same is barred by the statute of limitations, such payments shall not operate to revive the debt, or to extend the statute of limitations, so far as the same affects the rights of third persons, unless the mortgagee or trustee shall, prior to the expiration of the period of the statute of limitations, indorse a memorandum of such payment, with the date thereof, on the margin of the record where such instrument is recorded, which indorsement shall be attested and dated by the clerk. There was no compliance with this statute in the instant case, as the memorandum was not attested by the clerk (Clark v. Lesser, 106 Ark. 207, 153 S. W. 112), and there is a total failure to show when the indorsement was made or by what authority. If, therefore, the bank was a third party, the plaintiff’s mortgage was barred as to it (unless its payment was assumed in the deed from Mahan to Wagner), for, as was said in the ease of Morgan v. Kendrick, 91 Ark. 394, 121 S. W. 278, in construing § 5399, Kirby’s Digest (now § 7408, Crawford & Moses’ Digest): “The effect of that statute, as to strangers to the transaction, is that when the debt secured by a mortgage is apparently barred by limitation, and no payments which would stay the limitation is indorsed on the margin of the record of the mortgage, it becomes as to such third parties an unrecorded mortgage; and like an unrecorded mortgage it constitutes no lien upon the mortgaged property, as against such third party, notwithstanding he has actual knowledge of the execution of such mortgage. (Citing authorities).”
If Wagner assumed and agreed to pay the plaintiff’s mortgage, he was not a third party as to that instrument within the meaning of § 7408, Crawford & Moses’ Digest, although that agreement was not expressed in the deed to him from Mahan. Kenney v. Streeter, 88 Ark. 406, 114 S. W. 923. But whether Wagner was a third party or not, there is no valid reason for holding that the Bank of Mulberry was not a third party, unless the agreement to pay it was contained in the deed to Wagner from Mahan. As we have said, there is no testimony that any such agreement on the part of Wagner appeared in his deed from Mahan. That instrument was not offered in evidence, and we do not even know its date.
The recent case of Connelly v. Hoffman, 184 Ark. 497, 42 S. W. (2d) 985, is in point on this question and is decisive of it. The facts stated in that opinion are as follows : Huggler executed a mortgage to Connelly on March 31, 1922, to secure the payment of notes due in 1923 and 1924. On July 15, 1927, neither of said notes then being barred by the statute of limitations, Huggler executed a mortgage on the same property to Wilson, but made no mention of the prior mortgage to Connelly. The mortgage to Wilson was assigned to Hoffman, who brought suit to foreclose it on February 28, 1930, making Connelly and Huggler parties. Hoffman alleged that Connelly’s mortgage was barred by the five-year statute of limitations. Connelly filed an answer and cross-complaint, in which he alleged that Huggler had agreed in writing to pay his debt, this agreement being within the period of limitations, and he prayed a foreclosure of his mortgage from Huggler. An answer was filed by Huggler, who denied the promise to pay and pleaded the statute of limitations against Connelly’s demand. The court granted the prayer of Hoffman’s complaint and dismissed Connelly’s cross-complaint as being without equity. The question of the priority of mortgages as between Connelly and Hoffman was presented on the appeal from that decree.
The opinion states the fact to be that Connelly’s mortgage was prior in point of time and was a valid subsisting lien when Hoffman’s mortgage was executed. Both mortgages had been promptly recorded.
At the time Hoffman brought his suit to foreclose (February 28, 1930) there was no indorsement upon the margin of the record where Connelly’s mortgage was recorded showing any extension thereof, but on August 26,1930, Connelly caused such a marginal indorsement to be made. The court found the fact to be that there was an agreement on the part of Huggler for an extension of his mortgage lien to Connelly, but that no indorsement thereof was made on the record until after the bar of the statute had fallen. The court held that because of this fact the mortgage from Huggler to Connelly became, in effect, an unrecorded mortgage, and that it made no difference whatever that this mortgage was not barred when Hoffman took his mortgage from Huggler.
It was contended by Connelly in that case that, as Hoffman and Wilson had at least constructive notice of his mortgage, and, having taken their mortgage at a time when his own was a valid and subsisting lien and after the mortgagor Huggler had acknowledged the debt in writing and had agreed to its extension, his mortgage continued thereafter to be a valid lien and paramount to the lien of the Hoffman mortgage. We held to the contrary, for the reason that Hoffman was a third party within the meaning* of the law, and, being* such, his mortgage was superior to that of Connelly, because of Connelly’s failure to indorse the extension agreement upon the margin of the record as required by § 7382, Crawford & Moses’ Digest, which section required the extension agreement to be attested and dated by the clerk. . The extension agreement made by Huggler operated to extend the lien of his mortgage as between himself and Connelly, but did not have that effect so far as Hoffman was concerned, for the reason that Hoffman was a third party, as the statute had not been complied with.
So here, whatever may be the effect of any agreement on Wagner’s part to pay plaintiff Sprague’s mortgage, as between himself and Sprague, that agreement could not affect the mortgage of the bank — a third party— as Hoffman was in the ease last cited, for the reason that the provisions of § 7408, Crawford & Moses’ Digest, which are similar to those of § 7382 of Crawford & Moses’ Digest construed in the Connelly case, supra, in regard to keeping liens alive, had not been complied with (unless the deed from Mahan to Wagner contained that agreement).
We have said that there was no allegation or proof that Wagner assumed the payment of the debt secured by the mortgage from Mahan to Sprague as a part of the consideration of the deed to him from Mahan, and this is one of the undeveloped issues of fact in the case. If this is true, then the bank was affected with notice thereof, as it was a fact appearing in the chain of Wagner’s title. Gunnells v. Farmers’ Bank of Emerson, 184 Ark. 149, 40 S. W. (2d) 989; Elk Horn Bank & Trust Co. v. Spraggins, 182 Ark. 27, 30 S. W. (2d) 858. In this event the bank would not be a third party within the meaning of § 7408, Crawford & Moses’ Digest, if the plaintiff’s mortgage lien has been kept alive by payments.
If the conveyance to Wagner from Mahan was not made subject to this mortgage, the subsequent agreement of Wagner to discharge that indebtedness would not affect the status of the bank as a third party, as there would be nothing to charge it with notice of plaintiff’s mortgage. The payments not having been indorsed upon the margin of the record where this mortgage was recorded in the manner required by law, it became as to third parties, in legal effect, an unrecorded mortgage, and the bank is a third party unless its mortgagor had assumed the payment of this mortgage debt in the deed under which he acquired his title. His agreement, if not expressed in his deed, to discharge the outstanding lien, would not affect the status of his mortgagee — the bank — as a third party.
The case must therefore be more fully developed, and leave so to do is here granted. Therefore, upon the remand of the cause, which is here ordered, the court will hear testimony to determine whether or not the al leged payments indorsed upon the note to Sprague were in fact made. If they were not made, as Wagner alleges in his answer, then, of course, the mortgage was barred as to' all parties and for all purposes. If, however, the court finds that the payments were made as alleged in plaintiff’s complaint, the court will then determine whether Wagner assumed the payment of this indebtedness in his deed from Mahan. If this finding is made, the court will decree that plaintiff’s mortgage is superior. Gunnells v. Farmer’s Bank of Emerson, supra, and Elk Horn Bank & Trust Co. v. Spraggins, supra. If that finding is not made, it will be decreed that the bank, as a third party, has a superior lien.
The decree of the court below will therefore be reversed, and the cause remanded for further proceedings in accordance with this opinion.
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McHaney, J.
In May, 1931, the Arkansas Cold Storage Company, being largely indebted to the Union Trust Company, executed and delivered to it an instrument in writing called an “assignment” of “all of its book accounts and bills receivable due it from customers, and also all such accounts and bills receivable that may accrue or become due hereafter, until said indebtedness hereby secured is paid in full, the said book accounts and bills receivable being set out in a certain "list hereto attached, made a part of this agreement and marked Exhibit No. 1.”
Included in said book accounts so assigned was an account against appellant in the sum of $785.33. This account remaining unpaid, and the Arkansas Cold Storage Company having been found to be insolvent, the Union Trust Company, as assignee, brought this suit against appellant, to recover the amount due on said account. The case was tried before the court sitting as a jury, and resulted in a finding and judgment against appellant in the sum sued for.
For a reversal of the judgment, it is first argued that the appellee had no right to maintain this action for the reason that an open account is not assignable, so as to authorize the assignee to maintain an action in his own name. In other words, it is contended that the Arkansas Cold Storage Company should have been a party plaintiff in order to maintain the suit. This was a defect, if a defect at all, that should have been raised by demurrer or answer; Crawford & Moses’ Digest, § 1189, and § 1192. So it was decided in Jordan v. Muse, 88 Ark. 587, 115 S. W. 162, that: “A defect of parties defendant in a complaint was waived by defendant failing to plead it specifically in the trial court, either by demurrer or answer.” This case and a number of others were cited in Tomlin son Chair Mfg. Co. v. Joppa Mattress Co., 122 Ark. 569, 184 S. W. 32, where the court held that the appellant waived the provision of the statutes above mentioned by failing to raise the objection of the defect of parties. So in this case appellant failed to raise the question, either by demurrer or answer, and must be held to have waived same.
It is nest argued that there was no contractual relation or agreement of purchase and sale between Arkansas Cold Storage Company and appellant. The facts are these: Mr. Rose, acting for the Arkansas Cold Storage Company, in which S. R. Morgan was also interested, sold to the Home Ice Company, through S. R. Morgan, a large quantity of ice a-i $1.50 per ton. The Home Ice Company was a distributing company, handling the product of three companies in North Little Rock, one of which was Morgan’s. Morgan represented to Rose that he was the owner of a two-thirds interest in the Home Ice Company. At any rate, he bought the ice from Rose, caused the Home Ice Company trucks to call at the plant of the Arkansas Cold Storage Company for the ice, and its employees received and receipted for the ice in the name of the Home Ice Company. Tickets were made out to the Home Ice Company and bills rendered to it for same without any objection from the officers of the Home Ice Company. Finally, the Morgan Utilities Company went into bankruptcy, and, at the suggestion of Morgan, Rose filed a claim for his company with the trustee in bankruptcy of the Morgan Utilities Company. Rose did not know the Morgan Utilities Company in the sale, but was willing to receive payment from any source. Of course, there could be only one satisfaction, and the claim was filed for the protection of the appellant, as it had paid Morgan Utilities Company for the ice at a price of $3 per ton. By filing the claim in bankruptcy, neither the cold storage company nor its assignee was precluded from pursuing the party primarily liable. We think the facts already related constitute substantial evidence sufficient to support the findings of the court sitting as a jury, that the Home Ice Company was the purchaser of the ice, and that it was sold to it by the cold storage company.
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Humphreys, J.
This is a suit by the State of Arkansas to quiet or validate its tax titles to certain lands in White County by curing the informalities and irregularities contained in the forfeiture proceedings by which it acquired its tax titles thereto. The authority for the suit is found in act No. 296 of the Acts of 1929, which was. construed by this court in the case of State v. Delinquent Lands, 182 Ark. 648, 32 S. W. (2d) 1061, to mean that the State, upon notice by publication, might confirm its tax titles in courts of equity against informalities or irregularities connected with the forfeiture and sale thereof to the State.
Appellant, in response to the notice by publication, intervened in the action alleging that it acquired title to certain of the lands (describing them) embraced in the suit under proceedings to enforce its lien for improvement taxes.
The intervention contains three paragraphs.
Paragraph one alleged that the sales of said lands to the State for State, county, and school taxes were totally void on account of irregularities in levying the taxes and sales of the lands for nonpayment of same for the following reasons:
“ (1) The proceedings of the levying courts in levying the taxes and in making appropriations thereof were irregular, null and void. (2) The assessors did not properly prepare, certify and file the lists of assessable lands with the county clerks, at the time and in the manner prescribed by law. (3) The collectors did not post notices in the respective townships, showing the days and places taxes would be collected. (4) The clerks did not comply with the requirements of the statutes in furnishing the collectors a complete list of delinquent lands in the county, giving the names of the owners, etc. (5) The tax collectors did not prepare, certify and file in the county clerk’s offices a list of delinquent lands, within the time prescribed by law. (6) Notices of sale were not published for the time and in the manner prescribed by law. (7) The county clerks did not record the lists of delinquent lands at the times and in the manner prescribed by law. ’ ’
Paragraph two alleged that the proceedings by which appellant acquired its tax titles to said lands for the nonpayment of improvement taxes were regular.
Paragraph three is as follows:
“The assessed values placed on said lands for State, county and school purposes were made at a time when lands were much more valuable than at this time. Said assessed values averaged more than $6 per acre while the áctual market value of said land at the time did not exceed $4 per acre. Under the laws and rules adopted by the State Tax Commission, said assessments should have been fixed at no more than one-half of the fair market value of said lands at the time of assessment. This would have reduced the assessed value from more than $6 per acre down to $2 per acre. All subsequent assessments were made, extended and carried forward in the same manner as the assessment upon which said void tax sales were made, and each and all of said assessments are therefore null and void for the same reasons.”
The prayer of the intervention is that on account of the void assessments and void sales of the lands for State, county, and school purposes, appellee be denied the right to quiet its title thereto; but, if allowed to do so, the sales be canceled and assessments reduced to fair and equitable amounts, and that appellant then be allowed to pay same, including subsequent taxes based upon the re-valuation.
Appellee demurred to paragraphs one and three of appellant’s intervention for the following reasons:
“Because said paragraphs do not state facts sufficient to constitute an ansAver to the complaint of plaintiff, neither do they set up facts sufficient to entitle it to the relief prayed for in said intervention.
“Because, if said lands were erroneously assessed, the intervener had a plain, adequate remedy at law, of which the intervener failed to avail itself, and cannot now take advantage of it in this proceeding.
The demurrer was sustained to paragraphs one and three of the intervention and appellant declined to plead further, whereupon the court dismissed the intervention and rendered a decree in accordance with the prayer of appellee’s complaint, from which is this appeal.
Appellant contends that the trial court should have overruled appellee’s demurrer to the first paragraph of the intervention because the State cannot confirm, under act 296 of the Acts of 1929, the title to tax lands acquired by it on void levies and void sales. The answer to this contention or argument is that the State is not attempting to do so. It is only attempting to validate or cure tax sales on account of “informalities and irregularities” in the levy of taxes or sales thereof. This is the extent of the State’s authority under the act. State v. Delinquent Lands, 182 Ark. 648, 32 S. W. (2d) 1061. It is true that appellant alleged in paragraph one of the intervention that the levy of taxes and sales were void. This allegation is a mere conclusion of law, and not sufficient on demurrer. Appellant assigns in said paragraph seven reasons for the invalidity of the levies and sales, but all of the reasons assigned are mere informalities and irregularities in making the levies or sales. These are the very defects the State can cure in confirming her tax titles; hence the demurrer to that part of the intervention attacking them was properly sustained. The only right of an improvement district claiming to be the owner of lands to defend against the confirmation of the State’s tax titles on account of informalities and irregularities in the levy and sale thereof is found in § 8 of said act, which is as follows:
“Any special improvement district claiming that there is owing it overdue taxes on any lands described in the State’s petition shall have a right to be made a party defendant to the State’s suit for the purpose of contesting the sale under which the forfeiture to the State was made. Any such improvement district, upon payment of the amount of taxes, penalty and costs for which the land was forfeited and all past-due taxes which would have accrued had the land remained on the tax books at the valuation against it immediately prior to the forfeiture, shall be subrogated to the State’s lien for the amount so paid, and such improvement district may include such amount due the district for taxes, and shall have the right to foreclose for such amount as though the same had been assessed against such land in favor of the improvement district.”
As appellant’s allegations in paragraph one of its intervention failed to comply with § 8 of said act by tendering into court the amount due the State thereunder, the demurrer thereto was properly sustained. The State’s right to levy and collect taxes for the support of government and to make its taxes a first lien on the property in the State cannot be questioned. The State exercised this paramount right in the passage of the following statute in 1879:
“Taxes assessed upon real and personal property shall bind the same and be entitled to preference over all judgments, executions, incumbrances or liens whensoever created.”
Act 269 of the Acts of 1929 provides a method by which to inforce this paramount or prior lien of the State for its taxes against the former owners of forfeited lands, including improvement districts, which acquired lands through foreclosure proceedings for the nonpayment of improvement district taxes.
Appellant also contends that the trial court should have overruled appellee’s demurrer to the third paragraph of the intervention on account of an overvaluation of lands for taxation. Chancery courts have no .jurisdiction to correct erroneous assessments. Appellant’s remedy was by appeal. Crawford & Moses’ Digest, § 9911; Cooley on Taxation, vol. 2, p. 1382; Desty on Taxation, vol. 1, p. 605; State v. Little, 94 Ark. 217, 126 S. W. 713; Pulaski County Board of Examiners cases, 49 Ark. 518, 6 S. W. 1; Clay County v. Brown Lumber Company, 90 Ark. 413, 119 S. W. 251; Wells Fargo & Company v. Crawford Co., 63 Ark. 576, 40 S. W. 710.
Appellant’s last contention is that act 296 of the Acts of 1929 is void because it impairs the obligation of contracts contrary to the provisions of the Constitution of Arkansas and the Constitution of the United States. The contract it says the act impairs is the lien accorded it by the act creating it for improvement taxes which declared the levee district’s assessments shall be a lien in the nature of a first mortgage. The act creating appellant district, in thus declaring its lien a first mortgage, had reference, of course, to contractual liens and not to the State’s paramount lien for taxes for governmental purposes. This right on the part of the State was a part of the district’s charter, and every contract it has made, as much so as if it had been written therein. Act 296 of the Acts of 1929 is valid, and it is not in conflict with art. 1, § 10, of the Federal Constitution and art. 2, § 17 of the State Constitution.
No error appearing, the decree is affirmed. | [
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McHaney, J.
Appellant, a judgment creditor of one Davis and his bondsmen on a forthcoming bond, sued appellee Warner who is the sheriff of Lawrence County, and the other appellees who are the bondsmen on his official bond, to recover the sum of $428.85, the amount for which an execution was issued against said Davis and his bondsmen, on the ground that the execution was not returned within sixty days, as provided by § 4360, Crawford & Moses ’ Digest. There were three executions issued on said judgment, the first on November 7, 1929, upon which the officer made the following return: ‘ ‘ This writ of execution came to my hand oh. the 7th day of November, 1929, at ten o’clock a. m., and is hereby returned unsatisfied, there being nothing pointed out to levy on.” This return did not show the date on which the indorsement was made nor when it was filed, but the clerk’s execution docket shows that he noted the return as of the 17th day of January, 1930, a period of more than sixty days after its issuance. The second execution was issued January 17, 1930, and the indorsement of the return made hy the officer is as follows: ‘ ‘ This writ came to my hands on the 17th day of January, 1930, at two o’clock p. m. On the 16th day of March, 1930, I hereby return the said execution unsatisfied, there being nothing pointed out to levy on. ’ ’ This return showed on its face that it was returned within the sixty days, but the clerk’s execution docket noted its return as of April 1, 1930, a period of more than sixty days according to the clerk’s docket. The third execution was issued on April 2, 1930, and upon this execution a levy was made on certain real property owned by one of the bondsmen on Davis’ forthcoming bond. The property was advertised and sold to one of the attorneys for appellant for a nominal sum. The following return was then made on the proof of publication which was attached to the execution: “There being no one present to bid'on this property, it was knocked off to George M. Booth, for costs plus $1, he being attorney for Southern Finance Corporation. Signed W. E. Archer.” Mr. Archer was the deputy sheriff who handled all the executions and made the sale. The case was submitted to the court sitting as a jury, and a finding was made “that the different executions issued for the collection of the judgment sued on herein were properly returned by B. B. Warner, sheriff of Lawrence County to the clerk of the circuit court of Lawrence County within the time and for the manner as provided by law.” The court further found that as to the last execution certain lands were levied upon, properly advertised and sold to George Booth, for which a certificate of purchase was made out and delivered to and retained by him, and that appellant was not entitled to recover in the action. Judgment was entered accordingly.
The sheriff and his deputy, Mr. Archer, were permitted to testify over objections that they had made return of the executions in apt time; that it was their prac tice to do so, and that they were careful not to let them go by;-that the clerk kept a box in his office in which papers of this kind were deposited by the sheriff and his deputies to be .filed by the clerk; that they were sure these executions were deposited, in the box in the clerk’s office within the sixty days from the date of their issuance; and that the clerk’s execution docket erroneously stated the date later than the actual return. We fail to see why this evidence is not competent, .even though it tends to contradict the entry made by the clerk in his execution docket, especially so since the clerk himself did not testify that he entered the return date in his docket the day the writs were actually deposited in his office. It might be that the clerk did not enter them into his docket until some time later and noted the return as of the day he made the entry. At any rate we do not think the entry made by the clerk is conclusive of the fact as to when the return was made and not subject to contradiction by the sheriff. The first execution did not show the date of the return in the indorsement by the sheriff, but the second one did and it is reasonable to suppose the sheriff would return the writ to the clerk’s office on the date of the indorsement made. As to the third execution, the return shows it was executed by making a levy and sale of the property, and in all probability could not have been returned within the sixty days because the sale had to be advertised and made according to law. This court has many times held that the statute under which this action is brought is highly penal, and that it should not be applied except in eases coming clearly in its purview. Mayfield Woolen Mills v. Lewis, 89 Ark. 488, 117 S. W. 558, 16; same case, 97 Ark. 149, 133 S. W. 590; McIlroy Banking Co. v. Mills, 178 Ark. 741, 11 S. W. (2d) 481.
Since the case was tried before the court as a jury, its finding’ and judgment will not be disturbed by this court, unless there is no substantial evidence to support it. The testimony of the sheriff and his deputy, being competent, constitutes substantial evidence that the returns made on the different executions were made in apt time. Of course, the clerk’s docket was evidence of the facts shown, but it was not conclusive evidence on the sheriff.
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Hart, C. J.,
(after stating the facts). It is earnestly insisted by counsel for the defendant that there is no liability under the terms of the policy because the plaintiff was thrown from the platform of the train on which he was riding, and because a part of his injuries were sustained by being struck by a passing automobile after the train had jerked him onto the adjacent highway.
We have copied clauses 1 and 14 under which liability is claimed in our statement of facts, and need not repeat them here. We think that a reasonable construction of the clauses referred to show liability upon the part of the- company. The plaintiff was a passenger riding in a ear of an interurban railway provided for passenger service. He had paid his passage, and, when the train stopped, walked out on the platform to observe the country. He was an able-bodied man and had a right to do this. It will be observed that he was on the platform of the car when he was thrown off by the car being started with a sudden jerk. This brought him within the terms of the policy. It did not make any difference that a part of his injuries were received by being struck by a passing automobile after he had been thrown from the platform of the car onto the adjacent highway. The proximate, cause of his injury was being thrown from the platform of the car by the sudden starting of it. Ætna Casualty & Surety Company v. Sengel, 183 Ark. 151, 35 S. W. (2d) 67.
It is next insisted that the allowance of $100' attorney’s fee was excessive. The plaintiff recovered the sum of $250. The case was tried by the circuit court sitting as a jury. It had already been tried in the justice court. The circuit court could tell from the conduct of the parties that the case would be appealed to the Supreme Court on the merits. The record shows that a motion for a new trial was filed by the company on the same day on which the case was tried, and this indicated that the court knew beforehand that the case would be appealed to the Supreme Court on the merits. While a fee of $100 is liberal for the amount recovered, we cannot say that, under the circumstances, the court abused its discretion in allowing it. If the defendant had offered to pay the amount of the judgment, then the court should have allowed a more modest fee. The statute does not make the liability of the company depend upon its refusal to pay the loss or its good faith in contesting the matter. The statute becomes a part of the contract of insurance and the fee is costs to reimburse the plaintiff for expense incurred in enforcing the contract. American Liberty Insurance Company v. Washington, 183 Ark. 497, 36 S. W. (2d) 963.
, We find no reversible error in the record, and the judgment will therefore be affirmed. | [
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Smith, J.
This is the second appeal of this case. See page 953 ante. Two other appeals had been previously decided which arose out of the bond here sued on. Wharf Imp. Dist. No. 1 v. United States Gypsum Co., 181 Ark. 288, 25 S. W. (2d) 425; Perry Hanson Gin & Machine Co. v. American Surety Co., 181 Ark. 1146, 26 S. W. (2d) 1113. The first two appeals were from decisions of the chancery court, in which it was decided that the suits brought upon the bond executed by the surely company had not been brought within six months after the completion of the work covered by the bond given by the principal contractor as required by law.
We said, in the opinion on the former appeal in this case, ante p. 953, that the decision of the chancery court upon very similar facts was not conclusive of those facts upon the jury trying this case, for the reason that the plaintiff here was not a party to the chancery cases, and we there stated the reasons why this was true, which need not be restated here.
. We reversed the judgment on the former appeal of the instant ease, for the reason that the court had refused to give an instruction numbered 6, there set out, as requested, and for this reason only. We there said that the judgment would have been affirmed had this instruction been given, as no other- error appeared. The instruction was modified and given as modified, and we held that it was error to modify the instruction, and we reversed the judgment for that reason. The effect of the instruction thpre set out, as asked, was to make the final estimate of the architect conclusive of the performance of the contract covered by the bond unless the district had expressly repudiated the action of the architect and had given notice of such repudiation both to the architect and to the contractor, or had taken some other course provided for by the terms of the contract. The effect of the modification of the instruction was to make the architect’s final certificate evidentiary only, and not conclusive, of the fact that the contract had been fully performed.
The mandate which went down to the lower court upon the reversal of this judgment contained the following recitals: ‘ ‘ The court erred in refusing to give instruction numbered six in the form requested by the appellant and in modifying it. -It is therefore considered by the court that the judgment of said circuit court in this cause rendered be, and the same is hereby, for the error aforesaid reversed, annulled and set aside with costs; and that this cause be remanded to said circuit court for a uew trial and for further proceedings to be therein had according to law, and not inconsistent with the opinion herein delivered.”
This mandate conformed to the opinion of the court.
It was said, in the opinion holding that instruction numbered G should have been given as requested, that “it was not insisted at the trial below that the architect was guilty of actual fraud or that inattention and indifference which implied bad faith.”
Upon the remand of the cause, and before its retrial, the complaint was amended to specifically allege that the architect was guilty of that inattention and indifference which implied bad faith, and this issue was submitted to the jury under instructions correctly declaring the law of that subject.
It is very earnestly insisted that this action of the court was erroneous, and, in support of that contention, we are .cited to several of the numerous cases in which this court has held that, where a judgment has been reversed in this court and remanded for a new trial, the law as announced on the former appeal is the law of the case, and that a proposition of law decided on the former appeal is not open to reconsideration upon a subsequent appeal. This contention, as applied to the facts of the instant case, is so completely answered in the opinion in Morgan Engineering Co. v. Cache River Drainage District, 122 Ark. 491, 184 S. W. 57, that we quote from it as follows:
“But this doctrine can have no application here for the reason that on the former appeal the judgment was reversed because the court erred in its instructions to the jury, and the case was remanded with directions not ‘ to render judgment in accordance with the opinion, ’ but for ‘further proceedings in accordance with the opinion.’ There is a marked distinction between the two. ‘Further proceedings’ contemplated that there was to be a new trial on the issues that might be presented, and that proof might be introduced on these issues. The order was in effect a remand for a new trial in general. Of course, all further proceeding’s that were to be had were to be in accord with the opinion, and, if the issues on the second trial and the testimony remained substantially the same, then the appellant would have been entitled to a judgment for the value of its services under the terms of the alleg’ed contract under which it claimed, computed in the manner directed by this court in its opinion on the former appeal. 'But, as was said in St. Louis, Iron Mountain & Southern Ry. Co. v. York, supra: ‘The finding of the facts upon the former appeal cannot be binding as the finding of facts in this second trial, because the testimony on the second trial might be different from or additional to that given on the first trial. But the principles of law determined and announced upon the former appeal are binding, and must stand as the law of this case; and if the testimony upon this second trial is substantially the same as on the first trial, then the former decision of this court upon all questions of law involved in this case must be followed on this appeal’.”
The opinion in that case further amplified the doctrine stated by a review of other oases by this court there cited.
We stated, in the former opinion in the instant case, that the testimony sufficiently supported the jury’s finding that the suit was brought within the time limited by the bond and by the statute pursuant to which it was executed (§ 6913, Crawford & Moses’ Digest), and the similar testimony offered at the trial from which this appeal comes is also sufficient to support that finding.
At the trial from which this appeal comes, instruction numbered 6 was given without modification, but there was testimony to support the allegation, not made at the former trial, that the architect’s final certificate was void, for the reason that it was given without authority and resulted from an inattention and indifference which implied bad faith, and the testimony in the record before us is legally sufficient to support that finding.
The contract between the improvement district and the principal contractor, to secure the performance of which the bond was executed, not only required the architect, before issuing his final certificate, to ascertain that the work had been completed in accordance with the plans and specifications, but contained also the following provision: “Before issuance of final certificate, the contractor shall submit evidence satisfactory to the architect that all payrolls, material bills and other indebtedness connected with the work have been paid.”
Certain correspondence appears in the record between the architect and the surety company, in which the architect referred to certain work which he regarded as immaterial, but not completed, and it was referred to as “one or two minor details,” but which the jury has found, under instructions submitting that question, were substantial. One of these letters, written by the architect to the surety company subsequent to the issuance of the final certificate by the architect, contained this statement: “The Kaueher-Hodges Company, however, have a great many accounts outstanding, which have not been paid to this writing, and I do not see how the bond can be released until everything is finally adjusted satisfactory to the terms of the contract.”
One of the outstanding accounts there referred to is the account here sued on, and, while the architect no doubt assumed that this account would be paid along with others, the undisputed testimony shows that the account here sued on has not been paid. In fairness to the architect, it may be said that he probably regarded his final estimate and certificate as being qualified by the letters written subsequent to the issuance of this certificate, in which he stated to the surety company that the bond could not be treated as discharged until certain unpaid bills due by the contractor to materialmen had been paid.
It is finally insisted that there can be no recovery in this case because there was no arbitration or demand therefor. The building contract contains provisions for supervision of work and for replacement and correction of defective work, and also that the architect’s decision in matters relating to artistic effect shall be final, and that, “Except as above, or as otherwise expressly provided, in the contract documents, all the architect’s decisions are subject to arbitration.” If this provision relates to any questions except those arising between the owner, the improvement district, and the contractor (which we are not required here to decide), it may be first said that no dispute had ever arisen relating to appellee’s account, and there was nothing to arbitrate concerning it. Indeed, its original validity is not even now questioned.
But, as has already been said, the binding character of the architect’s decision is destroyed if that decision was fraudulent or was induced by such inattention or indifferences as implied had faith.
It was said in the case of Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242, that, “Notwithstanding the contract makes the certificate, report, opinion, decision of the architect conclusive on the parties, the law writes into this provision that the conduct of the architect must be free from fraud. Fraud on his part destroys the effect of the provision. Therefore, if the architect fails to exercise his honest judgment, or makes such gross mistakes as necessarily imply bad faith, his decision, report, certificate and opinion are not binding on the parties to the contract. (Citing authorities.) ” See also the later cases of United States Fidelity & Guaranty Co. v. Board of Commissioners, 137 Ark. 375, 209 S. W. 88, and Hill v. Cone, 176 Ark. 697, 3 S. W. (2d) 985.
The questions of fact which arose upon the issues herein stated were submitted to the jury under correct declarations of law, and the jury’s verdict is conclusive of them. The judgment must therefore be affirmed, and it is so ordered. | [
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Mehaeey, J.
On February 10, 1931, the appellants filed suits against the appellees in the municipal court in the city of Port Smith, Arkansas, for $321.82. They filed statements of account and no other pleadings.
The statement filed for the Citrus Products Company, Inc., was for $279.58, and the statement for Menasha Products Company was for $66.65. The defendants did not appear in the municipal court, and default judgment was rendered against them, whereupon they filed affidavit for appeal and bond.
In the circuit court the defendants filed answer, denying that they, or either or any of them, were indebted to plaintiff on accounts sued on; denied that they were partners at the time the account was alleged to have been contracted; denied that either of them was responsible for the account; denied that there was any indebtedness due; and denied that the checks sued upon were authorized by them or either of them; denied that B. L. Pitts had any authority to write checks, and particularly the checks sued on, on the account of the defendants or either of them, or on account of the White Dairy Products Company; and they especially denied that Kate Tankersley, administratrix of the estate of R. H. Tankersley, deceased, was liable, and alleged that no claim had been exhibited against the estate of her intestate; that she was appointed administratrix, and morel than twelve months had transpired, and no claim had been exhibited.
The case was tried in the circuit court, where there was a verdict and a judgment for defendants, and the case is here on appeal.
The depositions of E. J. Hockstead and E. H. Lewandoski were offered in evidence.
One of the attorneys for the plaintiffs offered in evidence a signed order attached to copies of invoices. The statement was introduced over the objection of defendants, although the attorney who introduced it did not testify, and there was no evidence by any one identifying the papers or signature of any person signing the order or the invoices.
Hockstead, in his deposition, testified that he was treasurer and agent of the Citrus Products Company and that the account annexed in favor of Citrus Products Company against the White Dairy Products Company, a partnership composed of Ross Tankersley, Walter Tankersley, and Mrs. Tankersley; that the balance shown on the account was correct, and that no part of it had been paid. The witness did not show that he had charge of the books, or knew anything about them.
Plaintiff was then permitted to read interrogatory No. 4 and the answer thereto, which was based on the report of the R. GK Dunn agency. It was shown that the report of R. Gr. Dunn Company indicated that Ross Tankersley and R. L. Pitts were partners. All these things transpired before the witness had any connection with the Citrus Products Company.
A check signed “White Dairy Products Company, by R. L. Pitts,” for $124.83 was introduced, and witness testified that these checks were returned from the bank unpaid, and that they received a telegram from White Dairy Products Company on December 31, 1928, advising that they would mail check on January 15, and Pitts’ signature canceled, and that they had never received the check.
He testified, in answer to interrogatory No. 7, that the mercantile report indicates that the present partnership is composed of Ross H. Tankersley and Mrs. Kate Tankersley, and the report indicated that the above persons secured control of the interest of Ross Tankersley and R. L. Pitts, on February 14, 1930, and have since continued to be the owners.
In answer to another interrogatory, witness said that they had received a telegram canceling Pitts ’ signature, but had never received any letters denying liability. Numerous letters and statements were introduced, but it is unnecessary to set them out here.
Lewandoski testified, by deposition, for the Menasha Products Company in substantially the same way that Hockstead did for the Citrus Products Company, and introduced statements of the accounts. Neither of the witnesses testifying knew, or pretended to know, who the partners were or who owned the business. They did not offer any evidence tending to show that the merchandise for which they were asking payment had ever been delivered to the defendants or any of them.
The defendants introduced Mrs. Lena Curtis, the daughter of Mrs. R. H. Tankersley, who testified that R. L. Pitts was not a member of the partnership now or at any time. He was the ice-cream maker. Witness was at work for the White Dairy Products Company as general office manager, and knows there was no partner in there. She was there in 1928 and 1929.
Witness testified that Borengasser was bookkeeper, but never had any authority to bind the company. He had no authority to write the letters. On cross-examination, this witness testified that Pitts did not put any money into the concern, and, when asked how she knew, she said she heard her father say so many times. This answer was objected to by plaintiff.
Mrs. Elaine Robertson testified in rebuttal for plaintiffs, and, among other thing’s, she said that she received a check for $15 from the White Dairy Products Company, and she.also testified that Mrs. Curtis promised to make payments. This witness was secretary and stenographer in the office of Mr. Friedman, attorney for plaintiffs.
At the close of the testimony the court, of its own motion, instructed the jury, and refused to give instructions requested by plaintiffs.
After appellants had filed their motions for a new trial, they filed an amendment to the motion asking for a new trial on the grounds of newly discovered evidence.
It is appellants’ first contention that the court erred in not excluding the testimony of Mrs. Lena Curtis to the effect that she had heard her father say that Pitts did not put any money in the business. This was an answer brought out on cross-examination, and it could not have been prejudicial. The appellants did not show by any competent evidence that Pitts either put any money in the business, was a partner, or had any authority to bind the company. There is no evidence that there was any partnership.
It is next contended that the court erred in overruling appellants’ amendment to its motion for a new trial, wherein it was alleged that Miss Minnie Burke, who lived in Fort Smith, would testify that she was an employee of defendant during the year 19291 in the month of January, during the life of R. H. Tankersley, and was employed by Ross Tankersley, Jr., and R. L. Pitts, and Pitts was recognized by Mr. Tankersley as owning an interest in the business, and, to her knowledge, issued most of the checks for bills contracted by defendant, and also ratified and approved her employment, and would issue checks and sign the firm’s name, by him, for her salary; that this witness was unknown to plaintiff prior to said trial, and that she would testify further that the defendants bought the articles mentioned .in the account, and that she saw them in the possession of defendants.
It was alleged that plaintiffs are nonresidents of the State, and that their attorney did not know of this witness until after the trial.
The record shows that on 'March 20, 1931, this case was postponed until April 8; that on April 8 the defendants filed a verified answer denying eafffi and all the allegations of the complaint. The appellants knew on March 20 that defendants claimed that Pitts had no authority to make any contract.
On April 8, when defendants filed their answer, appellants knew that defendants denied any partnership, and denied any authority of Pitts to make contracts or sign checks.
On the same day, April 8, the cause went to trial in the circuit court. After starting the trial on the 8th, the court continued the case on motion of the plaintiffs for the term, which meant a continuance for six months. The plaintiffs had all this time after they knew what the issues were. They knew that defendants denied Pitts had any authority; they denied receiving the goods, and knew all of the defenses set up in appellee’s answer, and no reason is shown why the plaintiffs did not introduce proof showing that the merchandise was delivered to defendants. This might have been done by the carrier who delivered it, and the record does not show why Pitts and ¡Borengasser, and others who knew all the facts, were not produced as witnesses. There was nothing to prevent plaintiffs from subpoenaing the defendants or any other witnesses who might have known about the facts.
This court has repeatedly held that a motion for a new trial on the ground of newly discovered evidence should not only be supported by affidavits, but that a new trial would not be granted on the grounds of newly discovered evidence unless the party applying for the new trial had used proper diligence.
Here, after approximately six months’ time, plaintiffs went to trial without introducing any competent evidence, either to show that a partnership existed, and, if so, who the members were, or whether Pitts or Boren gasser had any authority to order merchandise, make contracts, or sign checks.
The burden, of course, was on the plaintiffs to make out their case, and as to whether they did or not was a question of fact decided by the jury against the appellant.
Appellants dfb not ask a reversal because of any error of the court in giving or refusing to give instructions. It is therefore unnecessary to discuss the instructions.
We find no error, and the .judgment is affirmed. | [
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Mehaeey, J.
Appellant, as a citizen and taxpayer, began this suit in the Hempstead Chancery Court against the appellees, as directors of the Hope Special School District, praying that they be enjoined and restrained from incurring any further indebtedness or borrowing any money or issuing any warrants as directors of said district during the present fiscal year, except as may be necessary to pay the principal and semiannual interest payments, maturing on bonded indebtedness during the present fiscal year.
He alleged that on March 25, 1931, the bonded indebtedness of the district exceeded 7 per cent, of the total assessed valuation of all the real and personal property in said district, as shown by the last county assessment, and that said bonded indebtedness had been at all times since then, and is now, in excess of 7 per cent, of the assessed valuation of all property in said district. He alleged that the total non-bonded indebtedness, July 1, 1931, was $80,200, and that this was the maximum amount of said nonbonded indebtedness during said year, and all of this amount had been paid out of the year’s revenue except $25,000.
He further alleged that the nonbonded indebtedness and the amount set aside to pay principal and interest on the bonded indebtedness, falling due the remainder of the fiscal year, is $63,000, and that the total revenues which will be received by said district during the remainder of the fiscal year will not exceed $63,000.
He alleged that the directors were still operating the schools and incurring further indebtednéss, and that, in order to complete the school term, it would be necessary to incur further indebtedness, so that at the end of the present fiscal year, the nonbonded indebtedness of the district will aggregate $80,200 and that the directors proposed to continue the schools and incur other indebtedness until it aggregated $80,200, and, unless restrained, they would borrow from individuals and banks, or from next year’s revenues, and issue warrants therefor, to the amount of $80,200; that this sum would be in excess of the revenues for the remainder of the present fiscal year, and the next succeeding fiscal year, thereby causing plaintiff and other taxpayers to suffer great, and irreparable loss, and that he has no adequate remedy at law.
He alleged that the district did not.have power to do these things, and that the borrowing of money, as the directors proposed to do, was in direct violation of act 169 of the Acts of the G-eneral Assembly of 1931.
The appellees demurred to the complaint, stating: “First. The complaint does not state facts sufficient to constitute a cause of action. ■
“Second. The complaint does not state facts sufficient to entitle plaintiff to any of the relief prayed for therein.”
The court sustained the demurrer, and appellant re-, fused to plead further, and his complaint was dismissed. The case is here on appeal.
At the time act 169 was approved, the Hope Special School District had issued bonds, exclusive of interest, to the extent of 7 per cent, of the assessed valuation of the real and personal property in the district as shown by the last county assessment. The outstanding non-bonded indebtedness of the district was $80,200 on July 1, 1931. This sum was the maximum nonbonded indebtedness during the fiscal year preceding July 1, 1931.
The revenues of the district for 1931,1932 were used by the district in the payment'of the nonbonded indebtedness existing prior to July 1, 1931, reducing the non-bonded indebtedness to $25,000, and the schools had been operating by anticipating the revenues of 1932-1933.
The directors propose to continue the school for,the term by borrowing from 'banks, individuals, or from next year’s revenue, 'but not to exceed $80,200', maximum non-bonded indebtedness in the fiscal year ending July 1, 1931.
Act 169 provides that districts may borrow money and issue bonds for the repayment thereof from school funds, for the building and equipment of school buildings, mailing additions and repairs thereto,, purchasing sites therefor, and for funding any indebtedness created for any purpose and outstanding at the time of the passage of the act. Act 169, § 59, of the Acts of 1931.
Section 60 provides that: “No bonds shall be issued at any time that would make the total of outstanding bonded indebtedness of the district at that time, exclusive of interest, exceed 7 per cent, of the assessed valuation of the real and personal property in the district as shown by the last county assessment. This shall not prohibit bond issues refunding present bonded indebtedness that exceeds 7 per cent.”
It is first contended by appellant that the board of directors has no authority to borrow money for the operation of the schools. He cites and relies on Arkansas National Bank v. School District No. 99, 152 Ark. 507, 238 S. W. 630, where the court said: “It is the settled rule in this State that school districts have and can exercise only such powers as are expressly granted, and such incidental ones as are necessary to make those powers available and effective.”
Attention is called to some other cases, but it may be stated as the settled rule announced in all the cases, that school districts can exercise only such powers as are granted by the Legislature and such incidental powers as are necessary to the proper exercise of the powers granted. 'School districts derive all of their powers from the Legislature.
It is contended by the appellant that § 59 of act 169 of 1931 provides that the only power granted to borrow is for the things mentioned in said secltion,, namely the building' and equipment of school buildings, making additions thereto', purchasing sites therefor, and for funding any indebtedness created for any purpose and outstanding at the passage of the act. If this contention of appellant were correct, the board of directors would, of course, have no power to borrow money to operate the schools.
Section 97 of act 169, however, provides among other things: “Budgets for districts, having a city of 2,500 or more population, which employ a superintendent, shall be approved by the city superintendent and need not be submitted to the county board of education for approval, but shall be filed with the county superintendent for record, provided nothing* in this provision shall prevent any school board from borrowing money from banks, individuals, or from next year’s revenue, in order to provide funds in such amount that the maximum non-bonded indebtedness of their school district so incurred shall not be greater than the maximum nonbonded indebtedness of such districts was at any time during the preceding fiscal year.”
To ascertain the intention of the Legislature, we must consider the whole act, and each part or section must be construed in connection with every other part or section, so as to produce a harmonious whole. The part of § 97 quoted must mean something, and another portion of § 97 provides that in ease of an emergency the State Board of Education may grant special permission to a district to create a temporary current - indebtedness.
It was evidently the intention of the Legislature, among other things, to prohibit school districts from increasing their indebtedness, and, as stated in the act, the districts should conduct their financial affairs, so that, as soon as possible, they may be on a cash basis.
It is therefore provided in the act that, if it should become apparent that the schools cannot be operated for the remainder of the school year, without incurring more indebtedness than that represented by outstanding bonds and those that may be issued for buildings and the equipment, purchasing sites and repairing buildings, or the improvement of sites, it shall be the duty of the school directors to close the school, and cease paying teachers for the remainder of the year.
However, following this provision of the statute is another we have already referred to, which authorizes the State Board of Education to permit a district to create temporary indebtedness. Evidently it was not the inten tion of the Legislature to close the schools if this could be avoided. It therefore provided that permission might be given the districts to create temporary indebtedness to keep the schools going.
As we have already said, in construing statutes it is the duty of courts to ascertain the intention of the Legislature and to give effect to every part and section of the law. Miller v. Yell & Polk Bridge Dist., 175 Ark. 314, 299 S. W. 15; Hall v. Cartwright, 179 Ark. 1082, 20 S. W. (2d) 124; McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646; Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281; Ark. Taco Commission v. Crittenden County, 183 Ark. 738, 38 S. W. (2d) 318; Gill v. Saunders, 182 Ark. 453, 31 S. W. (2d) 748; McIlroy v. Fugitt, 182 Ark. 1017, 33 S. W. (2d) 719, 73 A. L. R. 723; McGinnis v. Gailey, 174 Ark. 1062, 298 S. W. 335; Summers v. Road Imp. Dist. No. 16, 160 Ark. 371, 254 S. W. 696; Miller v. Witcher, 160 Ark. 479, 254 S. W. 1063.
It is next contended by the appellant that the borrowing power of a district is limited to next year’s revenue. We do not agree with appellant in this contention. The act expressly limits the borrowing' power to the maximum nonbonded indebtedness at any time during the fiscal year. In the instant case the maximum amount was $80,200, and the power to borrow money under this provision of the statute is limited by this amount. The law provides that the district may borrow from next year’s revenue or from individuals or from banks, but the amount the district is permitted to borrow is not limited by the amount it might be able to borrow from any individual, or a bank, or next year’s revenue, but it is expressly limited to the maximum amount of the nonbonded indebtedness the preceding year.
The decree of the chancery court is affirmed. | [
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Humphreys, J.
Appellant intervened in an attachment suit brought by appellee against J. H. Flower in the circuit court of the Southern District of Logan County alleging that prior to the issuance and levy of the writ of attachment upon the property involved, J. H. ..Flower had executed a mortgage to it upon said property to secure an indebtedness of $1,554.88 and that its mortgage lien thereon was superior to the attachment lien. The intervention contained a prayer for the dismissal of the attachment and for the enforcement of the mortgage • lien against the property.
Appellee filed an answer denying the material allegations contained in the intervention and praying that its attachment be sustained, and that the property levied upon be sold to pay the debt J. H. Flower owed him.
The cause was submitted upon the pleadings and testimony, which resulted in a personal judgment against J. H. Flower in favor of both appellant and appellee for the respective amounts claimed by them, and a finding and judgment declaring appellee’s attachment lien upon the property superior to appellant’s lien.
This appeal is for the sole purpose of ascertaining whether the trial court erred in adjudging' appellee’s lien on the property paramount to appellant’s lien thereon.
The mortgage executed to appellant was not acknowdedged as required by § 1521 of Crawford & Moses’ Digest in order to give it any validity as to third parties. It omitted the -word “consideration” or words of similar import, and the attempted record of same constituted no notice to third parties of the existence thereof. Although good as between the parties thereto, as to third parties it was just as if it had never been executed or filed. Drew County Bank & Trust Company v. Sorben, 181 Ark. 943, 28 S. W. (2d) 730.
Again, had appellant’s mortgage been properly acknowledged, the filing thereof was fatally defective and was no notice to third parties of the existence thereof. In order to constitute notice to third parties of the existence of the mortgage by filing only, it was necessary that appellee or some one for him sign the following indorsement : “This instrument to be filed but not recorded.” CraAvford & Moses’ Digest, § 7384. Appellant’s mortgage had no such indorsement upon it.
The judgment of the trial court is therefore affirmed. | [
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-Mehaffy, J.
On April 12, 1928, a decree was rendered by the chancellor in vacation, and was filed with the clerk of the Franklin Chancery Court on April 16, 1928. The decree was in favor of the defendant, appellant here. At the same term of court there was an application filed to set aside the decree rendered by the chancellor on April 12th.
On April 6th, the chancellor had set the’ case for trial on the 12th and directed notice to be served on the plaintiff, or his attorneys. Mr. 'Grant, attorney for the defendant, wrote to Mr. Williams, attorney for plaintiff, at Ozark. Mr. Williams had lived at Ozark, but had moved from there, and testified that he never received the letter.
The chancellor heard the evidence of the defendant on the 12th, and rendered a default judgment.
Mr. G-rant, having written to the attorney for the plaintiff, the court supposed that the notice had been received, and proceeded to hear the evidence of the defendant, and rendered judgment for the defendant and against the plaintiff for $450, and the application was to set aside this default judgment.
The parties entered into the following stipulations:
“Stipulation.
“It is agreed and stipulated by and between G-. L. G-rant, attorney for defendant, Carl Metz, and Pryor, Miles & Pryor, attorneys for Melton Coal Company, plaintiff, that the application to set aside default judgment filed by the plaintiff herein, upon motion of the defendant, be continued until the next term of the court, or to be heard in vacation upon a date to be agreed upon by the parties, and that no execution, garnishment or other process is to be issued upon the judgment rendered in favor of the defendant in the above cause against the plaintiff until after the hearing of the application to set aside judgment filed by the plaintiff herein, said continuance to be granted upon the motion of the defendant in the above court on account of the absence from the State of the attorney for the defendant.
“Witness our hands, this 7th day of July, 1928.
“Pryor, Miles & Pryor,
“Attorneys for Plaintiff.
“G-. L. Grant,
“Attorney for Defendant.
“Filed July 9, 1928. .Vint Addy, Clerk.”
‘ ‘ Stipulation.
“It is stipulated by and between plaintiff and defendant in this case that the motion to set aside the default judgment in this case may be continued, and that it may be heard by agreement at chambers in Fort Smith, if the chancellor will hear it there, and that all right to question the right of the chancellor to set the judgment aside because it had become final is waived. In other words, the parties here agree to waive any question of the intervention of the term of court.
“Pryor, Miles & Pryor,
“Attorneys for Plaintiff.
“G. L. Grant,
“Attorney for Defendant.
“Filed December 3-, 1928. Vint Addy, Clerk.”
‘ ‘ Stipulation.
“It is hereby stipulated and agreed between the parties to this suit and their attorneys that this cause may be submitted at this term of the court and the evi dence introduced before tbe chancellor in vacation at Fort Smith at any time before the............day of.............................., 1929, and a decree entered by him after hearing said evidence.
“This the 8th day of July, 1929.
“Pryor, Miles & Pryor,
“Attorneys for Plaintiff.
“G. L. Grant,
“Attorney for Defendant.
“Filed July 8, 1929. J. E.' Yates, Clerk.”
‘ ‘ Stipulation.
“It is agreed and stipulated by and between Pryor, Miles & Pryor, attorneys for the plaintiff, and G. L. Grant, attorney for the defendant, that the above cause may be submitted to the Honorable J. V. Bourland, Chancellor, at chambers, in the city of Fort Smith, Arkansas, on December 14, 1929, in accordance with the stipulation herein entered by and between the parties hereto.
“Witness our hands on this the 30th day of November, 1929.
“Pryor, Miles & Pryor,
“Attorneys for the Plaintiff.
“ G. L. Grant,
“Attorney for the Defendant.
“Filed December 2, 1929. J. E. Yates, Clerk.”
These stipulations were filed in the Franklin Chancery Court. The Honorable J. V. Bourland was chancellor at the time the default decree was entered, and the Honorable C. M. Wofford succeeded Judge Bourland, and was chancellor at the time the decree was entered setting aside the default judgment. The decree setting aside the default judgment was rendered on September 17, 1931.
The decree recited that, the parties having agreed in open court to finish the trial before the chancellor at chambers, in Van Burén, Arkansas, the plaintiff appeared by its solicitors, J. P. Clayton and Pryor & Pryor, and, the defendant appearing by his solicitors, Starbird & Starbird, the trial proceeded upon oral testimony, and the chancellor, having heard the oral and documentary evidence, and the whole record, as well as the argument of counsel, and being fully advised in the premises, doth find for the plaintiff, and doth further find that the .judgment rendered herein on April 12, 1928, ought' to be set aside and held for naught, and the plaintiff allowed a trial in the case.
The original case was set for a hearing before the chancellor in vacation on April 6, but the place of the hearing was not designated, and the plaintiff’s attorney did not know that the time had been fixed.
On April 6th, the defendant’s attorney appeared, but the plaintiff’s attorney did not appear, and the chancellor ordered the case set down for hearing on April 12th, and directed that the plaintiff’s attorney be notified.
-. At the beginning of the case Mr. Williams was attorney for plaintiff, and Mr. Partain was attorney for defendant. On April 6, the time set for the hearing, Mr. Grant appeared for the defendant, and he wrote and mailed a letter to Mr. Williams, attorney for the plaintiff, at Ozark. Mr. Williams had lived at Ozark, but had moved to Clarksville, and he testified he had never received the letter from Mr. Grant, and never heard of it until after judgment and execution. Pryor, Miles & Pryor became attorneys for the plaintiff, and Starbird & Starbird, attorneys for the defendant.
Judgment by default was rendered on April 12, against the plaintiff for $450, and was filed with the clerk on April 16. At the same term of court that the judgment was rendered and filed, the attorneys for the plaintiff filed an application to set aside the default judgment, and the stipulations above set out were entered into and filed in court.
Appellant first contends that the decree of the chancellor setting aside the default judgment is not supported by a preponderance of the evidence. It is true that the record entry shows that the case was set down for April 6th, but it wa.s not tried on April 6th, but was postponed by the chancellor until the 12th, and notice directed to be given the plaintiff’s attorney. The evidence shows that Mr. Grant wrote a letter to plaintiff’s attorney, advising him that the case would be tried on the 12th, but the evidence does not show, and the court did not find, that Mr. Williams ever received this notice.
It is contended that the evidence on the part of the defendant is positive, and that on the part of the plaintiff is negative. The evidence on the part of the plaintiff, however, is as positive as the evidence for the defendant.
It is next contended by the appellant that the proceeding to vacate the judgment is not authorized by law; that the proceeding should have been by a complaint verified by affidavit, as provided for in §§ 6292 and 6293 of Crawford & Moses’ Digest.
This is not a proceeding under above sections of the digest, but is a motion or application filed at the same term of court the judgment was rendered, to set aside' a default judgment.
It has been settled by numerous decisions of this court that a motion to set aside a default judgment at the judgment term is not an independent action, and, when set aside, does not determine the rights of the parties. It leaves the case in the condition it was before the default .judgment was rendered, with an opportunity to try the case upon its merits. Democrat P. & L. Co. v. Van Buren County, 184 Ark. 972, 43 S. W. 1075; Hawkeye Tire & Rubber Co. v. McFarlin, 146 Ark. 491, 225 S. W. 632; Wells-Fargo & Co. v. W. B. Baker Lumber Co., 107 Ark. 415, 155 S. W. 122.
This court has many times held that the trial court may, during the term, vacate its judgment, and that it might do so without notice.
This judgment, however, setting aside the default judgment, was not rendered at the same term of court. The application to set it aside was filed in the same term of court, and it was agreed that it might be tried thereafter in vacation.
In a case note in GO Ana. St. Rep., 639-640, it is stated: “After the lapse of the term at which the judgment is rendered, the power of the court to vacate it on motion is much more restricted than during the term, though we believe no rule can be formulated which will everywhere be recognized as correct, prescribing the precise limits of this power. * * * So during the term notice of an application to vacate a judgment may be given, and it may be granted afterward. There is some conflict of authority upon the subject, but we believe that where a motion is made to vacate a judgment, or notice of such motion is given, within the time in which the court has power to grant it, it is not indispensable that it be disposed of within the term, and therefore that an order vacating a judgment after the term or after the time specified in some statute is neither erroneous nor void, if the motion therefor was made in due time.” Authorities are cited in the case note, supporting the rule above announced.
It is true that this court has many times held that a judgment rendered at one term of court cannot be set aside at a future term of court, and the case again determined, and it cannot be set aside at a future term by consent of parties, where the court is not authorized to act in the absence of such consent, because consent cannot confer jurisdiction.
Our statute, however, expressly provides that a chancellor may deliver opinions and may make and sign decrees in vacation in causes taken under advisement by him at a term of the court, and he may do this by the consent of the parties or their solicitors of record, and when this is done the decree has the same force and effect as if done in term time, and appeals may be taken from decrees rendered in vacation. Crawford & Moses’ Digest, § 2190.
This section has been construed by this court, and it has been expressly held that this section authorizes the setting aside of a decree after the term where the application is made during the term. This court said, in con struing the above section: “The court had .jurisdiction to hear and determine the second petition of the appellees to set aside the sale of June 12,1925. Although a former petition to that effect had been filed and overruled, this second petition was filed at an adjourned day of the same term of court and on the last day of the adjourned term. The issue was joined by the appellees on this petition, and a hearing thereon was had by consent in vacation. The decree from which this appeal comes so recites. Authority for such procedure is found in § 2190 of Crawford & Moses’ Digest. See also Bickle v. Turner, 133 Ark. 536, 202 S. W. 703; Davis v. Sparks, 135 Ark. 412, 205 S. W. 803. The court had not adjourned sine die at the time the second petition to vacate the sale was filed, and, even though such petition was filed on the last day of the adjourned term, that was sufficient to give the court jurisdiction to hear and determine the issue joined on such petition, and the statute above confers upon the chancellor authority to try causes by consent of parties and to render decrees in vacation.” Wofford v. Young, 173 Ark. 802, 293 S. W. 725.
The application in the instant case was filed at the same term of court, the issue was joined by appellant on this petition, and a hearing thereon was had by consent in vacation. The section above referred to says that the decree in such cases shall have the same force and effect as if made, entered, and recorded in term time.
If this decree had been entered in term time, when the application was filed, it would have left the case in the condition it was before the default judgment was rendered, April 12, with an opportunity to try the case upon its merits, and since, under our statute, the decree rendered in vacation has the same effect, the setting aside of the default judgment by the chancellor left the parties in the same situation they were in before any .judgment was ever rendered. They can therefore proceed with the trial of the case as if no judgment had been rendered on April 12,1928, and, as we held in Democrat P. & L. Co. v. Van Buren County, supra, no appeal could be taken from this judgment.
The decree of the chancery court is affirmed. | [
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Hart, C. J.,
(after stating the facts). Counsel for appellee seek to uphold the construction placed upon the contract by the court under the rule that, when a man undertakes by an express contract to do a given act, he is not absolved from liability for nonperformance, even though he is prevented from doing it by an act of God or some impossibility placing it beyond his power to perform the contract. Among the many cases following this rule are Cassady v. Clarke, 7 Ark. 123; and Davis v. Bishop, 139 Ark. 273, 213 S. W. 744. In the latter case, the court also recognized certain exceptions to the general rule, and one of them is that where the subject-matter of the contract has been destroyed or the event creating the impossibility is one which could not reasonably be supposed to have been within the contemplation of the contracting parties, the promisor is discharged from the performance of the contract or the obligation to answer in damages.
Again in Holton v. Cook, 181 Ark. 806, 27 S. W. (2d) 1017, 69 A. L. R. 709, the court recognized that contracts of this character must be considered as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible without fault of the contractor.
Numerous other cases applying the rule and the exceptions thereto may be found in a case note to 21 A. L. E. commencing at 1274, and in 74 A. L. E., commencing at 1290. No useful purpose could be served by an extended review of the decisions because, to determine whether a case falls within the general rule or the exceptions thereto, reference must be made to the facts of each particular case.
It is earnestly insisted by counsel for appellee that in all of these cases the court has recognized that the death of the person or destruction of the subject-matter of the contract has rendered the performance of the contract a physical impossibility. We do not agree with counsel in this contention. Since the question is one as to the construction of the contract, it can make but little difference how the subject-matter of the contract went out of existence, so long as the party charged was not in any degree in fault in the premises. The minds of the parties are presumed to have contemplated the possible loss of the property. For cases illustrating the principle, see Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; and Lorilbard v. Clyde, 142 N. Y. 456, 24 L. R. A. 113, 37 N. E. 489.
In the latter case, there was a guaranty of dividends of the corporation for a term of years made by the manager to persons who were formerly his competitors in business, which the corporation had been formed to continue under what was substantially a partnership arrangement, while both parties were prohibited from becoming interested in competing business during that period, which the court held implied the existence of the corporation during the time specified, capable of earning and declaring- dividends. In that case it was also held that a defense to a guaranty of corporate dividends that the corporation, had been dissolved would not be defeated on the ground that the dissolution was caused by the defendant’s own misconduct, where it was adjudged on the application of the plaintiff for technical breach of corporate duty, for some of which he was as much responsible as the defendant.
We have set out the contract, which is the basis of this lawsuit, in our statement of facts, and need not repeat it here. Reference to it will show that Miller and Butterworth were owners of the majority of the stock in the corporation. Tellier first subscribed for $5,000 worth of the stock and then increased it to $15,000. Miller and Butterworth were original subscribers of stock for $25,000 each. The contract recites that in consideration óf the purchase of said stock by Tellier and the personal advantage accruing to Butterworth and Miller as majority stockholders, it was agreed by the parties that Tellier should receive dividends on said stock at the rate of ten per cent., and that he should continue to receive them until such time as the corporation was in a position to1 declare regular dividends out of its earnings. It then provides that said stock shall be credited with the payment of said dividends and shall draw dividends the same as all other stock at such times as regular dividends shall be declared. It then provides that Miller and Butterworth shall guaranty said ten per cent, dividends, payable as above stated, and for the further consideration enumerated. Miller, Butterworth and Tellier were all intimate friends and closely associated with each other in business. Miller and Butterworth were the managing officers of the corporation. Just what relation Dickinson had is not shown.
A reasonable construction of the contract shows that there was an implied condition that the dividends to be paid on the stock of Tellier were to be made by Miller and Butterworth as managing officers of the corporation, and were to continue only so long as the corporation continued in existence, and was not dissolved on account of the neglect or mismanagement of its affairs by Miller and Butterworth. The record does not show that any act of Miller or Butterworth caused the insolvency of the corporation. It was organized at a time when the business affairs of the country were in good condition, and it was thought in good faith by all of the parties that great profits would be made in the operation of the granite quarry. The parties had made large profits in other transactions. Like many other businesses, the corporation lost instead of making money. This resulted finally in its insolvency, and its assets were sold to pay the creditors of the corporation. As above stated, there is nothing to show that Miller and Butterworth were at fault in the management of the corporation and caused its insolvency by any act of neglect of their own in the management of the corporation.
In this connection, it may be stated that Tellier received the price of his subscription to the last stock and a little more besides. Even after the death of Miller, Butterworth continued to make payments for a time, and this was after the corporation ceased to exist. This at least showed good faith in the premises.
Upon a consideration of the whole case, we are of the opinion that there was no' liability under the contract, and the court erred in directing a verdict for the plaintiff. Inasmuch as the case seems to have been fully developed, the judgment will be reversed, and the cause of action will be dismissed here. | [
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Butler, J.
This appeal is from a decree of the Wood-ruff Chancery Court dissolving a temporary injunction by which the appellee, Edgar Miller, as county treasurer, was temporarily restrained from paying certain warrants duly issued by the school board of district No. 22, in payment for services rendered in transporting the children of that district to and from school, and warrants issued to pay a part of a teacher’s salary.
The agreed statement of facts presented to the trial court were that (1) on November 24, 1930, R. H. Curtis began to transport certain pupils of the district to the school, and on the 29th day of that month the board of directors adopted a resolution authorizing a lease by the district of the truck of Curtis and his employment to drive the same; that Curtis transported an average of twenty or more pupils of the district each school day, using his truck from the date he first began until and including May 27,1931. Warrants were issued to him for his services and use of his truck. Of these warrants, $216.80 was for services rendered by Curtis after March 25, 1931. It was agreed that the services rendered were worth the sums represented by the warrants, and that the said Curtis was a member and president of the board of directors of the school district on November 24, 1930, and until and including May 27, 1931.
(2) That Mrs. Dorothy Patterson was regularly employed as a teacher during the school term, ending in May, 1931, and performed her duties in person except for a period of ten days during the month of February. On four of these days her infant child was ill; on two days she was ill herself, and on four days her mother was sick. With the knowledge and permission of the superintendent of schools of the district, she employed as a substitute teacher a pupil of the school in the 10th grade, who held a second grade teacher’s certificate; that the said substitute taught Mrs. Patterson’s classes during the said ten days, and for her services was paid $15 by Mrs. Patterson, that sum being arrived at by agreement between Mrs. Patterson, the substitute teacher and the superintendent. Mrs. Patterson was issued warrants in full compensation of the amount that would have been due her under her contract.
1. It is conceded by the appellant that Curtis was entitled to be paid the value of his services from November 24 until March 25, 1931, but that he should not be paid for his services rendered thereafter, because on \ that date act No. 169 of the General Assembly was approved, which act, by § 102, provided:
‘ ‘ The board of directors of all school districts in the State are authorized to purchase vehicles and otherwise provide means for transporting pupils to and from the school, when necessary. To this end it may hire or purchase such school wagons, buses, or other vehicles, and hire persons to operate them, or make such other arrangements as it may deem best, affording safe and convenient transportation to the pupils; and the board may pay for all such property or services out of the funds of the district. Provided, that any contract with any member of the school board for the transportation of children or to drive a bus shall be null and void. ’ ’
This court, in the early case of Lindsay v. Rottaken, 32 Ark. 619, recognized the rule that any act which is forbidden by the common or statutory law cannot be the foundation of a valid contract, nor can anything auxiliary to, or promotive of, such act be such.
In Spearman v. Texarkana, 58 Ark. 348, 24 S. W. 883, 22 L. R. A. 855, a distinction was recognized between contracts which are against public policy merely on account of the personal relation of the contractor to the other parties in interest and those which are void because the thing contracted for is against public policy. In the latter class the parties acquire no rights which can be enforced either at law or in equity, but in the former class, it of itself being lawful and beneficial, it would seem unjust to allow the party who may be entitled to avoid it to retain the benefits without any compensation at all. In the application of these principles, this court held in the case of Smith v. Dandridge, 98 Ark. 38, 135 S. W. 800, 34 L. R. A. (N. S.) 129, Ann. Cas. 1912D, 1130, that, as a general rule, it is unlawful for a school director to enter into a contract with the school district in which he has a personal and individual interest, because his relation to the district is of a confidential and fiduciary nature, and therefore public policy forbids that he place himself in a position where his own personal interest might conflict with that of the school district which he must represent. This disability, however, arises not because the thing contracted for is of itself illegal or immoral, but because of the personal relation to the district which requires that he should not suffer himself to be placed in a position which might render his personal interest antagonistic to. that of the district; but, following the rule recognized in Spearman v. Texarkama, supra, and in Frick v. Brinkley, 61 Ark. 397, 33 S. W. 527, it was held that, where a contract such as the one then under consideration was not affected with any intrinsic immorality or unlawfulness, when services were rendered and accepted under the contract, on principles of natural justice and right just compensation'therefor ought to be made.
In the instant case, it is admitted that no fraud was practiced in the procurement of the contract; that the ends proposed thereby were necessary and beneficial, and that the services rendered were worth the amount for which allowance had been made and the warrants issued; and it is appellee’s contention that, on the principle of natural justice recognized in the cases, supra, the decree of the trial court should he upheld.
The rule insisted by the appellee, 'Curtis, runs counter to the general rule that, where a contract is expressly prohibited by law and the statute in terms declares the contract null and void, no recovery can be had, and the taxpayer, where money has been paid under the same, may maintain an action for its recovery when the officers charged with that duty neglect or refuse to perform it. ■ Martin v. Hodge, 47 Ark. 378, 1 S. W. 694; Wood v. Stewart, 81 Ark. 48, 98 S. W. 711; People’s Savings Bank v. Big Rock Stone & Construction Co., 81 Ark. 599, 99 S. W. 836; Eager v. Jonesboro, Lake City & Eastern Exp. Co., 103 Ark. 288, 147 S. W. 60; Tallman v. Lewis, 124 Ark. 6, 186 S. W. 296.
In People’s Savings Bank v. Big Rock, etc., Co., supra, under a statute (then § 5644 of Kirby’s Digest, now § 7716, Crawford & Moses’ Digest) which forbade the board of public affairs of a city to make any contract with any person associated in business or related to any member of the board or city council, and providing that every such contract should be null and void, it was held that a bank, of which the mayor of a city was a stockholder and president, could not take an assignment of the claim of a contractor against the city for the price of work performed by him for it. In that case, both the mayor and bank officials appeared to have acted in entire good faith, and to have intended what they did for the benefit of the city, but, because of the statute which declared such contracts null and void, no benefit might accrue to the bank, since to enforce the contract would be for “the law to aid in its own undoing.”
In the case of Tallman v. Lewis, supra, a contract was made between a board of improvement of a drainage district and one of its commissioners, and under which the services contracted for were performed and were reasonably worth the amount of the compensation allowed and collected by the commissioner. A suit was instituted by a taxpayer to recover the sums paid the commissioner, who insisted on the trial and on appeal to this court that, under the rule in Spearman v. Texarkana, Frick v. Brinkley and Smith v. Dandridge, supra, he should he allowed to retain the compensation on a quantum meruit. The statute under which the hoard of improvement of the drainage district acted did not in express terms declare contracts between the board and its members null and void, but required the .commissioners to make oath that they would not directly or indirectly be interested in any contract made by the'board. Under that state of case, we held that it amounted to an express prohibition, and that to permit a recovery upon rights growing out of such contract would in effect abrogate the statute. A statement from the case of Bank of United States v. Owens, 2 Peters 527, was there quoted with approval: “No court of justice can in its nature he made the handmaid of iniquity. Courts are instituted to carry into effect the laws of a country. How7 can they become auxiliary to the consummation of violations of law? There can be no civil right where there can be no legal remedy, and there can be no leg’al remedy for that which is of itself illegal.”
In the instant case, by the act of March 25, 1931, supra, it w7as expressly provided that “any contract wdth any member of the school board for the transportation of children, or to drive a bus, shall be null and void. ’ ’ It will be seen therefore that on and after that date the contract and the performance of it was in direct violation of the plain terms of the statute, regardless of how7 necessary and beneficial the service was to the district.
It is insisted, however, that the facts in this case distinguish it from the cases above cited, since the contract in its inception and its performance by 'Curtis was not in violation of any statutory inhibition, and therefore his services, after March 25,1931, would be referable to the time when he began to perform such services, and he ought still to recover under a quantum meruit. We cannot accept the conclusion reached by the appellee. It must be remembered that whatever right to compensation Curtis had could not be based upon the contract, for, in its very inception, it was illegal on sound grounds of public policy, and Ms right to compensation was not referable to the contract, but to the services rendered.
It seems to be the general rule that, where a contract is lawful when made and a law afterwards rendered the performance of it unlawful, the contract is to be considered at an end, and, as the statute puts an end to the contract, there can be no legal recovery, even where the services under it are performed, as it is contrary to the policy of the law to permit a party to recover for the performance of his own illegal acts. American Merc. Exch. v. Blount, 102 Me. 128, 66 Atl. 212; Endsley v. Hollingsworth, 170 Ala. 396, 54 So. 95; Odlin v. Penn. Ins. Co., 18 Fed. Cas. No. 10,433; Buffalo East Side R. Co. v. Buffalo Street R. Co., 111 N. Y. 132, 19 N. E. 63. In the last case the court said: “The fact that the agreement was made prior to the passage of the act is of no consequence. The parties to the agreement should not be deemed to have intended to cover acts which' then or thereafter, within the life of the agreement, might be declared by law to be criminal. ’ ’
There are some decisions which express the view that, where a contract is valid and not against the then existing public policy when entered into, no subsequent act of the Legislature can render it invalid, on the principle that, if a contract conformed to public policy when made, a change in that policy will not avoid it. But our research has disclosed no decision holding that, where a contract is in its inception contrary to public policy, although the subject-matter is not in itself wicked or immoral, services performed under it may be recovered for on a quantum meruit rendered after a time when, by legislative enactment, such contract is declared to be null and void. It is difficult to perceive, upon consideration of the general rule last stated, how upon any state of a case this doctrine can be sustained, for to do so would call upon courts to render nugatory a positive prohibition of a statute. This cannot be done, and appellee’s contention must fall. On the principle announced in Smith v. Dandridge, and its companion cases, the warrants issued to Curtis for his services performed prior to March 25, 1931, are the valid evidence of a just debt, and should be paid; but for the services rendered after the enact‘ment of the statute of March 25, 1931, the prayer of the appellant for an injunction, perpetually restraining the treasurer from paying the warrants evidencing those services, should be granted.
II.
On that branch of the case seeking the injunction against the payment of Mrs. Patterson’s warrants, we are of the opinion that the contention of the appellant is without merit. The reasonable inference may be drawn from the testimony that she performed her duties as teacher during the school term, except for occasional times, amounting in the aggregate to ten days, during the month of February. During these times, however, she procured a substitute teacher satisfactory to her superiors, and paid for such services with her own money. It is of no consequence what she paid this assistant per day, and the record on the whole reflects that she substantially complied with her contract, and her warrants should be paid.
It follows from the views expressed that the decree of the chancellor must be reversed, and the case remanded, with directions that a decree be entered in accordance with this opinion. | [
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Hart, C. J.
Appellants prosecute this appeal to reverse a decree of the chancery court sustaining a demurrer to their complaint, and, upon their electing to stand upon their complaint, dismissing it for want of equity.
According to the allegations of the complaint, on the first day of September, 1931, the People’s Savings Bank, of Boone County, Arkansas, became insolvent and was taken charge of by the State Banking Department for liquidation under the statute. At that time there was on deposit in said bank $42,697.53 belonging to the various school districts of Boone County. Prior to March, 1931, the People’s Savings Bank had been designated by the Boone County court as a depository, and W. W. "Wilson, treasurer of Boone County, Arkansas, and the Boone County Board of Education had been depositing the school funds in said bank. On the first day of August, 1931, W. W. Wilson, as said treasurer, and said board of education demanded said bank to conform to act 160, passed by the Legislature of 1931, with reference to securing said school money by the deposit of bonds as provided for in that act. Said bank was unable to comply with the act by the deposit of bonds, and orally agreed with appellants that the school funds at that time on deposit in said bank should remain as a preferred deposit, and that, in case of the insolvency of said bank, any and all school funds would be paid in full in preference to other claims.
The Legislature of 1927 passed an act amending the original act passed by the Legislature of 1913 for the liquidation and control of banks. Acts of 1927, p. 297. The purpose of the act of the Legislature of 1927, just referred to, was to define the relation between creditors of banks in charge of the State Bank Commissioner and to set out how they should be settled with if the banks were liquidated as insolvent banks. Taylor v. Dierks Lumber & Coal Company, 183 Ark. 937, 39 S. W. (2d) 724.
Tbe court has also held that the deposit of funds of an improvement district in a bank, although the funds are known to be a trust fund in the hands of the official depositing them, constitute a general deposit in the absence of a written agreement making them a special deposit, as required by said act of 1927. Hence the improvement district stood upon the same footing as other general creditors, and was entitled to no preference or priority 'of payment. Taylor v. Street Improvement District No. 343, 183 Ark. 524, 37 S. W. (2d) 84.
It is conceded that the principles of law there announced would control in the present case but for the passage of act 169 by the Legislature of 1931. Acts of 1931, p. 476. This was an act to provide for the organization and administration of the public common schools. It is very comprehensive in its nature and contains 198 sections. Section 74 reads as follows: “Deposit of school funds safeguarded. All general deposits of school funds in banks shall be secured by bonds of the United States, or bonds of the State of Arkansas, or by bonds of a political subdivision thereof, which has never defaulted on any of its obligations, in an amount at least equal to the amount of such deposit, or by a bond executed by a surety company authorized to do business in the State of Arkansas; such surety on such bond to be approved by the commissioner of education. Provided that, if the bank selected by the school board as a depository of its funds, shall be unable to secure such school deposit as herein set out, it shall be authorized to accept said funds as a preferred deposit, and, in the event of insolvency, such preferred deposit shall be paid in full before other bank deposits are paid. ’ ’
The particular part of the section which it is claimed governs the present case is the proviso. According to the allegations of the complaint, the first part of the section was not complied with, but it is claimed that the concluding part of the section contained in the proviso controls in the instant case. Under the allegations of the complaint, which are accepted as true on demurrer, there was an oral agreement between the county board of education and the county treasurer, on the one hand, and the bank, on the other, that the school funds should be accepted as a preferred deposit and, in the event of insolvency, should be paid in full before other deposits are paid. It is contended that this repeals the act of 1927 above referred to, providing that special deposits, in order to obtain priority, should be created in writing.
We do not agree with counsel in this contention. The two acts of the Legislature are related to each other, and a statute is not to be construed as though it stood alone on any particular subject. It is well settled that repeals by implication are not favored; and, in construing any statute, the court should place it beside other statutes relevant to the subject and give it a meaning and effect derived from the combined whole. Where the harmony of the law requires, one statute may be construed as lengthening out another. So the act of 1931 was passed with reference to the general law upon the subject of winding up insolvent banks and fixing the liabilities and preferences of creditors to each other. Both acts, being related to each other, should be construed together as a part of an entire law of which both are a part. State v. Sewell, 45 Ark. 387; Benton v. Willis, 76 Ark. 443, 88 S. W. 1000; McIntosh v. Little Rock, 159 Ark. 607, 252 S. W. 605; and Connelly v. Lawhon, 180 Ark. 964, 23 S. W. (2d) 990.
Applying this principle of law to the case at bar, we think the Legislature of 1931, when it provided in the proviso of the section under consideration that a bank should be authorized to accept school funds as a preferred deposit under certain contingencies, meant to use- the words in the sense defined by the Legislature of 1927, and meant that, in order for the bank to accept school money as a preferred deposit, the agreement must be in writing, in compliance with act 107, passed by the Legislature of 1927, as construed by this court in the cases above cited. In this way the two statutes would be read and considered together, and construed as a harmonious whole.
Having reached this conclusion, it does not become necessary for us to consider the other question presented and argued by counsel.
The result oft our views is that the decree of the chancery court was correct, and it will be affirmed. | [
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Smith, J.
This suit was brought in equity by appellee, Hollan, against appellant, Graves, to require an accounting of the profits earned in the purchase and sale of certain oil leases.
Appellee was an automobile salesman at Camden when drilling for oil began in that vicinity, and he became interested in the purchase and sale of oil leases, but was without capital on which to operate. He gave the following account of the beginning of his relations with Graves. He had contracted to buy some oil leases, for which he was unable to pay, and the persons from whom he had contracted to purchase were demanding their money. He made Graves a proposition that he would buy and resell the leases, and Graves should advance the money to pay for them, and if a profit were made it should be divided equally. His profit was dependent upon the resale of such leases as he bought. He told Graves that he had a contract for the purchase of a lease from a man named Poindexter for the sum of a thousand dollars, and that he had a contract to resell a half interest in the lease for the same amount.
Graves borrowed a thousand dollars from a bank at Camden, and the loan was made on his credit, although he required Hollan to join with him in the execution of the note to the bank covering this loan. The thousand dollars thus borrowed was deposited in the bank, and four hundred dollars of it was used to purchase another lease, referred to by the parties as the Wilson lease. The thousand-dollar note to the bank was payable in sixty days, and when it matured it was renewed by Graves alone, and later paid by him. Graves made Hollan a personal loan of sixty dollars and, in addition, paid all the expenses incident to the purchase of the leases, including the cost of the abstracts and the fees of the attorney for their examination.
At the time these leases were purchased a well, known as the Cox well, was being drilled on land nearby, and it was the drilling of this well which gave the leases their value. The title to 'both the Poindexter and Wilson leases was 'taken in the name of Graves alone, and Hollan said this was done because Graves and his wife were on the scene, whereas Hollan’s wife lived in Little Rock, and in buying and selling leases time was a material element, and they wished to avoid any delay in making a resale.
The Cox well came in dry, and this fact destroyed the value of both the Poindexter and Wilson leases, and they remained valueless until 1929, when another well, known as the McDonald well, in that vicinity was brought in as a producing well. This gave value to the Poindexter lease, and it was sold for $3,200, and this suit was brought to recover a half interest in the profit earned in its sale.
Appellee left Camden, and Graves testified that he neither saw nor heard anything further from him until after the McDonald well had been brought in. Hollan testified that he applied to Graves in 1923 for a statement of their account and offered to pay one-half of Graves’ loss. Graves denied this. He testified that in March, 1929, he again applied to Graves for a statement, and was corroborated in this respect • by a witness named Banks. Graves denied this statement also.
The Poindexter lease was dated October 22, 1922. The Wilson lease was dated November 2,1922. The sale of the Poindexter lease, out of which the profit was made, was executed on March 13, 1929. The testimony establishes the fact that Hollan was to buy and resell the leases, and he and Graves were to share in the net profits, and a decree was rendered in which it was held that Hollan was entitled to share in the net profits which arose from the sale of the Poindexter lease, and this appeal is from that decree.
We have concluded that this decree is erroneous and should be reversed for the following reasons. Hollan himself testified that time was an important element in the purchase and sale of oil leases, especially in unproved territory such as this was at the time the Cox well was being drilled. Both the Poindexter and Wilson leases had value while the Cox well was being drilled. Neither had value after that well came in dry, and they continued to be valueless until the McDonald well came, in as a producer nearly seven years later. In the meantime, the .joint note of Hollan and Graves for a thousand dollars matured, and was renewed, and was later paid by Graves alone. Hollan appears not to have been called upon to pay any portion of the note. Indeed, his original contract did not contemplate that he should furnish the money. The money was borrowed on Graves ’ credit. It was Hollan’s duty to resell the leases, and he did not do so except the undivided half interest in the Poindexter lease, the proceeds of which sale were used in the purchase of the Wilson lease. The balance was used in the part payment of the Poindexter lease. Nothing was coming to Hollan unless he sold the leases at a profit, and, except as stated, he did not resell either of them.
Graves paid the balance due the bank on the note and the expenses incurred in the purchase of the leases, including the cost of the abstracts and the attorney’s fees, amounting to $714.66. Up to the time of the resale of the Poindexter lease, Graves had therefore a net loss in the transaction of $714.66. The parties differ as to whether Hollan agreed to share this loss, but we accept Graves’ statement that he did not. We are led to this conclusion largely from a consideration of the fact that Hollan was under no legal obligation to do so under the terms of their original contract. Hollan’s contract did not obligate him to furnish the purchase money, but did require him to resell the leases. It was necessarily contemplated’ that this should be done expeditiously, for the reason stated that the value of these leases changed very rapidly.
The facts, as we find them to be, are that, after the Cox well came in dry, appellee ceased to be connected with the transaction and left the scene, and returned only a few times, and then not on account of these leases. His purchases appeared to be without value or prospect of profit. He admits that he did not sell the leases, and he did not testify that he attempted to do so, but he testified that he and one Reynolds discussed the question of drilling on the Poindexter lease themselves. This ap pears, however, to have been a mere discussion, to which Graves was not a party, and nothing came of it. At any rate, Graves was under no obligation to make this additional investment.
The-thousand-dollar joint note, the proceeds of which furnished the capital with which the first lease was purchased, matured, and was renewed by Graves alone, and was later paid by him, and had become barred by the statute of limitations when the McDonald well came in and the lease was sold. We con¡. lude therefore that the demand of Hollan for a share in the profits is stale, and that it is now inequitable to enforce it. He did not perform his agreement to resell the leases, and left his associate to bear alone a loss of $714.66 which Graves said he considered he had sustained during all the six years which elapsed after he had paid the note before he sold the lease.
We conclude therefore that the decree of the court below should be reversed, and it is so ordered, and, as the cause appears to have been fully developed, it will be remanded with directions to dismiss it.
Kirby, J., dissents. | [
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Hart, C. J.,
(after stating the facts). It is the settled law that inheritance taxes are not levied upon property, but upon the privilege or right of succession to it. State v. Handlin, 100 Ark. 175, 139 S. W. 1112; McDaniel v. Byrkett, 120 Ark. 295, 179 S. W. 491; Rhode Island Hospital Trust Co. v. Doughton, 270 U. S. 69, 46 S. Ct. 256; and Blodgett v. Silberman, 277 U. S. 1, 48 S. Ct. 410.
These cases sustain the principle that, while an inheritance tax is not upon property but upon the right of succession to property, yet the principle is that the subject to be taxed “must be within the jurisdiction of the State, as well in the case of a transfer tax as in that of a property tax. The reason is that the State has no power to tax the devolution of the property of a nonresident unless it has jurisdiction of the property devolved or transferred.
It is conceded by the parties that a right to a refund of the tax depends upon the validity of subdivision C of § 10,218 of Crawford & Moses’ Digest. The subsection provides for an inheritance tax upon the transfer of shares of stock of all corporations organized and existing under the laws of the State, certificates of which shares of stock shall be within or without the State.
Counsel for appellee seek to uphold the judgment of the circuit court upon the rule or maxim, Mobilia sequunter personam, as applied by the Supreme Court of the United States in several recent cases. In the Farmers’ Loan & Trust Co. v. Minnesota, 280 U. S. 204, 50 S. Ct. 98, it was held that negotiable bonds and certificates issued by the State and certain municipal corporations of Minnesota were not subject to an inheritance tax in the State of Minnesota, the owner having died testate and residing in the State of New York. The court applied the rule, Moioilia sequunter personam, and treated the bonds and certificates of indebtedness as localized at the creditor’s domicile for taxation purposes. Consequently, it was held that their situs for taxation being in another. State, they were taxable there, and not in the State of Minnesota where they were issued. The court proceeded upon the theory that the" bonds and certificates of indebtedness were only evidence of the debts; and, when carried by the owner to another State, their situs as debts took the domicile of the owner, and that their testamentary transfer might be taxed only in the State where they were found. The reason was that their legal situs as debts was at the creditor’s domicile, and they were taxable as property there. The logical result was that the taxation upon the right of succession to the property must be laid in the State where the owner of the property resided at the time of his death and where the property had its legal situs.
In the case of Baldwin v. Missouri, 281 U. S. 586, 50 S. Ct. 436, a resident of the State of Illinois died there owning certain bank -deposits in 'banks located in the State of Missouri and certain coupon bonds of the United States and promissory notes on deposit for safe keeping in the State of Missouri. It was held that the State of Missouri could not levy a tax upon the succession to this property because its legal situs followed that of its owner and was in the State of Illinois. The court said that bank deposits were mere credits,''and for purposes of ad valorem taxation have their situs at the domicile of the creditor only. The certificate of deposit was merely the evidence -of title of the owner of the deposit, and he might carry that with him wherever he went. So, too, the notes and United States coupon bonds, under the rule that the situs of personal property follows the owner, acquired a legal situs in the place where he resided. Under that rule, they were taxable as property at the owner’s domicile, which became their legal situs, and the succession tax should have been laid in the State where the owner of these evidences of debt resided. If the evidences of debt had been destroyed, the right of the owner to demand payment of the debts would have remained. The court, in effect, held that the decedent was a creditor to whom the obligors in the various bonds were indebted and to whom the banks in which he had deposited money were indebted. The extent and terms of the obligations were evidenced by the bonds and by the certificates of deposit. The local situs was at the creditor’s domicile; and, being choses in action with situs at the domicile of the creditor, they were taxable -as property there. Then, too, as said by the court in the case last cited, at that place they pass from the dead to the living, there this transfer was actually taxed. Because they were not within the State of Missouri for taxation purposes, that State had no power to levy a transfer tax.
Again, in Beidler v. South Carolina Tax Commission, 282 U. S. 1, 51 S. Ct. 154, 75 Law Ed. 69, dividends due from a South Carolina corporation were held not subject to a transfer tax in the State of South 'Carolina where the creditor of the corporation died in Chieag’o, Illinois, testate, and was a resident of that State at the time of his death. The court said that, although the corporate property was situated in the State of South Carolina, that State had no jurisdiction to impose a transfer tax upon the debt owed by the corporation to a nonresident. In this connection, it may be stated that the payment of a. succession tax to the State of South Carolina with respect to the shares of stock owned by the nonresident testator in the domestic corporation in the State of South Carolina was not contested by the executors. This shows that they recognized that the.corporation was a creature of the State of South Carolina, and that the shares of stock were property there under the laws of that State. While there was no adjudication to that effect, still it is worthy of note that the executors recognized this to' be the law.
This brings us to a consideration of the question whether the shares of stock in the present case, under the principles of law above announced, had a legal situs in the State of Tennessee where their owner resided and died. In short, the question presents itself, is the situs of the property owned by a shareholder in a State where the corporation exists or at the domicile of the shareholder. Corporate shares of stock are property within the broad meaning of that term. Certificates of stock in the hands of their holder represent the number of shares which the corporation certifies that he is entitled to and are mere evidence of his title. In the case of bonds and certificates of deposit in a bank, the certificates represent but a property in the debt and that follows the creditor’s person. Not so in the case of certificates of shares of stock in a corporation. The corporation is the creature of State laws, and those who become its members and shareholders are subject to the operation of these laws.
Under our Constitution, private corporations may be formed under general laws, which may be from time to time altered or repealed. Article 12, § 6, of the Constitution of 1874. So, too, our Constitution makes all property subject to taxation except certain property specifically exempted, about which we have no concern in the present case. Article 16, § 5, of the Constitution of 1874. Corporate property is not exempt from taxation under our Constitution, and § 6 of the same article provides that all laws exempting property from taxation other than as provided in the Constitution are void.
In Hawley v. Malden, 232 U. S. 1, 34 S. Ct. 201, it was said that undoubtedly the State in which a corporation is organized may provide in creating- it for the taxation in that State of all its shares, whether owned by residents or nonresidents, and Corry v. Baltimore, 196 U. S. 467, 25 S. Ct. 297, was cited as sustaining the holding. The reason that the State has such power is by virtue of the authority of the statute creating the corporation to determine- the basis of organization and the liability of shareholders. If it be said that the situs of the shares of stock of a corporation should follow the owner, then grave inequalities might arise in the matter. Business corporations might be organized in this State almost wholly upon foreign capital with a few shares held in the name of resident directors, and yet none of these shares of stock held by nonresidents, however valuable, would be subject to a property tax. As we have already seen, if they followed the situs of their owner, they may be taxed as property where the owner resided and not in the State where the corporation was created and upon whose laws they relied for the conduct of their business. This would necessarily result in unfair discrimination against resident stockholders. This court is committed to the rule that shares of stock of a domestic corporation organized under the laws of this State and doing business here may be taxed as property in this State. Harris Lumber Co. v. Grandstaff, 78 Ark. 187, 95 S. W. 772; Dallas County v. Banks, 87 Ark. 484, 113 S. W. 37; Dallas County v. Home Fire Ins. Co., 97 Ark. 254, 133 S. W. 1113; Fort Smith Lumber Co. v. State, 138 Ark. 581, 211 S. W. 662, affirmed in 251 U. S. 532, 40 S. Ct. 304.
If the shares of stock may be taxed as property, whether held by residents or nonresidents, such shares will remain as property here until the death of the owner and then pass to the successor subject to the transfer laws of this State.
We are of the opinion that the situs of shares of stock of a domestic corporation is permanently fixed by the Constitution and laws under which they are created and transact their business, and that there is no reason to apply the rule that they follow the owner’s domicile.
It is urged that a transfer tax might, also, he levied by the State of Tennessee where the testator resided, and thus the shares would be subjected to double taxation. This court is not concerned with that question. The principal issue before us is whether or not shares of stock acquire a situs where the owner resides and should be taxed as property there. If so, then it would seem that a transfer tax should also be levied in the State where the owner resided. On the other hand, if the situs of the property owned by the shareholder in a corporation remains in the State where the corporation was organized and under whose laws it exists and transacts its business, then the situs of the property is where the corporation exists and not that of the domicile of the shareholder. This being so, the transfer tax levied by this State would be valid and enforceable, for the reason that the shares of stock would pass from the dead to the living here.
We think that the shares of stock in a corporation organized under the laws of this State and belonging to a nonresident decedent are property within the jurisdiction of this State and are subject to our laws relating to an ad valorem tax on property and to an inheritance tax upon the death of the owner. A recent case holding that shares of stock in a corporation organized under the laws of the taxing State are subject to a transfer or inheritance tax in the case of a nonresident decedent owner is State ex rel. Attorney General v. First National Bank of Boston, 130 Me. 123, 154 Atl. 103. In that case, the court quoted with approval from Rhode Island Hospital Trust Co. v Doughton, 270 U. S. 69, 46 S. Ct. 256, the following:
“In the matter of intangibles, like choses in action, shares of stock, and bonds, the situs of which is with the owner, a transfer tax, of course, may properly be levied by the State in which he resides. So, too, it is well established that the State in which a corporation is organized may provide, in creating it, for the taxation in that State of all its shares, whether owned by residents or nonresidents.”
Therefore, we hold in the present case that the inheritance or transfer tax was collected under a valid statute, and that appellee was not entitled to a refund of it under the provisions of § 12, of act 106 passed by the Legislature of 1929. See Acts of 1929, vol. 1, page 526. We do not think that such an act violates the provisions of the Fourteenth Amendment to the Constitution of the United States. Therefore, the judgment will be reversed, and the cause will be remanded with directions to order to be dismissed the complaint of appellee and for other proceedings according to law. | [
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Butler, J.
In the case of D. D. Adams v. W. O. Scroggins, pending in the chancery court, the proceeds of a quantity of assets involved in that litigation were deposited in the registry of the court. S. R. Morgan acquired the interest of a number of the parties to the litigation who were entitled to a part of this fund. Numerous parties intervened from time to time, among others the Scott-Mayer Commission Company, which, in its intervention, alleged that it was the owner of a valid and subsisting judgment against S. R. Morgan obtained in the Pulasld Circuit Court on October 16, 1922, on which there remained unpaid a sum which, together with the accrued interest, amounted to $1,019.75 on the date of the intervention. A certified copy of the judgment was attached to the intervention as exhibit A thereto.
Further allegation was made that Morgan was the owner of the assets involved in the litigation then pending in the chancery court in the aforesaid case of Adams v. Scroggins, and that certain sums of money were on deposit in the registry of the court subject to be disbursed to the said Morgan. The intervention concluded with a specific prayer that the Pulaski Chancery Court fix and declare a lien in favor of the intervener upon any money involved in the litigation and a general prayer for all other legal and equitable relief to which the intervener might be entitled.
On July 20, 1931, the court rendered a decree adjudging the rights of the several interveners in the action and, on the intervention of the commission company, rendered a personal judgment in its favor against Morgan in the sum of $1,019.74, declaring the same to be a lien upon all the property of the said Morgan.
On September 11, 1931, the commission company obtained from the clerk of the Pulaski Chancery Court a writ of execution on the aforesaid judgment which was executed by levying upon a certain automobile, the property of S. R. Morgan. In order to discharge this execution, Maude Wade Morgan, who claimed to be the owner of the automobile, executed a bond with sureties, the condition of which was that she should interplead “'before the next term of the court to which the order of execution in this action is returnable and will prosecute to judgment without delay her interpleader for the property attached in this case and claimed hy her,” and, in’ the event that the property should be found to be that of S. R. Morgan, that she would deliver the same to the sheriff, etc.
On October 5, 1931, the Pulaski Chancery Court, on motion of the appellant, entered an order amending the judgment of July 20, 1931, eliminating the personal judgment rendered against S. R. Morgan and substituting in lieu thereof and the lien given therein the following: “The court finds that Scott-Mayer Commission Company has a judgment against S. R. Morgan which it obtained in other courts, and that it is entitled to a lien against any funds of the estate belonging to, or which might belong to, S. R. Morgan in the amount thereof, to-wit, $1,019.74.”
On the 15th day of December, following, the commission company appeared in court and filed its motion to set aside the decree of October 5,1931, setting up, among other things, that said amended decree was rendered at a subsequent term of the court and without notice to it. On the 18th day of December, Maude W. Morgan filed her intervention claiming the automobile. To this intervention a demurrer was filed, and on the 23d day of December, 1931, the court entered an order finding that the decree entered October 5, 1931, was after the term at which the decree of July 20 had been entered, and that said last-mentioned decree “truly speaks the finding of the court at that time. ’ ’ The court found that Maude W. Morgan had failed to intervene within the time nominated in the bond, and had made default.
The demurrer to the intervention was treated as a motion to dismiss, and was sustained. The court then found that the automobile had been delivered by the sureties to the sheriff of Pulaski County, and exonerated them from further obligation on the bond, ordering that the commission company proceed with the sale of the car under execution, and rendering a judgment against Maude W. Morgan and her sureties on the bond for costs. . That part of the decree of the court awarding personal judgment against S. R. Morgan and dismissing the intervention of Maude W. Morgan is here on appeal.
The appellants first contend that that part of the decree of the Pulaski Chancery Court of July '20, 1931, rendering a personal judgment against S. R. Morgan on the intervention of the Scott-Mayer Commission Company was erroneous. It is insisted that no summons was issued.on the intervention, and no defense interposed by Morgan to the prayer of the intervention. There is no recital in the decree thát any evidence was heard, and the court therefore should not have granted any relief beyond that sought in the prayer of the intervention, which was for a lien on the funds of Morgan then in the registry of the court. The court erred in rendering a personal judgment, the appellants contending that there was no foundation in the allegation to support a personal judgment. They cite and rely on the case of Wilson v. Overturf, 157 Ark. 388, 248 S. W. 898, to support the contention made. It is further insisted that, since the judgment was erroneously made, there was no foundation for the execution, and that it was wrongfully issued.
It is further suggested by the appellant that, if the judgment of July 20, 1931, was not a nullity, the execution issued was without warrant because not authorized by the terms of the decree of July 20,1931. The position taken by the appellant on these questions is without foundation. In the case of Wilson v. Overturf, supra, the court held that a judgment by default must be responsive to the allegations of the complaint, as the default after service of summons admits only the allegations of the complaint, and that these must be sufficient to support the judgment. This is the settled rule, Thomas v. Hickman, 164 Ark. 469, 262 S. W. 20; Shelton v. Landers, 167 Ark. 638, 270 S. W. 522, but it has no application to the case at bar, because this was not a judgment by default. The decree of July 20, 1931, recites: “And S. R. Morgan, being present in person and submitting himself to the jurisdiction of the court in this case, and all parties an nouncing ready for trial, the court finds, etc.,” and he must be deemed to have acquiesced in the judgment then rendered.
Although prayer for a judgment was not included in the specific relief asked, the statement of facts, and not the prayer, constituted the cause of action, and the court may grant any relief that the facts pleaded and the general prayer may warrant where the element of surprise does not exist. Alberson v. Klanke, 177 Ark. 288, 6 S. W. (2d) 292. The judgment of the circuit court pleaded in the intervention was a cause of action which warranted the rendition of a judgment in the Pulaski Chancery Court, although there was no specific prayer for such judgment. Where there is a prayer for special relief and also a prayer for general relief, the court may give to the complainant under his general prayer any relief warranted by the facts alleged. Cook v. Bronaugh, 13 Ark. 183; Rogers v. Brooks, 30 Ark. 613; Ashley v. Little Rock, 56 Ark. 391, 19 S. W. 1058; Waterman v. Irby, 76 Ark. 551, 89 S. W. 844. The court therefore properly rendered a personal judgment, and it was not necessary, in order to warrant the issuance of an execution, that the judgment direct that one might be issued, as the issuance of an execution is authorized by § 4253 of Crawford & Moses’ Digest, providing that an execution may issue upon any final judgment, order or decree of a court of record for a liquidated sum of money and for interest and costs, or for costs alone.
We take judicial knowledge that the April term of the chancery court had expired before October 5, 1931, and therefore the court had lost control of the decrees rendered at the April term, except for the causes mentioned in §§ 1361 and 6290 of Crawford & Moses’ Digest. This case does not fall within any of the exceptions in those sections, and they therefore have no application, and the only ground on which the decree of October 5 could be justified was on the theory that the judgment then being entered was the judgment of the court on July '20, 1931, and that the order was made now for then. If there was any testimony introduced on the hearing of the motion for the judgment nunc pro tunc of October 5, none has been preserved in the record, and to justify such an order that testimony must be clear and so decisive in its nature as to overcome the recitals of the written judgment .sought to be corrected, (Midyett v. Kerby, 129 Ark. 301, 195 S. W. 674; Turnbow v. Baird, 143 Ark. 543, 220 S. W. 826), and on the hearing of a petition for a judgment nunc pro tunc the trial judge may indulge his personal recollection as to the judgment sought to be corrected. Bertig Bros. v. Grooms Bros., 164 Ark. 628, 262 S. W. 672. We must therefore indulge the presumption that the trial court’s finding “that the decree of July 20, 1931, truly speaks the finding of the court at that time” was supported by the testimony in the case or the personal recollection of the judge. Moreover, it may be observed that the order of October 5 was in effect an entirely different judgment from that entered on July 20. The power of the court by order nunc pro tunc could not be invoked, as it had then no power to change or revise the judgment, since that power could not be used to correct errors or mistakes, but only to state what was actually done and which had failed to be properly recorded. Evans v. U. S. Anthracite Co., 180 Ark. 578, 21 S. W. (2d) 952. The court therefore correctly held that it was without authority to render the decree of October 5, 1931, in so far as it sought to change the decree of July 20,1931.
From what has been said, it follows that the contention of Maude Wade Morgan that there was no valid decree of July 20, 1931, upon which to base an execution, and that the execution, moreover, was not valid because there was no authority in that decree for the issuance of an execution, cannot be sustained. It is further insisted, however, on her part, that, if the decree properly recited a judgment against S. R. Morgan, and there was a valid execution thereunder, the decree of October 5, 1931, excused her from filing her intervention; that, when filed, it alleged facts which, if true, entitled her to retain the automobile, and that the court erred in sustaining the demurrer to her intervention, and should have permitted* her to introduce testimony in support of the allegation.
The answer to this contention is that she was in default before October 5, 1931, and that order, as conceded by counsel, was obtained without any notice to her adversary and after the time when the decree of July 20, 1931, had become final. In order to obtain the discharge of an execution, she obligated herself to intervene before the next term of the court. This she failed to do, and she cannot .justify this default by the void order of October 5, 1931. The court had before it her intervention and the motion to set aside the order of October 5, 1931, from the 15th of December until the 23d of December, and it then disposed of these motions with the rest of the case. Considering the record before us, we cannot say that the court erred. The decree therefore, both as to S. R. Morgan and Maude Wade Morgan, is affirmed.
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Butler, J.
George Leming was engaged in business in B-ussellville in tbe name of Leming Drug Company and had been handling for a number of years to a greater or less extent Atwater Kent radios both before and after the appellant became the general distributing agent for these radios in the .State of Arkansas. The contract involved in this litigation was entered into between the two on August 1, 1927, to continue to June 1| 1928, under the terms of which Leming agreed, among other things, to sell Atwater Kent radio equipment exclusively and agreed to handle, between the dates mentioned, radio speakers and furniture to the net value of $4,505. Among the provisions of the contract was one by which it was agreed that the contract might be terminated at the option of either party by written notice and when so terminated no claim for damag'es caused by the cancellation should be claimed or allowed by either party.
Pursuant to the contract, Leming purchased radio equipment from the appellant amounting, as he claimed, to about $3,000 up to December 1, 1927 and at that time he had a considerable amount of merchandise on hand unsold. No other radio equipment was purchased by Leming after December 1, and there remained a balance due on equipment already purchased the sum of $158.69. This sum not being paid the appellant brought suit to recover the same and Leming defended on the ground that the appellant had breached its contract by refusing to sell to him after December 1, 1927, and by selling to a local competitor, resulting in damage to him in a sum greatly in excess of the balance due appellant for merchandise purchased, and prayed judgment against the appellant for the amount of damage in excess of the balance due. '-On a trial of the case Leming recovered judgment on his cross-complaint, from which judgment is this appeal.
It is first contended by the appellant that it was entitled to a directed verdict in the amount sued for because, as it claims, the undisputed evidence shows that Leming had breached the contract by handling other radio equipment than Atwater Kent in violation of his contract before it refused to make further sales to him and before it sold Atwater Kent radios to others in Russellville. The evidence on the part of appellant was to the effect that one Johnson, its travelling salesman, visited the store of Leming about December 1, 1927, for the purpose of soliciting an order for radios under the contract and was told by Leming that he would not buy any more and gave as a reason that he (Leming) could not sell them; that at this time Johnson discovered that Leming had in stock nine radios that were not Atwater Kents but which were known as Radiolas. Leming testified that at the time Johnson made the visit he had one Radiola on the floor — not over two — that these had been bought as special orders for customers who wanted electric radios and did not want the Atwater Kent, which at that time was a battery radio; that this happened before the appellant sold its radios to a competitor of Leming and before it refused to make further sales to him. Leming further testified, however, that these were the only Radiolas ever handled by him and that before purchasing these he called the manager of the appellant company telling him of the order and asking if they had any electric radios; that he was informed that the appellant did not handle any such and that they were not worth a damn, and it was then only that he bought the Radiolas; that he did not handle them regularly but purchased these for two customers who would not buy Atwater Kents and who wanted Radiolas; that Johnson was mistaken about seeing nine Radiolas in his stock. It is to be inferred from his testimony that those seen by Johnson were the ones ordered specially and that there was not more than one — perhaps two — -in his store at the time, and that he did not refuse to purchase from Johnson on that occasion, but that Johnson turned and .went out of the store when he saw the Radiolas. There was no written notice given by appellant that it had elected to cancel the contract.
We think the circumstances presented a question of fact for the jury as to whether or not the conduct of Leming- was a breach of his agreement to handle Atwater Kent radio equipment exclusively within the spirit of the contract. The appellant was entitled to have that question submitted to the jury, and this was embodied in instruction No. 7 requested by the appellant and refused by the court. Instruction No. 7 is as follows: ‘ ‘ The jury are instructed that if you find that the contract involved in this case contained a provision that the defendant would not handle any radios other than Atwater Kent and that the defendant, in violation of such provision, handled other radios, he must be chargeable with a breach of the contract in question and cannot recover on his cross-complaint without you find from a preponderance of the testimony that the plaintiff first breached the contract.” It is argued by the appellee that the oral instructions given by the court, to which no exceptions were saved, covered every phase of the case and the one presented by instruction No. 7, swgra. We have carefully examined the instructions given by the court and are unable to agree with the appellee that instruction No. 7 was covered by the instructions given and conclude that the refusal of the court to give instruction No. 7 was prejudicial error on account of which the judgment of the court below must be reversed.
■Since there must be a new trial of this case, we call attention to the instruction given by the court on the measure of damages which we think is erroneous. At the close of oral instruction No. 2 given by the court, the following language is used: “If you find that the plaintiff breached the contract and the defendant was damaged, the measure of damages, or the items that go to make up the damage, or the things you may consider in arriving at the damages, are the amounts that the defendant expended in building up the trade in advertising, hiring of help and the other things, if any, that has been charged and proved by the testimony, and the reasonable profits that he would have made had the contract continued in by both parties. ’? In testifying regarding his damage, Leming stated that he had been dealing with appellant since 1924, and that Mark West had been handling the radios for him; that West was a good radio man, and that he paid him $125 a month; that after the execution of the contract of August 1, 19'27, he paid $32 for a mailing list and introduced a receipted account of the newspaper for advertising from September 30, 1927, to December 1, following for $99.25, and stated that the majority of this was for advertising Atwater Kent radios that December is the best month for the sale of radios on account of the Christmas trade and that he had estimated his damage at $950 for money expended in advertising and for loss of profits.
We think the language used, “hiring of help, and the other things, if any, that has been charged and proved by the testimony and the reasonable profits that he would have made,” is vague and gave the jury no proper rule but allowed them to indulge in speculation. It is well settled that, before recovery may be had for prospective profits, the evidence should be such as to establish the amount of profits expected with a reasonable degree of certainty and a mere estimate that so much profit would have been made, without facts shown upon which that estimate, is based is not sufficient. S. W. Tel. etc., Co. v. Memphis Tel. Co., 111 Ark. 474; Johnson v. Inman, 134 Ark. 345; Marvel Light, etc., Co. v. Gen. Electric Co., 162 Ark. 467.
Justices Smith, Kirby and MoHan'ey do not agree with the conclusions herein stated, but are of the opinion that the evidence, fairly interpreted, discloses a proved state of case from which it follows as a matter of law that the contract was breached by the appellee in handling one or more Radiolas, and that the judgment should be reversed, and judgment entered here for the balance due on account about which there is no dispute. From the views entertained by the majority, however, it follows that the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. | [
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Cableton Habéis, Chief Justice.
This appeal relates to the validity of an employment agreement between the employer, Fairfield Bay, Inc., one of the appellees herein, and the employee, Odell Miller, appellant herein. Fairfield Bay is a vacation-retirement development on Greers Ferry Lake in Yan Burén County, where appellant was employed as a real estate salesman, and while so employed, made numerous sales. This employment commenced in March, 1967, and on the ninth day of that month, an employment agreement was entered into between the parties. The remuneration (which was in the form of commissions) to be paid Miller was not a part of this contract, Section 2 reciting:
“The remuneration to be paid Employee has been agreed upon by the parties, and being subject to change, is not specified herein.”
Section 3 provides as follows:
“Employee agrees as a condition of this employ ment, that during the term of his employment and for a period of three years thereafter, he will not directly nor indirectly engage in competition with Employer in the sale or development of residential or commercial real estate within a fifty (50) mile radius of Greers Ferry Lake, Van Burén and Cleburne Counties, Arkansas. Employee further agrees as a condition of this non-competition clause, that he will not directly or indirectly purchase any real estate for investment or development within said area during the term of this non-competition agreement, without the express written consent of Employer. The term ‘direct or indirect’ as used herein, shall without limiting the generality of s.aid language, include participation by Employee or his spouse as a partner, shareholder, officer, employee, agent, consultant or in any other advisory or direct association with any partnership, corporation, firm or association or other business enterprise of any sort which is engaged in competition with Employer in the development of land in the above described area.”
Section 4 provides that the agreement may be terminated by any party at any time, but the terms of the no competition clause (Section 3) shall remain in full force and effect.
Several months after this employment, appellant was licensed with appellee Shirley Realty Company, hereafter called Shirley, under which employment, Miller made numerous other sales, also on a commission basis. Shirley is an affiliate of Fairfield, and was created in June of 1967 to handle the Fairfield Bay sales; Shirley sold nothing but Fairfield property. Miller’s remuneration, under both companies, was 1/3 of the initial down payment, and 1/5 of the monthly installments, this last continuing until he had received 10% of the total sale price. In November, 1968, appellant terminated his employment with Shirley, and licensed with another broker, within the prohibited radius, who was ta potential competitor of appellees.
The two companies thereafter refused to pay to Miller the commissions that had accrued from the payment of installments, and appellant instituted complaint against them for the amounts that he contended to be due, $5,113.10 from Fairfield, and $13,808.50 from Shirley. After the filing of an answer, the case was tried, and at the conclusion of the evidence, the court found that Miller was not entitled to these accruals, since he had breached his contract with the companies, the breach being material, and thus precluding him from recovery. From the decree so entered, Miller brings this appeal.
Miller, who had been employed at Cherokee Village before going to Fairfield, testified that the projects of those two companies were about the same, except that the commission given was a little different. He stated that very few customers lived within a 50-müe radius of Greers Ferry Lake, and he testified that he had not contacted a single customer of Fairfield relative to buying a lot from his new employer.
Fairfield’s operation was explained by George Jacobus, president and general manager of the company. He testified that most of the customers come from states that surround Arkansas, particularly Tennessee and Texas, and he said that the company conducts an advertising campaign to get the people into the area. Jacobus said that it was essential to have the non-competition clause in the contract, because:
“* * * when a man who knows what my advertising schedule is, who receives my pay while he finds out that and then sets up his office on the route that these customers are coming in, then he is damaging me.”_
The witness stated that the company used directories and telephone books for the “mail out,” and that the salesmen helped with the “mail out,” actually running some of the envelopes through the stamp machine, and carrying them to the post office. He said that the telephone directories of every city in the trade territory were'used in getting the names, and added that these telephone books belonged to the company, “we sent away and paid for them and then we edit them.”
As to the general duties of a salesman Jacobus said that, after the sale was effected, and the down payment made, it was the salesman’s “responsibility to contact these people if these folks should write a letter requesting some information or have a problem of some type it is up to the individual sales representative to answer this, to write a letter over his signature. We make a very important emphasis on the fact that every customer belongs to the sales representative who sold him that lot. He is the direct link between the company and that person. So, if these people get a little behind on their payments, the salesman is the one to contact them, he may be able to renegotiate a deal if they have had some hardship where they will still be able to protect their equity in the property, and if a salesman leaves then we have to do this at our expense.”
Admittedly, however, this is not a duty which is set forth in the employment agreement. From the record:
“Q. Now, on the salesman follow up with customers; of course, the salesman has an interest, I believe, in keeping the account going, in that he gets the renewal as long as they come in?
A. That is right, yes, sir.
Q. This is something you don’t put in the employment contract, they are glad to do it in order to get the sales to stay on track and completed, isn’t that right!
A. I don’t want to quibble about that, but they are not really glad to do it, they had to be urged; we have to keep having them follow up, but they do it, yes.
Q. This is no duty you put in any employment contract or in Mr. Miller’s contract!
A. No, sir.”
When interrogated as to the special knowledge and skill required of one who desires to work for his company, Mr. Jacobus replied that such an applicant would have to have sales ability, a real estate license, an automobile, a radio, “has to be presentable,” and have the ability to sell property.
Charles Coleman, comptroller for Fairfield Bay and its affiliated companies, testified that, as of September 30, 1968, Miller was owed $3,237.49, with deferred commissions of $8,275.96, if all contracts continued to pay.
We think the court erred in denying appellant any recovery. This denial, of course, was based on Miller’s breach of the non-competition clause of the agreement, and we are of the view that this provision was invalid.
Wé have pointed out that each case involving a restraint to compete must be determined by the facts of the particular case, and we have, accordingly, never laid down any rule governing provisions as to area or length of time. The case that seems to most closely parallel the facts of this litigation is McCumber v. Federated Mutual Implement and Hardware Insurance Company, 230 Ark. 13, 320 S. W. 2d 637. There, we held that a contract, restraining competition for two years after cessation of employment involving no trade secrets, was void as an unreasonable restraint on trade. This was an agreement entered into between an insurance company and one of its local agents, wherein McCumber agreed that he would not engage directly or indirectly as a competitor in the insurance business for a period of two years after terminating his employment. He quit the company, and commenced an insurance agency of his own; the insurance company instituted suit against him, alleging this provision of the contract, and seeking an injunction. While working with the company, McCumber’s territory covered the nine Central Arkansas counties, but, on hearing, the trial court enjoined McCumber from directly or indirectly engaging in competition with the company for a period of two years, but in Pulaski County only (the largest county in the nine county area). On appeal, we reversed the trial court, and, in doing so, stated:
“This case involves neither the sale of a business, nor an employment having trade secrets: so cases of those situations are not applicable. We have here merely a restrictive covenant for two years after cessation from a business, without trade secrets of any kind.”
The opinion pointed out that the case was similar to American Excelsior Laundry v. Derrisseaux, 204 Ark. 843, 165 S. W. 2d 598, in that no trade secrets were involved.
Here, as in McCumber, we have neither the sale of a business, nor an employment having trade secrets. It is also interesting to note that, in McCumber, the employee was only restrained from operating in one county, though his employment contract with Federated Mutual had included nine counties; nonetheless, we held that a two-year restraint for the one county was un reasonable, and therefore, void. The restraint for a 50-mile radius in the present instance, according to the Arkansas State Highway map for 1969, appears to include portions of 12 counties.
Miller obtained no trade secrets from his employment. He had previously worked for Cherokee Village, a development company, before entering upon his employment for appellee, Fairfield Bay, and the testimony reflects that the two operations were quite similar. Certainly, there were no trade secrets involved, as in Orkin Exterminating Company v. Murrell, 212 Ark. 449, 206 S. W. 2d 185, where a contract containing a similar restrictive clause was upheld. In that case, trade secrets were involved, the company maintaining a research department, wherein the nature and habits of insects and rodents were ascertained, and chemicals and compounds were prepared to be used in the destruction of these pests without danger to human beings or damage to furniture or woodwork. Chemicals were mixed and formulae reported. Those circumstances were, of course, vastly different from the circumstances in the case before us. Here, as in McCumber, telephone directories, were a major source utilized for compiling names of prospects. It is true, as mentioned by Mr. Jacobus, that the directories belonged to his company, but there was certainly nothing to prevent any other company, or salesmen, from likewise acquiring identical telephone books. In Orkin Exterminating Company v. Murrell, supra, though trade secrets were involved, the restriction imposed upon the employee was that he not compete for one year after leaving the employment. Here, the restriction is for three years, though no secret method of obtaining prospects was involved, nor any special training or skill required of the employee. In fact, as previously mentioned, Mr. Jacobus testified that a salesman would need sales ability, a real estate license, an, automobile, and a radio.
The period of three years is unreasonable. Even if the duties of the salesmen enabled them to ascertain what prospective customers were about to be interviewed, this information could only be of use for a few months; certainly, visits from prospects were not lined up for several years in advance, and the statement of Mr. Jacobus that a competitor could set up his office “on the route that these customers are coming in,” and thus damage him, does not appear exactly logical.
--We conclude that, under the facts of this case, the contract, because of the length of the restriction not to compete, and the right of the employer to terminate employment, is against public policy, and void.
The decree is, therefore, reversed, and the cause is remanded to the Van Burén County Chancery Court, with directions to determine the sum due Miller, based upon accruals resulting from sales made by him for the companies while in their employ.
It is so ordered.
Fairfield and Shirley have common officers and directors, but no cross-ownership of stock.
There Was also a controversy between Miller and one of the appellees relative to the sale of a house, and the court granted a recovery to appellant. Notice of cross-appeal was given by appellee, but the cross-appeal was not further pursued, and is not an issue in this litigation.
Jacobus never did testify that sales made by Miller had to be “followed up” by some other employee of the company in order to obtain the monthly payments. As far as the record here is concerned, Miller’s customers voluntarily made their payments.
This finding makes unnecessary a discussion of two interesting questions, which might well be pertinent, if we found the contract valid, viz., would the Shirley Company be entitled to the benefit of the no competition agreement that Miller entered into with Fair-field Bay, Shirley not even being in existence until after the questioned agreement was executed? Also, would the companies have the right to withhold monies due Miller as commissions from sales made for their companies, solely because he later violated the agreement not to compete, or would they simply be entitled to injunctive relief?
According to the American Heritage Dictionary of the English Language (1969), a “trade secret” is: “A secret formula, method, or device that gives one an advantage over competitors.” | [
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Frank Holt, Justice.
This is a title dispute to twenty acres of an “oversized forty”:acre tract of land. Appellant claims title by a tax deed-.and payment of taxes thereon. Appellee Collins asserts title through a warranty deed and adverse possession. Appellee National Old Line Insurance Company is Collins’ mortgagee. The chancellor refused to quiet and confirm title in either the appellant or appellee Collins.
For reversal both appellant and cross-appellant Collins contend that the chancellor erred in denying their respective claims of title to the land. We agree with the cross-appellant that the title should be vested in him.
Appellant claims ownership of the land based upon the assertion that the land is unimproved and unenclosed and that he and Ms predecessor in title have paid taxes thereon for more than seven years under the color of title of a tax deed pursuant to Ark. Stat. Ann. § ST-102 (Repl. 1962). The bases of his claim appear undisputed other than the lands being unenclosed. There is no attack upon the validity of the tax deed. On the other hand, the appellee and cross-appellant, Collins, claims ownership as the successor in title to a 1944 warranty deed and by adverse possession. Appellant argues that the warranty deed upon which Collins relies is defective and that any tax payments made upon the property are based upon an invalid description of the property on the tax books. Even though we should agree with appellant, we think that Collins has acquired title to the property by adverse possession for more than the seven years as is required by § 37-101. A claim of title to property based upon a deed and payment of taxes is subservient to the claim of one who holds possession adversely for the statutory period. Hargis v. Lawrence, 135 Ark. 321, 204 S. W. 755 (1918).
There was evidence by Collins and other witnesses that since 1944, the date of the warranty deed conveying this property to appellee’s father who is his predecessor in title, both father and son have continuously exercised adverse acts of ownership to this property. The property was mortgaged several times. For more than twenty years an “island,” including the land in question, was known and considered by the residents of that vicinity as a part of the Collins farm. Collins owns the adjacent lands on the north, south and west of the land in question. On the east side, of the “island,” it appears undisputed that during this time the Collinses and an adjoining landowner maintained a joint fence for their common benefit. This fence was on the property of the adjacent landowner and separated his property from the twenty acres in question. The disputed land lies east of a horseshoe bend or “island” caused by the Little Red River. According to appellee’s evidence the disputed property was surrounded by the joint fence on the east and by appellee’s other property on the south, west and north. 'The “island” property, including the twenty acres in dispute, has been used by appellee and his father for pasturing cattle each year since the property was acquired in 1944. Whenever high water damaged or destroyed the fence, it was rebuilt by appellee and his adjoining landowner to contain their cattle. Appellee Collins conveyed timber cutting rights' which precipitated this action.
When possession of property is so conspicuous that it is generally known and talked of by the public or people in the neighborhood, such possession is said to be notorious. Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489 (1937). In Berry v. Cato, 220 Ark. 36, 245 S. W. 2d 824 (1952), we said:
“* * # mllst be guch. as would give notice to the general public of the claimant’s intention to hold adversely. These elements indicating possession must clearly appear where, as here, the land is not inclosed and tax payments are not shown.”
Adverse possession ripens into ownership when there are seven years of open, actual, notorious, continuous and hostile possession with the intent to hold adversely and in derogation of another. Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125 (1952); Dierks Lbr. & Coal Co. v. M. H. Vaughn & J. A. Barnett, 131 F. Supp. 219 (Ark. 1954). In our view, in the case at bar, there was sufficient actual, open and notorious possession of the land in question to vest title in Collins. In Black v. Clary, 235 Ark. 1001, 363 S. W. 2d 528 (1963), we said:
“Notice of adverse possession may be actual or it may be inferred from facts and circumstances, such as grazing cattle, erection of a fence or improving the land.”
We hold that a preponderance of the evidence in the case at bar, upon a trial de novo, establishes title to the property in Collins by his meeting the requirements of adverse possession for more than the statutory seven years. Affirmed on direct appeal; reversed on cross-appeal.
Fogleman and Brown, JJ., dissent. | [
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George Rose Smith, Justice.
This case involves primarily the respective rights of the various parties to the use of a corridor or driveway, 232 feet long by 20 feet wide, that runs northwesterly from Highway 79 near Camden to a homestead owned by the appellants, Bernice Williams and her sister Reba Williams Dilworth. The appellants claim the exclusive fee ownership of the driveway, but the appellees assert public and private easements in their favor. This appeal is from a decree sustaining the appellees’ contentions in several respects that can best be discussed one by one after the facts have been described in broad outline.
The Barney Joyces formerly owned a 40-acre tract abutting Highway 79 to the south. Over a period of several years the Joyces sold off various parcels, eventually retaining only a homestead of substantial size and the corridor now in dispute. In 1944 the Joyces sold the home place and the corridor to the appellants. Since then Bernice Williams and her mother have occupied the home and used the driveway.
In 1967 Miss Williams asserted her claim to exclusive ownership by erecting fences along both sides oí the driveway throughout its length. Three separate suits were promptly filed by the appellees, all claiming easements in the disputed strip. The cases were consolidated for trial and ended in the decree now under review.
I. The appellants insist that the chancellor erred in vesting the fee title to the driveway in the appellees Harvey, who now own all the lands abutting the driveway on both sides. The decree, however, does not clearly so provide, and in this court the Harveys readily concede that they claim only an easement in the strip. Hence we need not discuss this point, which can be set at rest by the entry of a more precise decree on remand.
II. The chancellor found that public and private easements in the driveway were acquired by prescription after the Joyces sold their land. During the prescriptive years the lands now owned by the appellees were held in three separate ownerships. What we will call Tract 1 abutted the driveway along its western border. Tract 2 abutted the driveway on the east. Less than a year before this litigation arose the Harveys bought Tracts 1 and 2 and consequently now own all the lands on both sides of the corridor.
Tract 3 abuts the appellants’ land on the east, the two southern boundaries forming a continuous line. The driveway reaches the appellants’ southern boundary at a point five feet east of the southeast corner of their property. Hence Tract 3 is separated from the northeast corner of the disputed corridor by that distance of five feet. Thus the occupants of Tract 3 cannot reach the driveway except by crossing either the appellants’ land to the west or Tract 2 to the south.
We consider first the chancellor’s finding of private easements in the driveway. For more than seven of the prescriptive years the appellee Margaret Owen and her late husband owned and occupied Tract 3. Owen maintained a plumbing business in .a small building east of the dwelling house on the property. Both, the Owens and their customers continually used the driveway in going to and from Highway 79. According to the decided preponderance of the proof the Owens acquired a private easement in the driveway by adverse user for a period of more than seven years.
The chancellor erred, however, in extending that easement fifty feet northward along the eastern edge of the appellants’ home place, thereby giving Mrs. Owen and her prospective purchaser, the appellee Beaver, the right to enter Tract 3 from the west by crossing the southeast corner of the appellants’ homestead. According to the undisputed proof the Owens and their customers did not use that means of access to the Owens’ property. Instead, by agreement with Fred Ragsdale, who owned Tract 2 to the south of the Owens’ property, the Owens and their customers turned off the driveway before reaching the appellants’ homestead and parked their cars along the north edge of Tract 2. Both Mrs. Owens and Ragsdale so testified. Hence the trial court’s extension of the easement northward onto the appellants’ home place must be set aside.
The appellees Harvey own all the land along both sides of the corridor from its southern terminus at Highway 79 to its northern terminus at the southern boundary of the appellants’ home place. The chancellor found that the Harveys are entitled to use the driveway as a means of access to their lands on both sides and as a means of crossing from one side of the driveway to the other. The evidence, however, supports the decree only with respect to the land lying east of the corridor. We have mentioned the fact that the Owens, with Rags-dale’s permission, used the driveway as a means of access to the northern part of Tract 2. There was also a public roadhouse fronting on Highway 79 at the southern end of the tract. Both the owner of the roadhouse and his patrons used the driveway for parking and as a means of access to the establishment. We find by the weight of the evidence that the owners of Tract 2 acquired an easement in the driveway as a means of access to that tract.
The situation is materially different with regard to the Harvey’s land (Tract 1) lying west of the corridor. We find no persuasive proof that the owners of that tract ever acquired a prescriptive easement by adverse user of the driveway for seven successive years. Part of the time there was a fence along that side of the corridor, which denied access to the tract. Moreover, the businesses that fronted on Highway 79 to the south — a barber shop and a filling station farther west — are not shown to have needed any lateral access from the corridor. We have pointed out that when an easement is acquired by prescription, the nature of the use cannot be changed to render it more burdensome to the servient estate than it was during the prescriptive period. Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18 (1957). Hence even though the corridor is used as a driveway, the owners of Tract 1 have no rights therein, because none were acquired by prescription.
Upon this point we have not overlooked counsel’s statement that the record is “replete” with references to use of the driveway from both sides of the Harveys’ property. To support that assertion counsel merely cite 14 pages of the transcript. We have frequently pointed out that we are not required to search the transcript, which cannot conveniently be made accessible to all the seven judges. Counsel must abstract the testimony upon which they rely.
In the same vein it is appropriate for us to point out that the appellants’ abstract of the record is also not above criticism. Eule 9 (d) provides that when a plat or other exhibit must be examined for a clear understanding of the testimony, the appellant must reproduce the exhibit and attach copies to his abstract. In this case the parties jointly introduced a plat of the lands in controversy. Our study of the testimony would have been made much easier had that plat been reproduced as contemplated by the Eule. In fact, a minority of the court would affirm the decree for noncompliance with the Eule. Even though a majority of us have found the infraction of the Eule not to be so serious as to require a summary affirmance of the decree, we take this op portunity of again emphasizing the importance of that provision in Rule 9 and the risk that attorneys ran by not complying with it when there is a possibility that compliance may be found to have been mandatory.
Neither can we sustain the chancellor’s finding that the general public acquired an easement in the driveway. The driveway was not a thoroughfare. It came to a dead end at the appellants ’ residence. In a case involving a similar cul-de-sac that was used almost daily by tradesmen and others for some twenty years as a means of access to a single dwelling, we held that the resulting easement was a private one appurtenant to the property rather than a public one. Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768 (1954). That conclusion is manifestly desirable in the case at hand. If, for instance, Tracts 1, 2, and 3 and the appellants’ homestead should all be acquired by one owner, there would be no reason for the lands to be burdened by a public easement. The recognition of a private easement provides the owners of Tract 2 and Tract 3, and their visitors, with all the rights of access to which they are reasonably entitled.
III. The appellants also complain of a provision in the chancellor’s decree that quiets Mrs. Owen’s title to the land lying east of the fence between her land and that of the appellants. The fence once followed a curved line. In 1951 it was straightened by agreement between the appellants and the Owens, with Owen paying $100 to the appellants as consideration for the modification of the boundary line. Ever since then the land within the fence has been occupied by the Owens (or by Mrs. Owen since her husband’s death). The decided weight of the evidence supports the chancellor’s finding, either upon the theory of agreed boundary line or upon the theory of adverse possession.
The decree is affirmed in part and reversed in part, and, the title to land being involved, the cause is remand ed for the entry of a decree pursuant to this opinion.
Fogleman and Byrd, JJ., would affirm. | [
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John A. Fogleman, Justice.
Appellant brought suit against appellee and Basil Patrick. When it came to trial, Florence Patrick moved for a dismissal of the complaint as to her without prejudice at the conclusion of appellant’s proof on the ground that there was no evidence of a joint venture with Basil Patrick. The circuit judge stated that he had no discretion to do this, but that there was no evidence of a joint venture between the defendants to submit to the jury on the question of Mrs. Patrick’s negligence and liability to appellant. Although the judge stated that there was every indication that Florence Patrick was joined as a party defendant for. the pupose of establishing venue, he directed a verdict in her favor, after which appellant took a non-suit as to a counterclaim. Judgment was entered accordingly on October 9, 1968. On December 12, 1968, during the same term, a hearing was had, as a result of which the court entered a substituted and amended judgment reciting that it had dismissed the complaint of appellant against Florence Patrick on the grounds of insufficient evidence to present the issue of joint enterprise to the jury. This appeal was taken from that judgment.
Appellant objected to the action taken at the December hearing on the basis that the court could not have done anything in the circumstances other than direct a verdict. The trial judge stated that the original judgment did not correctly set forth that which was done or meant to be done and that the judgment in or der to reflect the true purpose, meaning and intent of the court would have to reflect the finding that Florence Patrick was improperly made a party defendant merely for the purpose of establishing venue.
Appellant relies on two points for reversal. The first is that the court could do nothing other than direct a verdict if she failed to produce evidence to support her complaint against appellee Florence Patrick. The second is that the court erred in entering the substituted and amended judgment. We shall discuss these points in reverse of the order stated.
The gist' of appellant’s argument on the second point is that the' court did actually direct a verdict, so that the action taken on December 12 was erroneous. This argument overlooks the control which a court has over its judgments during the term at which rendered. Before the expiration of the term, a trial court has the inherent power to modify its judgments not only to reflect the action actually taken but to correct its own erroneous action.
A court’s plenary control of its judgments during the term is inherent and exists without reference to any statute. Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50; Wells Fargo & Co. Express v. W. B. Baker Lumber Co., 107 Ark. 415, 155 S. W. 122. This inherent control includes the power to modify a judgment for sufficient cause without requiring the formality of a motion to do so. Wilkerson v. Johnston, 211 Ark. 170, 200 S. W. 2d 87; Stinson v. Stinson, 203 Ark. 888, 159 S. W. 2d 446; American Building & Loan Assn. v. Memphis Furn. Mfg. Co., 185 Ark. 762, 49 S. W. 2d 377; Democrat Printing & Lithographing Co. v. Van Buren County, 184 Ark. 972, 43 S. W. 2d 1075; Wells Fargo & Co. Express v. W. B. Baker Lumber Co., supra. In the exercise of this power, the court may review and correct any errors into which it may have fallen during the term. T. J. Moss Tie Co. v. Miller, 169 Ark. 657, 276 S. W. 586.
In Underwood v. Sledge, 27 Ark. 295, one- of the leading and more frequently cited eases on this subject, we had this to say:
“It is certainly good policy in the law to allow courts an hour’s reflection; time to revise hasty action, correct mistakes and review such error as they may have fallen into for want of sufficient consideration, and to this end they have, during their respective terms, to make up their records and fully consider the propriety of the judgments, and to review and correct any mistakes, errors, or indiscretions into which they may have fallen during the term, and when such revision is had, the action of the court .and the record stands precisely as if no such former mistake or erroneous judgment had ever been given or entered.”
Earlier we had held that it was competent for a circuit court to modify or change its proceedings and judgments at any time during the term at which they were had, so long as the action was not capricious or arbitrary, but was in the exercise of a just legal discretion. Campbell v. Garven, 5 Ark. 485.
The court’s discretion to vacate an improper judgment before the lapse of the term will not be controlled on appeal. Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50.
Since the trial court had the inherent power to modify its judgment, we must determine whether the court could take the action finally taken, i. e., dismiss the complaint as to Florence Patrick for insufficient evidence to present the issue of joint enterprise to the jury. The abbreviated record submitted consists only of the proceedings in chambers on October 2, the judgment of October 9, the proceedings before the court on December 12 and the substituted .and amended judgment then entered. There is no serious contention that the circuit judge erroneously stated that there was insufficient evidence to present a jury question as to the liability of Florence Patrick as a joint venturer with Basil Patrick. Ordinarily, a trial judge cannot require a plaintiff to take a peremptory nonsuit because of a failure of proof. The only proper action in such a case is to direct a verdict.
Yet, this court has recognized that there are circumstances under which a circuit court has the. power to dismiss an action which is shown to have been brought without merit and which constitutes an abuse of process. Heard v. McCabe, 130 Ark. 185, 196 S. W. 917. In that case we sustained the circuit court’s' dismissal of a complaint upon a finding that the cause was without merit and was brought for vexatious purposes. This ground is not one of those recognized in Ark. Stat. Ann. § 27-1405 (Repl. 1962) as the basis of a dismissal without prejudice, so it is clear that the statute does not necessarily preclude the. dismissal of a complaint on other grounds.
The principle involved here is treated in Pomeroy, Code Remedies, pp. 313-317, §§ 191 and 192 (5th ed. 1929). We quote portions of these sections as follows:
“* * * When a legal action is brought against two or more defendants upon an alleged joint liability, even though based upon a joint contract, and one or more of. them .are, so far as they are individually concerned, properly sued, but the others are improperly united, the defendants properly sued have no cause of complaint whatsoever, in any form, on account Of the misjoinder; they cannot demur or an-SAver for defect of parties, because there is no ‘defect;’ they cannot demur generally for Avant of sufficient facts, because sufficient facts are averred as against them; they cannot demur or answer on account of this misjoinder, because that particular ground of objection is not provided for by the codes. If on the trial the cause of action is proved against them, but none against them and the others, still the plaintiff will not he absolutely nonsuited; he will recover Ms judgment against them according to the right of action established by the proof; while as against the other defendants he will fail, and will be nonsuited, or his complaint be dismissed. # # #
The situation of those parties improperly joined as co-defendants is, of course, very different from that just described. The very statement of the case assumes that the action is wrongly brought as against them; that, either as disclosed by the allegations of the plaintiff’s pleading, or as discovered by the evidence on the trial, no cause of action exists against them, notwithstanding the one which exists against their co-defendants. If, therefore, in such a case, it appears on the face of the complaint or petition that one or more persons have been improperly made defendants, such persons may present the objection by a demurrer, not on the ground of a ‘defect’ of parties, but on the ground that the plaintiff’s pleading does not state facts sufficient to constitute a cause of action against them. * * * If the absence of a cause, of action does not appear on the face of the plaintiff’s pleading, the defence may be set up in the separate answer or answers of the parties who rely upon it. Finally, whatever be the completeness or defect of the allegations made by the plaintiff and of the issues raised in the answers of the defendants, if on the trial the evidence fails to establish a cause of action against some portion of the defendants, and it thus appears that they had been wrongfully proceeded against in the action, the plaintiff will be nonsuited, or his complaint or petition dismissed as to them, and his recovery will be limited to the others against whom a cause of action is made out. The foregoing rules are sustained by the cases with almost absolute unanimity. These are the more regular and formal modes of raising the questions as to misjoinder by those de fondants who are thus wrongfully made parties to a suit; but there undoubtedly may be cases in which the court will proceed in a more summary manner, and will strike off the name of a party on his mere motion. Such cases must of necessity be somewhat exceptional, for, as a general rule, the rights and liabilities of the parties to the record will not be determined on motion or by any other means except a formal trial of the issues.”
We think that appellee’s motion was one of the procedures set out above. It was as follows:
“Your Honor, at the close of all of the testimony on the part of the plaintiff, Yada Cowan, and upon the resting of the evidence and testimony for the plaintiff, counsel for the defendant Florence Patrick moves for a dismissal without prejudice of the Complaint of the plaintiff as to the defendant, Florence Patrick, on the grounds that Florence Patrick is in this cause as a defendant on allegation of joint venture and there is no evidence to that effect. Testimony has not been presented by the plaintiff to carry out the burden as requested [required] by the laws of Arkansas to prove joint venture. ’ ’
This motion was in substance a motion for dismissal of the complaint without prejudice and was an appropriate means of invoking the powers of the court in this regard under the authorities above cited .
Appellant argues, however, that her complaint could not be dismissed without prejudice over her objection, relying upon Ark. Stat. Ann. § 27-1405 (Repl. 1962) and cases such as Martin & Van Horn v. Webb, 5 Ark. 72; Ringo v. Field, 6 Ark. 43; Hill, McLean & Co. v. Rucker, 14 Ark. 706. As to the cases relied upon, it would be sufficient to say that all of them were decided years before the adoption of the civil code. We think that the procedures set out in Pomeroy are much more appropriate to the code practice. No question pertaining to joint liability was involved in either of these cases, nor is it mentioned in the statute. Furthermore, we have pointed out that the grounds listed in the statute did not exclude other grounds for dismissal of a complaint without merit when an abuse of process results.
If we accepted appellant’s arguments, a plaintiff might fix a venue favorable to him for the trial of a counterclaim of one having no liability to him whatever, by the subterfuge of alleging a fictitious joint liability, knowing full well that there could be no factual or legal basis for that liability. This would be a most undesirable result, which we do not believe is intended by our procedural statutes. The use of subterfuge to fix venue in other cases has been rejected by us. See Robinson v. Bossinger., 195 Ark. 445, 112 S. W. 2d 637 and cases cited therein. Under our law, such a possibility is avoided.
The argument that such a dismissal cannot be without prejudice cannot be sustained. In applying Ark. Stat. Ann. § 37-222 (Eepl. 1962), permitting a new suit after a plaintiff had suffered a nonsuit, we applied the rule stated in State Bank v. Magness, 11 Ark. 343, that a new suit might be brought by a plaintiff who, from causes incident to administration of the law, is compelled to abandon an action, whether by his own act or by the act of the court, when either would leave a cause of action determined. Wheeler v. Wallingsford, 229 Ark. 576, 317 S. W. 2d 153. See also Forschler v. Cash, 128 Ark. 492, 194 S. W. 1029.
The judgment is affirmed
Byrd, J., dissents.
The court may without question dismiss an action upon other grounds not material here. Ark. Stat. Ann. § 27-1405 (Repl. 1962).
Under the common law, when it appeared upon proof on the general issue that there was a misjoinder of defendants, a nonsuit as to those improperly joined seems to have also been the proper remedy. Harris v. North, 78 W. Va. 76, 88 S. E. 603, 1 A. L. R. 356 (1916). | [
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J. Fred Jones, Justice.
Jack R. Heslep was employed as an oiler, driver and hookup man on a mobile crane belonging to his employer, Paul N. Howard Co. A fellow employee, Eddy Faulkner, was the crane operator. As Heslep started to attach a steel cable line from the crane boom to a joint of sewer pipe under an electric power line, the crane line became energized from the overhead power line and Heslep was injured. He filed suit for personal injuries against Forrest and Cotton, Inc. and Garver and Garver, Inc., the consulting and resident engineers. A jury trial resulted in a verdict in favor of Heslep for $7,500. The trial court granted a motion by the engineers for judgment notwithstanding the verdict and Heslep has appealed. He relies on tlie following point for reversal:
“The trial court erred in directing a judgment for defendants notwithstanding the jury verdict.”
Heslep states that the sole issue in this case is whether or not there was substantial evidence from which the jury could find that the engineers owed a duty to require the contractor to provide safety devices on the mobile crane in question while it was being operated in close proximity to 13,000 volt power lines. We are of the opinion that there was no substantial evidence from which the jury could find that the engineers owed such duty under the facts and circumstances of this case.
Heslep’s employer, Paul N. Howard Co., had a general contract with the City of Little Rock to install a new underground sewer system. The system was to be installed according to plans and specifications prepared by the out of state engineering firm, Forrest and Cotton, Inc. The local firm, Garver and Garver, Inc., was employed as resident engineers to see that the plans and specifications were complied with as the work progressed. One section of the sewer system was constructed of joints of pipe five feet long and three feet in diameter which were lowered into a ditch and cemented into place under the center of North Street. The joints of sewer pipe were shipped in from out of state and de livered to the job site by truck. The pipe joints were inspected for cracks and flaws upon delivery at the job site, and all rejected joints were returned to the manufacturer as the trucks made return trips for additional pipe.
On the day of Heslep’s injury, a truck had delivered a load of pipe and was ready to leave on the return trip about noon. There were two rejected joints of pipe to be returned on the truck, and by the use of a front end loader they had been moved out of the way and placed together near the intersection of North and Ringo Streets. They were placed on the ground between the sidewalk and street curb, which was also about 30 feet beneath an electric power line strung on light poles also set between the sidewalk and curb. The truck on which the joints of pipe were to be returned was too high for the pipe to be placed on the truck by the front end loader, so the front end loader was used to move the rejected pipe joints from under the power line and out into the street where they could then be picked up by the mobile crane and lifted onto the truck.
The operator of the crane was Eddy Faulkner, who was also an employee of Paul N. Howard Co. It was his duty to actually operate the crane boom and it was Heslep’s duty to drive the crane from place to place and spot it as directed by Faulkner. Heslep would then fasten the cable from the crane boom to the object to be moved, and would release the cable from the object after it had been moved. It was also Heslep’s duty to keep the crane oiled and greased. On the day of Heslep’s injury he and Faulkner had been ordered by their foreman, R. L. Webb, to move the crane to the intersection of Ringo and North Streets and hoist the rejected joints of pipe onto the truck to be hauled away. The crane was moved into position for this purpose about 12:30. The crane was equipped with either a 50 foot boom, as testified by Webb, or a 70 foot boom, as testified by Faulkner, and the joints of pipe were lifted by means of a swing cable attached to the joints of pipe and also to the lift cable on the crane.
One joint of the rejected pipe had been moved from under the power line into the street by the front end loader when the operator of the front end loader went to lunch, leaving one rejected joint of pipe in the street to be hoisted onto the truck and leaving the other joint still under the power line and still to be removed by the front end loader. When Heslep and Faulkner arrived with the crane, they loaded the joint of pipe from the street onto the truck. The truck was ready to leave as soon as the other rejected joint of pipe was loaded, so Heslep and Faulkner did not wait for the operator of the front end loader to return from lunch and remove the additional joint of pipe from under the power line, but instead, after loading the first joint onto the truck, Heslep pulled or carried the swing cable, which was still attached to the lift cable on the crane boom, over to the remaining joint of reject pipe under the power line. As he was attempting to fasten the sling cable to the joint of pipe, the lift cable, or boom, came in contact with the overhead power line and Heslep was injured.
The contractual arrangements between the parties are lengthy and will not be set out here. Some of the provisions on which Mr. Heslep seems to rely, and as read into the record by Engineer Van Meter, are as follows:
“Paragraph SC. 15, entitled ‘Public Utilities and Other Property to be Changed. In case it is necessary to change or move the property of any owner or of a public utility, such property shall not be moved or interfered with until ordered to do so by the Engineer. The right is reserved to the owner of public utilities to enter upon the limits of the project for the purpose of making such changes or repairs of their property that may be made necessary by performance of this Contract.’
This is General Conditions, Paragraph 2.11, ‘Defects and Their Remedies. It is further agreed that if the work or any part thereof, or any material brought on the site of the work for use in the work or selected for the same, shall he deemed by the Engineer as unsuitable or not in conformity with the specifications, the Contractor shall, after receipt of written notice thereof from the Engineer, forthwith remove such material and rebuild or otherwise remedy such work so that it shall be in full accordance with this contract. ’
# # *
Paragraph 2.04, ‘Contractor’s Duty and Superintendence. The Contractor shall give personal attention to the faithful proscecution and completion of this contract and shall keep on the work, during its progress, a competent superintendent and any necessary assistants, all satisfactory to the Engineer. The superintendent shall represent the Contractor in his absence and all directions given to him shall he as binding as if given to the Contractor. Important directions shall be confirmed in writing to the Contractor. Other directions shall he so confirmed on written request in each case.’
# * *
‘Protection Against Accident to Employees and the Public. The Contractor shall take out and procure a policy or policies of workmen’s compensation insurance with an insurance company licensed to transact business in the State of Arkansas, which policy shall comply with the Workmen’s Compensation Law of the State of Arkansas. The Contractor shall at all times exercise reasonable precautions for the safety of employees and others on or near the work and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes. All machinery and equipment and other physical hazards shall be guarded in accordance with the ‘Manual of Accident Prevention in Construction’ of the Associated General Contractors of America except where incompatible with Federal, State or Municipal laws or regulations. The Contractor shall provide such machinery guards, safe walkways, ladders, bridges, gangplanks and other safety devices as may be required by the Engineer as requisite to the prevention of accident. . ”
The appellant quotes Ark. Stat. Ann. § 81-1406 (Supp. 1967) as follows:
“The operation ... of any . . . machinery or equipment . . . capable of vertical, lateral, or swinging motion ... by or near overhead high voltage lines, shall be prohibited, if at any time during such operation ... it is possible to bring such equipment . . . within six feet (6 ft.) of such overhead voltage lines, except where such high voltage lines have been effectively guarded against danger from accidental contact, by either: (1) The erection of mechanical barriers to prevent physical contact with high voltage conductors; or (2) De-energizing the high voltage conductors and grounding where necessary. Only in the case of either of such exceptions may the six foot (6 ft.) clearance required be reduced ...”
The appellant then argues that there was a requirement under the conditions prevailing in this case that prior to the removal of the pipes in question the 13,000 volt power line under which they were located should have been de-energized; that the contractor’s Agreement with the Owner, which was prepared by the engineers, provided that in case it is necessary to change or move the property of any owner or of a public utility, such property shall not be moved or interfered with un til ordered to do so by the engineer; that at no time did the engineers, Avith full knowledge of what Avas taking place direct that the 13,000 volt power line under which appellant Avas Avorking be de-energized. We are not impressed by this argument, and we are of the opinion that the trial court did not err in granting the motion for a judgment notwithstanding the verdict.
Heslep’s argument actually comes down to a contention that he was injured as a proximate result of the engineers’ negligence in permitting the use of the crane without requiring the prime contractor to insulate the boom and cable against the transmission of electricity from overhead electric wires and in failing to deenergize the electric wires in this case before permitting Heslep to attempt the removal of the pipe from under the power line. This contention is not sustained by the terms of the contracts nor by the facts in this case.
The evidence of what happened is clear in this case. Heslep’s employer used a mobile crane in lifting heavy objects out in the street. A front end loader was used to move heaA^y objects under, or out from under, overhead power lines. When Heslep was injured, he and his fellow employee Faulkner, simply undertook to take a joint of a sewer pipe from under a power line by using a crane rather than waiting for the front end loader.
The engineers’ rights and powers are not to be confused with their obligations and duties under their contracts. Without attempting to set out the rights, powers, obligations and duties the engineers do have under their contract, we shorten this opinion by simply holding that they do not have the right, poAver, obHgation or the duty to supervise Heslep or his fellow employees in the performance of their duties. If Heslep’s employer was in violation of any of the safety code provisions as to the nature or use of equipment, he should account to the proper authorities under the provisions of the code. The engineers who designed and specified the materials to be used in the construction of the sewer and who assumed the responsibility of seeing that the sewer conformed to the plans and specifications, were not charged with the duty of enforcing the code and were not charged with negligence as a matter of law in the employer’s failure to comply with the code.
Heslep argues that the engineers in the case at bar had the same degree of control over the sewer project as the architects had in Erhart v. Hummonds, 232 Ark. 133, 334 S. W. 2d 869. We do not agree. The two cases are distinguishable on the contractual relationship as well as the facts. In Erhart we said:
“The contract provides that the general contractor ‘shall erect such protection as may be required, or as directed by the architect, maintain same, and maintain any existing protections, all in accordance with the governing laws, rules, regulations and ordinances.’ And, further, the ‘contractor shall do all shoring necessary to maintain the banks of excavations, to prevent sloughing or caving, and to protect workmen.’ The contract further provides: The architect ‘shall have general supervision and direction of the work — . He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract.’ It was a question for the jury as to whether the architect was negligent in failing to stop all work until the shoring on the east wall was made safe for the workmen.”
In Erhart an excavation for a building caved in and killed some people. The excavation walls were vertical, required shoring up, and this was improperly done. The architects were charged with the responsibility of seeing that this was properly done and were charged with the responsibility of stopping the work until it was properly done.
In the case at bar the engineers were not charged with the responsibility of supervising the safe removal of sewer pipe from under power lines. As a matter of fact the contract did not provide for the placing of sewer pipe under power transmission lines or for the removal of pipe from under transmission lines at all. Mr. Heslep attempts to distinguish the case at bar from Walker v. Wittenberg, 241 Ark. 525, 412 S. W. 2d 621, by stating that in the case at bar the engineers were vested with authority to stop the work in order to insure compliance with the provisions of the contract— again the answer is that the contracts did not provide for, or require, the placing or removal of objects under power lines.
The judgment is affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Peggy George from a decree of the Jackson County Chancery Court holding that her former husband, Jackie George, is not the father of her child. This .appeal questions the sufficiency of the evidence to overcome the presumption of the legitimacy of a child conceived during marriage but born after divorce.
Peggy and Jackie George were married on November 18, 1961, and separated on June 16, 1967. One child was born on July 13, 1962. Peggy was granted a divorce on September 7, 1967, on her complaint of indignities and the custody of the child was awarded to her. Jackie’s eountercomplaint of indignities was dismissed and Jackie was ordered to pay $75 per month for the support of the child.
On February 28, 1968, Jackie filed a petition for a modification of the original decree as to child support praying a reduction because of impending military service bringing about change in condition as to income. On March 12, Peggy filed a general denial and on May 24, 1968, she filed a response to the petition for modification denying that Jackie’s income would be reduced by induction into the National Guard but would be enhanced. Also on May 24, Peggy filed a counterpetition for modification of the original decree alleging the birth of an additional child, subsequent to the date of the original decree, and praying for additional support for the two children. On June 12 Jackie filed an answer to the countorpetition and denied the paternity of the second child.
The chancellor found that there had not been such change in the condition of the parties as to justify a change in the original decree as to support money and the petitions of both parties for modification were denied. The chancellor further found and decreed that Jackie George was not the father of the second child. Peggy relies on the following point for reversal:
“The chancellor erred in finding that the child born to appellant after the rendition of the decree was not the child of appellee in view of the testimony and current Arkansas case decisions.”
Both parties testified that they separated on June 16, 1967, and have not lived together or engaged in sexual intercourse with each other since that date. Jackie testified that he last had sexual relations with Peggy one or two weeks prior to their separation on June 16, and Peggy testified that they had sexual relations on June 15 or June 14 before they separated on June 16. The child, a girl, was born on March 29,1968, and Peggy testified that the birth followed a full term pregnancy. The child weighed 5 pounds, 11 ounces at birth.
Jackie offered to submit to a blood test for use in evidence as to paternity and a blood test was ordered by the chancellor. Peggy objected to submitting the child to a blood test and none was carried out. Dr. Jabez F. Jackson was the obstetrician who attended Peggy during her pregnancy and at the child’s birth and Jackie called Dr. Jackson as a witness. Peggy claimed the medical privilege as to Dr. Jackson’s testimony by general objection. The general objection was overruled but specific objections to most of Dr. Jackson’s testimony were sustained by the chancellor. Dr. Jackson was permitted to testify anyway “for the record,” the substance of his testimony being that he first saw Peggy on September 9, and that Peggy gave .a history of having menstruated in July. The only pertinent testimony of Dr. Jackson to which objections were not sustained, is as follows:
“Q. And how was the birth brought about, Dr. Jackson?
A. Well, I induced it.”
Peggy testified that she had. been seeing Dr. Jackson prior to the separation and she admitted a menstrual period of one day’s duration after she suspected or knew that she was pregnant.
We conclude that the chancellor erred in decreeing that Jackie George is not the father of the child under the evidence in this case. There is no contention that Jackie and Peggy were not still married to each other on the date of conception, whether it occurred when Jackie testified he last had sexual relations with Peggy one or two weeks prior to June 16, 1967, or whether it occurred on the occasion as testified by Peggy, one or two days prior to June 16, 1967.
Certainly Peggy’s attitude toward blood tests and her objections to Dr. Jackson’s testimony do not add anything to the credibility of her testimony, but Jackie had the burden of proving his allegations that he is not the father of the child conceived during his marriage to Peggy, and the burden was not on Peggy to prove that the child was conceived through sexual relations with her husband.
There is no evidence in the record, including the original divorce proceedings, that Peggy was guilty or even accused of adultery, or of infidelity to her marriage vows. She testified that no one else except Jackie could have been the father of the child. The nearest thing to a suggestion of impropriety on Peggy’s part was testimony at the original trial to the effect that Jackie, on one occasion, left the house with a gun and with threats against someone who had called on the telephone inquiring about the welfare of the older child who had been injured in an automobile wreck. There is no evidence in the record as to the significance of a one day menstrual period in the early months of pregnancy. Apparently the chancellor based his opinion primarily on the length of time between the last admitted sexual relations and the birth of the child. The appellee states in his brief as follows:
“ Using the date of birth as beginning point and substracting 270 days, the normal period of gestation for humans, the date of June 27, 1967, is produced as the probable date of conception. This is some eleven days after the date of separation and is within a period in which it is undisputed that appellee was without access to the appellant.'” (Appellee’s emphasis.)
There is no testimony in the record, medical or otherwise, as to the normal gestation period for humans, hut in Blakiston’s New Gould Medical Dictionary under “pregnancy” is found the following: “The duration of pregnancy in woman is approximately 280 days.” There is no evidence in the record as to the .acceptable deviation from normal.
The appellant argues that under Ark. Stat. Ann. § 61-104 (1947) providing that “the issue of all marriages deemed null in law, or dissolved by divorce, shall be deemed and considered legitimate,” should settle the question here. The question here is not whether the issue of a marriage is legitimate, but the question is whether the child involved in this case is the issue of the marriage. We agree with the appellee that the statute does not apply to the situation in this case.
The appellant argues that we should follow the rule announced in bastardy proceedings (Kennedy v. State, 117 Ark. 113, 173 S. W. 842), and in descent and distribution cases (Jacobs v. Jacobs, 146 Ark. 45, 225 S. W. 22; Morrison, Adm’x v. Nicks, 211 Ark. 261, 200 S. W. 2d 100) as reiterated in West v. King, 222 Ark. 809, 262 S. W. 2d 897, that “there is a well recognized presumption that children born to a couple lawfully married are the children of the husband;” that this presumption “is one of the strongest presumptions known to the law and that it continues until overcome by the clearest evidence that the husband was impotent or without access to his wife,” and the appellant argues that this presumption should apply to the time of conception, unaffected by subsequent divorce.
The appellee argues that this presumption has been weakened by the ravages of time and that the presump tion should be relaxed because of its age. The appellee urges us to re-examine our prior holdings, relax our previous rules as to the quantum and quality of evidence required to rebut the presumption of legitimacy, and he concludes as follows:
“The appellee strongly urges that the allowance of blood test results and other relevant evidence, rather than only allowing evidence of the husband’s impotency or non access, represents a far more enlightened position than does the old presumption. Here is a man who had not been with his former wife for more than nine months. He had gone through the ordeal of divorce and had never once been remiss in his obligation to his child. He had started a new life for himself by remarriage. To require this man to exonerate himself by using only evidence of impotency or non access is an unfair, if not impossible, requirement. A man, whose former wife gives birth after their divorce, should be able to rebut the presumption of legitimacy by any relevant evidence. The appellee urges that this court adopt such a rule by overruling its prior holding, in as much as they apply to the fact situation at bar. For these reasons, the Chancellor’s decision should be upheld.”
The appellee points to Ark. Stat. Ann. §§ 34-705.1— 34-705.3 (Repl. 1962) as legislation indicating a public policy contrary to the presumption of legitimacy. This statute pertains to blood tests in paternity proceedings, is digested under the chapter on “Bastardy,” and provides :
“Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court may direct that the husband, wife .and child submit to one [1] or more blood tests to determine whether or not the defendant can be excluded as being the father of the child.
We are not concerned in the case at bar with all the evidence that would rebut the presumption of legitimacy, we are only concerned with whether the evidence that was submitted -at the trial in this case was sufficient to rebut the presumption of legitimacy, and we conclude that it was not.
Reversed.
As to the conclusiveness of blood tests in cases of this nature see Prochnow v. Prochnow, 274 Wis. 491, 80 N. W. 2d 278. | [
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Carleton Harris, Chief Justice.
The land in issue in this litigation is a 40-acre tract situated in Columbia County., Appellants are three great grandchildren of H. U. Hancock, who died intestate in 1905, seized of this property. Hancock’s wife, Eunice (or E. E.), held a life estate, but, it is asserted by appellants, was given a deed from all of the Hancock children, J. H. Hancock, W. J. Hancock, Katie Tye and Carrie M. Frazier, conveying their interest, the deed being joined in by Henry Scott and B. C. Scott, grandchildren, being two of five sons of Palestine Scott, a deceased daughter of H. U. and Eunice. This deed was dated November 18, 1905, and purportedly conveyed a 22/25 interest in the lands, but the deed was not recorded until 1930. Eunice Hancock thereafter died sometime prior to June 23, 1908, leaving a will which was admitted to probate on the date last mentioned. Under the terms of this will, she devised all of her real estate to her son, J. H. Hancock, for his lifetime, and at his death to her granddaughters, Myrtle Hancock and Bertha Bethany, share and share alike, and at their deaths to their children, or to the children of either, should one or the other die without issue. Bertha, 73 years of age, is still living, and has no issue. Myrtle (Shaw) died in 1965, leaving three children, Burniss Shaw Wilson, Beatrice Shaw Haley, and Byford Shaw. These, together with Mary Shaw, wife of Byford, are the appellants herein. An exchange of instruments in 1913 between J. H. Hancock and his daughters, Bertha and Myrtle, resulted in Bertha’s receiving the life interest of her father and Myrtle to the 40 acres here involved. Thereafter, during the same year, Bertha conveyed her interest in this land to A. S. Frazier. During the latter part of the year, Frazier and his wife (a daughter of H. U. and Eunice Hancock) purported to convey the land to J. R. McDaniel. J. F. McDaniel, who claimed ownership at the time of the institution of this suit, was a son of J. R. McDaniel, and had been given a deed by his brothers and sisters, these grantors and grantee being all of the heirs of J. R. McDaniel. Subsequently, Bertha Bethany quitclaimed her interest in the land to J. F. McDaniel. McDaniel’s predecessors entered into possession of the lands in 1913, and appellees and predecessors have held possession and paid all taxes since that time. Appellants instituted suit, contending that they are the owners of an undivided 22/50 interest in the involved acreage; that McDaniel only had an undivided 3/25 interest, and an estate for the life of Bertha Bethany in an undivided 22/50, appellants holding the remainder. Appellees contend that they are the owners of the land by adverse possession. Both sides moved for summary judgment, supporting their respective positions by affidavits, exhibits, and depositions. The court granted a summary judgment to appellees, holding that the “McDaniel” title ripened prior to 1930 (when the deed from the Hancock children to Mrs. Eunice Hancock was recorded); that the recordation was the first notice the McDaniels had of any remainder claim to the property created by the will of Eunice Hancock, since that will did not specifically describe the lands left to the son, J. H. Hancock, but simply devised to him “all ot my real estate.” Title was quieted and confirmed in McDaniel as against any claim of appellants, and their complaint was dismissed for want of equity. From the decree so entered, appellants bring this appeal. For reversal, it is simply asserted that the claim of appellants is not barred by limitations, and they are entitled to partition.
Let it be remembered that this is a summary judgment. We have said many times that a summary judgment is proper only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Weathers v. City of Springdale, 239 Ark. 535, 390 S. W. 2d 125. Accordingly, in determining whether this judgment should be affirmed, we are interested simply in ascertaining whether there is any genuine issue as to any material fact. Very quickly, we hold that there is a disputed material fact question not answered by the pleadings, affidavits, exhibits, or depositions. This question is whether the November, 1905, deed to Eunice Hancock from her children and two grandchildren, was delivered to her during her lifetime. Of course, a deed is inoperative unless there has been delivery to the grantee. Van Huss v. Wooten, 208 Ark. 332, 186 S. W. 2d 174. A number of eases are discussed in this opinion, including Thomas v. Langley, 200 Ark. 220, 138 S. W. 2d 380, wherein this court said that the proof showed that Langley in 1919 executed a deed conveying his land to his mother. From the opinion:
“It was not shown that the deed was ever actually delivered to the grantee, but after Langley’s death the deed was found among his papers. Langley’s mother lived with him on the land until her death in 1928, and shortly afterwards Langley married. There was testimony tending to show that the land was bought with money belonging to Langley’s mother, that Langley had stated that he had used his mother’s money in buying the land and that he had deeded the property to her. We held in that case that the evidence was insufficient to establish delivery of the deed.”
Further, quoting from the earlier case of Taylor v. Calaway, 186 Ark. 947, 57 S. W. 2d 410, it was stated:
“In order to constitute delivery of a deed, it must be the intention of the grantor to pass the title immediately, and that the grantor shall lose dominion over the deed.”
It is admitted by appellants that appellees and those under whom they claim took possession of the lands in 1913, and have continued in possession and paid the taxes since that time. As previously stated, appellees claim title on the basis of adverse possession, but appellants contend that they (appellants) had no right of entry on the property, nor any cause of action, until the death of their mother, Myrtle Shaw (also known as Myrtle Hooper) in 1965, this occurrence giving them an undivided 22/50 in fee. They also claim an additional undivided 22/50, subject to appellees’ rights during the lifetime of Bertha. It is thus seen that appellants’ contention for reversal, as well as their own claim to the property, is predicated on our cases which hold that a right of action in one who owns a remainder interest does not accrue until the death of the person holding a life estate. A number of cases are cited in support of this contention, including Smith v. Maberry, 148 Ark. 216, 229 S. W. 718, LeSieur v. Spikes, 117 Ark. 366, 175 S W. 413, and Hayden v. Hill, 128 Ark. 342, 194 S. W. 19. In this last case, the court pointed out that a remainder-man has a right to attribute the possession of the premises involved by some third party, to some sort of contract with the life tenant. It then added:
“* * * Until the death of the life tenant, no duty in law is imposed on a remainderman to inquire from the party in possession whether he is a disseisor. During the life tenancy he has a right to treat the occupant of the land as a licensee.”
This is a consistent holding in this state, though the next sentence after the above quotation in Hayden is:
“In the instant case, it is conceded that appellees did not know the appellant was in possession of the real estate. ’’
We agree that under the present record in this case, appellants’ argument is sound, and the Chancellor erred in granting the summary judgment; however, this holding does not necessarily mean that appellants should prevail; that question is not settled for the reason that J. H. Hancock’s and Myrtle Hancock’s life estates in this property were dependent upon the validity of the deed to their mother and grandmother, respectively, Eunice Hancock.
Appellants insist that they should prevail on the strength of the Eunice Hancock deed. Normally, we do not pass upon an order denying a summary judgment, since we have held that such an order, being interlocutory, is not appealable. Widmer v. Fort Smith Vehicle and Machinery Corporation, 244 Ark. 971, 429 S. W. 2d 63. However, as pointed out in Widmer, certain interlocutory orders are reviewable in conjunction with a final judgment; an order granting a summary judgment is a final order, and therefore appealable, and in determining the litigation now before us, it is necessary to discuss •appellants’ alleged grounds for summary judgment in order to show that there are unresolved material issues, which can only be disposed of after a trial.
The Hancock deed, of course, to have been valid, must have been delivered to Eunice Hancock during her lifetime. To establish this fact, appellants rely upon the statement appearing in Smith v. Scarbrough, 61 Ark 104, 32 S. W. 382, where this court, quoting the case of Scobey v. Walker, 15 N. E. 674, said:
‘1 The rule is well established that, where a document purporting to be a duly acknowledged deed, with regular evidence of its execution upon its face, is found in the hands of the grantee, or if such deed is found upon the proper records, a presumption arises that it was delivered at the time it bears date, or at some time prior to the date of its acknowledgment.”
In other words, as of now, appellants rely upon the fact that the deed to Eunice Hancock was recorded. On the other hand, appellees contend that no presumption arises, since the deed was not recorded until 22 years after the grantee’s death. Of course, the evidence presented at the hearing for summary judgment is liberally construed in favor of the party opposing the motion, and he is given the benefit of all favorable inferences, which might reasonably be drawn from the evidence. Ramsourer v. Midland Valley R. Co., C. C. A. 8th, 1943, 135 F. 2d 101. The recording of the deed would at the most, simply create a presumption, and there are inferences in some of the exhibits and affidavits, which are contrary to the contention that the deed was delivered.
For instance, in September, 1914, all of the Scott children, including the two who had purportedly conveyed their interest to Eunice Hancock, instituted suit against J. H. Hancock, Myrtle Hancock, and Bertha Bethany and her husband, in which they alleged that Eunice Hancock owned no interest in certain lands (including the 40 acres in issue), except a dower and homestead interest, or a life estate, which expired at her death. The complaint asserted that the defendants were trying to deny the plaintiffs ’ title to their interest in the land. The defendants answered, admitting that three of the Scott children held a 3/5 of a 1/5 interest, but that B. C. Scott, and H. F. Scott (apparently Henry) held no interest. The execution of the deed by the Hancock heirs, including the two Scott children, is then asserted. In a substituted complaint, it was again alleged that Mrs. Eunice Hancock did not own any interest in the land further than a life estate, and therefore could not have conveyed same by her will. In a decree dated February 19,1916, the Columbia Circuit Court held with the plaintiffs, and declared all five Scott children as owners of a 1/5 undivided interest in the lands. The basis of the rendition of this judgment is not set out in the judgment, but it is at once evident that the court did not, at least as far as B. C. and H. F. Scott were concerned, consider the deed to Eunice Hancock to be valid. Another inference can also be drawn from the deed itself. One of the grantors mentioned in the deed is W. A. Scott —but W. A. Scott did not sign the instrument. The ac knowledgments also show that some signed on one date, and others on a subsequent date. These circumstances, together with the fact that the deed was not recorded until 22 years after the death of Eunice, somewhat raise an inference that the deed was not delivered during the lifetime of Eunice Hancock; that is, these circumstances raise the possibility that the children and grandchildren of Eunice, individually agreed to convey their interest to her, but such agreement was conditioned upon the premise that everyone would join in executing the deed; since this did not happen the deed was never delivered. It has been held that a delivery is incomplete where made by only some of the parties to a deed which shows on its face that it was intended to be jointly executed so that all should be bound bv its covenants. Consolidation Coal Co. v. Yonts (C. C. A. Ky.) 25 F. 2nd 404.
In the deposition of Byford Shaw, one of the appellants herein, he stated that he believed his mother (Myrtle Hancock Shaw) got the deed from her father (J. H. Hancock). On the one hand, this could mean that the deed had remained in the possession of one of the grantors. On the other hand, J. W. Hancock was the devisee of his mother’s will, and his possession of the deed might have no significance, since he was given a life estate in his mother’s property under her will.
We think enough circumstances have Deen pointed out to clearly show that pertinent and material issues are unresolved, and the case should proceed to trial.
Reversed and remanded.
J. F. McDaniel died and the cause was revived in the name of his widow, Rozena McDaniel, his sole devisee.
See also the Florida case of Commercial Building Company v. Parslow et al, 112 So. 378, where the Supreme Court of Florida held that laches or limitations may run against a remainderman who knows of a life tenant’s repudiation of that status. As to the statement in Hayden, appellants say, in effect, that it is dictum: “The fact that in Hayden the court mentions that appellees were not aware of appellant’s possession is actually immaterial. Had they known of it, they would have been under no duty to inquire and under no duty to take any action until the termination of the life estate.”
If one moves for a summary judgment, and the court denies the motion, such an order, standing alone, is not appealable, and the appellant can only assert error by appeal when the case has been finally adjudicated.
The will itself does not name an executor, and the order admitting the will to probate, in the record before us, does not show that an administrator was named. | [
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Conley Byrd, Justice.
On January 5, 1968, at 5:20 P.M. a collision occurred on Highway 65 at the Plain-view entrance to the Pine Bluff Arsenal between a rock truck-trailer unit operated by Eldon H. Chadwick and an automobile driven by appellee Charles L. Burnett in which W. M. Taylor was a passenger. From jury verdicts in favor of appellee Mrs. W. M. Taylor, Administratrix of the estate of W. M. Taylor, deceased, and appellees Charles L. Burnett and wife Helen, which totaled in excess of $100,000.00, appellant Silas Kincaid, d/b/a Kincaid Trucking Co., appeals.
There is ample evidence from which the jury could find that Chadwick was an employee of Kincaid. Consequently the sole issue is whether there was substantial evidence to warrant a finding that at the time of the occurrence Eldon Chadwick was acting within the course or scope of his employment as an employee of Silas Kincaid.
The record shows that Silas Kincaid is a contract rock hauler. As such, he owns several trucks and semitrailers and employs a number of people in connection therewith. In addition to the truck tractors owned by him, he had working arrangements with persons such as Chadwick, w'ho owned their truck tractors and used Kincaid’s trailers. The arrangements recognize that Kincaid would bid on a job to haul rock for so much per ton. Mr. Chadwick’s testimony with reference thereto, as abstracted by appellant, is as follows:
“My working agreement with Mr. Kincaid was that out of one hundred percent of the gross I received seventy-five percent of the revenue. The gross depended upon what I hauled. It was determined by so much a ton. I hauled on various jobs, some of them were Mr. Kincaid’s and some of them were other people’s. Mr. Kincaid did some of the jobs. Sometimes he would assign me to a job that he didn’t bid in. I made an average of about $1,000.00 a month and was paid every week. My driver’s check and truck check averaged about $250.00 per week.
“The driver’s check was determined by the amount of hours that I worked each day. The truck check was determined by taking out the driver’s check, any fuel or anything else I may have gotten from Mr. Kincaid. The amount of my driver’s check would vary each week depending on number of hours worked. I got $1.60 an hour for the driver’s check for 40 hours and time and a half over 40 hours. Approximately $100.00 to $125.00 per week would be for the driver’s check. About $100.00 to $125.00 would be for the tractor.”
Under their arrangement, Kincaid furnished the trailer tires and hoist and was also responsible for brake linings and brake drums. Chadwick was responsible for the tires and repairs for the tractor. Chadwick also performed the maintenance on the trailer with reference to lights and stuff like that and had tools for that purpose. It was also his duty to inspect it, keep it up and report any repairs that were needed as well as preventing theft. Part of the agreement between the two was that Kincaid would withhold workmen’s compensation, Social Security and income tax from Chadwick’s check.
The tractor-trailer units owned by Kincaid were parked at Kincaid’s shop each night. Chadwick, however, drove his tractor-trailer unit home each evening. While Chadwick was required to come by Kincaid’s office each night to turn in his weight tickets, he did not always go there in the morning before going to work, bnt instead reported directly to the rock quarry where the loading was to commence. It was shown that it took about 45 minutes to hook up the trailer if all the equipment were available and that if the equipment were not available, it would take about a half a day.
On the day of the accident Chadwick had hauled rock for a contractor named Olsen under an arrangement between Olsen and Kincaid. Around noon Chadwick was bumped off the Olsen job because Olsen had enough trucks of his own to cover the job. After leaving Olsen’s job near Granite Mountain, in the vicinity of Little Rock, Chadwick proceeded toward Kincaid’s office but stopped at Jefferson, Arkansas, and visited an old friend. He then stopped at Kincaid’s office to turn in his hauling tickets. Chadwick says that at the time this accident occurred (5:20 P.M.) he was going to his house to eat and spend the night and that he had no further work to do that day.
For reversal appellant relies upon Knighton v. International Paper Co., 246 Ark. 523, 438 S. W. 2d 721 (1969). However in that case it was shown that King, the alleged employee, was the owner of the vehicle, that he had completed his day’s work and that he was on his way home after having stopped to repair his truck. The situation here is not nearly as clear as were the facts in the Knighton case. While it is true that Chadwick owned the tractor, it is also clear from the testimony that the rock tonnage could not he moved without the use of the trailer nor could such movement be made if the trailer was not in operating condition both from the standpoint of utility and highway safety. According to the undisputed testimony, these repairs were not ordinarily made at Kincaid’s shop but Chadwick generally did them on his own time and with his own tools.
When viewed in the light most favorable to appellee, there is evidence from which the jury may have in ferred that Chadwick’s responsibilities to Kincaid did not cease with the turning in of his weight tickets. This we believe could be inferred from these facts: Kincaid controlled the use of the trailer at all times; Chadwick could not use his tractor on Kincaid’s job without the use of Kincaid’s trailer; that Chadwick had some maintenance responsibilities with reference to Kincaid’s trailer that were to be performed by him away from Kincaid’s shop; that Chadwick owed Kincaid the duty of inspecting the trailer; that it was not practical to unhook the trailer because of the time required to hook it up the next morning; that Chadwick often went directly from his home to the loading site of the next rock haul rather than stopping by Kincaid’s shop in the morning; and that the purpose of the arrangement was to move as much tonnage as possible in a given day. Therefore the testimony here is such that the jury could find that the tractor trailer combination was a unit subject to Kincaid’s control and that Kincaid received a benefit from the arrangement whereby Chadwick took the truck-trailer unit home at night. See Helena Wholesale Grocery Co. v. Bell, 195 Ark. 435, 112 S. W. 2d 416, (1938).
Affirmed. | [
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Lyle Brown, Justice.
The chancellor refused to grant relief to Molton Beasley, appellant, from an alimony award in favor of Beasley’s former wife, Christine Beasley, appellee. Pleas by the former husband (1) that Mrs. Beasley had remarried, (2) that Mr. Beasley had lost several weeks of work from illness, and (3) that Beasley himself had remarried, were not persuasive to the chancellor. The single point on appeal is that the court erred in not terminating, or at least reducing, the alimony.
The findings set forth in the decree of divorce handed down in April 1968 are significant. Mrs. Beasley was awarded a divorce, custody of their 13-year-old son, $50 support money for the boy, and $100 per month alimony for a period of five years, at which time the alimony would terminate. Then there were provisions for the disposition of designated personal property and financial liabilities. Two automobiles were divided; household furniture and fixtures were awarded the wife, subject to an outstanding lien for the balance owed on the furniture; the wife was required to pay a debt owed a jewelry store; and the husband was to pay all other obligations of the parties. We have no transcript of the pleadings and proceedings culminating in the decree just described.
In líovember 1968, the husband petitioned for a modification of the decree with reference to alimony, first alleging the loss of work due to illness, resulting medical expenses, and his remarriage. At the conclusion of the testimony the court announced from the bench that he would deny the petition. The day following that hearing Mrs. Beasley was united in marriage with Sidney A. Hall. Twenty days thereafter, Mr. Beasley filed another petition for modification on the ground that Mrs. Beasley’s recent marriage entitled him to have the alimony terminated. A hearing was conducted one week thereafter and Mr. Beasley’s petition was denied. It was agreed that since no formal order had then been entered with respect to the first hearing, the court would treat the two hearings as singular and incorporate his conclusions in one order.
The trial court stated that in law the remarriage of the wife does not necessarily warrant the reduction of alimony. “Now it can under certain situations, but in this particular case the alimony was for a limited period of time and in the absence of any other circumstances than just a mere marriage the court will deny your motion.” Then at another point the court said: “If the alimony had been continuing indefinitely the court would feel a little different application would be due, but due to tbe fact that this alimony was fixed for a time certain, the court doesn’t feel like the remarriage [of the wife] is sufficient to warrant a reduction of the alimony.”
The court should have granted relief to Beasley from alimony payments. We base this conclusion on a combination of three reasons:
(1) The award of $100 per month was restricted to alimony. Several references in the decree refer to the monthly payments as alimony. It is not a situation where the court was trying to balance some inequity in the division of personal property. In fact, the decree separately provides for the division of personal property and the payment of family debts.
(2) The court’s provision for alimony amounted to the award of a gross sum, $6,000, to be paid in installments of $100 per month. We had the same situation in McIlroy v. McIlroy, 191 Ark. 45, 83 S. W. 2d 550 (1935). In that case the trial court fixed alimony at $50 per month for twenty-four months. We said:
On the question of alimony we are of the opinion that the decree of the chancellor was in effect the award of a gross sum to be paid in installments which is contrary to the doctrine announced in our cases cited by appellant, namely, Brown v. Brown, 38 Ark. 324; Wood v. Wood, 59 Ark. 441, 27 S. W. 641; and Walker v. Walker, 147 Ark. 376, 227 S. W. 762. The rule in those cases seems to be that a court, in awarding alimony, should not fix a specific sum, but a continuing allowance payable at fixed regular intervals. It is true that future circumstances might arise which would warrant the court in altering the amount of the allowance or in discontinuing it altogether.
In McIlroy this court erased the lump provision payable monthly and treated it as an award of alimony in the amount of $50 per month with nó limit on the number of monthly payments. The court acted likewise in another case involving the same error. Birnstill v. Birnstill, 218 Ark. 130, 234 S. W. 2d 757 (1950). There the trial court directed a lump stun payment of $60, payable in monthly installments of $10 each. "We struck down the fixing of a total amount and ordered the monthly payments of $10 continued as permanent alimony, subject to any future changed conditions.
(3) The remarriage of the wife was sufficient grounds, in the circumstances of this case, to cause her alimony to be terminated. Concerning the status of alimony after remarriage of the wife, we said in Wear v. Boydstone, 230 Ark. 580, 324 S. W. 2d 337 (1959):
Appellee, though admittedly unable to cite an Arkansas case directly holding that alimony payments cease automatically upon the remarriage of the wife, apparently feels that we should take such a view. We have no quarrel with the statement that alimony payments should cease upon the divorced wife’s remarriage, for we see no logic in requiring a first husband to contribute at regular intervals to an ex-wife whose care and maintenance has been assumed by a second husband. We have held on several occasions that the remarriage of the wife is sufficient grounds to entitle the husband to a termination of the alimony payments — on making proper application to the court grafting the original decree. Casteel v. Casteel, 38 Ark. 477, Erwin v. Erwin, 179 Ark. 192, 14 S. W. 2d 1100.
Here we are of course concerned with the facts in the case at bar and they furnish the basis for our conclusion. Mr. Beasley earns a modest salary as an employee of Pine Bluff Arsenal; he lives in a trailer court and evidently has accumulated no property; he is being treated for emphysema and for a condition that could precipitate a blood clot; and he has accumulated considerable medical expense which is not covered by insurance. There is not a scintilla of evidence to the effect that Mrs. Beasley’s second husband is financially unable to assume his legal responsibility for the care and maintenance of his wife.
The date of the decree ordering alimony payments continued was March 11, 1969; since the chancellor should have then discontinued the payments he is directed to adjust the account between the parties as of that date.
Reversed.
Harris, C. J., not participating. | [
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Conley Byrd, Justice.
Appellant Doris Aired High brought this action against appellee Southern Farm Bureau Casualty Insurance Co. alleging that it is liable for accrued interest on a judgment she recovered against the Company’s insured, because the Company, although it had already paid out its policy limits, failed to pay court costs of $17.10. For reversal of the trial court’s judgment appellant relies upon the following point:
“Southern Farm’s failure to pay the court costs taxed against its insured, Charles Cornett, renders it, under its policy, liable for interest accruing on the entire judgment until such time as these court costs are paid.”
The record shows that the Company’s insured Charles Cornett was involved in an automobile collision in 1959, in which several persons including appel lant’s decedent were injured. Prior to appellant’s judgment the Company paid out its policy liability limits settling other claims. However it is stipulated that the Company pursuant to its policy agreements furnished a defense to appellant and paid all the court costs except' the $17.10 that appellant advanced when she filed suit. In 1962, appellant received a judgment against Cor-nett for $57,000. That judgment provided:
“and that the plaintiff have judgment for her costs herein expended; for all of which execution may issue.”
The policy issued to Charles Cornett provided:
“Southern Farm Bureau Casualty Insurance Company. . .
(Herein called the Company)
“Agrees with the insured, named in the declarations made a part thereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy:
INSURING AGREEMENTS
“I. COVERAGES
COVERAGE A — BODILY INJURY LIABILITY. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile.
“COVERAGE B — PROPERTY DAMAGE LIABILITY. . . .
“II. DEFENSE, SETTLEMENT, BONDS, SUPPLEMENTARY PAYMENTS. As respects such insurance as is afforded by the other terms of this policy,
“ (a) under Coverages A and B the Company shall
“(1) defend in his name and behalf any suit against the insured alleging such injury, or destruction and seeking damages on account thereof, even if such suit is groundless, . . .
“ (2) pay ... all costs taxed against the insured in any such suit; all expenses incurred by the Company; all interest accruing after entry of judgment until the Company has paid, tendered, or deposited in court such part of such judgment as does not exceed the limit of the Company’s liability thereon; ...
“(b) . . .the Company agrees to pay the amounts incurred under this insuring agreement, except settlements of claims and suits, in addition to the applicable limit of liability of this policy.”
Appellant contends that the Company is required under the quoted provisions to pay interest on the entire judgment until it “paid, tendered or deposited in court” the $17.10 costs recovered in the original judgment and for which the Company was liable under the policy terms but which were never “paid, tendered, or paid into court. ’ ’ With this we do not. agree.
It will be noted that under Insuring Agreement - No. 1 the Company set forth its Coverages A and B. Under Insuring Agreement No. II the policy provides:
“(a) under Coverages A and B the Company shall (1) . . . (2) pay ... all interest accruing after entry of judgment until the Company has paid . . . such part of such judgment as does not exceed the limit of our Company’s liability thereon; ...” [Emphasis ours.]
Merriam-Webster New International Dictionary (2d ed. 1935) defines the term “thereon” as an adverb meaning “thereupon; after, or as a result of, some specified thing. ’ ’ The same dictionary defines an adverb as: “A qualifier of a verb or of another qualifier, whether adjective, adverb, or qualifying phrase or clause, or of verbal nouns and nouns expressing action or state.” Thus when we consider that the adverb “thereon” means “as a result of” and that “the limit of the Company’s liability” is not affected by the judgment but by the Coverages A and B, we can only conclude that “the limit of the Company’s liability thereon” refers to the coverages under A and B and does not affect the coverages otherwise provided in Insuring Agreement No. II.
In River Valley Cartage Co. Inc. v. Hawkeye-Security Ins. Co., 17 Ill. 2d 242, 161 N. E. 2d 101 (1959), Justice Schaefer pointed out that the purpose of the interest clause requiring the insurer to pay the accrued interest until such time as it had tendered the limit of its liability thereon was brought about by the relationship between the parties which gave the insurer complete control of any litigation from which it might incur liability. He there pointed out that, since the insured could not settle with the injured party without releasing the insurer from its obligation, the accumulation of interest was the responsibility of the insurer. 'That is not the situation under the facts of this case. The Company here had already paid the limit of its liability to the other parties injured in the accident and consequently had no liability to protect in the litigation nor a reason to prevent the insured from settling. Thus we find that appellants’ contention here is also contrary to the intent and purposes for which the interest clause was placed in the policy by the insurance underwriters.
Affirmed.
George Rose Smith, J., concurs.
Fogleman, J., disqualified. | [
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Carretón Harris, Chief Justice.
This appeal relates to the construction of certain words appearing under the exclusions section in an insurance policy, the policy providing that it does not apply to property damage to:
“(2) property used by the insured, or
(3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control; ...”
According to the stipulation entered into by the parties to this litigation, Puryear Wood Products Company, Inc., appellee herein, hereafter called Puryear, operated a sawmill at Mitchellville, Desha County, Arkansas, and had contracted with one Clifford Landon of Dumas to haul sawdust away from its plant. The sawdust was blown through a system of pipes from the plant to a point approximately 300 feet from the buildings, but still on appellee’s property, and Landon or an employee, would park one of his trucks and trailers at that particular location. Employees of Puryear would then insert the pipe into the rear of the trailer, and the sawdust was blown into this trailer until it was full. It usually took about two days for the trailer to be filled, and when it was full, one of Puryear’s employees wopld call Landon, and he would drive the truck and trailer away. Landon had instructed Puryear that when the truck needed moving, to call him, because he did not want anyone else to move it; while a trailer was being filled, it was left unattended.
The previous paragraph sets out the manner of operation in general, and about the 15th of June, 1967, Landon had parked a truck and trailer at the aforementioned site for the purpose of having it loaded with sawdust; one of appellee’s employees inserted the blow pipe into the rear of the trailer, and it was thereafter left unattended. After some period of time, and while the sawdust was being blown into the trailer, a fire of undetermined origin started in or about the sawdust, or in or about the trailer, and damaged the trailer. At the time this happened, Landon’s tractor was attached to the trailer, and the keys were in the ignition. Thereafter, Landon instituted suit in the Circuit Court of Desha County against Puryear seeking to recover damage caused by the fire to his trailer. Appellee held a policy of liability insurance in the sum of $100,000.00 with Employers Mutual Liability Insurance Company of Wisconsin, appellant herein. Under the contract, the company agreed to pay on behalf of the policyholder all sums which Puryear should become legally obligated to pay as damages because of property damage. Puryear contacted the insurance company after being sued, but the latter declined to defend the suit on behalf of Puryear, contending that the exclusions (previously set out in the first paragraph) made the coverage of the policy inapplicable to property used by Puryear or property in its care, custody or control, or as to which it for any purpose was exercising physical control. Suit was instituted by Puryear, seeking a declaratory judgment to the effect that the insurance company was obligated under the policy to provide coverage and to defend against the Landon suit. After the filing of an answer, the cause was submitted to the court on a stipulation embracing the facts heretofore set out. The court found, as follows:
“Based upon the stipulated facts and applicable authority, it is the finding of this Court that the defendant has not sustained its burden of proving that the plaintiff had possessory control of the trailer at the time of the occurrence, and that plaintiff was not ‘using’ the trailer and did not have the ‘care, custody or control’ of the trailer within the meaning of these terms as used in said policy, at the time of the occurrence; and that defendant has the duty under its insurance policy to defend the suit by Clifford Landon against the plaintiff.”
From the judgment entered in accordance with this finding, appellant brings this appeal. For reversal, it is asserted that the trial court erred in holding that appellant company was obligated to afford Puryear a defense to the Landon complaint, and to pay any judgment rendered against Puryear.
At the outset, it might be mentioned that appellant’s duty to defend the Landon suit would normally be determined by the allegations in the Landon complaint. We have held that the allegations in a complaint determine the obligation of the insurer to defend its insured Fisher v. The Traveler’s Indemnity Company, 240 Ark. 273, 398 S. W. 2d 892, and cases cited therein. However, appellant does not contend that this court, in determining this question, is confined to those allegations. That complaint alleges that the trailer was in the care, custody and control of Puryear, but it also alleges that the damage to the trailer was a result of the negligence of Puryear. Since it would be possible that a jury could find that the loss was due to Puryear’s negligence without also finding that the trailer was in its care, custody and control, it is apparent that appellant’s obligation to defend cannot be determined simply from the allegations in the Landon complaint.
It is argued by appellant that Landon had surrendered to Puryear the care of the trailer and its custody and control, and Puryear was thus a bailee, i. e., the custodial possession of Puryear was in legal effect a bailment. The case of Bertig v. Norman, 101 Ark. 75, 141 S. W. 201, defines a bailment, and appellee’s argument is that a bailment carries with it the surrender of possession and custody. However, the stipulation sets out that Puryear did not have the right to move the truck and trailer, and, in fact, if it should become necessary that same be moved, appellee was required to notify Landon, who would then send a driver to move the vehicle; because of this fact, we cannot agree that there was a surrender of possession or custody, and Bertig v. Norman, supra, points out this distinction.
In 62 A. L. R. 2d, Page 1244, in an annotation, “Liability Insurance — Custody of Insured,” it is pointed out that no rule of general .application can be deduced from the cases that have been decided, on the question of the meaning of “care, custody or control” of insured. It is stated:
“In construing the particular type of exclusion clause with which this annotation is concerned the courts have applied the underlying principle which governs the construction and interpretation of contracts of insurance generally. Thus, they have specifically stated that the rule that insurance policies, having been prepared by the insurer, must, if ambiguous, be construed most strongly against it and in favor of the insured, fully applies to such exclusionary provisions. Curiously enough, in applying this principle, the cases considered herein have reached opposite conclusions as to the existence of ambiguity.”
It is interesting to note that there is authority to the effect that the care, custody, or control exclusion clause is inherently ambiguous, but, on the other hand, it has been said that the language is clear and unambiguous, and, accordingly, must be given the plain and ordinary meaning of the terms used. A discussion of all the cases would require a lengthy manuscript, and such a discussion would not be justified, since we, .after a study of the exclusionary provisions, are firmly of the opinion that the language is ambiguous, and being ambiguous-, the provisions must be construed against the maker, and in favor of the insured. The very fact that courts of the several jurisdictions have arrived at different constructions as to the meaning of the words under discussion, and even in some instances have gone so far as to take almost opposite views, is certainly some indication that the terms, in the context used, are ambiguous.
Here, appellant relies principally upon the Washington case of Madden v. Vitamilk Dairy, Inc., 367 P. 2d 127. There, the Supreme Court of Washington held that a milk tanker truck which was parked by the owner in the unloading area of the dairy, the employees of the latter being responsible for unloading the milk, and washing the tank, and who gave the directions as to movement of the truck, was under the “care, custody or control” of the dairy, and the exclusionary clause excluding coverage for damage to property under “care, custody or control” of insured was applicable. Appellee refutes that case with the Texas case of Maryland Casualty Company v. Golden Jersey Creamery, 389 S. W. 2d 701. There, the court mentioned that Maryland Casualty was relying principally on Madden, and proceeded to distinguish the case as follows:
“* * * In Madden, it appeared that the driver would surrender to the dairy or creamery employees the possession, care and control of the milk tank-truck until it had been unloaded, washed, cleaned and returned to him. Such is not the case here. In this case, the fact that an employee of appellee would receive from the driver of the milk tank-truck a hose connected to the tank and an electric cord for supplying power to the pump on it, would not conclusively place the tank-truck in the care, custody and control of appellee. These steps were merely incidental to the receipt of milk by appellee, which was a necessary function in the operation of its business on the premises.”
The court also commented:
“The words ‘care, custody and controP have been held to mean ‘in charge of’ or ‘in charge’ by the decisions. See Great American Indemnity Co. of New York v. Saltzman, 213 F. 2d 743 (8th Cir. 1954), in which, at page 748, the Court said:
‘AVhile the word “charge” has a very broad, and varied meaning (McLoughlin v. Shaw, 95 Conn. 102, 107, 311 A. 72), a person or thing is not “in charge of” an insured within the meaning of the policy unless he has the right to exercise dominion or control over it.’ (Emphasis supplied by the Court).”
Again, we call .attention to the fact that, under the stipulation, appellee did not have the right to exercise dominion or control over the truck and trailer, but, to the contrary, was required to notify Landon, who would send a driver, if the truck needed to be moved.
Our own case of Hardware Mutual Casualty Company v. Crafton, 233 Ark. 1020, 350 S. W. 2d 506, points out that the construction of the phrase, “care, custody and control,” is, to a large extent, dependent upon circumstanees, but that, in a general way, the word, “care,” has reference to temporary charge; the word, “custody,” implies a keeping or guarding, and “control” refers to the power, or the authority, to manage, superintend, direct, or oversee. It has already been pointed out that appellee certainly did not have the authority to do anything with the trailer, except to fill it, and there is no contention that Puryear was obligated to guard the property. It was well known that the filling operation was conducted in the absence of the Puryear employees.
We agree with the trial court that appellee did not have the care, custody, or control of the trailer within the meaning of those terms as used in the policy, at the time of the occurrence.
As to the word, “used,” this court, in Maryland Casualty Company v. Turner, 235 Ark. 718, 361 S. W. 2d 646, mentioned that this word is, to some extent, employed by insurance companies .as a substitute for the phrase, “care, custody, and control,” in exemption clauses in liability policies. In addition, we certainly think this word is ambiguous, as used in the policy. Appellant, of course, argues that the trailer w.as being used because it was the receptacle for the sawdust. On the other hand, appellee contends that Puryear only had access to the trailer; that the actual operation was the blowing of the sawdust, and the instrument used in that operation was the pipe which had been inserted into the trailer. Puryear was not directing the operation in any way, and only had the duty to blow sawdust into the back of the trailer. It is, of course, true that appellee was only interested in getting rid of its sawdust, and there was no reason for it to have any interest in the method that Landon used to collect and haul away the sawdust. Possibly, cartons, crates, barrels, or other contrivances, though not nearly so convenient, could have been used to receive the sawdust, and subsequently placed on a truck or trailer bed by Landon employees. At any rate, we consider the term ambiguous.
It has already been pointed out that physical control or possession was not being exercised over the property, no Puryear employee being present, nor having the right to do anything with the tractor and trailer. The truck was left unattended by Landon’s driver through his own choice, and the driver could have remained in the truck while it was being filled, but elected not to do so. As pointed out in appellee’s brief, if we assume that the driver had remained in the truck, could it then be contended that Puryear had control of the trailer Í
From what has been said, it is apparent that we consider the stipulated fact that Puryear could not move the truck and trailer, and would, have to call Landon to send a driver (when the trailer was full) to be most important, for this is certainly pertinent to the question of whether the truck and trailer were in the care, custody, or control of appellee.
We hold that there was substantial evidence to support the trial court’s judgment.
Affirmed. | [
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Conley Byrd, Justice.
This is an eminent domain action by appellant Arkansas State Highway Commission for the taking of 1.94 acres at the intersection of Highways 1-40 and 95 for construction of the westbound offramp of the interchange, and for ,a temporary construction easement containing 0.75 acre. Involved in the permanent taking is all or part of 12 lots according to a recorded paper plat of the forty acre tract. The construction easement covers four additional lots.
The Highway Department deposited $100.00 as estimated just compensation for the two easements. From judgment on a jury verdict awarding $23,000.00, the Highway Department appeals contending that there was no basis for the valuation testimony given by the landowners’ witnesses and that we should enter a verdict consistent with testimony of the highway department’s witnesses.
The landowners, Henry and Lucille Welter and James and Alexia Hart, introduced as valuation witnesses Charles B. Owens, Henry Welter and Grene Huett. All three witnesses readily admitted that the property involved was platted into a paper subdivision in 1959 or earlier and that no streets or utilities existed on the property. The nearest utility was 500 or more feet away. All witnesses followed the paper subdivision description in testifying.
Mr. Charles Owens testified to a before value of $27,000 and an after value of $3,000, for total damages of $24,000. He stated that he arrived at his values by the comparable sales method and that the valuation of the lots was $30.00 per front foot. He also admitted that he compared the undeveloped lots to the fully developed lots in North Hills Addition which were selling for $30.00 per front foot. He also conceded that the North Hills subdivision had all streets, utilities, curbs and gutters in place at the time of the sales involved. On cross-examination he testified:
“Q. You are saying the State of Arkansas should pay Mr. Welter just as much for this undeveloped property as we would have to pay you for in Deerwood or North View!
A. Yes, Sir.
Q. You think that is reasonable?
A. Yes, Sir.
Q. That is your expert opinion?
A. Yes, Sir.”
Mr. Henry Welter testified that his property had a before value of $31,000 and a value after the taking of $3,000 for a total damage of $28,000. He stated the property was platted into lots and blocks in 1959 or earlier and has been planted in pine trees for 7 or 8 years. He agreed with Mr. Owens that the nearest utilities .are 500 feet away. On direct examination he testified that he had checked into subdivision property and that the North Hills subdivision was selling for $30.00 a running foot and corner lots at $15.00 more. He then gave a $2,-000 a lot value to the lots fronting on highway 95 and a $1,500 per lot value to the back lots. Based upon these valuations he arrived at his damages of $28,000. He admitted that the North Hills subdivision had all the utilities in place with curbs, gutters and paved streets at the time of the sale of those lots. On cross-examination he testified as follows:
“Q. I can’t get over the fact, Mr. Welter, that you testified that your undeveloped lots — this is your testimony — you are testifying that these undeveloped lots — this undeveloped subdivision — the lots have the same value as North Hills Subdivision.
'A. Yes, sir. Trees come high. They don’t come every day.
Q. You are telling this jury, just like Mr. Owens told this jury, that your undeveloped property that has been laying there eight or nine years, a lot is worth just as much on the market as a lot in a going subdivision?
A. Yes, sir.
Q. Is that what you want them to believe?
A. That’s right.”
Mr. Gene Huett, after qualifying as an expert, arrived at a before value of $26,750 and an after value of $3,000 for a total damages of $23,750. On direct examination he testified as follows:
“Q. How did you arrive at the figure of $26,-750.00?
A. I used for the seven front lots down this street the basis of $35.00 per front foot. That is $12,250.00. And five lots on the back at $25.00 a foot, $6,250.00 and two lots for the street, one on the front and one on the back— the one on the front $35.00 a running foot .and the other on the back at $20.00 — $3,000.00
Q. All right.
A. Three lots for the front the easement $35.00 a running foot, $5,250.00.
Q. How did you arrive at the after value?
A. The three lots that will be returned I figure they would be damaged $750.00. They Avould be worth $1,000.00 apiece Avhen returned, and $750.00 damage.
Q. That leaves a figure of $23,750.00?
A. That’s correct.
Q. Mr. Huett, is there any what we call enhance ment value of this property as a result of the highway? I am talking about the property we have before up within the taking?
A. Not that I can see.
Q. Why do you say that?
A. Well, in my opinion, it is on the wrong side of the road to be commercial, to be of value for commercial on Highway 95.”
On cross-examination he agreed that the property involved was not in the city limits of Morrilton, that no zoning was involved and that he used the comparable sales method based upon the sale of developed lots in the North Hills subdivision.
We agree with the Highway Commission that the trial court should have struck the testimony of all the landowners’ witnesses relative to valuation because there is a total absence of any reasonable or factual basis in the record for comparison of the value of lots in the paper subdivision with the sales price of fully developed lots in North Hill subdivision where all utilities, streets, curbs and gutters were in place. See Arkansas Highway Commission v. Roberts, 246 Ark. 1216, 441 S. W. 2d 808 (1969).
Under its second point the Highway Commission contends that since there was no substantial evidence to support the verdict appellant is entitled to have the judgment modified and the trial court directed to enter a judgment consistent with appellant’s testimony. With this we cannot agree. Both of appellant’s Aritnesses arrived at their after valuations on the basis of an enhancement caused by the freeway offramp. Both witnesses however recognized that there was a high-pressure gas line bisecting the two lots immediately adjacent to the offramp. From the testimony we find that a fact issue existed as to whether the property could be used for commercial purposes because of tbe Mgb-pressure line. Appellees’ witness Charles Owens testified that no building could be constructed upon the lots because of the high-pressure line. However, when we state that an issue of fact exists on this question, we point out that the issue of fact only exists under the record as made. It may be possible on retrial that any fact issue relative to the enhancement or the possibility of building on the property involved may be resolved beyond any doubt.
Reversed and remanded. | [
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John A. Fogleman, Justice.
Appellee brought an action against appellants and one Ivan Bose to recover for damages to his boat. He alleged that Bose, Giessow and Davis d/b/a Prairie Creek Boat Dock were engaged in the business of storage of watercraft. He asserted that the damage occurred while the boat was held in storage by appellants for compensation. A default judgment was rendered against appellants upon their failure to answer. After the expiration of the term at which the judgment was rendered, appellants filed a complaint alleging that, by reason of misfortune and unavoidable casualty, they failed to appear and plead a valid defense based on impropriety of venue. By an amendment to this com'plaint, appellants alleged that the boat dock at which the boat was stored was owned and operated by a corporation of which Ivan Bose was president and of which appellants were employees. They also alleged that Bose was to have secured legal representation for all parties and that they had assumed that he had done so until the property of one of appellants was attached.
Ivan Bose testified that he was served with a summons, which he took to his attorney and that he told appellant Davis that he would have his attorney handle the summons. He also stated that he had spoken to his attorney in behalf of appellants and had told them they could not be liable because they did not own any of the corporation.
Davis testified that he gave the summons with which he was served to Bose and relied upon his assurance that the matter would be taken care of, that he was merely a dock hand and had no contact with appellee or his boat. Giessow did not testify.
The attorney testified that Bose came to him shortly after the summons was served, requesting that he take care of “us” in the matter; that he had represented the corporation, but did not know either appellant; that he filed an answer for Bose, assuming that “us” referred to the corporation, and that he filed the action to set aside the judgment when Bose called and advised that an execution had been levied against Davis’ property.
The trial court dismissed appellants’ complaint, finding that they were obviously negligent and entitled to no relief because of unavoidable casualty. From that judgment comes this appeal.
Appellants assert that the court erred in this finding. After the expiration of the term at which a judgment is rendered it can be set aside only upon the grounds specified in Ark. Stat. Ann. § 29-506 (Bepl. 1962), by bill of review in chancery, or for error of law apparent upon the face of the record. Karoley v. A. R. & T. Electronics, Inc., 235 Ark. 609, 363 S. W. 2d 120; Wear v. Boydstone, 230 Ark. 580, 324 S. W. 2d 337; Jamieson v. Jamieson, 223 Ark. 845, 268 S. W. 2d 881; Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50; Hill v. Teague, 194 Ark. 552, 108 S. W. 2d 889. The setting-aside of a judgment on at least one of the statutory grounds, i. e., for unavoidable casualty or misfortune preventing the party from appearing or defending, lies within the sound judicial discretion of the trial court. United Order of Good Samaritans v. Bryant, 186 Ark. 960, 57 S. W. 2d 399. See also Byrd v. Brooks, 216 Ark. 781, 227 S. W. 2d 961. The action of the trial court will not be held erroneous on appeal unless there was an abuse of discretion. Bartlett v. Standard Life and Accident Insurance Co., 223 Ark. 37, 264 S. W. 2d 46. Parties served with summons must thereafter take notice of the pendency of the suit and subsequent jjroceedings. A party seeking relief against a judgment on the ground of unavoidable casualty must show that he has been diligent and without negligence. Lambie v. W. T. Rawleigh Co., 178 Ark. 1019, 14 S. W. 2d 245; Bickerstaff v. Harmonia Fire Ins. Co., 199 Ark. 424, 133 S. W. 2d 890. There is substantial evidence that appellants were negligent in their attention to the matter, so we cannot say that the trial court abused its discretion in denying relief against the judgment.
Since we find no abuse of discretion in the finding of the trial court that appellants were not without negligence, it is not necessary that we consider whether appellants asserted a meritorious defense.
The judgment is affirmed.
Jones, J., dissents. | [
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Conley Byrd, Justice.
Appellant D. T. Hargraves, Jr., claimed that, under the terms and conditions of a group policy issued by appellee Continental Insurance Company to Interstate Grocer Company, he was entitled to recover medical expenses incurred by him. The trial court found that appellant was not a full time employee and therefore excluded under the terms and provisions of the policy coverage. For reversal appellant relies upon the following points:
“I. The appellant was insurable under the terms and conditions of the master policy and the application attached thereto.
II. After the issuance of the certificate of insurance and the acceptance of premiums thereon, the appellee had the burden of proof showing that the appellant came within the exclusion provisions of the policy.”
The record shows that Mr. Hargraves is a partner in the Hargraves Insurance Agency and as such is a general agent for appellee. In such capacity he had participated in placing the master policy here involved with Interstate Grocer Company in 1959. In 1966 he began to acquire stock ownership in Interstate Grocer Company and thereafter became a member of the Board of Directors. Later he was elected Vice President. A certificate of insurance under the group policy was issued to him in January, 1967, upon an application that made no inquiries about the status of the applicant relative to temporary or part time employment. With reference to his duties Mr. Hargraves testified as follows:
“Q. Now as a Vice President, which I believe you show that you are, what are your duties with the corporation?
A. My duties are, I would say, would be if you call them a duty, to consult with Mr. Max Moore, the principal, who is the President and generally operates the business. I have been going over there a couple of times at least a week and sometimes going over to sign checks when he wasn’t there, taking at times inventories, check over the accounts receivable, check over the accounts receivable on occasion, consult with him about the condition of the equipment, buildings, etc.
Q. Is that in your capacity as Vice President or member of the Board? Or as both?
A. It would be as both — as first Vice President and member of the Board.
Q. Do you have a fixed salary as Vice President?
A. No, I do not.”
The policy provision in question here provides:
(4) EUGmOITY:
(a) CLASSIFICATION AND DEFINITION: All Individuals in the following classes are eligible for insurance under the Policy:
(b) EXCLUSIONS: All individuals in ihe following classes are to be excluded from coverage:
We find more than ample evidence to substantiate the trial court’s finding, sitting as a jury, that appellant was not a full time employee.
It has been suggested that the phrase “Drivers and part time or temporary employees” can be construed, because of the disjunctive “or”, to exclude only those persons whose employment status is on a casual, transient or transitory basis without any idea of a permanent or prolonged status, rather than those whose regular employment is not full time. We do not agree. The phrase “part time” is defined by Merriam-Webster New International Dictionary (2d ed.) as:
“Less than full time. Also employment at less than the customary number of hours per week.”
On the other hand “temporary” is defined as:
“Lasting for a time only; existing or continuing for a limited time; not permanent; ephemeral; transitory; as, temporary relief; a temporary position.”
We think the better usage of the word “or” here is to mean in the alternative, Hines v. Mills, 187 Ark. 465, 60 S. W. 2d 181 (1933), because otherwise the term “part time” would add nothing to the class of persons excluded.
It is also suggested that Hargraves acquired a status of coverage under our decision in Palmer v. Standard Life & Accident Ins. Co., 238 Ark. 585, 383 S. W. 2d 285 (1964), not only with respect to his status as an employee but also in connection with the exclusion. We do not agree. The policy in the Palmer case provided:
“. . . Certifies that a Group Accident and Health Policy has been issued to the Employer shown below, and that the Employee named herein became eligible for benefits, subject to the terms of the Policy, on the Effective Date indicated . . . provided that on the Effective Date shown above he is then regularly performing the duties of his occupation; otherwise the Effective Date shall be the date of his return to active duty.”
The facts there showed that Palmer had a working arrangement with a grain company whereby he promoted sales of the grain company’s commodities and the grain company in turn made collections from farmers for Palmer’s work in dusting the crops. Since Palmer at the time of the injury was still performing the same occupation in the same manner as when the policy was issued, we held that he was an employee within the terms of the policy. In so doing we said: ‘ ‘. . . The great weight of authority is that the term ‘employment’, as used in a policy of group insurance, refers to a status rather than a contractual relationship.” We understand the Palmer case as saying just that and do not understand it to mean that when a person obtains a certificate of insurance he then has a status of coverage notwithstanding the exclusions of the policy.
Affirmed.
Fogleman, J., dissents. | [
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Lyle Brown, Justice.
This is an eminent domain proceeding initiated by the City of Little Rock to obtain lands needed for expanding the present airport facilities. Landowners Marion G. Baker and wife appeal from the jury award of just compensation. They allege four irregularities in the trial procedure.
The first challenge of the Bakers is directed at portions of Instructions 13 and 14, specifically those pronouncements which stated that comparable sales could be considered as substantive evidence of the value of the Bakers’ property. We have examined the evidence to ascertain whether those portions of the instructions were applicable to any of the testimony. That is because if the instructions were correct under any of the circumstances of the case, they would not be inherently erroneous. Insured Lloyds v. Mayo, 244 Ark. 802, 427 S. W. 2d 164 (1968). A general objection, which appellants made, only reaches those instructions which are inherently erroneous.
Two of the expert witnesses said they had considered as comparable some sales in the same vicinity-which they had personally processed as realtors. Witness Louis Block, Sr., of Block Realty Company, described in detail a sale handled by him in 1968 which in his opinion was highly comparable. Evidence of comparable sales and comparable values given by those having firsthand information may be introduced as substantive evidence going to the value of the subject lands. Sewer & Waterworks Imp. Dist. v. McClendon, 187 Ark. 510, 60 S. W. 2d 920 (1933); St. Louis I. M. & S. Ry. Co. v. Theo Maxfield Co., 94 Ark. 135, 126 S. W. 83 (1910). Instructions 13 and 14 were proper, at least insofar as they applied to any comparables not based on hearsay; whether they are otherwise applicable is not before us because a specific objection was not made.
The second point for reversal: Similarity or dissimilarity of other lands sold in the vicinity is a question for the trial judge and not for the jury. Expert witnesses for both litigants testified as to comparable sales and at no stáge of the trial did the landowner seek to have any of them removed from consideration by the jury. If the essential elements of similarity between an alleged, comparable and the subject property are revealed by the testimony then it is for the jury to evaluate the weight to be given to thát particular comparable; if as a matter of law it is not comparable then it would be the duty of the adverse party to call that fact to the attention of the court.
This brings us to appellants’ third contention for reversal. Counsel for the landowners recalled as a rebuttal witness, Marion G-. Baker, one of the appellants:
Q. Mr. Baker, do you have any opinion as the owner as to what the value of your real estate is? Your property?
A. Replacement value . . .
Mr. Trimble: I object. This is not rebuttal. He didn’t express his opinion on direct and he’s reopening the case. (Objection sustained.)
Appellants contend that Mr. Baker should have been permitted to continue with his answer. We do not agree. It is a general rule of evidence of long standing that the court may, acting with sound discretion, refuse to permit such evidence relating inherently to the case in chief to be held out until rebuttal. Here the issue of just compensation was raised by the pleadings and was competent and proper to be introduced by the landowners in chief. No showing was made as to why it was not brought forward in chief. Absent such showing we certainly cannot say the trial court abused its discretion. Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843 (1915).
Finally, appellants contend that a remark of the trial court amounted to a comment on the evidence. We do not review the contention because it was not called to the attention of the court when made, nor was an objection filed. Southern Cotton Oil Co. v. Campbell, 106 Ark. 379, 153 S. W. 256 (1913). See Arkansas Valley Industries, Inc. v. Giles, 241 Ark. 991, 411 S. W. 2d 288 (1967).
Affirmed. | [
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Prank Holt, Justice.
The appellant refused to pay to appellee a claim based upon a group life insurance certificate issued by the appellant. The trial court, sitting as a jury, found that the appellant was liable to the appellee for the amount of the certificate. Judgment was accordingly rendered for $1,131.95, $135.83 statutory penalty, $350 attorney’s fee, together with 6% interest. Prom that judgment comes this appeal.
Por reversal appellant first contends that the appellee had no insurable interest and the trial court erred in not directing a verdict for the appellant. We find no merit in this contention. The appellant contracted with A. M. Johnson, an automobile dealer, to “procure and submit applications” for group life insurance from his customers for the appellant. Mr. Johnson’s business name was Abb Johnson Motor Company, Pine Bluff, Arkansas. On May 6, 1966, Mr. Johnson sold J. R. Palmer a truck. In payment of the $1,278 balance Mr. Palmer signed a combined installment contract and promissory note payable to Mr. Johnson. At the same time Mr. Palmer was issued one of appellant’s group credit life insurance certificates in the amount of $1,278. This certificate shows Mr. Palmer as the insured and the appellee, Pine Bluff National Bank, as creditor under the 30-month installment contract. The certificate was countersigned “Abb Johnson by Ed Bardwell, Company Agent.” Bardwell, an employee of Johnson’s, had similarly signed certificates previously as .appellant’s agent. The appellee bank purchased, with recourse, the contract and note. The certificate of insurance was also delivered to appellee as creditor and principal beneficiary. Mr. Palmer died on May 28, 1966, at 62 years of age.
Ark. Stat. Ann. <§ 66-3204(1) (Repl. 1966) provides in part: “Any individual of competent legal capacity may procure or effect an insurance contract upon his own life or body for the benefit of any person.” This is the controlling portion of the statute in the case at bar. We agree with the trial court when it stated: “* * * ipkig insurance policy w,as written in order to pay this indebtedness, I think, in case the man died.” Mr. Palmer, the insured, accepted the insurance, signed the certificate, paid the premium and was the owner of the certificate. As previously indicated, appellee bank is designated as the creditor and principal beneficiary. His estate was the contingent beneficiary. He had a right to designate appellee as his creditor and primary beneficiary. It is obvious that these certificates of insurance were supplied to appellant’s agent with full awareness that a purchaser’s installment contract, additionally secured by a credit life insurance certificate, would subsequently be assigned and utilized in the channels of commerce.
Appellant asserts there was misrepresentation by the insured in the application and issuance of the certificate to him and that “the agent joined in wrongful collusion” in securing this certificate. In support of this contention the appellant offered evidence that Mr. Palmer signed the statement that he had “read the limitations and redactions on the reverse side of this certificate;” that Mr. Palmer and Mr. Johnson, the agent, both knew when this certificate was issued that Palmer had another one of appellant’s certificates outstanding which was issued to him by Johnson about a year previously on a 36-month installment contract. It is undisputed that this first certificate was issued to Palmer in the amount of $2,520.70 in connection with the sale of another vehicle by Johnson to Palmer. The total credit life insurance issuable by appellant for anyone in Palmer’s age group, according to both certificates, was limited to $2,000. Thus, it is argued this second certificate was in excess of the insurable limits since the first one was unpaid or outstanding. This first certificate, which exceeded the insurable limit, was, however, reinsured, accepted and paid by the appellant to another bank. Johnson testified that he didn’t know whether this first certificate of insurance was still in effect at the time of the issuance of the secqnd certificate. We agree with the appellee that “if appellant had previously accepted a certificate on the life of J. R. Palmer which on its face was in excess of the applicable limits, how can it now argue collusion and conspiracy because of the issuance of another certificate to J. R. Palmer in excess of the policy limits'?” There was no concealment or misrepresentation by the insured or the agent contained in the certificate of insurance.
Appellant next argues that its agent cannot validly bind the appellant on the certificate of insurance which insures the interest or property of its agent. Appellant cites as a rule of law that an insurer’s agent cannot issue a binding policy that covers his own property without the knowledge, consent or acquiescence of the insurer. We find no merit in this contention. This certificate of insurance insured the life of Mr. Palmer and not the property of appellant’s agent.
The appellant .also asserts that the findings of the trial court are not supported by substantial evidence. We cannot agree. In addition to the evidence we have discussed, there was also evidence presented and the court found that the appellee bank had no knowledge about “these secret agreements of instructions to Mr. Johnson. They had this type of insurance for sale and this bank wanted it and who could they go to other than their [appellant’s] designated agent to buy it.” It is true that when Mr. Palmer died the appellant had not yet received the application and payment of the premium and upon receipt the application and premium w.ere declined. However, there was evidence that the customary business practice between the appellant and its agent was to permit its agent to send in once a month, between the first and tenth, all applications with the total premiums collected. The handling of this certificate conformed to that established procedure. Mr. Johnson had told Mr. Palmer that he was insured. In the past the appellant had accepted Mr. Palmer’s certificate with a face amount in excess of the limitation, the excess being reinsured by appellant. The court could very well find from the evidence that appellant was not enforcing the limitation contained in the certificate as to the insurable limits. A condition inserted in a policy for the benefit of the insurer can be waived by it. Mid-South Ins. Co. v. Dellinger, 239 Ark. 169, 388 S. W. 2d 6 (1965). We cannot agree with the appellant that the findings of the court are not supported by substantial evidence. The familiar rule is that where there is any substantial evidence to support the findings of the trial court, sitting as a jury, we must affirm.
The judgment is affirmed with an additional allowance of $300 for attorney’s fee for this appeal.
Affirmed.
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Conley Byrd, Justice.
Appellant Benton Taylor, who farms near Sparkman, sent bis two ton truck and a 3/4 ton pick-up truck borrowed from bis brother, appellant Phil Taylor, to the Arkadelphia sale barn to pick up cows he bad purchased. Frank Cash, an employee of Benton Taylor, drove the two ton truck and Horace Johnson, Jr., an employee of Benton Taylor, drove the 3/a ton pick-up truck. The two trucks loaded with cows left the sale barn at dusk, the larger truck in front and the pick-up following some 100 yards to a quarter of a mile behind. About five miles from Sparkman a Volkswagen collided head-on with the pick-up truck, in' the pick-up truck’s lane of traffic, knocking the battery loose and completely disabling the truck. Subsequent to the first collision an automobile driven by Doyle Honeycutt, in which appellee Lucille Purifoy was a passenger, collided with the then unlighted pick-up truck. Appellees Lucille Purifoy and Lawrence Purifoy brought suit against appellants Benton Taylor and Phil Taylor and Benton Taylor’s employees, Cash and Johnson. 'The jury in returning a verdict for appellees against Benton Taylor and Phil Taylor exonerated Cash and Johnson by finding in their favor. Thus the sole issue on this appeal is whether there is any independent actionable negligence on the part of Benton Taylor and Phil Taylor.
Appellees contend that both Benton Taylor and Phil Taylor were guilty of independent actionable negligence because of a failure to equip the pick-up truck with the flares required by Ark. Stat. Ann. § 75-722 (Supp. 1967). That statute provides:
“(A) Certain vehicles to carry flares or other warning devices.
(1) No person shall operate any motor truck, passenger bus or truck tractor, or any motor vehicle towing a house trailer, upon any highway outside the corporate limits of municipalities at any time from a half hour after sunset to a half hour before sunrise unless there shall be carried in such vehicle. . .
(a) At least three [3] flares or three [3] red electric lanterns or three [3] portable red emergency reflectors, each of which shall be capable of being seen and distinguished at a distance of not less than 600 feet under normal atmospheric conditions at nighttime.”
Appellant on the other hand argues that the statute is not applicable because a pick-up truck is not a “motor truck” within the meaning of the statute.
The record shows that as Cash and Johnson were proceeding down Highway No. 7, Cash kept up with Johnson through his rearview mirror. After a Volkswagen passed, he no longer saw Johnson’s lights, so he turned around and went back looking for Johnson. Johnson testified that after the collision with the Volkswagen, which knocked out his lights, he came to himself a little and realized there was some lights coming; that he had no flashlight or flares, but he used a black leather cap to flag traffic. One car slowed down and came on around. The next car was coming pretty fast; he kept flagging but about that time the car hit the back-end of the truck. Mr. Kenneth Rogers, a state policeman, testified that he investigated the accident and found no flares in the truck. Cash states that he arrived at the scene of the collision between the pick-up truck and the Volkswagen about the time that Honeycutt hit the pick-up truck. In fact Cash says he took to the ditch to avoid a collision with Honeycutt who was swerving at the time to miss the pick-up truck.
Cases from other jurisdictions reach different conclusions as to whether a pick-up is a motor truck within the meaning of the statute. See Musgrave v. Githens, 80 Ariz. 188, 294 Pac. 2d 674 (1956), and Hemlock 6400 Tire Co. v. McLemore, 151 Tenn. 99, 268 S. W. 116 (1925). Such cases, however, usually construe the term “motor vehicle” with reference to contemporary statutes dealing with motor vehicles which were in existence at the time. In this connection we note that Ark. Stat. Ann. § 75-722 was first enacted as § 131 of Act 300, Acts of 1937, and that statute applied to “motor truck” without reference to passenger bus or truck-tractor, etc. The licensing statute in effect when Act 300. was enacted was § 32 of Act 11, Acts of 1934 (2d Extraordinary Session). The latter section provides:
“Paragraph B. For motor trucks equipped with pneumatic tires the following fees shall be charged: V2 ton or less capacity..............................$8.00 per annum 1 ton or more than y2 ton capacity......12.00 per annum 1 % tons capacity .......................................35.00 per annum
Section 31 of the same act, providing for the licensing of other vehicles, reads:
“(a) For all automobiles equipped with pneumatic tires, used for the transportation of persons, there shall be charged a fee. ...”
Thus we see that the licensing statute at the time made a distinction between automobiles used for the transportation of persons and “motor trucks”. We find this distinction indicative of the meaning of the legislature of the term “motor truck” and hold that the term as used in Ark. Stat. Ann. § 75-722 includes pick-up trucks.
Appellants point out that the statute provides: “No person shall operate any motor truck . . . upon any highway . . .,” and suggest that Benton Taylor does not come within the term “operate.” Thus, say appellants, since Benton Taylor’s employee was exonerated while operating the vehicle, the same jury verdict exonerates Benton Taylor. However we must point out that the term “person” is defined by Ark. Stat. Ann. § 75-303 (a) (Rep-1. 1957) to mean, “Every natural person, firm, copartnership, association or corporation.” 'Thus since “person” as used in the statute is synonymous with “corporation” and since a corporation cannot operate a vehicle except through the conduct of an individual, we believe that the statute must be construed to include those persons who cause the vehicle to be set in motion such as an employer. For this reason we affirm the judgment against Benton Taylor.
The allegations in the complaint with respect to Phil Taylor are that he violated Ark. Stat. Ann. § 75- 722 in failing to have the necessary flares and warnings signals in his truck. The only proof is the following stipulation: ‘1. . . And, it is further stipulated that Horace Johnson was driving a three-quarter Chevrolet pickup truck, 1963 model, and that the registered owner of said vehicle was Phil Taylor, and that Horace Johnson was one of the employees of Benton Taylor and that at the time of this collision, was engaged in the operation of this three-quarter pick-up truck with the consent of Phil Taylor and was in the course of his employment with Benton Taylor.” We can find no evidence in the record which would sustain a finding that Phil Taylor, the owner, by loaning his vehicle to his brother was in any way guilty of violating the statute. Admittedly the statute only requires a vehicle to be equipped with flares when it is being operated at any time from a half hour after sunset to a half hour before sunrise.
Appellees, recognizing that Phil Taylor may not literally come within the terms of the statute, have suggested that he should be held liable on a negligent entrustment theory in that he knowingly permitted the vehicle to be operated upon the highways at the time and in such defective condition. See 6 Blashfield Auto Law § 254-30 (3d ed. 1966). Here again we find that the record is insufficient to show that Phil Taylor knowingly permitted his vehicle to be operated upon the highways at the time involved without being equipped with flares. The only thing the record shows is that the flares were not in the truck at the time of the collision. For this reason the judgment is reversed as to Phil Taylor.
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George Rose Smith, Justice.
On November 29, 1964, in the city of Cabot, a car in which ten-year-old Carol Bradford was riding was struck violently from the rear by a truck owned by the appellant Bailey and being driven by his agent, the appellant Davis. Carol suffered a back injury, for which her father as her next friend brought this action in tort. The case was tried more than four years after the date of the collision and resulted in a $10,000 verdict for the plaintiff. The only contention here is that the verdict is excessive.
We find no error, but we need not detail the testimony at length, for we have often said that the facts in such litigation differ so greatly, from one case to the next, that the decisions are of scant; value as precedents.
Carol testified that on the morning after the acci dent her back hurt so much that she could hardly get out of bed. During the ensuing four years she was treated or examined by several doctors, but when the cas.e was finally tried Carol was still suffering pain. As a result of the injury she could no longer jump on a trampoline, serve as a cheerleader, tumble in physical education class, bend over, or help her mother in activities requiring that she bend over. At least twice she had taken doctors’ excuses to school to exempt her from excessive physical exertion. Carol testified that at the time of the trial her back trouble still existed and was getting worse. Her parents and her grandmother gave corroborating testimony.
Dr. Logue, an orthopedist, found an area of hypersensitivity in the injured region of the child’s back. This was in addition to a condition referred to in the testimony as epiphysitis, which is a roughening in the growing part of a bony structure. Whether the epiphysitis was the result, of the accident is not known with any degree of certainty, but Dr. Logue did attribute to the accidental injury a ten percent permanent disability to the child’s body as a whole. There was, of course, other medical proof contrary to that which we have reviewed, but the jury were warranted in finding the facts to be as we have stated them.
When we consider the pain that Carol suffered intermittently for more than four years before the trial, the additional discomfort to be expected in the future, and the permanency of the injury, we cannot say that the amount of the verdict is so great as to indicate prejudice on the part of the jury or to shock the conscience of the court. That being true, the verdict must be allowed to stand.
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George Rose Smith, Justice.
The defendant-appellant Wawak, a house builder, bought a lot in North Little Rock in the course of his business, built a house on it, and sold it to the appellees Stewart for $28,500. The heating and air-conditioning ductwork had been embedded in the ground before the concrete-slab floor was poured above that ductwork. Some months after the Stewarts moved into the house a serious defect manifested itself, in that heavy rains caused water and particles of fill to seep into the ducts and thence through the floor vents into the interior of the house, with consequent damage that need not be described at the moment.
The Stewarts brought this action for damages. The great question in the case, overshadowing all other issues, is whether there is any implied warranty in a contract by which the builder-vendor of a new house sells it to its first purchaser. The trial court sustained the theory of implied warranty and awarded the Stew-arts damages of $1,309.
The trial court was right. Twenty years ago one could hardly find any American decision recognizing the existence of an implied warranty in a routine sale of a new dwelling. Both the rapidity and the unanimity with which the courts have recently moved away from the harsh doctrine of caveat emptor in the sale of new houses are amazing, for the law has not traditionally progressed with such speed.
Yet there is nothing really surprising in the modern trend. The contrast between the rules of law applicable to the sale of personal property and those ap plicable to the sale of real property was so great as to be indefensible. One who bought a chattel as simple as a walking stick or a kitchen mop was entitled to get his money back if the article was not of merchantable quality. But the purchaser of a $50,000 home ordinarily had no remedy even if the foundation proved to be so defective that the structure collapsed into a heap of rubble.
Several law review articles, of which the earliest was published in 1952, forecast the new developments. Their titles suggest their contents: Dunham, Vendor’s Obligation as to Fitness of Land For a Particular Purpose, 37 Minn. L. Rev. 108 (1952); Bearman, Caveat Emptor in Sales of Realty — Recent Assaults Upon the Rule, 14 Vanderbilt L. Rev. 541 (1961); Haskell, The Case For an Implied Warranty of Quality in Sales of Real Property, 53 Georgetown L. Jour. 633 (1965); Roberts, The Case of the Unwary Home Buyer: The Housing Merchant Did It, 52 Cornell L. Q. 835 (1967). In 1963 a new edition of Williston’s Contracts added its weight to the movement, pointing out a practical advantage in the new point of view: “It would be much better if this enlightened approach were generally adopted with respect to the sale of new houses for it would tend to discourage much of the sloppy work and jerry-building that has become perceptible over the years.” Williston, Contracts, § 926A (3d ed. 1963).
In the past decade six states have recognized an implied warranty — of inhabitability, sound workmanship, or proper construction — in the sale of new houses by vendors who also built the structures. Carpenter v. Donohoe, 154 Colo. 78, 388 P. 2d 399 (1964); Bethlahmy v. Bechtel, 91 Idaho 55, 415 P. 2d 698 (1966); Schipper v. Levitt & Sons, 44 N. J. 70, 207 A. 2d 314 (1965); Waggoner v. Midwestern Dev. Co., S. D., 154 N. W. 2d 803 (1967); Humber v. Morton, Texas, 426 S. W. 2d 554, 25 A. L. R. 3d 372 (1968); House v. Thornton, Wash., 457 P. 2d 199 (1969). The near unanimity of the nimity of the judges in those cases is noteworthy. Of the 36 justices who made up the six appellate courts, the only dissent noted was that of Justice Griffin in the Texas case, who dissented without opinion.
A few excerpts from those recent opinions will illustrate what seems certain to be the accepted rule of the future. In the 8chipper case the New Jersey court had this to say:
The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times. Ancient distinctions which make no sense in today’s society and tend to discredit the law should be readily rejected. . . . We consider that there are no meaningful distinctions between Levitt’s [a large-scale builder-seller] mass production and sale of homes and the mass production and sale of automobiles and that the pertinent overriding considerations are the same.
# # #
Caveat emptor developed when the buyer and seller were in an equal bargaining position and they could readily be expected to protect themselves in the deed. Buyers of mass produced development homes are not on an equal footing with the builder vendors and are no more able to protect themselves in the deed than are automobile purchasers in a position to protect themselves in the bill of sale. Levitt expresses the fear of “uncertainty and chaos” if responsibility for defective construction is continued after the builder vendor’s delivery of the deed and its loss of control of the premises, but we fail to see why this should be anticipated or why it should materialize any more than in the products liability field where there has been no such result.
A similar point of view was expressed in the House case hy the Washington Supreme Court:
As between vendor and purchaser, the builder-vendors, even though exercising reasonable care to construct a sound building, had by far the better opportunity to examine the stability of the site and to determine the kind of foundation to install. Although hindsight, it is frequently said, is 20-20 and defendants used reasonable prudence in selecting the site and designing and constructing the building, their position throughout the process of selection, planning and construction was markedly superior to that of their first purchaser-occupant. To borrow an idea from equity, of the innocent parties who suffered, it was the builder-vendor who made the harm possible. If there is a comparative standard of innocence, as well as of culpability, the defendants who built and sold the house were less innocent and more culpable than the wholly innocent and unsuspecting buyer. Thus, the old rule of caveat emptor has little relevance to the sale of a brand-new house by a vendor-builder to a first buyer for purposes of occupancy.
We apprehend it to be the rule that, when a vendor-builder sells a new house to its first intended occupant, he impliedly warrants that the foundations supporting it are firm and secure and that the house is structurally safe for the buyer’s intended purpose of living in it. Current literature on the subject overwhelmingly supports this idea of an implied warranty of fitness in the sale of new houses.
The Supreme Court of Texas joined in the widespread criticism of the doctrine of caveat emptor in the Humber opinion:
If at one time in Texas the rule of caveat emptor had application to the sale of a new house by a vendor-builder, that time is now past. The decisions and legal writings herein referred to afford numerous examples and situations illustrating the harshness and injustice of the rule when applied to the sale of new houses by a builder-vendor, and we need not repeat them here. Obviously, the ordinary purchaser is not in a position to ascertain when there is a defect in a chimney flue, or vent of a heating apparatus, or whether the plumbing work covered by a concrete slab foundation is faulty.
# # #
The caveat emptor rule as applied to new houses is an anachronism patently out of harmony with modern home buying practices. It does a disservice not only to the ordinary prudent purchaser but to the industry itself by lending encouragement to the unscrupulous, fly-by-night operator and purveyor of shoddy work.
In 1957 an intermediate New Jersey court refused to recognize implied warranties in the sale of realty. Levy v. C. Young Constr. Co., 46 N. J. Super. 293, 134 A. 2d 717, affirmed on other grounds 26 N. J. 330, 139 A. 2d 738 (1958). That case is no longer the law in New Jersey, owing to the New Jersey Supreme Court’s decision in the Schipper case, but we should add that the intermediate court’s arguments were fully answered by the Supreme Court of Idaho in Bethlahmy v. Bechtel, supra:
The reasoning of the majority in the New Jersey decision that chaotic uncertainty would pervade the entire real estate field if sellers were subject to liability for implied warranty of fitness, and that the rules of caveat emptor would work no harshness on purchasers of real estate, is fallacious, unrealistic and unjust when applied to the facts of the case before us. In the situation here the imposition of an implied warranty of fitness would work no more ■uncertainty or chaos than the warranties commonly applied in sales of personal property. Likewise, the statement by the New Jersey court that the plaintiffs had an opportunity to protect themselves by exacting warranties in the contract and reserving them in the deed, has no application to the facts of the case at bar. A buyer who has no knowledge, notice, or warning of defects, is in no position to exact specific warranties. Any written warranty demanded in such a case would necessarily be so general in terms as to be difficult to enforce. It would be like the verbal warranty by defendant in this case, that the house would be a “quality home.”
As might be expected, we have been presented with the timeworn, threadbare argument that a court is legislating whenever it modifies common-law rules to achieve justice in the light of modern .economic and technological advances. That same argument was doubtless made in a famous case that parallels this one: MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C, 440, L. R. A. 1916F, 696 (1916). There the court, with respect to the sale of automobiles, abolished a requirement of privity of contract that was just as firmly embedded in the common law as is the rule that we are now re-examining. Yet the doctrine of the MacPherson case is now accepted as commonplace throughout the nation. We have no doubt that the modification of the rule of caveat emptor that we are now considering will be accepted with like unanimity within a few years.
After the case at bar had been submitted to the court we invited the filing of amici curiae briefs, to avoid the possibility that persuasive arguments might be overlooked. The only brief that urges adherence to the old rule was filed by counsel for the Arkansas Home Builders Association.
The AHBA. brief makes one point that merits com ment. Counsel state that the AHBA “recognizes the need for the imposition of a warranty upon new construction.” To that end the Association included a one-year warranty requirement in a bill that it sponsored, unsuccessfully, in the 1967 and 1969 sessions of the legislature. The main purpose of the bill, however, was to regulate the homebuilding industry by the creation of a governing board and the imposition of licensing requirements upon those engaged in the business.
We are not impressed by the AHBA’s suggestion that we await legislative action, even though the Association concedes that some form of warranty is needed. To begin with, the General Assembly’s repeated refusal to enact the proposed law hardly gives assurance that it will be passed in the near future. Furthermore, whatever decision we reach in this case can have no effect upon the General Assembly’s freedom to change the law as it sees fit. To the contrary, a judicial decision may focus legislative attention upon the problem. See, for example, Act 165 of 1969, which was a prompt legislative reaction to our decision in Parish v. Pitts, 244 Ark. 1239, 429 S. W. 2d 45 (1968).
To sum up, upon the facts before us in the case at bar we have no hesitancy in adopting the modern rule by which an implied warranty may be recognized in the sale of a new house by a seller who was also the builder. That rule, however, is a departure from our earlier cases; so, to avoid injustice, we adhere to the doctrine announced in Parish v. Pitts, supra, by which the new rule is made applicable only to thé case at hand and to causes of action arising after this decision becomes final.
There are three subordinate points that require discussion. First, Wawak insists that all warranties, express or implied, were negatived by this paragraph in the offer-and-acceptance agreement that preceded the execution of a warranty deed when the sale was consummated :
Buyer certifies that he has inspected the property and he is not relying upon any warranties, representations or statements of the Agent or Seller as to age or physical condition of improvements.
Even if we assume that the preliminary contract was not merged in the warranty deed, we think it plain that the quoted paragraph did not exclude an implied warranty with respect to the particular defect now in question, which lay beneath the concrete floor and could not possibly have been discovered by even the most careful inspection. The quoted paragraph does not purport to exclude all warranties. It merely states that the buyer has inspected the property and is not relying on any warranties as to the age or physical condition of the improvements. Construing the printed contract against the seller, who evidently prepared it, we hold that the clause applies only to defects that might reasonably have been discovered in the course of an inspection made by a purchaser of average experience in such matters.
Secondly, the trial court’s judgment for $1,309 was composed of the following items of damage to the house and its furnishings, none of which the Stewarts had yet paid:
To clean rug $ 75.00
To paint house (interior) 235.00
To clean furniture 22.00
To replace lamp shades 35.00
To clean duct system 200.00
To replace draperies 300.00
Minor repairs 22.00
Drain tile to correct leakage 420.00
$1,309.00
Wawak insists that the recovery of the foregoing items is barred by the rule that a plaintif f must use reasonable care to mitigate his damages and that if the damages could have been avoided at reasonable expense then the measure of damages is the amount of such expense. Curtner v. Bank of Jonesboro, 175 Ark. 539, 299 S. W. 994 (1927); Louisville, N. O. & T. R. R. v. Jackson, 123 Ark. 1, 184 S. W. 450, Ann. Cas. 1918A, 604 (1916); Young v. Berman, 96 Ark. 78, 131 S. W. 62, 34 L. R. A. (n. s.) 977 (1910).
The pertinent facts are these: The subterranean ductwork radiates from a metal chamber or plenum, which sits under the heating and air-conditioning units. When Wawak and his ductwork subcontractor, Plummer, were first notified by Stewart of the seepage, they siphoned off the water through the plenum. They next installed drain tile and gravel along two sides of the house, but those measures failed to correct the trouble. In the meantime Stewart bought a sump pump at a cost of $12.50. Whenever rains caused seepage in the ductwork Stewart would place his pump in the plenum, about two hours after the water had accumulated, and pump the duct system dry. Under that procedure some of the seepage got into the house and caused most of the damage that we have itemized above.
Soon after the difficulty first arose Wawak and Plummer proposed the installation of an automatic sump pump, which cost $76 or $78. Their plan was to dig out the floor of the plenum so that the automatic pump would be below the level of the ducts. Whenever the water at the site of the pump rose to a depth of three quarters of an inch the pump would start automatically and pump out the water. Thus the water would never rise high enough to overflow the floor vents and damage the interior of the house. Wawak and Plummer do not contend that their plan would have corrected the subterranean defect. From Wawak’s testimony: “I figured if we could get the pump in there to pump it out, then we could continue to try to find out where [the water] was coming from. It wasn’t our intention to just leave it.” Wawak stated that when he offered to put in the automatic pump there was no damage to the house except some staining of the draperies, which were cleaned at Wawak’s expense.
Stewart refused to allow the automatic pump to be installed, insisting that he wanted to know where the water was coming from and would accept nothing less. When the proffer of the pump was refused, Wawak and Plummer abandoned their efforts to correct the trouble. Thereafter Stewart used his own pump in the manner that we have described, with attendant damage to the house and its furnishings. A period of two years or more elapsed before this action was finally brought.
In the main Wawak is correct in his argument that the Stewarts should have mitigated their damages by permitting the installation of the automatic pump. On the record made below it is an undisputed fact that such a pump would have avoided practically all the itemized damages that were allowed by the trial court.
The pump, however, would not have corrected the basic defect, nor does Wawak so contend. Stewart testified without contradiction and without objection that a man named Gordon could remedy the defect by installing drain tile along the remaining two sides of the house at a cost of $425. That corrective measure would not have been rendered unnecessary by the installation of the automatic pump; so the Stewarts’ duty to mitigate their damages does not involve that item. The amount of the Stewarts’ judgment will therefore be reduced to $420 — the amount allowed by the trial court for the one item of damage that we find to be recoverable.
Thirdly, Wawak argues that he is entitled to judgment over against the appellee Plummer, who installed the ductwork under a subcontract with Wawak. It cannot be said as a matter of law, however, that Plummer was at fault, because the slab floor above the ducts was poured by another subcontractor. Upon this point the trial court’s judgment is sufficiently supported by the proof.
Finally, what we have said also disposes of the appellees’ cross appeal, by which they contend that the court erred in not allowing them the full amount of some of their itemized claims. In any event recovery upon the cross appeal would have to be denied under the rule established in Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49 (1928), and the cases that have followed it, holding that the verdict need not correspond in amount to the proof adduced by either party.
The judgment as modified is affirmed.
Harris, C. J., and Fogleman and Byrd, JJ., dissent. | [
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Carleton Harris, Chief Justice.
This appeal relates to the refusal of the Lincoln County Chancery Court to grant a temporary injunction on the complaint of appellants wherein they sought to enjoin the commissioners of Waterworks Improvement District No. 3 from proceeding with the construction and erection of an oxidation treatment plant for sewage near the town of Star City; the complaint prayed that upon final hearing, the injunction be made permanent. For reversal, it is simply asserted that the Chancellor erred in not granting a temporary injunction on the basis of appellants’ unrebutted evidence.
No point would be served in relating the testimony in detail. Appellants offered the testimony of Crawford Ryall, Grover Brockman, Jr., Clara Shepherd, and Hubert Slaten, Jr., for the purpose of showing that the proposed oxidation plant is a nuisance. Though construction is not completed, and the plant is not in opera tion, the witnesses all expressed the fear that the value of their properties would be depreciated. Mr. Ryall stated that, in his opinion, the value of his property would be tremendously affected, and he also expressed the fear that the plant would be a health hazard. He said that when there is a prevailing southwest wind he would get odors from the present system ; which was farther away, and probably would also get odors from the proposed new plant:
“I feel like we will, yes, sir. We might not if we were further from it but being that close to it I feel like we will and by the overflow of it — I feel sure it will overflow the creeks and it will be an odor from that.”
Mr. Brockman testified that the new plant would be closer to his home (than the present disposal system), and he felt that the value of his house would be depreciated :
“Well I am thinking it is going to devalue our property. Also I am not real afraid that we will be maybe too much right now but I am thinking in the future what it is going to do to our property. We already have had smells from the other one that comes down the creek and it has me a little gun-shy of this.”
He also stated that he was afraid it would affect his deep well system:
“* * * Of course I understand they say it won’t hurt it but you still worry about it and of course we — I guess that is about the extent of it is the property value. ’ ’
Mrs. Shepherd testified that she had lost land sales due to the location of the proposed plant; that the prospective purchasers found out about the plant and they did not want to build a house close to it. The testimony of Mr. Hubert Slaten, Jr., a certified realty appraiser, was offered by appellants for the purpose of endeavoring to establish damage to the property of appellants, but when asked if the oxidation plant would produce a detrimental effect, Mr. Slaten replied: “It is possible it could, yes, sir.” On cross examination, Slaten also stated that it was possible that it would have no effect on the value of the lands.
No facts were presented which established that the plant would constitute a nuisance. It is, of course, understandable that appellants may have fears that the plant will adversely affect the value of their lands and properties — but the fear of what may happen is not a sufficient ground for obtaining an injunction. In Kimmons v. Benson, 220 Ark. 299, 247 S. W. 2d 468, this court said:
“Reviewing the evidence de novo, we do not feel able to say with assurance that the appellants’ bowling alley will certainly amount to a nuisance in the neighborhood. It may, as the appellees ’ proof indicates, prove to be a serious annoyance to residents in the vicinity, but on the other hand it may turn out to be a harmless place of amusement that will not be noticed by these appellees and their neighbors. In these circumstances equity ought not to prohibit the erection of the building. Such a prohibition is permissible only when the preponderance of the testimony shows that the activity is certain to be a nuisance, Murphy v. Cupp, 182 Ark. 334, 31 S. W. 2d 396; Buckner v. Tillman, 195 Ark. 149, 110 S. W. 2d 1060. In the Buckner case we refused to enjoin the erection of a cotton gin in a residential area because there was doubt that it would prove to be a nuisance, and for the same reason we have declined to stay the installation of a sawmill. Eddy v. Thornton, 205 Ark. 843, 170 S. W. 2d 995.”
Also, the court commented that the hearing was only for purposes of determining whether a temporary injunction should be granted, and that, if the proof were sufficiently developed to warrant injunctive relief, a permanent injunction could be granted after the final hearing.
We do not agree that the court committed error in failing to grant temporary relief.
Affirmed.
It is not clear how far construction has advanced, or actually tvhether it has commenced.
A filtration plant.
This testimony was hearsay, but there was no objection to it.
Emphasis supplied.
It is interesting that the court in its oral remarks from the Bench, stated that Mr. Ryall’s and Mr. Brockman’s septic tanks were closer to their wells than the proposed oxidation plant. | [
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John A. Fogleman, Justice.
This appeal comes from a circuit court judgment affirming that part of a county court judgment entered on February 7, 1967, in which it was found that a strip of land 50 feet in width and about 156 feet long in Country Club addition on Eden Island was a previously dedicated public road. In it the county court accepted this tract as a portion of the county road system. The judgment was entered in a proceeding instituted by appellees on October 13,1966, by filing a pleading entitled “Petition to open County Eoad.” On the same date certain of the appellees published notice dated October 6, 1966, stating that the petition would be filed on October 13. In this petition it was alleged that this strip had been used for a time as an access road to Sunset Addition on Eden Island but was later barricaded so that it could not be so used. It was also alleged that there had been an agreement between the developers of Sunset Addition (owned by one of appellees) and Eden Isle Development Corporation (owned by appellant) that an access road in this area would be made available and that no other reasonable means of access was available to the petitioners. Additional statements in the petition asserted that it was necessary and in the public interest that this road be opened and that the court declare this to be a county road. Appellees prayed for an order laying out and dedicating the “access way” described as a county road.
Appellees ask that we dismiss the appeal because appellant failed to file its prayer for appeal, affidavit for appeal and complaint in the circuit court within 10 days following the entry of the county court order or before the expiration of the term of the county court at which it was rendered. This objection to jurisdiction was first raised in this court. It is not necessary that we determine whether this omission was fatal to jurisdiction as we held in Drainage District No. 7 v. Stuart, 104 Ark. 113, 147 S. W. 460, or was waived by appellees’ appearance in the circuit court, taking substantive steps without moving in that court to dismiss the appeal as we ¿eld in J. R. Wulff v. Davis, 108 Ark. 291, 157 S. W. 384. We find that one of appellant’s four points for reversal requires disposition of this case for a jurisdictional defect fatal to the original proceeding. When the court in which the action is filed has no jurisdiction, the appellate court should dismiss the whole case for want of jurisdiction. Pendleton v. Fowler, 6 Ark. 41; Fitzgerald v. Beebe, 7 Ark. 305, 46 Am. Dec. 285; School District No. 11 v. Williams, 38 Ark. 454; Smyrna Baptist Church v. Burbridge, 205 Ark. 108, 167 S. W. 2d 501. The circuit court judgment must be reversed and the proceeding dismissed for want of jurisdiction in the county court, so we only discuss appellant’s point raising the jurisdictional question. This point, raised below, is based upon the fact that only six persons joined in the original petition.
Arkansas Statutes Annotated § 76-902 (Repl. 1957) requires that a petition to open a county road be signed by at least 10 freeholders of the county. This is a proceeding. provided by Ark. Stat. Ann. §§ 76-901 — 915 (Bepl. 1957) (parts of Act 26 of 1871, as amended). The county court can only acquire jurisdiction of a proceeding under these sections when there is strict compliance with the requirements of the act relating to the signing of the petition. Rust v. Kocourek, 130 Ark. 39, 196 S. W. 938; Polk v. Road Improvement District No. 2, 123 Ark. 334, 185 S. W. 453; Howard v. State, 47 Ark. 431, 440, 2 S. W. 331. Since this was not the case here, neither the county court, the circuit court nor this court has jurisdiction to pass upon the merits of the case.
While the circuit court tried the case de novo, its jurisdiction on appeal was dependent upon county court jurisdiction, and no greater than that of the latter court. Carter Special School District v. Hollis Special School District, 173 Ark. 781, 293 S. W. 722. The circuit court could render only such judgment as the county court could have rendered. Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706. The jurisdiction of this court is also dependent upon the county court jurisdiction, so our discussion of other points would not be of any consequence and would constitute an advisory opinion merely.
That this proceeding was brought under these sections is beyond question. In appellant’s "Complaint” filed in the circuit court it was alleged that: notice of the petition was given pursuant to §§ 76-902 and 904; the proposed road was described pursuant to § 76-903; bond was given by appellant pursuant to § 76-902; viewers were appointed by the county court pursuant to § 76-905, by an order pursuant to § 76-907; notice was given pursuant to § 76-908; viewers laid out the road and assessed damages pursuant to §§ 76-907, 909 and 910 and filed their report pursuant to § 76-911; the county court established the road pursuant to §§ 76-912 and 913. These allegations were admitted by appellees. Even in the absence of these admissions, the validity of these allegations is clearly demonstrated by an examination of the record, which discloses that every step prior to the county court order follows these sections explicitly. | [
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J. Feed Jones, Justice.
The appellant, Bill Stout, was charged on information filed by the prosecuting attorney in the Crawford County Circuit Court with the crime of murder in the first degree in the shooting of Winfred Lee Jones on March 27, 1967. This is the third appeal to this court following as many trials. Stout’s first trial resulted in a verdict of guilty of manslaughter with a penitentiary sentence of two years. This court reversed, Stout v. State, 244 Ark. 676, 426 S. W. 2d 800. The second trial also resulted in a verdict of guilty of manslaughter with a sentence of five years. This court again reversed, Stout v. State, 246 Ark. 479, 438 S. W. 2d 698. At his third trial Stout was again found guilty of manslaughter and his punishment fixed at two years in the penitentiary. On this appeal he relies on the following points for reversal:
“The court erred in permitting the prosecuting attorney to withdraw his peremptory* challenge to two jurors after the jury panel had been exhausted and at a time when defendant had only one peremptory challenge available to him.
The court erred in overruling defendant’s motion for change of venue.”
The facts remain practically the same as detailed in the earlier decisions, supra. Stout and Jones had known each other and had been on friendly terms for some time prior to March 27, 1967. On that date Jones went to Stout’s home about 11:30 a.m. Jones had been drinking when he arrived at the Stout home and he and Stout consumed additional beer while they worked on a kitchen cabinet during the afternoon. When Stout left for work about 3:30 p.m., he requested Jones to also leave and Jones went to his automobile as if to leave but he returned to the Stout home after Stout left for work. Jones and Mrs. Stout purchased additional beer during the afternoon and Jones continued to drink beer in the Stout home in the presence of Mrs. Stout and her teenage daughters and a 20 year old male relative. Mrs. Stout also drank some of the beer. The evidence is in some conflict as to Jones’ conduct during the afternoon. Mrs. Stout testified that Jones forced her to accompany him on the trip for additional beer, but other evidence is to the effect that one of the daughters also went along.
In any event Stout learned by phone that Jones was still at his home, so about 6:30 p.m. during a work rest period, Stout returned home and demanded that Jones leave. The evidence is in some conflict as to exactly what was said and done, but about 7:30 p.m. Stout shot and killed Jones with a pistol. The sufficiency of the evidence is not questioned on this appeal so for that reason we do not set it out in detail.
The record is not perfectly clear as to the sequence of events in the selection of the jury leading up to appellant’s allegation of error under his first point. After four of the jurors had been excused for cause and eight jurors including Mrs. Rastall had been selected, the appellant had exercised seven peremptory challenges including that of juror W. F. Arnold, and the state had exercised none. At this point the record is as follows:
“MR. ROGERS: We haven’t had an opportunity to talk to the Joneses, but Mr: Arnold is related and they wanted to get him off.
THE COURT: You have a right to exercise challenges so long as it is done before he exhausts his challenges.
MR. SEXTON: I have just exhausted mine, Your Honor.
THE COURT: You have not. You have exercised six challenges. You have not exhausted your challenges.
MR. SEXTON: I thought the Defendant had six.
THE COURT: The Defendant has eight. The State has six.
MR. ROGERS: We excuse Mrs. Rastall and Mr. Arnold.
MR. SEXTON: We object and except to the Court forcing us to challenge before he exercises his ehallengé.
THE COURT: The Supreme Court has held that the Prosecuting Attorney may exercise a challenge on a juror previously accepted provided he exercises his challenge before the defendant has exhausted his challenges. The Court so holds.
MR. SEXTON: Note our exceptions.
(Back in the hearing of the Jury)
MR. SEXTON: Who did he challenge1?
THE COURT: Mrs. Rastall and Mr. Arnold.”
The parties continued the examination of the jurors on voir dire, and after one was dismissed for cause, three additional jurors were selected. The appellant exorcised one additional peremptory challenge and the state exercised three including Everett Young (who had sat as a juror in a criminal case where appellant’s attorney had represented the defendant -who was acquitted).
At this point the appellant moved for a mistrial or in the alternative for a continuance and stated his reasons as follows:
“The jury Commissioners of Crawford County duly and regularly elected or rather selected a list of alternates as jurors which list was delivered to the Clerk and that the jurors in attendance this morning have been summoned from the list and that the panel has been exhausted. We have been unable to obtain a jury, and that the Court has reviewed the list and that there are a number of persons on the list who are not in attendance upon the Court this morning, and that the Court as we understand it proposes to order the appearance of a number of those who are not in attendance but not all of those who are not in attendance; and that such procedure would deny to the defendant the right to have a jury of his choice from the panel selected by the Jury Commissi oners. ’ ’
The Court overruled the motion with the following explanation:
“Let the record show that at this time the State and the Defendant have selected ten jurors in the case, and that the Court is about to order the Sheriff to summon some of the jurors whose names appear upon the regular and special lists, that have been previously excused by the Court for various reasons, mostly because it would have been a great in convenience for the jurors to attend at some previous Court Session during this term.”
Then the following colloquy occurred and the record is as follows:
“MR. SEXTON: And we wish to make it plain that we do not object to the Court’s calling additional jurors but our objections goes to the Court’s selecting the additional jurors that are to he called. We believe all jurors that have been excused ought to have been called because it is the defendant who has the right to select from the panel and not the Court.
THE COURT: The Court thinks it is unnecessary and impractical to summons all jurors who may not be here at the present time when only a few are needed.
MR. SEXTON: We would respectfully point out to the Court that the Defendant still has one peremptory challenge and we have two jurors to select and the State still has three peremptory challenges remaining, and none of us can know the qualifications of the jurors that are to be called but it would appear that there is a distinct possibility that at least six jurors would be required, and we believe especially in view of the last legislative act of our legislature referring to random selection of jurors that we are prejudiced by our inability to have the jurors that was from the entire panel that was selected by the Jury Commissioners and the selection to he made by the defendant and the prosecution rather than by the Court.
THE COURT: The motion is overruled.
MR. SEXTON: Note our exceptions.
MR. ROGERS: I wish to withdraw the challenges on Jurors Young and Rastall.
THE COURT: Mr. Sexton, since the State has withdrawn its challenges to the two jurors, that appears to make the full panel.
MR. SEXTON: What was Mr. Young’s first name?
THE COURT: Everett, Everett Young.
MR. SEXTON: And we object to the Court’s action in permitting the State to withdraw its objections to the two jurors, Mrs. Alma Lee Rastall and Mr. Everett Young.
THE COURT: You have previously accepted Mrs. Rastall and you have not yet exhausted all your challenges.
(Now back in the hearing of the Jury)
THE COURT: The Clerk will call the names of the jurors and as your name is called, please stand and remain standing until the call is complete.
THE CLERK: Mrs. Jean Peer, Charles Pratt, Jerry Thomas, Mrs. George Shook, Alma Lee Rastall, Doyle Telaar, Clara Storey, Mrs. Mary Cluck, Geneva Releford, Everett Young, Troy Robertson, Mrs. Charles Lewis (All remain standing.)”
We find no error in this procedure. Ark. Stat Ann. §§ 39-220.1 — 39-221 (Repl. 1962) are as follows:
“Deficiencies in the regular panel of the petit jury shall be filled by selecting jurors from the special panel provided for in section 3 [39-220] of this act and when in the trial of any case the regular panel is exhausted the court shall direct the summoning of a sufficient number of jurors from the special panel to complete a jury for the trial of said cause. In no event, except by consent of the parties, shall bystanders be summoned.
Said list so provided shall be enclosed and sealed in an envelope and indorsed ‘Special Panel of Petit Jurors’ by the jury commissioners, delivered to the clerk in open coxirt and filed by the clerk. When in the opinion of the court it appears that a regular panel cannot be completed from the list of regular and alternate jurors selected by the jury commissioners or that the regular panel will be exhausted during the trial or prior to the trial of any case the court shall order the clerk to open the panel of special jurors in open court and shall direct the sheriff to summon such number of special petit jurors from said list as may be needed either as regular petit jurors or as special jurors in the trial of any case.”
A defendant does not have the right to have a jury of his choice from the panel selected by the jury commissioners, he only has a right to a competent, fair and impartial jury. The privilege of peremptory challenge in selecting a jury is not a right of selection, it is a privilege of rejection. (See 47 Am. Jur. 2d, Jury, § 233). •Challenges for cause are unlimited.
Now as to the crux of appellant’s contention on his first point. The record indicates that he actually had two peremptory challenges left when ten jurors had been selected. When the appellant objected to the court exercising its statutory authority and duty in obtaining additional jurors from the regular or alternate panel who were not in attendance on the court, the. state simply withdrew its peremptory challenge to Mrs. Rastall, whom the appellant had previously accepted, and to Mr. Young, who had stated on voir dire examination that he had previously served on a jury where appel lant’s attorney had represented a defendant in a criminal case and the defendant was acquitted.
The appellant cites two cases in support of his contentions under his first point. The case of Furman v. Applegate, 23 N. J. Law 28, was an 1850 New Jersey case holding that the trial court did not err in refusing to permit the defendent to challenge a talesman juror and then after another talesman was called,, and also peremptorily challenged, withdraw his challenge and reinstate the first juror. We agree with the New Jersey court that such procedure would he fraught with mischief. Under the sparse facts of that venerable case it would appear that through the process of challenge and withdrawal, the defendant was attempting to do what the appellant contends, in the case at bar, he is entitled to do — obtain a jury of his choice from all of those summoned as prospective jurors. In the case at bar the withdrawal of the state’s challenge made up the jury and no additional talesman was called because no additional jurors were challenged for cause and the defendant exercised no further peremptory challenge.
The second case relied on by the appellant, Biddle v. State, 10 A. 794, was an 1887 Maryland case in which one Ferguson was accepted as a juror by the state but was challenged peremptorily by the accused. After-wards, and before the panel of 12 jurors had been obtained, but after 11 jurors had been sworn; after the accused had fully exhausted his peremptory challenges, and the state had only exhausted two challenges, a talesman was summoned and his name made known to the accused. No cause was suggested as ground of challenge to the talesman but the accused proposed to withdraw his challenge to Ferguson and to allow him to be sworn in as the 12th juror. The New Jersey trial court sustained the state’s objection to this procedure and the Supreme Court sustained the trial court saying: “The right of peremptory challenge is a right not to select, but simply to reject, jurors, without cause assigned.” The distinction between that case and the one at bar is obvious. In the case at bar the state withdrew its challenges to two jurors in order to make up a jury from the panel in attendance. The defendant had already indicated his acceptance of one of these jurors and the other one had originally been rejected by the state apparently because he had sat on a jury which had rendered a verdict favorable to a client appellant’s attorney was representing. The state did not withdraw its challenges in an attempt to select one juror in preference to another juror. It withdrew its challenges for the purpose of making up the jury from the panel in attendance on the court and to avoid the delay in summoning other veniremen over the objections of the appellant. The appellant could have eliminated either or both of these jurors by the mere exercise of his right of peremptory challenge. This he did not do.
The appellant never did exhaust his peremptory challenges, neither did he save his exceptions to the court’s action in permitting the state to withdraw its peremptory challenges to the two jurors. The appellant received the minimum sentence permissible under the law for the crime on which he was tried and the jury recommended that half of that sentence be suspended. Certainly the appellant has not shown wherein he has been prejudiced.
As to appellant’s second point, Ark. Stat. Ann. § 43-1501 (Repl. 1964), states as follows:
“Any criminal cause pending in any circuit court may be removed by the order of such court, or by the judge thereof in vacation, to the circuit court of another county, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.”
Ark. Stat. Ann. § 43-1502 (Repl. 1964), provides as follows:
“The application of the defendant for such order of removal shall be by petition setting forth the facts on account of which the removal is requested; and the truth of the allegations in such petition shall be supported by the affidavits of two (2) credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way. Reasonable notice of the application shall be given to the attorney of the State. The court shall hear the application and, after considering the facts set forth in the petition and the affidavits accompanying it and any other affidavits or counter affidavits that may be filed and after hearing any witnesses produced by either party, shall either grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence.”
A motion for change of venue is addressed to the sound discretion of the trial court. Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141. It has been uniformly held that unless the trial court has abused its discretion in overruling a motion for a change of venue, the order is conclusive on appeal. Bryant v. State, 95 Ark. 239, 129 S. W. 295; Ford v. State, 98 Ark. 139, 135 S. W. 821; McElroy v. State, 100 Ark. 301, 140 S. W. 8; Spear v. State, 130 Ark. 457, 198 S. W. 113; Adams v. State, 179 Ark. 1047. 20 S. W. 2d 130.
In Maxwell v. State, 236 Ark. 694, 370 S. W. 2d 113, we held that on a motion for a change of venue the burden is on the movant to make credible proof to support his motion and in Bailey v. State, supra, we said:
“This court has ruled that, in order for an affiant to qualify as a credible person under the statute, he must be cognizant of the prejudice existing throughout the whole county, and not merely in por tions thereof. Hedden v. State, 179 Ark. 1079, 20 S. W. 2d 119; Dewein v. State, 120 Ark. 302. 179 S. W. 346; Speer v. State, 130 Ark. 457, 198 S .W. 113; Williams v. State, 162 Ark. 285, 258 S. W. 386; Mills v. State, 68 Ark. 1005, 272 S. W. 671.”
The appellant relies on the Florida ease of Singer v. State, 109 So. 2d 7, and argues that “in the exercise of its discretion the trial court must give the defendant the benefit of any doubt as to the state’s ability to give the defendant a fair and impartial trial.” We have never adopted such rule in Arkansas (Bailey v. State, supra). But even so, in the Singer case the court points out that prejudice in the minds of the members of the public was brought out on voir dire examination of the jury after the cout had ruled on the motion for change of venue. In the case at bar none of the jurors knew anything about the case and one of the jurors testified on voir dire that he had never heard of the case. Certainly the penalty assessed by the jury verdict was not indicative of prejudice. The appellant obtained 14 form affidavits in support of his motion for a change of venue, but only four of the affiants appeared for examination by the court at the hearing on the motion. One of the affiants, Theo Baxter, Jr., testified that he had carried affidavits over the county to be signed, but no one would sign them. He testified that several people had told him that the defendant could not obtain a fair trial because he had already been tried twice. He could not remember the names of anyone he talked to except his mother and “one of the McMaster boys.”
“A. I just asked him what he thought about the Stout trial.
Q. What did lie say to that?
A. To my knowledge, I don’t know his exact words. He just left the impression that it would just have to go the way it was and he wasn’t going to get involved in it.
* #
Q. You stated yourself that you didn’t think he could get a fair trial?
A. Well, personally, I think when a man had been tried in Court twice and the case had been reversed, I don’t think that the third time makes any difference.”
Darrell Johnson had discussed the matter with no one outside Van Burén Township. Albert Smith testified that he had spent the previous night in Van Burén “up here in a shed”; that he knew nothing about the Bill Stout case and had talked to no one in Crawford County about the case. Mae Bostick testified that from what she had heard she is of the opinion that Stout could get a fair and impartial trial in Crawford County. We are of the opinion that the appellant fell far short of sufficient proof in support of his motion for change of venue, and that the trial court did not abuse its discretion in denying the motion.
The judgment is affirmed. | [
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Lyle Brown, Justice.
H. F. Buhler and wife were awarded judgment against Arkansas Real Estate Company, Inc. on four notes secured by mortgages on lands in Saline County. The judgment was resisted on the ground that the notes were usurious. It was contended that the debt sued on was represented originally by a single note which was usurious; and that these four settlement notes were tainted with the usury from the original note. Those contentions were rejected by the trial court and Arkansas Real Estate appeals.
We first turn our attention to Avhat Ave shall call the original note. Arkansas Real Estate Company, Ino. is a domestic corporation through which R. M. Traylor has for a number of years dealt in the purchase, sale, and development of bauxite properties in Saline County. In 1948 Traylor evidently interested Buhler in participating in some of the bauxite ventures headed by Traylor. In that year the parties executed a contract evidencing their first substantial venture together. As a result of that agreement, Buhler obtained title to some forty-six acres in Saline County, and the refusal of joining with Traylor “on a 50/50 basis in connection with any options covering bauxite lands which you may negotiate in the State of Arkansas for a period of twelve months ...”
The two men subsequently participated in a number of bauxite transactions, presumably initiated by the described contract. Buhler’s participation consisted of advancing funds as Traylor acquired options. So far as we can discern from the record, Buhler kept an account of his advancements on a ledger in his office, and Traylor would from time to time make payments thereon. By 1954 Buhler presumably decided to reduce the account to a note. According to the record, Buhler supplied Traylor with an itemization covering twenty-five separate cash advancements in 1952 and 1953, with an additional “$1,000 from previous account.” That itemization is typed on one sheet and totals $67,268.50. It is possible that the items actually total $66,268.50. That is because one of the items appears to have been erased and we cannot state with certainty whether the altered item is $250 or $1,250.
Mr. Traylor does not agree that he then owed the total amount of the account stated by Buhler. On the reverse side of the account are a number of figures in Traylor’s handwriting which Traylor says arose out of conferences between him and Buhler. Among other things are listed certain credits which Buhler is said to have concurred in. Those credits, if correct, would have reduced the account to $50,150. Traylor claims Buhler insisted on adding $5,000 interest to that amount, plus Buhler’s contribution to the purchase of a truck, raising the total debt to $56,900. Then, so Traylor testified, Buhler added $10,000 as another item of interest. The final figure, according to Traylor, was rounded off at $67,000. That is the face amount of the original note dated October 6, 1954. The note was drafted to become due January 1. 1957, to draw five per cent interest until maturity and ten per cent per annum thereafter.
With respect to the original note, there are two features which should here be related. First, there is a handwritten notation in blue ink at the bottom of the typewritten note, which reads: ‘ ‘ $10,000 of this note is interest; $57,000 is principal.” Then opposite that notation in green ink is written, “O. K. H. F. Buhler.” It is evident that Buhler’s signature is genuine. Secondly, Traylor insists that he actually did not owe the money represented by the note; that he executed it as a favor to Buhler who insisted thereon because, so Traylor testified. Buhler needed the money; that the entire venture was that of a partnership in which Buhler agreed to advance three-fourths of the capital and Traylor agreed to advance one-fourth plus his services; and that upon the sale of a valuable holding which would have aggregated $300,000, each party was to have beemremunerated.
Traylor was the only witness who testified as to the transactions we have described. Buhler was called; he testified as to his ownership of the notes sued upon; he was asked to identify the handwriting, “O. K. H. F. Buhler,” which he was unable to do (his attorney agreed that it was Buhler’s signature); he was asked if he remembered the particulars surrounding the drafting and execution, of the original note, to which he replied that his memory was failing and he could not recall them. It was shown that Buhler was 88 years of age at the time of the trial and he testified that his memory was “almost gone.” Appellant did not challenge that asser tion and counsel admirably restricted bis questioning accordingly.
In 1966, which was some considerable time prior to the filing of the instant case, Buhler sued Arkansas Real Estate Company on the original note. That suit was settled by Buhler and Traylor without benefit of counsel. In that settlement Buhler took the four notes forming the basis of this litigation.
Now back to the original note. Traylor points up these arguments to support his theory that the original note was usurious:
(1) The uncontradicted testimony, supported by documentary proof, shows usury;
(2) Buhler’s signature on the notation of the original note proves usury;
(3) Two letters written by Buhler demonstrate usury; and
(4) When the original note was sued on in Pulaski County, it was exhibited with the complaint, but the handwritten notation, “$10,000 of this note is interest; $57,000 is principal. O. K. H. F. Buhler,” was not copied; and that omission lulled Traylor into not asserting a claim of usury as a defense to the suit on the original note.
The four contentions listed will be treated in paragraphs correspondingly numbered.
(1) The testimony and documental proof of usury. We presume appellant is referring to the testimony of Traylor. He purported to relate, mostly from memory, ,a multitude of transactions between the parties which covered a long period of years. Much of that testimony is inarticulate. It is in contradiction of essential written agreements between the parties. For example, the 1948 contract called for advancement by Buhler of fifty per cent of the cost of acquired options, whereas Traylor insists that they verbally agreed to change Buhler’s contribution to seventy-five per cent. Again, Traylor insisted that the original note for $67,000 did not in fact represent an indebtedness to Buhler; he says he executed the note purely as an accommodation to a man who insisted he was in need of money. Additionally, on an obligation which he said he did not owe, an endorsement of payments on that note shows that over a period of eight years Traylor paid a total of $31,000 on the debt. Finally, Traylor tried to eliminate from the written account, which formed the basis of the original note, some $13,-000 in credits. His testimony in that connection was unsupported by receipts or other written items.
(2) and (3). Buhler’s signature on the notation of the original note, corroborated by two letters written by Buhler (so Traylor asserts), demonstrates usury. We have previously referred to the notation on the bottom of the original note. Of course that notation speaks for itself and it is logical to argue that it speaks the truth. On the other hand, Buhler supplied an itemized account which totaled, in round numbers, $66,000 or $67,000, and the chancellor apparently concluded that the itemized account represented a true statement of the indebtedness. Additionally, one of the letters to which Traylor refers is dated in December 1958, from Buhler to Traylor. Among other things, that letter contains this statement:
You got the $67,000 without adding any interest, in about four months, $5,000 and $10,000 at a time, turning in names and land descriptions that could not be found. I, of course, permitted you to say that $10,000 of it was interest in order to get you to make the note. You naturally preferred to keep it like it had been for the last 10 previous years, in and out, without any accurate account, or without any definite time to pay except on small amounts.
In a letter dated April 1964, Buhler to Traylor, the latter attaches considerable significance to this statement. “That is separate from the $67,000, on which I gave -yon $50,000, not in notes, or questionable stocks or bonds without value, but in Uncle Siam’s kind of money.” Traylor would have us conclude that from the quoted statement it is conclusive that the original note represented an advancement by Buhler of only $50,000. His argument has some merit but is certainly not conclusive in the face of the array of other evidence to the contrary.
(4) A copy of the original note was attached to the complaint in the first suit; and failure to copy thereon the handwritten notation respecting interest misled Traylor (so he contends) and caused him to overlook then asserting usury as a defense. Traylor conceded that he knew there was an invalid note outstanding between the two men but explained that the lapse of time caused him to forget that this was the note which contained a $10,000 usurious charge. His actions regarding the “usurious” note were inconsistent with the assertion at the trial. For example, he was told by Buhler, by letter in 1958, of Buhler’s version of the mention of interest on the bottom of the note, namely that he permitted Traylor to say that ‘ ‘ $10,000 was interest in order to get you to make the note.” After that communication, Traylor made eight payments on the note totaling $31,000. Another factor which could have impressed the trial court; Traylor came into possession of the original note at the time he delivered the four notes sued upon herein; it was eighteen months thereafter before he raised the allegation of usury. Apparently the trial court found it difficult to conclude Traylor’s point (4) was tenable. Under the circumstances of the case we are certainly unable to find fault with that conclusion.
In his effort to establish usury, Traylor carried a heavy burden. The stated account, prepared by Buhler, set the stage for the execution of the original nóte. The total of that account was very close to $67,000, too close to sustain usury if it was correct. The formal note was not on its face usurious. Traylor proceeded to attack the account stated by parol evidence of credits totaling several thousand dollars. Finally, so he says, the correct amount was ballooned by adding two items of interest totaling $15,000. In the face of the two cited written instruments, Traylor was required to show clearly that the transaction was usurious. Briant v. Carl-Lee Brothers, 158 Ark. 62, 249. S. W. 577 (1923). Our usury law is a penal statute and when a questioned instrument is on its face not usurious “the plainest principles of justice” require that the defense of usury be clearly shown. Smith v. Mack, 105 Ark. 653, 151 S. W. 431 (1912).
The chancellor specifically found that Traylor failed to establish that the original note was usurious and wo are not willing to say that finding was- erroneous.
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] |
Carleton Harris, Chief Justice.
This is an appeal from a decree of the court setting aside a deed allegedly given by P. J. Bell (sometimes referred to as Phillip Bell) and Harriet Bell, his wife, to Charlie Davidson and wife..Bell, purportedly 102 years of age at the time of his death, was the owner of certain lands, approximately 50 acres, in St. Francis County, Arkansas, which Charlie Davidson and wife, appellants herein, contend were deeded to them on October 7, 1967. Evidence offered by the appellants through the testimony of Charlie Davidson, Marie Morrison and Bill Baskin was to the effect that Davidson went into Taylor Motor Company at Forrest City, and asked Mrs. Marie Morrison, who worked in the office of the motor company, to notarize a deed. He then brought P. J. Bell to the window, and Mrs. Morrison, after asking for identification, presented the deed for Bell to sign. Upon being advised that Bell’s wife, Harriet, could not sign her name, Bill Baskin, also an employee of the motor company, was called in for the purpose of witnessing Mrs. Bell’s mark. Both Baskin and Mrs. Morrison testified that Harriet Bell made her mark on the deed, and both testified that the person identified as P. J. Bell signed the instrument. Neither, witness saw Davidson give either of the Bells any money. Charlie Davidson, who had leased the lands in controversy from Bell for 15 or 16 years, testified that he paid cash, obtaining $2,300.00 on August 14, and he also said that he agreed to give the Bells rent as long as they lived, amounting to $150.00 per year. Admittedly, he did not pay anything to the Bells at the time he received the deed, testifying that when he paid them, only the three (Davidson and the Bells) were present.
Sherman W. Baker, according to his testimony, a nephew of P. J. Bell, testified that he was at the home of the Bells on the day the purported deed was executed. Baker said that he went to the house before day, intending to go hunting; however, instead of going hunting, he stayed at the house all day, from 4:00 A.M. to 9:30 P.M. The witness said that neither Bell nor his wife left the house during that period of time. Jerry Harvey Shaw testified that he went with Sherman Baker to the Bell residence, this witness stating that they arrived about 5:00 A.M. He said that he stayed about 15 minutes, and then went squirrel hunting, and that he returned to get Baker about 9:00 P.M.
Danner Cooper testified that he went to the home of Bell on the aforementioned date, and stayed all day, until 9:00 or 9:15 P.M. He confirmed that Baker was at the house during the same period, and he also testified that neither of the Bells left at any time:
‘‘Mrs. Bell was real low sick, and Mr. Bell said he had been up all night. Something he had eaten tore his stomach up.”
Earl Davenport, a handwriting expert of Memphis,
testified on behalf of appellee. This witness was of the opinion that the signature of Phillip Bell on the deed to Davidson was not made by the same person who had signed other exhibits offered, these last having admittedly been signed by Phillip or P. J. Bell. Davenport went into a great deal of detail in explaining to the court how he had reached his conclusions.
We have often commented, so often as to need no citation of authority, that the Chancellor is in a much better position to determine fact questions than this court, inasmuch as he sees and hears the witnesses testify, and observes their demeanor on the witness stand. Here, on the one hand, we have testimony that Bell and his wife executed a deed to Davidson and wife on October 7, 1967; on the other hand, we have two witnesses who testified that neither Bell nor his wife left their home at any time during the day on that date, and another witness, to an extent, corroborated this evidence. We certainly are not in a position to say which witnesses were correct, or whether Mrs. Morrison and Mr. Baskin were mistaken in their identification.
The other facts, howeyer, lend support to the Chancellor’s findings. From the record, it appears that the court paid close attention to the rather lengthy testimony of the hand-writing expert. It also seems a little unusual that Davidson received $2,300.00 in cash on August 14, but did not use it to pay Bell for a considerably long periol of time, if we remember that the deed was not allegedly executed for nearly two months. When asked if he carried the money around in his pocket, this appellant replied, “No, sir. I didn’t carry it in my pocket. I had a place to put it.” He never explained further. Nor did he ever say when or where he gave Bell this cash money.
Appellant says that, though Davidson received the deed on October 7, Bell made no attempt to have it cancelled before his death (which occurred on February 23, 1968). Of course, it is the contention of appellee that no deed was given at all; that it was simply a forgery, and that Harriet Bell knew nothing about the deed until it was placed of record. Actually, this circumstance is very pertinent to the litigation, for Davidson did not record his deed until March 20, 1968, 24 days after the. death of Bell. Davidson’s stated reason for this undue delay is reflected in the record:
“Q. Mr. Davidson, tell this Court now why that deed wasn’t recorded.
A. (No audible response)
Q. Co ahead. Just because he gets a welfare check—
A. Well, I guess that’s what it really was. He said he’d have his checks.cut out.”
This was simply another question of fact for the Chancellor to decide.
Appellant asserts that the court erred in finding that appellee was present in person on the date of hearing. We find no significance in this fact, nor is any authority cited to the effect that error was committed. Harriet Bell, said to be 98 years of age, was apparently unable, because of ill health, to attend the hearing, and it had already been necessary for one of appellant’s witnesses (Baskin), sometime prior to the trial, to go to the Bell home in order to make an identification of Mrs. Bell. We know of no law that requires a party litigant, in litigation involving the setting aside of a deed, to be present.
It is also asserted that the court erred in decreeing that Harriet Bell is the owner of the lands involved. Since the record reflects that the property had been deeded to P. J. Bell, alone, rather than to P. J. and Harriet, as husband and wife, thus creating an estate by the entirety, it does appear that appellee only held a dower and homestead interest. However, that fact does not give appellant cause for complaint; certainly, Mrs. Bell had a sufficient interest in the property to bring suit to set aside the deed, and, after all, this litigation only determines Mrs. Bell’s rights as against appellants. If there are third parties somewhere who claim an interest in the lands, their right to assert their ownership has not been affected by this litigation.
This is not a case where it is contended that a deed was obtained by duress or fraud: under those circumstances, the law requires that the proof be clear, cogent and convincing before the deed can be set aside. Here, it is simply asserted by appellee that the deed was a forgery, and the quantum of proof necessary to sustain such an allegation is a preponderance of the evidence. Coulter v. Clemons, 237 Ark. 227, 372 S. W. 2d 396. We are unable to say that the Chancellor’s findings were clearly against the preponderance of the evidence.
Affirmed.
The testimony does not reflect what Bell offered as identification.
Baskin later testified that he subsequently went to the home of Harriet Bell to ascertain if she were the same person that placed her mark on the deed. He testified that she was the woman who was present on the morning of the signing at the motor company, and who joined in the conveyance by making her mark.
Davidson stated that this $2,300.00 was obtained by cashing a check at the bank given to him by a third party, and in the amount of $4,939.12. He said he paid off a note in the amount of $2,439.12, leaving a balance of $2,500.00. The witness further testified that he left $200.00 on deposit, but never did say where he obtained the $200.00 to add to the $2,300.00, purportedly given for execution of the deed. | [
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J. Fred Jones, Justice.
Walter and Dorothy Fox were married in Arkansas in 1934; and on May 14, 1945, while living in Memphis, Tennessee, Dorothy obtained an uncontested divorce from Walter. The custody of the couple’s seven year old daughter was awarded to Dorothy and she was awarded the household furniture in lieu of alimony. About twro months following the divorce Dorothy and Walter effected a reconciliation and resumed their marital relations in Memphis without the benefit of matrimony. In August 1945, they moved to Forrest City, Arkansas, where they both were employed by the Kroger Company and they purchased a home in Forrest City, taking title as husband and wife. They continued to live in Forrest City as husband and wife until m July 1967, when Dorothy again filed suit for divorce and for a determination and award of property rights; for alimony, attorney’s fees and court costs. In addition to her grounds for divorce, Dorothy’s petition alleged that Walter had induced her to resume the marital relations following their Tennessee Divorce by falsely repesenting to her that he had the divorce decree set aside soon after it was rendered.
In answer to the petition, Walter admitted the Tennessee divorce but denied that it had ever been set aside and he denied that he ever told Dorothy that it had been set aside. He admitted the purchase of real property, taking title in both their names as husband and wife but contends that a tenancy in common was intended rather than an estate by the entirety. By counterclaim Walter alleged that Dorothy had taken checks and money belonging to him, including an old coin collection, of a total value of $4,169. He prayed judgment for a return of the checks and money, or in the alternative, for a judgment in the amount of their value to be offset against Dorothy’s one-half undivided interest in the real property.
The chancellor dismissed Dorothy’s petition for a divorce and alimony for the reason that they were not married and for the reason that Walter was under no legal obligation to support her. The chancellor found, however, that Walter had lulled Dorothy into a sense of false security and induced her to resume their marital relations under the belief that they were still legally married. Apparently on the theory of implied contract, the chancellor awarded Dorothy a judgment for $3,900 for services she rendered to Walter during the last five years they lived together. The chancellor also awarded Dorothy an attorney’s fee of $250 to be paid by Walter.
Walter has appealed from the chancellor’s decree and designates the following points for reversal:
“Lower court erred in ordering Walter Fox to pay Dorothy Fox’s attorney an attorney fee.
Chancellor’s awarding of certain personal property to appellee, Dorothy Fox, was not warranted under the law, or supported by competent evidence.
Chancellor erred in awarding $3,900.00 to appellee for services.
Lower court erred in failing to give appellant judgment against appellee for the value of the old money taken from their safe deposit box.”
An itemized discussion of the points relied on and further discussion of the chancellor’s decree would only add volume without weight to the decision we reach in considering this case on trial de novo.
The chancellor’s finding that Walter misled Dorothy into believing that their divorce had been set aside and tnat they were still married when they started living together again within two months following Dorothy’s appearance in the Tennessee court where her petition for divorce was granted, is not against the preponderance of the evidence. Walter was out of the state when Dorothy’s petition was heard, but he returned to the state immediately following the divorce hearing and he and Dorothy resumed marital relations without any one knowing of the divorce except the parties to it and Dorothy’s two sisters who attended, the hearing, Dorothy’s father testified that he never did know about the divorce. Dorothy and each of her two sifters testified that immediately upon Walter’s return to the state., .soon after the divorce, he .advised. each of them separately and.also advised them collectively that he had had the divorce “thrown out”; that Dorothy believed him,..and that upon this representation, and at Walter’s request,. Dorothy returned with their seven year old daughter to live with Waiter. . ■ • . _ . , '■ ... ■
Walter denies that he told Dorothy, or anyone, else, that he had the divorce set aside. He.testified, that at Dorothy’s suggestion and request, they resumed their marital relationship because of their child and that he agreed to take Dorothy back on a “trial basis.”..He testified that their relations continued on a “trial basis” for twenty-two years from within two months following the divorce until Dorothy filed her -petition "in' the case at bar. Walter even denies that he ever ’held-Dorothy out as his wife during all this time they lived together. He’-admits that he carried her as á dependent wife on their joint income tax returns for the purpose of refunds represented by the checks involved in this' case. Walter took Dorothy to Shrine conventions as his wife but denies that' he ever considered, or held her out, us such. He admits that he may have introduced'-her Oh .a few occasions, for his' convenience,- as -“Mrs'.- Fóx.” Walter admitted that Dorothy worked when they first resumed the marriage relationship, but does not remember whether her income was reported as a wife’s vncome on their joint income tax-returns. ■ :
Dorothy’s testimony indicates that she thought her divorce decree was an-interlocutory decree and-hot final on the date entered. - ■ ; "• ':-
“Q... After you obtained this divorce, you never took any steps yourself to have the decree set -.- -aside? - ,- - - , .. ¡ ., . . . •' - ,,
A. No, I didn’t.
Q. Well, now, Mrs. Fox, don’t you think if you got the divorce that you’d have to take some steps to get it set aside?
A. I never thought anything about it. I didn’t know anything about the law. I don’t know how it works.
Q. I mean logically, doesn’t it seem like to you that a person can’t just say, ‘I’m going to go have this set aside,’ without the other party to the suit doing something about it too?
A. Well, I thought there was a time limit that you could be separated and you could go and have it thrown out.
Q. But you never did anything about it yourself?
A. Well, he told me that he did.
# # #
Q. Now, on what basis did you and Walter Fox go back together after this divorce? What was the basis—
A. As man and wife. He was supposed to have had that thrown out. Why should I doubt him? We come over here and we both went to work. We lived here as man and wife, and I thought we were man and wife.
# # #
Q. Have you and he ever agreed to be remarried since 1945 when you got this divorce?
A. No, I told you I thought it was all settled. I thought he had that thrown out.
Q. You and Walter Fox have not had any children since this divorce in 1945, have you?
A. I had a miscarriage.
Q. When was that!
A. In ’46, I believe. I had two miscarriages.”
The record contains no evidence of conduct on Dorothy’s part inconsistent with her belief that she and Walter were legally married, and there is no evidence of Dorothy’s behavior inconsistent with that of a dutiful wife during all the years following the divorce. Walter admits that he knew they were not legally married, and he goes to considerable length in proving that he considered himself unbound to Dorothy by any legal bonds of matrimony.
“Q. Did you ever take any female other than Dorothy to any of these Shrine meetings or Grotto meetings!
A. Well, I don’t know. That’s my personal business. I don’t think I have to answer that.
Q. Well, I don’t know. The Judge may tell you you have to.
THE COURT: Yes, I think you have to answer that.
A. Did I ever take any other women! Yes, sir, I have.
Q. Who did you take!
A. Oh, well, different ones; I don’t remember.
Q. Well, try to remember which ones you took somebody else to.
A. Well, I don’t remember. I don’t remember exactly what their names were.
Q. Well, what convention was it that you took some one else to?
A. One at Jackson, Mississippi, I taken one.
Q. Would that be the woman you’re living with now in Mississippi?
A. No.
Q. Another woman?
A. Yeah.
* * *
Q. Mr. Fox, was Mrs. Fox content to live with you from 1945 up until just prior to this suit was filed?
A. Had she lived with me?
Q. I mean, was she content living with you and happy living with you?
A. Up until June. See, I was going with a woman down in Jonesboro, and she come in there, and that’s been in 1955 and her [and] Carolyn both never said anything about it.
Q. Well, the first trouble you had was when she went down there and caught you down there in Jackson with this other woman?
A. And scratched up my arm and everything there, and that was the first time.
Q. And up until then she was happy living with you just like things were?
A. Seemed to be. I never had any complaints.”
Walter denied that he was cohabiting with another woman part time in Jackson, Mississippi, but on deposition he testified:
“Q. Your home has been in Arkansas since ’45?
A. All time; hasn’t changed since then.
# * #
Q. Where is your home now? Is it here?
A. Yes.
Q. Do you maintain any other residence?
A. I pay taxes and insurance, but worked every day.
Q. Do you maintain a residence at any other place ?
A. I had my mail changed to Russum Hotel in Jackson.
Q. Do you live at that same hotel?
A. Yes.
Q. Do you live with another woman there now?
A. I have been for three years.
Q. Who is that woman?
A. Eula Leach.
Q. What is her address?
A. 512 Hilda, Jackson.
Q. Are you married to her?
A. No, not unless a common-law marriage down there. ’ ’
Walter had collected from his employer expense items, including reimbursement for telephone calls to his wife. As to these items, he testified as follows:
“Q. Mr. Fox, I hand you plaintiff’s Exhibit No. 9, which are several expense sheets you prepared?
A. I wrote them.
Q. Are these expense sheets always true?
A. No, I think they commonly call them ‘swindle sheets.’
Q. Do you pad these sheets?
A. I think every salesman does. I think they do just like they do on their income tax. If they can get by with it, why it makes the biggest crooks out of anybody, the expense account or income tax.
Q. Well, is that the reason Dorothy Fox’s name appears on that?
A. I took that — yes, as my expense.
Q. You were just getting a little something out of your company?
A. Well, they expect it.”
Under the testimony of the parties in this case, the chancellor was justified in giving more credence to Doro thy’s testimony than he did to Walter's, and under Dorothy’s testimony and that of her two sisters, Walter led Dorothy to believe that the divorce had been set aside and that their legal marriage was still valid when they resumed the marital relationship in July or August, 1945.
Our statutory law does not provide a solution for the problem presented by the facts in this case, but a statutory solution is not necessary. A public and social interest is involved in such cases as this and pure equitable principles will prevent Walter from obtaining all the advantages of a legal marital relation, which to him was illicit and to Dorothy was legal, and at the same time avoid all the responsibility and obligations incidental to a legal marriage while enjoying, and even abusing, the rights and privileges of a single and unmarried man.
We conclude that under the evidence in this case, Dorothy should have, as near as equity can legally decree, such rights as she would have been entitled to had her thirty-three years of normal marital relations not been interrupted by the divorce which Walter convinced her had been set aside within two months of its rendition.
Equity is not partial to Arkansas in such cases as this. In the California case of Lazzarevich v. Lazzarevich, (1948) 88 Cal. App. 2d 708, 200 P. 2d 49, on facts very similar to those in the case at bar, the putative wife sued for her services and for a refund of her contributions to the household expenses. In permitting recovery, the California Supreme Court said:
“In some jurisdictions she has an action in damages for deceit against her putative husband in those cases where by fraud or misrepresentation he had induced her to enter into the supposed marriage relation. See Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721; Blossom v. Bar rett, 37 N. Y. 434, 97 Am. Dec. 747; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Amsterdam v. Amsterdam, Sup., 56 N. Y. S. 2d 19 . . .
# * #
In some jurisdictions including California the deluded woman is permitted to recover the reasonable value of her services over and above the value of the support and maintenance furnished her by her supposed husband. Sanguinetti v. Sanguinetti, 9 Cal. 2d 95, 100, 69 P. 2d 845, 111 A. L. R. 342.”
In the case at bar the chancellor awarded Dorothy a money judgment for services she rendered while living with Walter under the mistaken impression that she was his lawful wife. Dorothy did not sue for a money judgment on implied contract or for damages because of fraud. She sued for a divorce, a determination and award of property rights, for alimony and attorney’s fee.
In the California case of Spellens v. Spellens, (1957), 49 Cal. 2d 210, 317 P. 2d 613, the defendant encouraged the plaintiff to obtain a divorce from her husband Robert. Three days after an interlocutory decree was entered, the defendant convinced the plaintiff that a Mexican marriage following a California interlocutory divorce decree, would be legal and recognized as legal in any of the states. This advice was confirmed by a Mexican lawyer who performed a marriage ceremony for the plaintiff and defendant and they returned to California and lived as husband and wife. The defendant treated the plaintiff with cruelty and suggested that they separate. The plaintiff resisted the suggestion and the defendant then advised her that he had been informed that the Mexican marriage was invalid. The plaintiff brought action praying that the marriage be declared valid, that defendant be estopped to question its validity, and that she be awarded separate maintenance and an attorney’s fee.
In holding that the defendant was estopped to dény the validity of the marriage and in commenting on the effects of such estoppel, the Supreme Court of California said:
“The theory is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the divorce or latter marriage was invalid.
# # *
“ ‘We think it may now be stated that the general public policy in this jurisdiction, as judicially interpreted, no longer prevents application in annulment actions of the laches and estoppel doctrines in determining the effect to be given such divorce decrees.’
. . .It is not the marriage which is found valid as indicated by the above authorities . . . Rather it is that defendant by reason of his conduct will not be permitted to question its validity or the divorce; so far as he is concerned, he and plaintiff are husband and wife. * * *
... It may be noted also that we are not recognizing a common law marriage which does not exist in this state for the theory is that the marriage is not validated; it is merely that defendant cannot contest it. Thus the judgment must be reversed.
It follows from the estoppel that plaintiff was entitled to attorney’s fees, costs and support during trial and on appeal.”
To the same effect are the Tennessee cases cited by app’ellee. Smith v. North Memphis Savings Bank, 115 Tenn. 12, 86 S. W. 392, and Hale v. State, 179 Tenn. 201, 164 S. W. 2d 822.
The evidence of record in the case at bar sustains Dorothy’s contention that she lived with Walter as his wife for more than twenty years under the mistaken belief, brought about by Walter’s deceit, that the divorce had not become final or that the decree had been set aside and that she and Walter were still'legally married during the entire period they lived together. There is no evidence in the record inconsistent with Dorothy’s belief that she was legally married to Walter, and Walter has offered no proof tending to show that Dorothy did not believe they were still legally married, except her long toleration of his own philandering activities.
A legal common-law marriage cannot be entered into in Arkansas, nor can one be created by estoppel, but equity should, and we hold that it does, under the facts in this case, require that Walter be estopped to deny that the divorce decree was set aside or “thrown out” before it became final, and he is estopped to deny such rights as Dorothy would be entitled to had a divorce decree never been entered. In other words, we simply hold that as between Walter and Dorothy, Walter is estopped from setting up the prior divorce as a defense to Dorothy’s petition, and that Dorothy is entitled to exactly the same property rights, alimony and attorney’s fees as she would be entitled to had there never been a divorce.
The entire value of accumulated property is not of record in this case, and the record clearly indicates that the chancellor considered that he had no discretion other than to dismiss Dorothy’s petition for alimony. The amount of the attorney’s fee is not questioned on this appeal and the chancellor’s award of that item is affirmed. This case is remanded to the chancery court for a determination of Dorothy’s rights under the rule herein announced and for entry of a decree not inconsistent with this opinion.
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Lyle Brown, Justice.
The Reliable Life Insurance Company petitioned the chancellor for an order of cancellation of insurance issued on the life of Fannie M. Elhy. The petition was filed after Mrs. Elby’s death and Ortis Elby, beneficiary, was named as defendant. The prayer for cancellation was based on a policy requirement that the insured be in good health on the date of policy issuance. The trial court held the requirement of good health to have been waived because the insured made disclosure of her medical history to the insurer’s agent on the date of the application. The single point advanced by Reliable Life on appeal is that the finding of waiver was against the preponderance of the evidence.
Appellee Ortis Elby was his only witness. His evidence may be summarized thusly: Reliable’s agent solicited an application and filled in the answers for a five hundred dollar policy on the life of Elby’s wife; Mrs. Elhy signed by mark; present were the agent and the Elby couple; in answer to the agent’s inquiries, Elhy informed him that some three or four years previously Mrs. Elhy had been hospitalized and suffered a hemorrhage; the agent asserted that experience to be too remote to he material; he gave the agent the name of the attending physician; and on the date of the application Mrs. Elby was in apparent good health and had so appeared for some time. Other proof showed the date of the application to be July 28, 1967, and the date of death to have been September 12, 1967.
The only witness for Reliable was Dr. Thibault. He testified that Mrs. Elby was his patient in July 1964 and was in his office on three occasions during that month for treatment; that he gave her medication for extremely high blood pressure; that the pressure was down to normal when he saw her the third time; that she was suffering from hypertensive disease which prevailed until her death and actually caused a fatal hemorrhage of the brain; that he next saw her at the hospital at the time of death; and that the autopsy performed by another doctor substantiated his diagnosis.
Reliable’s soliciting agent did not testify, nor was any reason for his absence placed in the record. He could have been a material witness in that the answers he allegedly inserted in the application did not correspond to Elby’s testimony. The chancellor could properly have treated his unexplained absence as a factor unfavorable to Reliable.
It is significant that, according to Elby, the only medical inquiry was whether his wife had ever been hospitalized with an illness; that he responded by explaining that three or four years previously she was in the hospital and suffered a hemorrhage; and that he gave the agent the name of the doctor. (At the trial Elby was not called upon to name the hospital or the doctor. Apparently the attending physician was one other than Dr. Thibault because the latter testified he did not hospitalize Mrs. Elby.) It is true the application contained other medical questions but the agent did all the writing. He was certainly dealing with uneducated people. The record discloses that Mrs. Elby could not write her name; that Elby, a Negro laborer, wrote a poor hand; and he used inferior English in his testimony.
Notwithstanding Elby did not relate to the agent Dr. Thibault’s 1967 treatment (apparently because he was not asked), Elby supplied information of a serious illness — a hemorrhage of such severity as to require hos pitalization. A hemorrhage is certainly not unrelated to high blood pressure; in fact it is commonly known that the latter ailment in a major stage is often climaxed by a hemorrhage. Be that as it may, it is entirely logical that inquiry respecting the reported ailment would have disclosed the blood pressure problem. Reliable had the type of information that suggested a cautionary investigation and therefore is in no position to complain that Dr. Thibault’s treatment was not revealed. 1 Appleman Ins. L. & P. § 220 (1965); Old American Life Ins. Co. v. McKenzie, 240 Ark. 984, 403 S. W. 2d 94 (1966).
A provision that a life policy is void if the insured is not in good health at the time of delivery has long been recognized as valid and enforcable; but it is unavailing if the insurer’s agent, in the scope of his employment, learns before delivery of the policy that the insured is not in good health. Southern National Ins. Co. v. Heggie, 206 Ark. 196, 174 S. W. 2d 931 (1943). The chancellor concluded that the medical evidence supplied by Elby constituted a disclosure sufficient to put Reliable on notice of his wife’s hypertension. We are unwilling to say that finding was clearly against the preponderance of the evidence. Appellee is allowed an attorney’s fee of $250 on the appeal.
Affirmed. | [
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Conley Byrd, Justice.
The above styled appeal is affirmed for noncompliance with Supreme Court Rule 9 (d), appellant having failed to abstract the complaint, answer, decree and doctor’s report upon which it relies.
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J. Fred Jones, Justice.
Orville M. Fine and Mr. and Mrs. Carle Robbins owned land in Crawford County, Arkansas, and they filed a petition in the Crawford County Chancery Court to quiet title, and to cancel certain tax deeds as clouds on their title, to some of the land. Fine and Robbins bring this appeal from that portion of the chancellor’s decree denying the relief they prayed against Watson and McTavish as to the Fractional EY¿ of Section 20, T 8 N of R 30 W, being that part of Section 20 lying north of the Arkansas River and containing 5 to 7 acres. The chancellor dismissed the complaint for want of equity as to this land and Fine and Robbins rely on the following points for reversal:
“The court erred in finding the appellants were not in possession of disputed land.
Appellants proved all elements of their case by a preponderance of the evidence and the court erred in refusing to quiet their title.”
From the record before us, upon trial de novo, we are unable to agree with the chancellor’s decree. By state deed dated May 10, 1939, James Renfroe acquired title to an island in the Arkansas River. The appeTants in their brief refer us to “ (Tr. 107-108)” for copy of this deed. The photocopy of the deed at page 107 of the transcript is totally illegible. From page 108 of the transcript, however, we are able to glean what appears to be a land description as follows:
“Beginning at the Quarter Section corner of Sec tions 16 and 17 in Township 8 North of the Base Line, in Range 30 West of the Fifth Principal Meridian in Arkansas, and running thence South 27 chains and 10 links to the Fractional Section corner between Section 16 and 17, on the Southeasterly point of said Island; thence South 50%° West 20 chains and 39 links to the Fractional Section corner between Sections 17 and 20, on the South side of said Island; thence South 70° West 25 chains and 75 links; thence West 5 chains; thence North 36%° West 10 chains and 75 links to the Fractional Section corner between Sections 17 & 20 on the West end of said Island; thence North 35 & %° East 24 chains and 80 links; thence North 45° East 28 chains and 28 links; thence North 30%° East 36 chains and 36 links to the North end of said Island; thence South 3° East 31 chains and 45 links to the Quarter Section corner between Sections 16 & 17 to the point of beginning containing One hundred Eighty-Four and 42/100 (184.42) acres, according to the survey thereof, field notes and plat of which are now on file in this office.”
Under this same description Renfroe deeded this island to Fine and Robbins on January 6, 1956, and the deed contained the additional phrase “also all accretions thereto.” It is under this deed that Fine and Robbins claim record title to that part of Section 20 lying north of the Arkansas River and containing 5 to 7 acres.
The plat referred to in both deeds is dated September 19, 1939, and was offered in evidence as defendant Watson’s exhibit “A.” It shows two very well defined river channels running northwest and southeast around Renfroe Island, with the south edge of the island extending slightly from Section 17, south into what appears to be, the NW% of the NE% and the NE% of the NW% of Section 20. Defendant Watson’s exhibit “B,” a Lavaca quadrangle topographic map, 1951 edition, shows the north shore of the Arkansas River extending slightly into what appears to he the NWki of the NE^.of Section 20, hut no island is indicated on this exhibit. The aerial photograph made in 1954 and offered in evidence as plaintiffs’ exhibit 35, does not show an island at all and shows nothing on its face as to how much, if any, of the disputed part of Section 20 is on the north side of the river.
The tax deeds to McTavish and Watson, which Fine and Robbins seek to set aside, were dated in 1959 and 1962 respectively. They were for 1952 and 1958 taxes and purported to convey 10 acres in “Pt N% NE14 Sec. 20,” and “Pt E% Sec. 20” respectively. McTavish and Watson prayed no affirmative relief, but only denied that Fine and Robbins were entitled to the relief they sought. It is quite true that in this suit to quiet title the petitioners must rely on the' strength of their own title and not on the weakness of their adversaries’ title. Corn v. Ark. Warehouse, 243 Ark. 130, 419 S. W. 2d 316. It is also true that a deraignment of perfect title is not necessary to sufficiently support title for the purpose of setting aside and cancelling void tax deeds. Davis v. Stonecipher, 218 Ark. 962, 239 S. W. 2d 756.
No one who testified in this case seemed to know where the land lines were. Mr. Fine only knew that he purchased Renfroe Island; that he cleared it up and had been farming all of it. It appears that what may have once been the south side of Renfroe Island is now a part of the north bank of the Arkansas River, and that Mr. Fine still farms all of what was originally Renfroe Island and that his farming operation may extend south to the Arkansas River.
Fine and Robbins did not have their land surveyed when they purchased it, nor did they have it surveyed in preparation for this lawsuit. They alleged that the appellees have void tax deeds which are clouds on their title. They proved their purchase and possession of Renfroe Island, and we conclude that they are entitled to have their .title under the description of their deed from Renfroe quieted as against McTavish and Watson; and that they are entitled to have the tax deeds to McTavish and Watson cancelled as clouds on their title insofar as the tax deeds may relate to any of the land purchased or possessed by them as part of what was originally Renfroe Island, .together with any accretions thereto as described in their deed from Renfroe. The chancellor’s decree is reversed and this cause remanded for further proceedings not inconsistent with this decision.
Reversed and remanded. | [
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Prank Holt, Justice.
This appeal results from the chancellor’s order requiring the appellant to pay his wife, the appellee, $100 per week temporary alimony and provide other benefits during the pendency of a divorce action. Appellant first urges for reversal that he has no income or property and is unable to pay any alimony at this time. We cannot agree.
In November 1967, after approximately 18 years of marriage, appellee instituted an action against appellant for separate maintenance alleging, inter alia, “that he kept company with other women.” It appears this action was dormant until October 1968 when appellee amended her complaint, asked for a divorce and asserted that appellant and appellee “through their joint efforts own an automobile business, together with other properties and interests and that the plaintiff [appellee] is unemployed and unable to support herself, and that she should be awarded alimony, her interest in and to all properties owned by the parties.” Upon a hear ing in December 1968, the chancellor ordered, inter alia, that the appellant pay to the appellee $100 per week temporary maintenance and awarded her the use of an automobile. About six months later, or in July 1969, the appellant filed a motion asserting that his only source of income was derived from Dan Livingston Auto Sales, Inc. and that because of conditions beyond his control earlier in this same month the corporation had been forced to go out of business which prevented him from receiving any salary from the corporation, that he was endeavoring to secure employment as an automobile salesman and that he had no funds or assets with which to pay any maintenance to the appellee.
According to appellant and his regular accountant, a financial statement of appellant’s corporation reflected the corporation’s current liabilities exceeded the assets by approximately $19,000 on the day before the hearing. The accountant testified that he made the financial statement from the regular books and records kept by appellant and his bookkeeper. It was not an independently certified statement. According to the accountant, ordinarily the assets and liabilities of any business change every day. Appellant testified that he had put into the corporation all of his cash assets and also $5,000 he had borrowed from a bank; that he had no personal assets whatsoever and he felt personally responsible for paying the outstanding bills owed by his corporation. According to the financial statement, appellant’s corporation has approximately $27,000 in a dealer’s reserve account held by a local bank to secure the payment of approximately $460,000 which represents the installment contracts purchased by the bank with recourse. No part of this reserve, however, can be withdrawn by the appellant for three years. The potential loss on these installment contracts is estimated at $20,-000 on the financial statement. However, a bank official said it was conceivable that most of this reserve might be returned. The appellant testified that he had an offer of employment, beginning the next day, with one of the largest local automobile dealers which will yield an estimated income of $400 per month. His personal indebtedness is $131 he owes on interest for late payment on his and appellee’s joint federal and state income taxes totaling $1,299.17. It is admitted that appellant’s bookkeeper and her two children, ages 9 and 11, are living in the same house with appellant. There was evidence that appellant and his bookkeeper were often observed together on weekends at a nearby local lake resort. Appellant claims his 19-year-old son lives with him and is dependent upon him. There was testimony, however that his son was married on the date of the hearing. Appellant’s position is that he was having to liquidate his business because the prime interest rate had increased to such an extent that the bank would no longer finance his installment sales contracts. Although a bank official testified with reference to the dealer’s reserve account, there was no evidence elicited that the bank had refused to continue lending money to the appellant’s corporation. We have often said that the testimony of a litigant or of a party interested in the result of the litigation is not treated as uncontradieted or undisputed. Lewis v. Lewis, 222 Ark. 743, 262 S. W. 2d 456 (1953).
The appellant next asserts that the appellee wife is not in need of support from him at this time. During the pendency of this action it appears that the parties sold their house and each received $5,000.00. At the time of the hearing appellee had depleted her share to $3,-800.00. On the date of the trial appellant paid her $600 for arrearage. Appellant argues that the award of temporary alimony is based upon the existence of necessity during the pendency of a divorce proceeding. Tracy v. Tracy, 184 Ark. 832, 43 S. W. 2d 539 (1931).
Appellee is 43 years of age with an eighth-grade education. During their separation she had tried to work and after a month she was unable to continue working because of her health. She has an arrested case of tuberculosis. She is under the care and treatment of doctors for nervousness and extreme exhaustion. There was evidence from her doctor that she was unable to work at the time of the hearing. The appellant admitted that he had spent more than $100 per week on appellee before their separation. In these circumstances we cannot agree with appellant that the chancellor abused his discretion in awarding temporary alimony based upon appellee’s needs. It is well settled that it is within the sound discretion of the chancellor to award temporary alimony, costs and attorney’s fees and the award will not be disturbed on appeal unless there is abuse of discretion. Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S. W. 2d 246 (1943).
The appellant also contends that the change of circumstances since the December 1968 order warrants the suspension of payments to appellee and $100 to her attorney. The appellant reviews the evidence which we have previously discussed. We find no abuse of discretion by the chancellor and, therefore, no merit in this contention.
The appellant next asserts that his wife is not entitled to the use of the corporation’s automobile as was ordered by the chancellor. It appears a local bank holds a delinquent lien on this car. In the circumstances it is for the bank to assert its rights. As between the parties we find no error in the court awarding appellee the use and benefit of the automobile for the purpose of providing her with adequate transportation during the pendency of this divorce action.
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Conley Byrd, Justice.
Appellant Mary Elizabeth Smith appeals from a decree of specific performance in favor of appellee Northeast Randolph Development Corporation, an Arkansas corporation not for profit, and for reversal relies upon the following points:
“I. The option is void for lack of consideration.
“II. The original option, if executed, was never exercised. The option was altered in a material form.
“TII. The appellant did not possess sufficient mental capacity to contract.
“IV. An option taken for $1.00 is a continuing offer to sell that can be revoked at any time. The option was revoked by the appellant
“V. The appellee at the time of the execution of the contract had no legal entity to contract.”
The record shows that on June 16, 1967, Mrs. Smith signed an option to sell real property on a form prepared by the United States Department of Agriculture for the Farmers Home Administration.
All dealings with Mrs. Smith were had through Leonard McCright, the County Supervisor for the Farmers Home Administration and one of her neighbors, Mr. R. L. Spencer. Mr. McCright and Mr, Spencer on Feb. 8, 1968, delivered, on a Farmers Home Administration form, an acceptance of the option and obtained Mrs. Smith’s abstract of title. This acceptance was in accordance with the terms of the option. The exhibits indicate that Mr. McCright received a letter from Mrs. Smith’s St. Louis attorney on Feb. 19, 1968, which was answered by Mr. John Burris, appellee’s attorney of record, on Feb. 22, 1968. On Feb. 29, the St. Louis attorney formally declared the option terminated. Other exhibits show a tender of the $1,600 by the appellee on March 4,1968.
The option is not abstracted but the description in the decree refers to a plat of the town of Maynard and to streets and cross fences. Leonard McCright testified that the corrected legal description was from the abstract and that the corrections were made later. He says that Mrs. Smith went out on the property with them and that they stepped off the various distances as pointed out by her. Mr. McCright’s exact testimony is as follows:
“Q. But you do not want the description that Mrs. Smith originally signed?
“A. It’s off of her abstract.
“Q. Now let me ask the question again. You do not desire to take title to the property on the description as originally drawn up on this document that Mrs. Smith signed?
“A. You mean the federal government would not.
“Q. The federal government?
“A. No, they would not; they would not because it............No, they would not.
“Q. Is it a bad legal description?
“A. Yes.
BY MR. BURRIS:
“Q. Mr. McCright, both the description that was submitted in the deed and the description here describes the same tract of land, does it not?
“A. Yes, sir.
BY MR. RUSSELL:
“Q. Mr. McCright, working with real estate descriptions are you in a position to say that the description as originally written on the option is the same description as the changed description?
“A. Of course, you can see that it is not.
THE WITNESS:
“A. The thing of it is, it is the same land; and working with real estate descriptions, I do know that.”
As we view the record, appellant’s first point passes out of consideration because the overwhelming testimony in the record shows that the offer was accepted before it was revoked. This also disposes of appellant’s point IY for reversal. Points III and Y are raised for the first time on appeal and consequently are not considered. This leaves only appellant’s contention that the option was altered in a material form. With reference to the legal description we point out that the record does not contain a plat of the town of Maynard nor a survey of the property involved. Is this situation it is impossible for us to tell whether the alteration materially altered the 175 sq. ft. exception or whether it described the same property by commencing merely at a different point and going in a different direction to circumscribe the same property, as testified by Mr. Mc-Cright.
It’s true that Mr. McCright said that the description as originally drawn by him was a bad legal description, but we cannot tell whether he meant that the description was void, that it did not properly describe the property according to some Agricultural Department requirement, or that it did not agree with the abstract.
Futhermore, the acceptance merely refers to the option granted on the 16th day of June 1967. The other testimony in the record shows that Mr. McCright did not have the abstract until the acceptance was delivered. Because of these facts we cannot say that the option was altered in such material form before delivery of the acceptance as to constitute a counter proposition instead of an acceptance.
In Woods v. Spann, 190 Ark. 1085, 72 S. W. 2d 850 (1935), we said:
“A material change is one which causes the instrument to speak a different language in legal effect from that which it originally spoke. It is the effect upon the instrument, and not the particular manner in which it is done, which is material, and therefore an alteration, to be material, must not only be an actual alteration, but must be in a material part of the instrument, and must affect the rights' and liabilities of the parties.”
Further, under the evidence here we are not in a position to say that the interlineations constituted a material alteration that would void the contract.
Affirmed.
Fogleman, J., concurs. | [
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Donald L. Corbin, Justice.
Appellant Jamie Anne Rhuland appeals the order of the Faulkner County Circuit Court granting Appellee Michael Fahr’s motion to dismiss. On appeal, Rhuland argues that the trial court erred in dismissing her wrongful-death suit, as it was properly brought in her capacity as a personal representative. Alternatively, she argues that her second amended complaint clearly listed her in her official capacity and should relate back to the filing of the original complaint. This case was certified to this court as involving a significant issue requiring development or clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(5). We find no error and affirm.
This case stems from the death of James Murl Atkinson on July 18, 1999. Immediately prior to his death, Mr. Atkinson was being treated for both a heart condition and complications from diabetes. Following his death, some of his family filed a wrongful-death suit in Pulaski County Circuit Court. The plaintiffs were listed as “Mildred Atkinson, in her capacity as the wife of James Murl Atkinson, deceased, Jamie Anne Rhuland, Donna Poe, and Penny Fuller in their capacity as natural children of deceased James Murl Atkinson.” The defendants included Michael Fahr, M.D., in his individual capacity; Conway Heart Clinic, PLLC; Don Steely, M.D., in his individual capacity; Baptist Medical Center; Conway Regional Medical Center; Tennessee Casualty; Allen Redding, M.D., in his individual capacity; Little Rock Diagnostic Clinic, P.A.; and John Does #1, #2, #3, and #4, unidentified health-care providers for the deceased. The complaint, which was filed on December 5, 2000, alleged that each of the defendants owed Mr. Atkinson a certain duty of care and their breach of that duty resulted in Mr. Atkinson’s death. On July 2, 2001, the trial court granted Rhuland’s motion to nonsuit Baptist Medical Center, Conway Heart Clinic, and Steely. Then, on January 4, 2002, the trial court dismissed with prejudice Redding and Little Rock Diagnostic Clinic, after they reached a settlement agreement with Rhuland. Conway Regional was dismissed with prejudice on March 26., 2002, and on April 1, 2002, the trial court granted Rhuland’s motion to nonsuit Tennessee Casualty.
During the time between the filing of the original complaint and the dismissal of most of the defendants, Rhuland filed an amended complaint on March 21, 2002. This amended complaint was styled to read “The Estate ofjames Murl Atkinson, deceased, Jamie Anne Rhuland, as Administratrix and in her capacity as a natural child of the deceased James Murl Atkinson, and Donna Poe and Penny Fuller in their capacity as the natural children of the deceased James Murl Atkinson, and Mildred Atkinson in her capacity as the wife ofjames Murl Atkinson.” This was a change from the original complaint that simply listed Rhuland in her capacity as a natural child of the deceased. The amended complaint also stated as follows:
1. Since the filing of the original complaint, an estate has been opened. The Plaintiffs are the lawful heirs and statutory beneficiaries of JAMES MURL ATKINSON, deceased, and the action in behalf of the ESTATE OF JAMES MURL ATKINSON is brought by JAMIE ANNE RHULAND as duly 'appointed Administratrix of said Estate.
The original complaint, on the other hand, simply stated that the Plaintiffs were the “lawful heirs and statutory beneficiaries ofjames Murl Atkinson, deceased.”
The day after Rhuland filed her amended complaint, Fahr filed an amended answer, stating that Mr. Atkinson’s estate had been opened and Rhuland appointed as administratrix prior to the filing of the original complaint. In his answer, Fahr also averred that the statute of limitations barred both the original and amended complaint. He further specified that the plaintiffs lacked standing to bring the suit, because a personal representative had been appointed prior to the filing of the complaint and only the personal representative could maintain a cause of action for wrongful death. Fahr subsequently filed a motion to dismiss Rhuland’s complaint, again alleging that the original plaintiffs lacked standing to file suit under the wrongful-death statute, as only the personal administrator, acting in her official capacity, could maintain such a suit. Fahr argued that the statute of limitations was not tolled as a result of the filing of the original complaint and, thus, the amended complaint filed after the expiration of the limitations period was barred.
A hearing on Fahr’s motion to dismiss was held in the Faulkner County Circuit Court on November 5, 2002. The trial court ordered the parties to file post-hearing briefs on the issues whether the original complaint was invalid and whether the amended complaint related back to the filing of the original complaint. On April 25, 2003, the trial court entered a written order granting Fahr’s motion to dismiss. Therein, the trial court stated that it found this court’s opinion in St. Paul Mercury Ins. Co. v. Circuit Court of Craighead Cty., 348 Ark. 197, 73 S.W.3d 584 (2002), to be directly on point. The trial court reasoned that under that case, Rhuland’s amended complaint, which attempted to bring the estate in as a party for the first time, constituted a new lawsuit that was filed beyond the applicable statute-of-limitations period. Moreover, the trial court concluded that the original complaint was a nullity. From that order, comes the instant appeal.
In reviewing a trial court’s decision on a motion to dismiss, this court must treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002); Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 27 S.W.3d 387 (2000). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id. Remaining mindful of this standard, we now turn to I\.huland’s arguments on appeal.
For her first point on appeal, Rhuland argues that her original complaint complied with the provisions of Ark. Code Ann. § 16-62-102 (Supp. 2003). Her argument on this point is two-fold. First, Rhuland argues that she named the correct plaintiff, because she was named as a plaintiff and at that time she had been appointed as the adminstratrix, but that nothing in section 16-62-102 required that she be characterized in any particular manner. In other words, Rhuland argues that it was not necessary that she put the magic words “as Administratrix” in her complaint. Second, Rhuland argues that she is the real party in interest pursuant to Ark. R. Civ. P. 17, and thus was a proper party plaintiff. Fahr counters that these arguments are being raised for the first time on appeal and, thus, are not preserved for this court’s review. Alternatively, Fahr argues that the complaint failed to name the proper plaintiff, as the only party who could maintain the action was Rhuland, °in her capacity as administratrix. We agree with Fahr that Rhuland did not argue to the trial court that she was allowed to file the complaint without designating herself as the administratrix. Accordingly, we reject this argument, as it is well settled that this court will not consider arguments raised for the first time on appeal. See, e.g., Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002); Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002).
The record reveals, however, that Rhuland did raise an argument regarding the applicability of Rule 17; therefore, this argument is preserved for our review. Specifically, Rhuland argues that she was the real party in interest and, thus, properly named as a plaintiff, because she had been appointed as adminstratrix of Atkinson’s estate prior to the time the complaint was filed. Fahr argues that Rhuland filed the original complaint in her capacity as an heir, not as adminstratrix and, thus, Rule 17 is inapplicable.
We begin our analysis with a review of the relevant provisions of Rule 17, which provides:
Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian (conservator), bailee, trustee of an express tmst, a party with whom or in whose name a contract has been made for the benefit of another, or the State or any officer thereof or any person authorized by statute to do so may sue in his own name without joining with him the party for whose benefit the action is being brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
Ark. R. Civ. P. 17(a).
The question to be decided by this court is whether Rule 17 is applicable in the instant case. In other words, did the original complaint styled as “Mildred Atkinson, in her capacity as the wife of James Murl Atkinson, deceased, Jamie Anne Rhuland, Donna Poe, and Penny Fuller in their capacity as natural children of deceased James Murl Atkinson” comply with the filing requirements of the wrongful-death statute by naming the real party in interest.
The Wrongful Death Statute is codified at section 16-62-102 and provides in relevant part:
(b) Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.
This court has held that the wrongful-death statute is a remedial statute that should be interpreted liberally with a view toward accomplishing its purposes. St. Paul, 348 Ark. 197, 73 S.W.3d 584. However, with respect to whether such a cause of action is stated, the action is one that is of statutory creation, and is in derogation of or at variance with the common law, and therefore, we construe the statute strictly. Id. Nothing is to be taken as intended that is not clearly expressed. Lawhorn Farm Servs, v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).
This court has repeatedly discussed the requirement of section 16-62-102(b) that every wrongful-death action must be brought by and in the name of the personal representative. See Davenport, 348 Ark. 148, 72 S.W.3d 85; Ramirez v. White Cty. Cir. Court, 343 Ark. 372, 38 S.W.3d 298 (2001); Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990). This court has also recognized that the wrongful-death statute does not create an individual right in any beneficiary to bring suit. Id. (citing Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985)).
This court addressed an issue similar to the present one in St. Paul, 348 Ark. 197, 73 S.W.3d 584. In that case, the decedent’s two sisters and parents, who constituted part, but not all, of the heirs, filed a pro se survival action against the petitioner. At the time that the complaint was filed, an estate had been opened and the decedent’s daughter had been appointed personal representative. Thereafter, the decedent’s parents were substituted as personal administrators. The parents then filed an amended complaint with themselves as plaintiff administrators. The petitioner filed a motion to dismiss based on the expiration of the statute of limitations. The trial court denied the motion to dismiss, finding that the two sets of plaintiffs were substantially the same parties.
The petitioner then sought a writ of prohibition from this court, arguing that the trial court lacked authority to go forward with the case, because respondents lacked standing. This court granted the writ of prohibition, agreeing that the respondents lacked standing and concluding that the pro se complaint was a nullity. In reaching this conclusion, this court stated that while the two sets of plaintiffs may have been the same persons, they were not the same parties. This court further explained:
They had no standing when they filed the pro se complaint, and they did when they filed the amended complaint as appointed administrators. Unfortunately, the statute of limitations had expired in the meantime. The Thomases as individual heirs at law are entirely distinct legal persons from the Thomases in their later capacity as appointed administrators, and thus different parties. An action for wrongful death brought by a plaintiff in his capacity as an administrator pursuant to Ark. Code Ann. § 16-62-102 involves neither the same action, nor the same plaintiff as in a survival action brought by the same person in his individual capacity pursuant to Ark. Code Ann. § 16-62-101. Murrell v. Springdale Me. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997).
Id. at 205, 73 S.W.3d at 589.
We find the reasoning of this court in St. Paul to be persuasive in the present case. When Rhuland filed her original complaint she did so in her capacity as an heir, as evidenced by the styling of the complaint. This fact is further proven by Rhuland’s attempt to mislead the court in her amended complaint by stating that “since the filing of the original complaint, an estate has been opened,” when in reality the estate had been opened prior to the filing of the original complaint. As such, Rhuland, as an heir, is a distinct legal entity from Rhuland, as an adminstratrix, and Rhuland, as an heir, lacked standing to file this wrongful-death suit. Thus, she was not the real party in interest at the time that she filed the original complaint. In Ramirez, 343 Ark. 372, 38 S.W.3d 298, this court rejected the appellants’ argument that we should broadly construe the class of beneficiaries to include persons not specifically named. We likewise reject Rhuland’s argument that we read into the original complaint something that simply was not there.
For her second point on appeal, Rhuland argues that the amended complaint she filed after the limitations period expired should relate back to the timely filing of the original complaint, pursuant to Ark. R. Civ. P. 15(c). Fahr counters that Rule 15 is inapplicable, as the original complaint constituted a nullity because it was not filed by the proper plaintiff, thus, there was nothing for the original complaint to relate back to. We agree that Rule 15 is inapplicable in the present case.
Rule 15 provides in relevant part:
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
This court has held that Rule 15 is a procedural rule that controls how a party may amend existing pleadings. Before the rule can apply, however, there must be pleadings to amend. See St. Paul, 348 Ark. 197, 73 S.W.3d 584.
In St. Paul, the court discussed the application of Rule 15, stating:
Rule 15 applies, for example, when an amendment permissibly changes the party against whom the claim is asserted or adds a party after the statute of limitations has ran, and it may relate back to the time of filing of the original complaint. Rule 15 makes liberal provision for amendments to pleadings and even allows a plaintiff to amend to add new claims arising out of the conduct alleged in the initial valid complaint. These cases, and the cited case law, all deal with a plaintiff amending an existing valid pleading to state a new cause of action against a defendant or to add a new defendant where proper. Rule 15 simply would not help the appellees in this case because there was no pleading to amend when the Thomases filed their “amended complaint” as administrators.
348 Ark. at 204-05, 73 S.W.3d at 588 (citations omitted).
In St. Paul, this court stated that the amended complaint substituted out the original plaintiffs and substituted in entirely new plaintiffs. According to our decision in that case, this substitution of entirely new plaintiffs resulted in the filing of a new suit and did not constitute an amendment under Rule 15. Id. (citing Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938)).
A similar result was recently reached by the court of appeals in Estate of Daisy Byrd v. Tiner, 81 Ark. App. 366, 101 S.W.3d 887 (2003). In that case, a wrongful-death action was filed by “the Estate of Daisy Byrd,” even though an estate had been opened and a personal representative had been appointed prior to the filing of the complaint. The defendant filed a motion to dismiss, alleging that the plaintiff was a non-entity and that the statute of limitations barred a suit by a new or substituted party. The estate sought to amend its complaint to add the personal representative as the plaintiff, but its motion was denied. The court of appeals affirmed the trial court’s order, stating that because the “Estate of Daisy Byrd, Deceased” was not the personal representative of Byrd’s estate, it was not authorized to pursue the wrongful-death action. The court reasoned that had the amendment been allowed, it would have constituted the commencement of a new action for which the period of limitations had expired.
We are also unpersuaded by Rhuland’s attempt to rely on a concurring opinion in St. Paul, 348 Ark. 197, 73 S.W.3d 584, which discussed the interplay of Rules 15 and 17, and their applicability to an amendment of plaintiffs. At the crux of that concurrence was the conclusion that Rules 15 and 17 were inapplicable because there had been no “understandable mistake.” Id. at 212, 73 S.W.3d at 593. Likewise, no such understandable mistake occurred in this case. Section 16-62-102 specifically details who may maintain a cause of action for wrongful death. Moreover, the record in the instant case reveals that Rhuland was put on notice that a defendant claimed she lacked standing to bring this suit. In its answer to the original complaint, Conway Heart Clinic, PLLC, alleged that the plaintiffs lacked standing to pursue the suit on behalf of the estate and on their own behalf. This answer was filed on December 29, 2000, almost seven months before the statute of limitations expired in this case. Thus, even if this court were to determine that Rules 15 and 17 were somehow implicated in the present situation, there was no understandable mistake warranting an application of those rules.
In sum, under the prior decisions of this court, when Rhuland filed her amended complaint, it constituted the filing of a new action and did not warrant the application of the relation- back doctrine of Rule 15. Because the filing of the new complaint was outside the applicable limitations period, the trial court correctly dismissed the complaint against Fahr.
Affirmed.
This case was eventually transferred to Faulkner County Circuit Court, as all of the defendants with ties to Pulaski County were dismissed from the suit. | [
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Per Curiam.
Appellant Terry Lynn Kuelper, by and through his attorney, Larry R. Froelich, has filed a motion for belated appeal from his convictions of two counts of rape. Fie also seeks a writ of certiorari to complete the record on appeal.
Appellant was convicted following a jury trial held on June 24 through June 26, 2003. The judgment and commitment order was entered on July 22, 2003. Appellant filed this motion on December 3, 2003. We initially denied the motion and remanded the matter to the Benton County Circuit Court to settle the record. See Kuelper v. State, 355 Ark. 539, 140 S.W.3d 464 (2004) (per curiam). Particularly, we instructed the trial court to determine whether Appellant’s trial attorneys, John Gross and Dan Hash, had been relieved of their responsibility to represent Appellant in this matter, whether Appellant had requested his attorneys to file a notice of appeal on his behalf, and whether current counsel, Mr. Froelich, had been appointed to represent Appellant on appeal.
Following remand, the trial court entered an order on January 28, 2004, finding that (1) Appellant had immediately, on the date of his trial, requested Mr. Gross, in Mr. Hash’s presence, to file a notice of appeal on his behalf; (2) Mr. Froelich entered his appearance on Appellant’s behalf on September 12, 2003; and (3) Mr. Gross and Mr. Hash were relieved of their obligations to represent Appellant on the date that Mr. Froelich entered his appearance. Based on these findings, we now grant the motion for belated appeal. See Venis v. State, 350 Ark. 436, 87 S.W.3d 241 (2002) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct to review the conduct of Mr. Gross and Mr. Hash in this matter.
We further issue a writ of certiorari and direct the court reporter for the Benton County Circuit Court to complete the transcript so that it may be promptly filed with this court’s clerk. A briefing schedule will then be set.
It is so ordered. | [
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Jim Hannah, Justice.
Jan Dawson Swint appeals her conviction and sentence of five years in prison and $1000 dollar fine for fourth-offense DWI. Swint argues that her conviction of fourth-offense DWI was in error because a district court DWI conviction that is on appeal to the circuit court may not serve as one of the four DWI offenses under Ark. Code Ann. § 5-65-111 (b)(3) (A) (Supp. 2003). She notes that an appeal from a conviction in district court is tried de novo in the circuit court. Thus, she argues that because she appealed the district court conviction, it is not yet an offense as defined under Ark. Code Ann. § 5-65-111. She also argues that the trial court abused its discretion in admitting prior non-DWI felony convictions into evidence at sentencing. We do not find merit in either claim. A conviction in district court is a valid judgment until a superior court overturns it. Therefore, until overturned, a district court DWI conviction serves as an offense under Ark. Code Ann. § 5-65-111. With respect to prior felony convictions, Swint offers no convincing argument or authority for her position that the convictions were not admissible and that she was prejudiced by their admission. We have jurisdiction of this case pursuant to Ark. Sup. Ct. R. 1-2(b)(1) (2003).
Facts
Deputy Neil Parliament spotted Swint driving erratically at about 2:35 a.m. in Garland County on May 15, 2002. Parliament pulled Swint over and arrested her for DWI based on his observations and her failure of a field sobriety test. Swint registered .15% on the breathalyzer. She was charged with fourth-offense DWI and tried on December 4, 2002. Evidence was introduced at trial that Swint had three prior DWI offenses and that she had prior felony drug convictions. The jury convicted Swint of fourth-offense DWI. She was sentenced to five years in prison and a $1000 fine. One of the DWI offenses admitted was a conviction from Cabot District Court that was then on appeal to the Lonoke Circuit Court.
District Court DWI Conviction
Swint states that the question posed in this case is “whether there is a conviction in Cabot District Court.” Swint asserts that the judgment of DWI in the Cabot District Court may not be counted as one of four DWI convictions in support of enhanced penalties for multiple offense DWI under Ark. Code Ann. § 5-65-111 (2003) because it is not a final conviction. In support of this argument, Swint notes that an appeal to circuit court is tried de novo as if there had been no trial in the district court.
Swint argues first that to hold that a conviction from district court suffices to stand as a conviction under Ark. Code Ann. § 5-65-111 would “greatly impair” the right to a jury trial. We note at the outset that the right to a jury trial is inviolate. Arkansas Code Annotated Section 16-17-703 provides the right to jury trial on appeal to the circuit court and states:
There shall be no jury trials in district court. In order that the right of trial by jury remains inviolate, all appeals from judgment in district court shall be de novo to circuit court.
Ark. Code Ann. § 16-17-703 (Supp. 2003). The right to a jury trial where a criminal action is tried in the district court is preserved by the right to appeal to the circuit court where the matter may be tried de novo with ajury. We discussed this in State v. Roberts, 321 Ark. 31, 900 S. W. 2d 175 (1995) where we stated:
The General Assembly granted jurisdiction of misdemeanors to municipal courts in Ark. Code Ann. § 16-17-704 (Repl. 1994). As to the issue of jury trials in municipal courts, Ark. Code Ann. § 16-17-703 (Repl. 1994) states:
There shall be no jury trials in municipal court. In order that the right of trial by jury remains inviolate, all appeals from judgment in municipal court shall be de novo to circuit court.
There is thus no entitlement to a jury trial in a municipal court, but the right remains inviolate when an appeal is pursued to a circuit court where the case is tried de novo. See Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). When a conviction is appealed from a municipal court to a circuit court, the case is tried de novo, and the appellant is entitled to a trial by jury. See Weaver v. State, 296 Ark. 152, 752 S.W.2d 750 (1988); Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975). The purpose of the trial de novo is to conduct a trial as though there had been no trial in the lower court. Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993).
Roberts, 321 Ark. at 34-5. See also Webb v. State, 323 Ark. 80, 913 S.W.2d 259 (1996). Thus, where a criminal defendant is tried in district court, he or she may appeal to the circuit court and obtain a jury trial in that forum. We also note that where a criminal defendant is charged in a district court, he or she may demand a jury trial and have the case transferred to circuit court where a jury will be provided. See, e.g., Davis v. State, 291 Ark. 191, 723 S.W.2d 366 (1987). Swint’s right to a jury trial was not impaired by her trial in district court. We further note that Swint waived her right to a jury trial in her appeal of the district court judgment.
Swint next argues that her conviction in district court may not constitute an offense to support her conviction for fourth-offense DWI under Ark. Code Ann. § 5-65-111 (b)(3) (A) (Supp. 2003) because it is to be tried de novo in circuit court. A conviction in district court is appealed to the circuit court where it is tried de novo as though there had been no trial in the district court. Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993).
However, even though the matter is tried de novo in circuit court the appeal by trial de novo does not affect the validity of the judgment of the district court until the district court judgment is overturned. As Swint admits in her brief, the procedure in circuit court is an appeal even though the matter is tried de novo.
Arkansas Code Annotated Section 16-19-1105 (Repl. 1999) refers to the judgment of a justice of the peace court being tried on appeal to the circuit court. Section 16-19-1105 provides that a case appealed from the justice of the peace court is tried anew on its merits in circuit court. This court has stated that Ark. Code Ann. § 16-19-1105 applies to municipal courts as well. Bussey, supra. Under Amendment 80, municipal courts are now district courts.
The judgment of the inferior court remains valid on appeal to the circuit court. See Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995); Burgess v. Poole, 45 Ark. 373 (1885); Wilson v. C & M Used Cars, 46 Ark. App. 281, 878 S.W.2d 427 (1994). Section 16-19-1105 dates from Act 135 of 1873. This court in Burgess, supra, stated of a judgment of the justice of the peace court that “[w]hether dismissed or not, the judgment of the justice stands until it is set aside by a superior court. The grant of appeal did not impair it.” Burgess, 45 Ark. at. 375. In Burgess, this court also noted that the record did not show what became of a first appeal, and noted that whether the appeal was dismissed by motion or for want of prosecution, the effect was the same. The judgment of thejustice of the peace was left in “full force.” Burgess, 45 Ark. at. 375, (citing Ashley v. Brazil, 1 Ark. 144 (1838)). See also Brenard Mfg. Co. v. Pate, 178 Ark. 163, 10 S.W.2d 489 (1928) and Sample v. Manning, 168 Ark. 122, 269 S.W. 55 (1925) which cited Burgess for the proposition that a judgment of an inferior court stands until set aside by a superior court. Thus, the judgment of the district court stands until overturned by a superior court and was a valid DWI offense to be used under Ark. Code Ann. § 5-65-111(b)(3).
Non-DWI Prior Felony Convictions
Swint also argues that the trial court abused its discretion in allowing the admission of evidence of prior felony convictions for attempt to produce methamphetamine and possession of drug paraphernalia with intent to manufacture. Evidence of the felonies was admitted in the penalty phase of the trial. Swint was cross-examined by the State regarding these offenses.
Swint was sentenced to five years in prison and a fine of $1000. For a fourth-offense DWI, the law permitted a sentence of one to six years in prison. Ark. Code Ann. § 5-65-111 (Supp. 2003). Arkansas Code Annotated § 5-65-113 (Repl. 1997) provides for a fine of $900 to $5000 for a third or subsequent DWI offense within three years. Thus, Swint’s sentence was not in excess of that allowed by the statutory provisions. A defendant who has received a sentence within the statutory range short of the maximum sentence cannot show prejudice from the sentence itself. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002).
Swint argues, however, that she suffered prejudice because the only basis the jury used to decide on a sentence of five years was the prior felony convictions. Swint asserts that the facts of this case, that the jury was only in the deliberation room for fifteen minutes, that Swint only registered .15 on the breathalyzer, and that there was no evidence that Swint was uncooperative or caused an accident, is proof that the jury based its sentencing decision on the drug felonies. Swint provides no cite to authority for her position on admissibility of the drug convictions. Convincing argument is not provided. Where an appellant fails to provide a convincing argument or authority, the issue will not be considered on appeal unless it is apparent without further research that it is well taken. Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003). The conviction and sentence were within the statutory limitations and are affirmed. | [
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Jim Hannah, Justice.
Lyle B. Thompson appeals a decision of the Pulaski County Circuit Court allowing Bank of America to garnish payments Thompson receives from an annuity purchased for his benefit in settlement of a dispute concerning termination of trusts in the estate of N.B. Dalton. Thompson argues first that the trial court erred in allowing Bank of America to garnish $27,750 in annuity back payments held in-trust by Jefferson-Pilot Life Insurance Company. Under an annuity contract, Jefferson-Pilot is required to pay Thompson the sum of $750 per month for life. On September 16, 1999, Bank of America filed a writ of garnishment on the annuity payments. In response to service of the writ of garnishment, Jefferson-Pilot ceased making the monthly payments to Thompson and held the payments in-trust. Thompson filed a motion to quash the September 16, 1999, writ of garnishment on October 6, 1999, but never obtained a hearing on the motion. Almost three years later on October 4, 2002, Bank of America filed an additional writ of garnishment and only then was a hearing set on the issue of the propriety of garnishing the annuity payments. In those three years, a total of $27,750 in back payments accumulated. Thompson argues that the trial court erred fin ordering garnishment of the back payments because at the time each monthly annuity payment was due and should have been paid, Bank of America had no valid writ of garnishment. Thompson argues second that the trial court erred in ordering Jefferson-Pilot to forward his future monthly annuity payments to Bank of America under garnishment until the debt was paid or Thompson died. Thompson asserts that his monthly annuity payments do not become subject to garnishment until his right to the payment accrues each month. He argues that Bank of America must seek a writ of garnishment for each monthly payment.
Under the garnishment statutes, a writ of garnishment reaches all assets of the judgment debtor in the hands of the subject of the writ. When the October 4, 2002, writ of garnishment was issued, Jefferson-Pilot held $27,750 in back payments. Any claim that the individual payments owed between September, 1999, and October, 2002, were improperly held by Jefferson-Pilot is waived by a failure to seek a hearing on the motion to quash the September 16, 1999, writ of garnishment. Whether the prior writ of garnishment was valid is not controlling. The October 4, 2002, writ of garnishment reached the $27,750 held by Jefferson-Pilot on October 4, 2002, because that sum was then owed by Jefferson-Pilot to Thompson.
On the issue of garnishment of future monthly annuity payments, each monthly payment is not due under the contract until two conditions exist. The first condition is that the day on which the payment is due must arrive. The second condition is that on that day, Thompson must be alive. There is no presently payable debt that may be subjected to garnishment until the day the payment is due arrives and Thompson is alive. Only then does Jefferson-Pilot owe a debt that may be garnished. Thus, payment is contingent and Bank of America must garnish each annuity payment as it becomes due and owing.
This is the third appeal in this case. See Buchbinder v. Bank of America 342 Ark. 632, 30 S.W.3d 707 (2000); Boatman’s Trust Co. v. Buchbinder, 343 Ark. 1, 32 S.W.3d 466 (2000). We have jurisdiction of this case pursuant to Ark. Sup. Ct. R. 1-2(a) (8) and (b)(6) (2003).
Standard of Review
This case was tried to the court. The standard of review on finding of facts is clearly erroneous. Buchbinder, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We review issues of statutory construction de novo, as it is for this court to decide what a statute'means. Simmons First Bank v. Bob Callahan Servs., 340 Ark. 692, 13 S.W.3d 570 (2000); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this regard, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.; Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000).
Facts
In May 1999, the trial court ordered Bank of America, as trustee of the estate of N.B. Dalton, to purchase an annuity that was to pay estate beneficiary Thompson $750 per month for life as final settlement of Thompson’s claims to assets from the N.B. Dalton estate. An annuity was purchased by Bank of America from Jefferson-Pilot.
Bank of America later prevailed on a motion seeking an award of attorney’s fees from Thompson in the litigation of the N. B. Dalton estate. On June 17, 1999, a judgment was entered in favor of Bank of America and against Thompson in the amount of $206,952.05.
On September 16, 1999, Bank of America obtained issuance of a writ of garnishment, which was served on Thompson’s counsel Charles Lincoln. Upon receipt of this first writ of garnish ment, Jefferson-Pilot ceased making payments under the annuity to Thompson and held them pending a decision on whom should receive the payments. On October 6, 1999, Lincoln filed a motion on Thompson’s behalf to quash the writ of garnishment alleging that Thompson was not subject to personal jurisdiction for purposes of a writ of garnishment. On October 12, 1999, Bank of America supplemented its certificate of service on the writ of garnishment to show that Thompson was then served in Florida at his home address by regular United States Mail and by certified mail, return receipt requested. Bank of America responded to the motion to quash by asserting that the case was still ongoing, that a motion for reconsideration was still pending, and that Lincoln continued to represent Thompson in the subject litigation as evidenced by his involvement as counsel in the motion for reconsideration and his filing of the motion to quash the writ of garnishment. Thompson responded by a motion to quash the supplemental certificate of service filed by Lincoln, in which Thompson alleged that the only way to cure the defective notice would be to issue the writ of garnishment anew showing same day service of the writ of garnishment on Thompson.
No further action was taken on the writ of garnishment against Thompson until September 4, 2002, when Mr. Lincoln filed a “renewed motion to quash the writ of garnishment and cross-claim,” on behalf of Thompson. On October 4, 2002, Bank of America had an additional writ of garnishment issued. Thompson agrees that this writ of garnishment was properly served. On January 22, 2003, Bank of America had yet another writ of garnishment issued. On February 7, 2003, Thompson filed a motion to quash the October 4, 2002, writ of garnishment asserting that the payments from the annuity were not subject to garnishment.
The first issue presented is whether a lack of proper service of the first writ requires that the $27,750 held by Jefferson-Pilot be paid to Thompson. The second issue presented is whether the trial court erred in ordering Jefferson-Pilot to forward the future monthly payments to Bank of America under garnishment until the debt was paid or Thompson died.
Amounts Due Under the Annuity From September 16, 1999 until October 4, 2002
In the April 18, 2003, order at issue on this appeal, Bank of America was awarded the entire amount due and payable as back payments under the annuity contract with Jefferson-Pilot. This issue involves the dispute over the total of $27,750 in back payments being held by Jefferson-Pilot as set out in the April 18, 2003, order. Thompson argues that the trial court erred in awarding Bank of America the back payments being held because there was never a valid writ of garnishment until the October 4, 2002, writ issued. Thus, Thompson argues that because the earlier September 16, 1999, writ was invalid, the payments were wrongfully held by Jefferson-Pilot and must be paid to Thompson. Thompson filed the motion to quash the September 16,1999, writ of garnishment but failed to ever obtain a judicial determination of the merits of the motion before Bank of America filed the writ of garnishment on October 4, 2002, which Thompson agrees was valid.
A writ of garnishment is a suit directed to a third party to determine whether the third party possesses property of the judgment debtor. Moory v. Quadras, Inc., 333 Ark. 624, 970 S.W.2d 275 (1998); New York Life Ins. Co. v. Cherry, 185 Ark. 984, 50 S.W.2d 584 (1932). The facts show that at the time the October 4, 2002 writ of garnishment issued, Jefferson-Pilot held $27,750 in annuity payments due Thompson that had accrued since the first writ of garnishment was issued on September 16, 1999. Thompson argues that Bank of America should not be allowed to obtain the $27,750, because Bank of America failed to obtain a valid writ of garnishment until after the amount was accrued and owed to Thompson.
The effect of the service of a writ of garnishment is to impound all property in the hands of the third-party garnishee that belongs to the judgment debtor at the time of the service, or that may thereafter come into his or her possession up until the filing of a true and correct answer. Harris v. Harris, 201 Ark. 684, 146 S.W.2d 539 (1941). A writ of garnishment reaches all property of the judgment debtor in the hands of the third-party garnishee. Arkansas Code Annotated Section 16-110-401 (Supp. 2003) provides in pertinent part:
(a)(1) In all cases where any plaintiff may begin an action in any court of record, or before any justice of the peace, or may have obtained a judgment before any of the courts, and the plaintiff shall have reason to believe that any other person is indebted to the defendant or has in his hands or possession goods and chattels, moneys, credits, and effects belonging to the defendant, the plaintiff may sue out a writ of garnishment, setting forth the claim, demand, or judgment and commanding the officer charged with the execution thereof to summon the person therein named as garnishee, to appear at the return day of the writ and answer what goods, chattels, moneys, credits, and effects he may have in his hands or possession belonging to the defendant to satisfy the judgment, and answer such further interrogatories as may be exhibited against him.
Ark. Code Ann. § 16-110-401(a)(1) (Supp. 2003)(emphasis added).
Thompson agrees that the writ of garnishment issued on October 4, 2002, was properly filed and served. Thompson also admits that Jefferson-Pilot was indebted to him in the amount of $27,750 when the October 4, 2002, writ issued. The October 4, 2002, writ of garnishment reached all of Thompson’s property or property owed to Thompson in the hands of Jefferson-Pilot on October 4, 2002, which included the $27,750 then due under the annuity. Thompson asserted by his October 6, 1999, motion to quash the September 16,1999, writ of garnishment that Jefferson-Pilot was holding the annuity payments in error. Thompson could have sought a hearing and obtained the back payments at any time prior to the issuance of the October 4, 2002, writ of garnishment if the payments were improperly held, but failed to do so. By failing to seek a hearing and determination on his motion to quash the September 16, 1999, writ of garnishment before the writ of garnishment was issued on October 4, 2002, Thompson waived any right he had to challenge Jefferson-Pilot’s decision to withhold the. annuity payments. Waiver means the intentional relinquishment of a known right. Winkle v. State, 310 Ark. 713, 841 SW2d 589 (1992); Johnson v. Zewrbst, 304 US 458 (1938). On October 4, 2002, Jefferson-Pilot held $27,750 it admits was owed to Thompson. When a writ of garnishment is issued, it reaches money held by others belonging to the defendant, in this case Thompson. Ark. Code Ann. § 16-110-401 (a) (1). The sum was subject to garnishment as money then owing by Jefferson-Pilot to Thompson.
Right to Future Annuity Proceeds
Thompson also asserts that the trial court erred in finding that Bank of America had a right to ongoing garnishment of future monthly payments under the annuity until the judgment is satisfied or until Thompson’s death. This issue involves the question of whether Bank of America may garnish the flow of annuity payments instead of suing on each monthly payment. As Thompson notes, the payments are certainly due if Thompson is alive and certainly not due if Thompson is dead. Thompson argues that because the monthly payments are contingent on his continued life, they are not certain, and may only be garnished each month as Jefferson-Pilot’s contractual obligation under the annuity contract ripens and a payment becomes due. In essence, Thompson argues that although there is an ongoing contractual obligation to him under the annuity contract to make the monthly annuity payments, there is no indebtedness to garnish until the day the monthly payment is due arrives and Thompson is alive.
Garnishment in Arkansas is a purely statutory remedy in derogation of the common law and must be strictly construed. Beasley v. Haney, 96 Ark. 568, 132 S.W. 646 (1910).
Any statute in derogation of the common law will be strictly construed. Although the General Assembly has the power to alter the common law, a legislative act will not be construed as overruling a principle of common law unless it is made plain by the act that such a change in the established law is intended. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999).
Books-A-Million, Inc. v. Arkansas Painting and Specialities Co., 340 Ark. 467, 470, 10 S.W.3d 857 (2000). In G.A.C. Trans-World Accept. Corp. v. Jaynes Enterprises, Inc. 255 Ark. 752, 502 S.W.2d 651 (1973), this court stated of garnishment:
We have frequently, and without exception, held that garnishment is a statutory procedure and that strict compliance with garnishment statutes is essential to the validity of the proceeding. Hervey v. The Farms, Inc., 252 Ark. 881, 481 S.W.2d 348; Roach v. Henry, 186 Ark. 884, 56 S.W.2d 577 Missouri Pacific H. Co. v. McLendon, 185 Ark. 204, 46 S.W.2d 626; Schiele v. Dillard, 94 Ark. 277, 126 S.W. 835; First National Bank of Huttig v. Rhode Island Insurance Company, 184 Ark. 812, 43 S.W.2d 535.
Jaynes, 255 Ark. at 756.
Arkansas Code Annotated § 16-110-402 (Supp. 2003) provides that where a person has obtained a judgment and wishes to satisfy it, he or she may obtain issuance of a writ of garnishment and require the appearance of a person thought to be indebted to the judgment debtor. In the case before us, Thompson has a right to $750 per month from Jefferson-Pilot as long as he may live. Jefferson-Pilot has a contractual obligation to pay Thompson the sum of $750 each month, but there is no debt presently due or certain to come due until the day of payment arrives and Thompson is alive. Cannaday v. First Natl. Bank of Fayettville, 238 Ark. 474, 382 S.W.2d 589 (1964), is instructive. In Cannaday, the writ of garnishment was issued before the money owed was paid into the court. This court in Cannaday stated:
In the case of Harris v. Harris, 201 Ark. 684, 146 S.W.2d 539, this Court quoted with approval from 28 C.J. 129, 171, the following:
“Under some statutes it has been held that a debt not presently payable is not subject to Garnishment. But generally debts contracted, although not presently payable or matured, but which will certainly become payable in the future, may be reached. And this, although the terminology of the statute is that claims or debts ‘due’ may be garnished, the term ‘due’ being taken in its larger sense as importing merely an existing obligation, without reference to the time of payment.”
The Harris case has been cited with approval in Miller v. Maryland Casualty Co., 207 Ark. 312 (p. 318), 180 S.W.2d 581 (p. 584); Coward v. Barnes, 232 Ark. 177 (p. 179) 334 S.W.2d 894 (p. 896); and Gossett v. Merchants of Planters Bank, 235 Ark. 665 (p. 667), 361 S.W.2d 537 (p. 538). It is not denied that the Bank was first to have a writ of garnishment filed against Cannaday. The lien thus created took effect at the time the writ was served. See: Bergman v. Sells & Co., 39 Ark. 97 and the Gossett case, supra.
Cannaday, 238 Ark. at 478. See also Bell v. West, 241 Ark. 89, 406 S.W.2d 316 (1966). Thompson argues that because he might die, the debt is not certain and, therefore, under Cannaday, the annuity payments are not certain. Thompson cites United States v. Wakefield, 572 S.W.2d 569 (Tex. Ct. App. 1978), where the Texas Court of Appeals held that military retirement pay did not accrue unless Wakefield was alive. Therefore, the debt being garnished was contingently but not absolutely owed. On that basis, garnishment of the military retirement pay not yet due was denied. However, garnishment is a matter of statute. Beasley, supra. Our statute speaks of debt and pursuant to Cannaday, a debt not presently due but certain to come due may be subject to garnishment in Arkansas. Garnishment is an attachment of the debt or a form of levy on the debt. Lawrence v. Ford Motor Credit Co., 247 Ark. 1125, 449 S.W.2d 695 (1970). Coward v. Barnes, 232 Ark. 177, 334 S.W.2d 894 (1960) is further illustrative of the law in Arkansas. In Coward, garnishment was not permitted on an undetermined amount due on a debt. At issue was a crop that had only been partially harvested and on which no money had been received. Such a debt was found to be “entirely contingent” and not subject to garnishment. See Wyatt Lumber & Supply Co. v. Hansen, 201 Ark. 534, 147 S.W.2d 366 (1940). The nature and extent of property the third-party might possess of the judgment debtor in the future was uncertain. Similarly, whether Jefferson-Pilot becomes indebted subject to garnishment is entirely contingent on Thompson’s continued life. We note that garnishment of wages as a flow ofincome is allowed in Arkansas, and might be compared to the flow of payments due under an annuity contract. However, garnishment of wages is expressly allowed under the statutes. Ark. Code Ann. § 16-110-415 (Supp. 2003).
The contractual obligation to pay Thompson is not triggered until a new month arrives and Thompson is alive. At that point, Jefferson-Pilot becomes indebted to Thompson in the amount of $750. The payment is contingent on Thompson surviving. In Cannaday, there was no such contingency. The debt in Cannaday was certain to become payable. That is not so in the present case until each payment becomes due.
The trial court is affirmed on allowing garnishment of the $27,750 that was due and owing to Thompson when the October 4, 2002, writ of garnishment was issued, and reversed on garnishment of the flow of monthly payments from Jefferson-Pilot. | [
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Ray Thornton, Justice.
The issue in this case is whether a landlord owes a duty of care to his tenant’s employees. Appellants William T. Steward and Jeannine G. Steward (“Landlords”) leased a building to appellee Professional Services Industries, Inc. (PSI). PSI employed appellee Jerry Eugene McDonald, who was injured when a riser broke while he was carrying boxes weighing approximately 120 pounds up a flight of stairs in the leased building. The stairway did not have a handrail at the time the injury occurred. After the accident, McDonald received benefits under the Arkansas Workers’ Compensation Act.
McDonald filed a complaint against the Landlords, alleging that they had failed to maintain, repair, and construct the stairway in violation of our general unsafe-place-to-work statute, Ark. Code Ann. § 11-2-117 (1987), and that the Landlords were negligent in failing to provide guardrails, toeboards, and handrails as required by OSHA. McDonald later amended his complaint to allege violations of the Arkansas Department of Labor Basic Safety Manual. The Landlords then filed a third-party complaint against PSI, as the tenant, based on the principle of implied indemnification. The Landlords and PSI both filed motions for summary judgment. The trial court granted summary judgment in favor of PSI; however, it denied the Landlords’ motion, and McDonald’s claim against them proceeded to trial. The jury returned a general verdict in favor of the Landlords.
McDonald then filed a motion for new trial, on the basis that the verdict was “clearly contrary to the preponderance of the evidence or . . . contrary to the law.” Ark. R. Civ. P. 59(a)(6). The trial court premised its order granting a new trial on its interpretation of our general unsafe-place-to-wbrk statute, Ark. Code Ann. § 11-2-117 (Repl. 1996), which states in pertinent part:
Every employer and every owner of a place of employment, place of public assembly, or public budding, now or hereafter _ constructed, shall construct, repair, and maintain it so as to render it safe.
Ark. Code Ann. § 11-2-117(b) (emphasis added). The trial court found that the statute applied to the Landlords and created a duty to provide a safe place to work. It further found that the jury’s failure to find the Landlords negligent on that basis was clearly against a preponderance of the evidence.
In construing the statute, we have determined that the general assembly did not intend for the phrase “every owner of a place of employment” to expand or extend a landlord’s duty to provide a safe place to work for his tenant’s employees. We have not previously had occasion to interpret the meaning of this phrase in the context of this statute.
In his complaint, McDonald alleged that this statute imposes a duty on property owners, who lease a place of employment, to construct, repair, and maintain the property in a manner that renders it reasonably safe. McDonald based this argument solely on the statutory language. The trial court’s order granting a new trial indicates that the court likewise found “that the jury finding that the Defendants were not negligent in failing to provide a safe place to work as required by Ark. Code Ann. § 11-2-117 is clearly against the preponderance of the evidence.”
McDonald also argued that the lease agreement, which contained language stating that the Landlords were responsible for major repairs and the tenant for minor repairs, could be interpreted to mean that the Landlords had a contractual duty to repair the stairs. This question was submitted to the jury for determination, and the jury found that the Landlords were not negligent. However, the trial court’s order granting a new trial was not based on any assertion of duty imposed under the terms of the lease agreement, but rather that a duty was imposed by statute and by the safety regulations. Therefore, we confine our discussion to the issues on which the trial court predicated its order in granting a new trial.
We have followed the common-law rule that a lessor owes no duty to the lessee to repair the premises. Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987). However, we have elaborated that a lessor can be held liable where he agrees to undertake the repairs. Id. In Majewski, we followed the majority rule, stating that:
A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a condition of disrepair existing before or arising after the tenant has taken possession if: (1) the landlord, as such, has contracted by a promise in the lease or otherwise to keep the leased property in repair; (2) the disrepair creates an unreasonable risk to persons upon the leased property which the performance of the landlord’s agreement would have prevented; and (3) the landlord fails to exercise reasonable care to perform his contract.
Id. at 362-63, 737 S.W.2d at 651.
Similarly, in Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), we noted that since 1932, we have adhered to the rule that a landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or agreement. See also 52 C.J.S. Landlord and Tenant § 417 (1968). A party who gratuitously undertakes a duty can, however, be liable for negligently performing that duty. Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983); see also Restatement (Second) of Torts § 323 (1965). We have recognized that a duty can also arise, in certain circumstances, under the terms of a lease between a landlord and tenant. Bartley v. Sweetser, supra.
It is well settled that statutes will not be taken in derogation of the common law unless the act shows that such was the intent of the legislature. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Gray v. Nations, 1 Ark. (1 Pike) 557 (1839). We strictly construe statutes that impose duties or liabilities unknown at common law in favor of those upon whom the burden is sought to be imposed, and nothing will be taken as intended that is not clearly expressed. Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971); see also Norman J. Singer, 3 Sutherland Stat. Const. § 61.01, at 171 (5th ed. 1992).
McDonald’s argument would require us to conclude that the legislature intended section 11-2-117 to subject all landowners who lease property to employers of more than five employees to liability for negligence in failing to provide and maintain a safe workplace. If we accept McDonald’s interpretation of section 11-2-117, the resulting rule would clearly be in derogation of the common-law rule regarding a landlord’s duty of care owed to a tenant. Therefore, we must strictly construe the statute in an attempt to give effect to the legislature’s intent.
The legislature enacted almost all of Subchapter 2 of Title 11 through Act 161 of 1937, our Labor Department Act. 1937 Ark. Acts 161 (codified at Ark. Code Ann. §§ 11-2-101 — 121); Horn v. Shirley, 246 Ark. 1134, 441 S.W.2d 468 (1969). The primary function of the Act is clearly expressed in its title:
AN ACT to Create a Department of Labor; to Create the Office of Commissioner of Land and to Define the Duties of the Commissioner as Administrative Head of the Department of Labor; to Provide for the Arbitration and Conciliation of Labor Disputes; to Authorize the Commissioner to Make Investigations and to Collect Statistics for the Purpose of Enforcing the Labor Laws of the State of Arkansas; to Empower the Board to Make Rules Relating to Health and Safety in Places of Employment; to Provide for the Review of Such Rules; to Provide Penalties for the Proper Enforcement of this Act and to Repeal all Laws in Conflict Herewith.
1937 Ark. Acts 161. We gain further insight into the legislature’s purpose from the Act’s Emergency Clause:
It is found and determined by the General Assembly that the present laws relating to labor in this State are not sufficient to meet present conditions; that in order for this State to coordinate its activities concerning labor with Federal Agencies on unemployment and security benefits, it is necessary that a Department of Labor be created with the powers and duties prescribed by this Bill; THEREFORE, an emergency is hereby declared to exist and this Act shall take effect and be in full force and effect from and after its passage and approval.
1937 Ark. Acts 161, § 26. The portion of the Act that is at issue here remains essentially unchanged from its form at inception. § 9(b) (codified at Ark. Code Ann. § ll-2-117(b)).
Clearly, from the foregoing words of the general assembly, we may deduce that section 11-2-117 had its origin in legislation creating the Department of Labor with all its incidental powers and duties, granting the State the authority to enforce the statute with civil or criminal penalties, and establishing standards to be used in assessing whether a violation has occurred. Had the legislature intended a radical change in the law to extend causes of action for negligence based on a landlord’s duty to his tenant, the Act would have expressed such an intention in some plain and unmistakable terms.
Instead, the Act speaks of causes of action brought by the State against employers and owners of places of employment, places of public assembly, or public buildings. The Labor Department Act clearly contemplates bringing a cause of action against an “employer,” which is defined within this subchapter as “including] every person, . . . having control or custody of any . . . place of employment, or of any employee.” Ark. Code Ann. § 11 — 2— 102(1) (emphasis added). Reading section 11-2-117(b) in conjunction with section 11-2-102(1), we cannot ascertain a legislative intent to impose greater liability on an owner of a place of employment than that imposed on an employer. Applying the rules of strict construction, we cannot say that the legislature plainly intended that the responsibility for a safe workplace is greater on an owner of a place of employment than it is on an employer, who may be penalized under the statute for having an unsafe workplace under its “control or custody.”
We hold that, without an assumption of responsibility for repairs, there was no common-law duty under which we may impose liability on the Stewards, as landlords, to provide a safe workplace for the employees of their tenant and that none was created by the statute. We will reverse a trial court’s order granting a motion for a new trial only if there is a manifest abuse of discretion. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). A clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule can constitute such manifest abuse of discretion. Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995). We conclude that the trial court misinterpreted section 11-2-117 in its order granting new trial, and that this misinterpretation of the law constitutes a manifest abuse of discretion. Because of our decision, the remaining issues that appellant raises on appeal are rendered moot.
Accordingly, we reverse the trial court’s order granting a new trial and dismiss this appeal.
Brown, J., concurs. | [
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Per Curiam.
Larry Kemp was convicted of being a felon in possession of a firearm. Mr. Kemp sought postconviction relief pursuant to Ark. R. Crim. P. 37.1 which allows “[a] petitioner in custody under a sentence of a circuit court” to seek release from custody, a new trial, or modification of sentence upon a showing of one or more grounds listed in the Rule.
Mr. Kemp petitioned the Pope Circuit Court relief pursuant to the rule. The petition was denied. He has appealed from that decision. The State moves to dismiss the appeal on the ground that, although Mr. Kemp’s sentence included a fine, it did not include confinement so he is not a person “in custody.” The argument is that the Circuit Court was thus without jurisdiction to proceed pursuant to the Rule, and therefore, we lack jurisdiction as well.
Mr. Kemp’s response concedes he has no right to relief under Rule 37.1 unless it can be found that he is in custody. He contends, however, that “in custody” as used in Rule 37.1 should include a person who has been sentenced to a fine. That is so, says Mr. Kemp, because such a person is subject to incarceration in the event the fine is not paid. It is argued further that our Rule is, as we said in Mason v. State, 285 Ark. 484, 687 S.W.2d 849 (1985), modeled upon federal habeas corpus laws in which, Mr. Kemp argues, the concept of “custody” is expanded to include the situation in which a person has been fined.
While we decline to hold that we lack jurisdiction in this matter in view of the State’s failure to cite any law or case that says so, we dismiss the appeal because Mr. Kemp’s argument with respect to whether he is in custody is without merit. In support of his argument Mr. Kemp cites U.S. v. Keane, 852 F.2d 199 (7th Cir. 1988) (coram nobis petition seeking return of fine held improper after custody had ceased), U.S. ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970) (habeas corpus petition filed while petitioner was in custody held not moot after his discharge from custody), and Hanson v. Circuit Court of First Judicial Circuit of Illinois, 591 F.2d 404 (7th Cir. 1979) (habeas corpus held not available to a person subjected to a “fine-only” sentence). None of the cases is in point here.
The appeal is dismissed because Mr. Kemp has failed to demonstrate that he is a person “in custody” as required by Rule 37.1. | [
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Ray Thornton, Justice.
Collin Andrew Pyron, appellant, was arrested by the Fayetteville Police Department on July 19, 1996, and charged with driving while intoxicated and refusal to submit to a chemical analysis. On August 20, his driver’s license was suspended by the Office of Driver Services for 120 days on the basis of his arrest for the DWI and for 180 days for his refusal to submit to chemical analysis. He was convicted in Fayetteville Municipal Court for both offenses on October 2, 1996, and appealed to Washington County Circuit Court.
In circuit court, he filed a motion to dismiss, alleging'that the prosecution violates the Double Jeopardy Clause of the United States Constitution. He argued that the length of the administrative suspension of his license for 180 days, “rises to the level of punishment due to its retributive and deterrent effect.” The trial court found that because the suspension was that of a privilege, not a right, to operate a motor vehicle, the Double Jeopardy Clause was not violated by his trial and subsequent conviction on criminal charges. We agree.
Both the United States and Arkansas Constitutions provide that no person shall be subjected to two punishments based on the same offense. However, remedial civil sanctions may be properly imposed without placing the person in jeopardy. As the Supreme Court stated long ago in Helvering v. Mitchell, 303 U.S. 391 (1938): “Remedial sanctions may be of varying types. One which is characteristically free of the punitive criminal element is revocation of a privilege temporarily granted.”
In Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996), we articulated a standard for determining whether a civil forfeiture is “punishment” for double jeopardy purposes, and we hold that this standard pertains to the suspension provision. The test first asks whether the legislature intended for the statute to be a remedial civil sanction or a criminal penalty. Second, it asks whether the administrative proceedings are so punitive in nature as to establish that they may not legitimately be viewed as civil in nature, “despite any legislative intent to establish a civil remedial mechanism.” Id. at 298, 930 S.W.2d at 382 (citing United States v. Ursery, 116 S. Ct. 2135 (1996)).
With regard to the first prong of this test, we note that Ark. Code Ann. § 5-65-104 (Supp. 1995) states:
The administrative suspension or revocation of a driver’s license as provided for by this section shall be supplementary to and in addition to the suspensions or revocations of driver licenses which are ordered by a court of competent jurisdiction [.]
Id. § 5-65-104(f).
We also note that the standard for administrative license suspension established by section 5-65-104(a) (8) is based on the civil standard of proof by a preponderance of the evidence. This is, of course, a lower standard than that required by a criminal conviction, which is beyond a reasonable doubt.
The purpose for the sanctions is to prevent drunk driving, as stated in the Emergency Clause, as follows: “the act of driving a motor vehicle while under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of this State . . . .” Act 549 of 1983, § 19 (emergency clause).
Additionally, the proceedings for imposition of the sanctions are conducted by the executive branch of government, and not the judiciary. It is clear that the legislative intent was to provide remedial civil sanctions.
We next consider the language and application of the statute. Arkansas Code Annotated § 5-65-104(a) (4) (A) (iii) provides:
(a)(4) The Office of Driver Services of the Revenue Division of the Department of Finance and Administration or its designated official shall suspend or revoke the driving privilege of an arrested person or shall suspend any nonresident driving privilege of an arrested person when it receives a sworn report from the law enforcement officer that he had reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while intoxicated or while there was one-tenth of one percent (0.1%) or more by weight of alcohol in the person’s blood, § 5-65-103, which is accompanied by a written chemical test report reflecting that the arrested person was intoxicated or had an alcohol concentration of one-tenth of one percent (0.1%) or more, or is accompanied by a sworn report that the arrested person refused to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance contents of the person’s blood, as provided in § 5-65-202. The suspension or revocation shall be based on the number of previous offenses as follows:
(A)(iii) Suspension for one hundred eighty (180) days for the first offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance contents of the person’s blood, § 5-65-202 [.]
The interpretation of this statute is a question of first impression for this court. Appellant argues that the statute imposes “multiple punishments” and that it fails the second prong of the test articulated in Sims. We do not find that the penalty “is so divorced from any remedial goal that it constitutes ‘punishment’ [under] double jeopardy analysis.” United States v. Halper, 490 U.S. 435, 443 (1989). We hold that the temporary revocation of the privilege of driving for refusal to submit to a chemical analysis is rationally related to the purpose of the statute, which is to protect the public from intoxicated drivers and to reduce alcohol-related accidents.
Further, we note that in order to relieve any extraordi- ' nary hardship that might occur by an administrative license suspension, the legislature enacted provisions to allow those with no alternate means of commuting to and from work to apply for a restricted driving permit. Arkansas Code Annotated § 5-65-120 (Supp. 1995) provides in pertinent part:
(a) On July 1, 1996, and thereafter, the Office of Driver Services or its designated agent, following the administrative hearing for suspension or revocation of a driver’s license as provided for in § 5-65-104, or upon the request of the person whose privilege to drive has been denied or suspended, may modify the denial or suspension in cases of extreme and unusual hardship by the issuance of a restricted driving permit when it is determined by the Office of Driver Services or its agent that no other adequate means of transportation exists for that person to allow driving in any or all of the following situations:
(1) To and from his or her place of employment; or
(2) In the course of his or her employment; or
(3) To and from an educational institution for the purpose of attending classes if the person is enrolled and regularly attending classes at the institution; or
(4) To and from the alcohol safety education and treatment course for drunk drivers.
This provision rebuts any argument concerning the punitive effect of the sanction upon a person whose license has been suspended, as a result of which his ability to maintain his means of livelihood is impaired. It is a further reflection of the legislative intent to establish a remedial civil sanction for the purpose of protecting the public from intoxicated drivers and to reduce alcohol-related accidents while softening the sanctions in order to allow the person to continue to operate a vehicle for appropriate purposes.
In summary, we do not find that the statute violates the constitutional prohibition on double jeopardy by imposing multiple punishments for the same offense. The judgment of the trial court is affirmed.
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Tom Glaze, Justice.
This case represents another of a series of cases involving a medical injury which resulted in death and and the question as to whether the wrongful-death cause of action is controlled by the Medical Malpractice Act. Carol Chamberlain underwent surgery at the Crawford Memorial Hospital on September 25, 1991, which was allegedly undertaken by Dr. Michael Bolt and Dr. Munir Zufari without her informed consent and without her knowledge of alternatives available for her condition other than surgery. Chamberlain died on November 16, 1991, but Sybil Looney, executrix of Chamberlain’s estate, did not file suit against Dr. Zufari, Dr. Bolt, and the hospital until December 2, 1993 — more than two years after Chamberlain’s surgery and the alleged malpractice.
The trial court dismissed all of the estate’s claims based on summary-judgment motions. However, the Chamberlain estate brings this appeal from the lower court’s dismissal with prejudice against Zufari. The trial court’s reason for dismissing the estate’s suit against Zufari was that the estate’s cause of action is for wrongful death caused by medical injury and that Ark. Code Ann. § 16-114-203 (Supp. 1995) of the Medical Malpractice Act requires all acts for medical injury to be commenced within two years after the action accrues. Because the estate’s suit was filed after two years had expired, the trial court ruled the estate’s claim was procedurally barred.
In its argument for reversal, the Chamberlain estate concedes this court, albeit in split decisions, has held that the Medical Malpractice Act applies to all causes of action for medical injuries accruing after April 2, 1979, and, as to such causes of action, the Act shall supersede any inconsistent provision of law. The estate further acknowledges that this court has specifically held that the Medical Malpractice Act’s two-year limitations period conflicts with the three-year limitations period provided under the Wrongful Death Act and is therefore controlling where death ensues from medical injuries. See Hertlein v. St. Paul Fire Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996) (court in 4-3 decision where death ensued from February 2, 1992 medical injury, dismissed claim not filed until May 1994); Pastchol v. St. Paul Fire & Marine Co., 326 Ark. 140, 929 S.W.2d 713 (1996) (court, in a 5-2 decision where plaintiff filed wrongful-death action alleged from a medical injury on August 26, 1991, dismissed because belated complaint filed on September 7, 1993); Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997) (court, in a 4-3 decision where alleged malpractice injury occurred on April 28, 1992, dismissed suit because complaint filed on July 11, 1994); Scarlett v. Rose Care, Inc., 328 Ark. 672, 944 S.W.2d 545 (1997) (court, in a 5-2 decision where medical injury alleged on May 10, 1993, was dismissed as barred because complaint filed on June 11, 1996); see also Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993).
While the estate voices passing disagreement with this court’s foregoing holdings, it states that it does not ask us to overrule those decisions. Instead, the estate contends that, because Ms. Chamberlain’s medical injury occurred on September 25, 1991, and before any of the foregoing decisions, those holdings should not be retroactively applied to bar her claim. The estate submits that, at the time her claim accrued, reasonable doubt existed concerning whether the three-year wrongful-death statute or the two-year medical malpractice statute of limitations applied. Because Arkansas law generally favors applying the longer statutory period in these circumstances, the estate argues its entitlement to the three-year limitations period. See Dunlap v. McCarthy, 284 Ark. 5, 678 S.W.2d 361 (1984).
To support the estate’s argument that this court’s foregoing decisions should not apply to her injury, the estate cites Chevron Oil Company v. Huson, 404 U.S. 97 (1971), where the Supreme Court considered three factors when deciding whether a decision should be applied prospectively or retroactively. However, Arkansas has its own settled law on this subject, and this court considered that law in Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). See also Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996); Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986); Taliaferro v. Barnett, 47 Ark. 359 (1886). In Baker, the court discussed its June 9, 1992 decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), where the court overruled Jack son v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984), holding the sixty-day notice provision (and ninety-day extension of limitations provision) of the Medical Malpractice Act were invalid because the sixty-day provision conflicted with Ark. R. Civ. P. 3. Baker argued her injury accrued before the Weidrick decision, and she was entitled to rely on the sixty-day notice provision and correlating ninety-day extension period because prior decisions had validated that law. The court rejected Baker’s argument because Weidrick had been decided when Baker filed her medical-injury action. The Baker court, citing Wiles, further relied on the principle that this court has long held that a decision of this court, when overruled, stands as though it had never been. See Wiles, 289 at 342.
The estate attempts to distinguish its situation from Baker and points out that the three-year wrongful-death limitations statute was not ruled in conflict with the two-year malpractice limitations period until Hertlein was decided on February 5, 1996, or after the estate filed its claim in decedent-Chamberlain’s behalf. The estate further argues it justifiably relied on this court’s earlier decision in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987) (Brown I), where the court indicated Brown’s death was due to a medical injury, and as a consequence, the wrongful-death three-year statute of limitations applied. We reject the estate’s argument for two reasons.
First, we point out that the Brown I case was overruled in 1991 by Bailey v. Rose Care Ctr., 307 Ark. 14, 817 S.W.2d 412 (1991). Moreover, when Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III), was decided on February 8, 1992, a caveat was issued by concurring opinion to the bench and bar underscoring that this court had not, as yet, decided whether the Medical Malpractice Act provisions applied in a case where a death results from a medical injury; it cautioned that it would be prudent to assume those provisions did apply. In sum, the earlier Brown I and Brown III cases offered the Chamberlain estate no precedent or comfort that the three-year wrongful-death limitations period applied to the estate’s case when it filed its action on December 2, 1993.
Second, we underscore that this court’s decision in Ruffins v. ER Arkansas, P.A., supra, was decided on May 17, 1993, and that holding, and the language contained therein, offered sufficient reasons for the Chamberlain estate to believe the two-year limitations statute would govern Ms. Chamberlain’s wrongful-death case. We acknowledge the estate’s contention that the language in Ruffins is overbroad and is not controlling of the estate’s case. In this respect, the estate submits that, while the Ruffins decision held the sixty-day notice provision of the Medical Malpractice Act governed all causes of action for medical injuries, it argues the holding in Ruffins did not actually specify that two-year limitations provision of the Act would control medical injuries where a death ensued. The estate also mentions that Ruffins was a 4-3 decision which, in itself, was reason for the estate to believe some doubt remained, concerning whether the two-year limitations period might apply to the estate’s wrongful-death action. We see no merit in the estate’s contentions.
The Ruffins court framed the issue covered there very broadly, saying, “Our case law has reserved ruling on the issue of whether actions for wrongful death resulting from medical malpractice cases are subject to the Medical Malpractice Act.” Ruffins, 313 Ark. at 180. Clearly this language undercuts any notion the Chamberlain estate may have had that Brown I was any precedent for the proposition that the three-year wrongful-death limitation applied when medical injuries were involved. The court then held as follows:
The Medical Malpractice Act provides that it applies to “all causes of action for medical injury.” The language is clear, and we are constrained to follow it. Accordingly, we hold that, under the then existing law, notice had to be given in compliance with the Medical Malpractice Act.
While only the notice provision was specifically brought into issue in Ruffins, the court, as a prerequisite, was compelled to decide the threshold issue that the Medical Malpractice Act governs all causes of action involving medical injuries, including those resulting in wrongful death. In sum, we fail to see any justifiable reliance on the estate’s part for it to assume the three- year limitations of the Wrongful Death Act would apply to its case. Nor are we aware of any reason to divert from our recent decisions that have consistently applied the Medical Malpractice Act retroactively to all causes of actions for medical injuries arising after April 2, 1979 •— the date of the Act’s passage.
The Chamberlain estate lastly argues that the Medical Malpractice Act, particularly the two-year limitations provision, is unconstitutional because it denies a person’s right to equal protection, due process, redress for wrongdoing, privileges and immunities, and violates Arkansas’s constitutional prohibition against special legislation. These same constitutional challenges were raised in Morrison v. Jennings, supra, and like the plaintiff in Morrison, the estate here did not obtain a clear ruling from the trial court concerning those constitutional claims. See Morrison, 328 Ark. at 283-284. Instead, the trial court merely stated in its order granting Dr. Zufari’s summary judgment motion “that the Medical Malpractice Act is constitutional.” Because the trial court’s ruling does not sufficiently address the estate’s constitutional claims, a review of those issues is precluded. Id.
In addition, the estate offers almost no legal citation of authority to support its arguments except to reference the constitutional provisions themselves. In other words, the estate offers no sound legal authority or convincing argument to support its multi-faceted constitutional claims. The estate does cite Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983), but that decision seems contrary to its constitutional arguments. There, this court considered the sixty-day notice provision against equal protection, due process, and special legislation claims. The Gay court concluded the vital question was one of reasonableness, and found no infringement upon the various constitutional provisions. The court held the legislature was not in error in determining that medical malpractice insurance rates were increasing and placing a heavy burden of medical expense on those who could least afford it. The court further stated the sixty-day notice requirement made it possible for the insurance carrier and the potential defendant to attempt to arrive at a settlement with the aggrieved person without the necessity of the parties incurring the expense of litigation. Id. at 8-9. In other words, the Gay court held that the Medical Malpractice Act was not arbitrary and capricious, but instead, the Act’s provisions were reasonably related to the legislative goal of reducing medical malpractice insurance costs.
Because no clear ruling was obtained on the estate’s constitutional arguments or sound legal authority and convincing argument presented, we affirm on these constitutional points.
Affirmed.
Newbern, Brown, and Thornton, JJ., dissent.
This court has consistently applied the Ruffins decision retroactively to prior alleged medical injuries in the Hertlein, Pastchol, and Morrison cases.
Regarding its special legislation argument, the estate does refer to Knoop v. The City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982), but mentions only generally the definitional statement, “a law is special in a constitutional sense when by force of an inherent limitation it arbitrarily separates some person, place, or thing from those upon which, but for such separation it would operate . . . .”
We note that the estate offers argument to distinguish Gay by stating the entire Medical Malpractice Act is unconstitutional because its goal can no longer be met since the sixty-day notice provision of the Act was invalidated in Weidrick. Again, the estate, except to reference a dissenting opinion, offers no legal authority to support its argument, challenging the Act. | [
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W.H. “Dub” Arnold, Chief Justice.
This case involves an interpretation of the term insurable interest found in Ark. Code Ann. § 23-79-104(b) (Repl. 1992). Appellants claim that they have an insurable interest in an automobile and are entitled to the policy proceeds of an insurance contract covering property damage to the automobile. The trial court granted summary judgment for the insurer based upon the finding that appellants did not have an insurable interest. Appellants claim error in this ruling; we agree and reverse and remand.
On June 24, 1993, Douglas Beatty had a Toyota Célica delivered to his daughter Kristi for her sixteenth birthday. Mr. Beatty lived outside of the State of Arkansas, visited Arkansas, selected a car to purchase for his daughter, and made arrangements for its delivery on her birthday. Barbara Beatty, as natural guardian of Kristi, added the car to her existing insurance policy with USAA Casualty Insurance Company (hereinafter, “USAA”). The policy included coverage for liability as well as property damage. The policy’s loss clause read as follows: “Loss or damage under this policy shall be paid, as interest may appear, to you and the loss payee shown in the Declarations.” No loss payee was listed in the declarations.
On November 20, 1994, Kristi was involved in an automobile accident that resulted in the total loss of the car. USAA determined that the net loss was $13,924.75. Before acting on the claim, USAA discovered that Douglas Beatty held certificate of title for the automobile and additionally found a lien on the car securing a promissory note executed by Douglas Beatty on behalf of the Arkansas Federal Credit Union (hereinafter, “Credit Union”). USAA paid $11,772.50 to the Credit Union in satisfaction of the lien and accepted title of the car to sell for salvage value. The lien by the Credit Union was unbeknownst to Barbara and Kristi Beatty, and the Credit Union was not noted as a loss payee on the policy. USAA tendered payment to Barbara Beatty for the remaining $2,152.25 as payment in full for the claim. Ms. Beatty refused payment based upon the contention that she was entitled to the entire $13,924.75.
Barbara Beatty brought suit against USAA, individually and in her capacity as natural guardian of Kristi Beatty. Ms. Beatty claimed that full payment should have been made to her by USAA because she was the policy holder and there was no loss payee named in the policy. Ms. Beatty contends that USAA was not authorized to pay the proceeds of the insurance contract to a third party with whom she had no contractual obligation. USAA contends that neither Barbara Beatty nor Kristi Beatty had an insurable interest in the automobile and that its payment to the Credit Union was proper. The trial court granted USAA’s motion for summary judgment ruling that neither Barbara Beatty nor Kristi Beatty had an insurable interest. This ruling was based solely upon the fact that Douglas Beatty held the title to the automobile, and thus, neither Barbara or Kristi Beatty could have an insurable interest.
Barbara and Kristi Beatty appeal this ruling. Appellants contend that Douglas Beatty’s holding title does not preclude another party from also having an insurable interest. Appellants contend that Kristi had an insurable interest in the automobile upon receiving it as a gift from her father, Douglas Beatty. Appellants also contend that Barbara Beatty had an insurable interest in the automobile through her duty as natural guardian of Kristi to protect her minor daughter’s property. Additionally, appellants argue that Arkansas statutes imposing liability on Barbara Beatty as the natural guardian of Kristi Beatty by requiring her to assume joint and several liability in order for Kristi to obtain a driver’s license creates an insurable interest in the automobile. In addition to the insurable interest issue, appellants also contend that USAA is not authorized to pay a third party who is not designated as a loss payee under the original insurance contract and who is not in privity with the insured.
We agree with appellants that the trial court erroneously ruled on the issue of insurable interest and reverse and remand this case on that basis. The issue of whether USAA was authorized to make a payment to a third party not named as a loss payee and not in privity with the insured was not directly ruled upon by the trial court, so we will not address that issue.
The remedy of summary judgment should only be granted when there exists no genuine issue of material fact, and the party moving for summary judgment is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Smothers v. Clouette, 326 Ark. 1017, 1020, 934 S.W.2d 923 (1996). The issue is to be viewed in the light most favorable to the party opposing summary judgment, and all inferences and doubts should be resolved against the moving party. Id. If the party moving for summary judgment makes a prima facie showing that no issues of fact exist and the nonmoving party fails to show that such issues do exist, then this court must affirm a trial court’s granting of summary judgment. Pyle v. Robertson, 313 Ark. 692, 694, 858 S.W.2d 662 (1993).
In reviewing appellants’ argument that Kristi Beatty had an insurable interest in the automobile, we will view all inferences and doubts against USAA. The most important inference in this situation is whether there was a gift of the automobile to Kristi Beatty. This issue was disputed by the parties’ briefs, and it is plausible that this issue alone could warrant reversal of the granting of summary judgment as the existence of a genuine issue of material fact; however, the trial court’s ruling was not based upon this issue, but upon the determination that two parties cannot have an insurable interest in the same automobile. Therefore, for purposes of this appeal, we will accept that there was a valid gift made to Kristi Beatty upon the receipt of the automobile for her sixteenth birthday. We do note, that upon remand, this issue may be contested, and a factual determination can then be made.
A person must have an “insurable interest” in property in order to have an enforceable insurance contract. Ark. Code Ann. § 23-79-104(a) (Repl. 1992). “Insurable interest” is defined in § 23-79-104(b) as “any actual, lawful, and substantive economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.”
The trial court determined that neither Barbara nor Kristi Beatty had an insurable interest based solely upon the fact that Douglas Beatty retained the title. Title indeed establishes a prima facie case of ownership; however, ultimate ownership is to be established by all evidence regarding property. See Robins v. Martin, 231 Ark. 43, 328 S.W.2d 260 (1959). It is obvious that the trial court did not examine the factors surrounding the ownership of this car; the ruling relies solely upon the holding of the certificate of title by Douglas Beatty.
The trial court erroneously concluded that Douglas Beatty’s insurable interest, by virtue of holding title, precluded another party from also having an insurable interest. It is not inconsistent that two parties can have independent insurable interests in one piece of property. See Page v. Scott, 263 Ark. 684, 567 S.W.2d 101 (1978) (both lessor and lessee have an insurable interest in leased property, and either may insure his interest for his own benefit); see also Hale v. Simmons, 200 Ark. 556, 558, 139 S.W.2d 696 (1940); John Alan Appleman et al., 4 Insurance Law .& Practice § 2134, at 54. In such a situation, both parties are free to insure their respective interests in the property.
Initially, we will address the facts supporting Kristi Beatty’s insurable interest through receiving the automobile as a gift from her father. In the affidavits supporting the motion for summary judgment, Barbara Beatty stated that Douglas Beatty had promised Kristi a car for her sixteenth birthday. Before her birthday, he visited Little Rock from out of state, purchased a car and had it delivered to Kristi on her birthday. The delivery was made to the address where Barbara and Kristi lived. At the time of the delivery of the car and at all times subsequent, Barbara had sole custody of Kristi. None of these facts are disputed by USAA.
According to Irvin v. Jones, 310 Ark. 114, 117, 832 S.W.2d 827 (1992), a valid inter vivos gift is effective when the following requirements are proven by clear and convincing evidence:
(1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift.
See also Ragland v. Commercial Nat’l Bank of Ark, 276 Ark. 418, 420, 635 S.W.2d 258 (1982). In the case at hand, there was clearly actual delivery. The evidence is undisputed that Douglas Beatty lived in another state and never attempted to exercise dominion or control over the automobile and that Kristi Beatty accepted the car. The sole issue is whether Douglas Beatty intended to make the automobile a gift or whether his retaining title indicated that he did not consider the automobile a gift.
In order for a gift to be valid, transfer of title is not necessary. The intent of the donor can negate the fact that actual title was not transferred. In Shipp v. Davis, 25 Ala. App. 104, 141 So. 366 (1932), a father delivered an automobile to his son, paid for the license and assessment in his own name, and retained tide. A valid gift was found despite retention of title because the father passed possession of the automobile to his son on the date of purchase and never exercised dominion or control again. Id; see also, 100 A.L.R. 2d 1219, 1232 (1965).
Based upon the evidence before us, we determine that there could have been a valid inter vivos gift of the automobile to Kristi Beatty, thus giving her an insurable interest in the automobile. Thus summary judgment in favor of USAA was erroneous.
Secondly, Kristi Beatty has an insurable interest based upon her possessory interest in the automobile. In Hinkle v. Perry, 296 Ark. 114, 119, 752 S.W.2d 267 (1988), we determined that “an insurable interest is not dependent upon ownership. The fact that one has an insurable interest is not probative of ownership but only goes to prove that the interest is among those considered insurable as opposed to those which are not.” The court of appeals defined insurable interest by citing Couch on Insurance, which states:
Generally speaking, a person has an insurable interest in property whenever he would profit by or gain some advantage by its continued existence and suffer some loss or disadvantage by its destruction. If he would sustain such loss, it is immaterial whether he has, or has not, any title in, or hen upon, or possession of, the property itself.
Hartford Fire Ins. Co. v. Stanley, 7 Ark. App 94, 96, 644 S.W.2d 628 (1983) citing, 3 Couch on Insurance §24:13 (2d ed. 1960).
According to Richards on Insurance, Insurable Interest §2:5, in order to have an insurable interest, a party does not have to have legal title to the property insured, but some legal basis for the assertion of interest. This legal interest can be based upon “(a) factual expectation of damages, (b) property interests, (c) legal liability, (d) and contract right.” Id. atp. 174. If Douglas Beatty did effectuate a gift to Kristi, she has a property interest in the car by right of a legal property interest. Additionally, Kristi also has an insurable interest through the expectation of economic disadvantage if there is damage to the insured property. Kristi was placed in economic disadvantage when the car was destroyed; she has no car and no proceeds from an insurance policy to procure another one. According to Couch on Insurance 3d., §41:10, “if the insured would sustain a loss by the destruction of the insured property, it is immaterial whether he or she has any title in, hen upon, or possession of, the property itself.” Id., citing Hartford Fire Ins. Co. v. Stanley, 7 Ark. App. 94, 644 S.W.2d 628 (1983). Furthermore, according to Couch, “any interest in property, legal or equitable, conditional, contingent, or absolute is insurable. Even the mere right to use property is insurable. . Couch on Insurance 3d., §41:10.
Based upon the foregoing reasons, we hold that Kristi Beatty had an insurable interest in the automobile. As the natural guardian of Kristi Beatty, Barbara Beatty is required by Ark. Code Ann. § 28-65-501 (Supp. 1995) to “have the care and management of the estate” of her daughter. In Howard et al. v. Ark. Nat’l Bank of Hot Springs et al., 214 Ark. 70, 214 S.W.2d 914 (1948), we determined that a guardian could be held liable for failures to exercise prudence and due care in managing the estate of a minor. This legal obligation certainly gives Barbara Beatty an insurable interest in the automobile on behalf of her minor daughter.
USAA argues that allowing Barbara and Kristi Beatty to recover the insurance proceeds would constitute unjust enrichment because they had no legal obligation to pay for the automo bile. We do not find that to be a compelling argument. Given the fact that more than one party can have an insurable interest in a piece of property, Douglas Beatty, too, was free to purchase property insurance to insure against his indebtedness in the car; he simply chose not to do so. Both parties cloud this issue with arguments regarding the duty and ability of one parent over the other to purchase liability insurance to insure Kristi’s driving; however, liability insurance is not at issue here. An insurable interest for the purpose of property insurance on the automobile is the only issue. The important facts are undisputed, Barbara, as guardian of Kristi, purchased both liability insurance and property insurance in the same policy; this property insurance was to insure against Kristi’s loss of her car; Douglas Beatty did not procure any insurance on the automobile.
Based upon these the findings of insurable interests, we hold that the trial court erroneously determined that Barbara Beatty and Kristi Beatty did not have insurable interest in the automobile based upon the fact that Douglas Beatty held the certificate of title. Therefore, the court was in error in granting summary judgment to USAA.
Appellants’ second argument is that USAA was not authorized to pay the insurance proceeds to a party that was not designated as loss payee on the insurance contract and that was not in privity with the insured. This argument certainly may have merit given the personal nature of insurance contracts and the theory of unjust enrichment; however, it is not clear that the trial court actually addressed this issue, so we will not reach the merits of this argument. In ruling on the issue of insurable interest, the trial court stated, “I further think that USAA may well have made a voluntary payment that they didn’t have to make since this lien was not recorded. . .nor was. . .a security interest ever shown. . . .” Since it is clear that the trial court based its granting of summary judgment on the sole finding that neither Barbara Beatty nor Kristi Beatty had an insurable interest, it is on that issue that we remand this case for further proceedings consistent with this opinion.
Reversed and remanded.
Newbern and Imber, JJ., not participating. | [
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Tom Glaze, Justice.
Appellee B & H Associates and Fred and Clara Boling owned what is called the Uni-Banc System — a complete in-house processing system designed in 1979 to handle the accounting needs of banks. In February of 1992, B & H sold a copy of the Uni-Banc System software program to Sparak Financial Systems, Inc., and it is the 1992 sales contract that, in part, plays a role in the litigation now before us involving Mercantile Bank and B & H Associates. Under the 1992 contract, Sparak acquired broad authority to market, license, develop, and use the Uni-Bank System. Sparak could use the copy as if it were the original software program, and was not required to pay B & FI any royalties or licensing fees. The parties’ contract provided that Sparak’s and B & H’s interests in the system were exclusive except as to each other’s interest, and that neither Sparak nor B & H could transfer, sell, assign, or encumber the system without the prior consent of the other. Moreover, each party had the right of first refusal on any sale or any proposed sale of the system by the other, and in the event B & FI sold its interest, B & H was required to pay Sparak $60,000.00 from the sale proceeds. Signifi cant to this present suit between Mercantile Bank and B & H, the 1992 Sparak contract provided that, in the event either B & H or Sparak went into bankruptcy or had a judgment entered against it in excess of $50,000.00, the obligated party would sell its interest in the Uni-Banc system to the other for the sum of $25,000.00.
The present dispute between Mercantile Bank and B & H arose from a September 22, 1993 loan that the Bank made to B & H and the Bolings in the sum of $150,000.00. The parties’ promissory note evidencing the loan was secured by B & H’s Uni-Banc System. When B & H defaulted, the Bank sued, and subsequently took possession of B & H’s computer software identified as the Uni-Banc System. Afterwards, Mercantile Bank, at a private sale, sold the copy of the system to Sparak for $25,000.00 and the Bank then sought a deficiency judgment against B & H and the Bolings. However, B & H and the Bolings defended the Bank’s action, claiming Mercantile Bank’s sale of the Uni-Banc System’s software had not been conducted in a commercially reasonable manner. After a jury trial, B & H and the Bolings were favored with a defendants’ verdict, and when the trial court denied the Bank’s motion for a new trial or judgment notwithstanding the verdict, the Bank brought this appeal.
Mercantile Bank first contends the trial court erred in denying its new-trial motion because there was no evidence from which reasonable minds could conclude that its sale of the UniBanc System to Sparak was not conducted in a commercially reasonable manner. The Bank’s contention is largely based upon Mr. Boling’s earlier inability to obtain a purchaser for the Uni-Banc System. It submits the $150,000.00 loan was made essentially to give Mr. Boling an opportunity to sell the system’s software to pay off B & H’s indebtedness. Although Mr. Boling had made a number of contacts seeking buyers for the system, the Bank’s Vice-President, Brad Edwards, said Boling had been unable to obtain a purchaser. Edwards claimed the Bank had used Mr. Boling’s contacts, but the Bank, too, failed to find a buyer. Bank officer Edwards related the Bank further used the assistance of Tim Gibson, the president of a local computer system business, and Gibson, among other things, opined Sparak’s purchase price of $25,000.00 was “quite a bit.” Another witness, James V. Burnett, had a current interest in Uni-Bank System which permitted him to re-market the system to banks. The Bank points out that, when Burnett was asked if he would be interested in buying a copy of the system’s software, he responded no because Sparak’s 1992 contract presented “too many strings” attached to any sale.
Mercantile Bank emphasizes the foregoing evidence to support its argument that it had conducted a commercially reasonable sale when obtaining $25,000.00 from Sparak for B & H’s Uni-Banc System. However, this court’s review of the trial court’s denial of the Bank’s new-trial motion is whether there is any substantial evidence to support the jury’s verdict. Fisher v. Valco Farms, 328 Ark. 741, 945 S.W.2d 369 (1997). In examining whether substantial evidence exists, all evidence must be examined in the light most favorable to the party on whose behalf the judgment was entered and given its highest probative value, taking into consideration all reasonable inferences deducible from it. Esry v. Cordin, 328 Ark. 153, 942 S.W.2d 846 (1977). In such situations, the weight and value [of testimony] is a matter within the exclusive province of the jury. Id.
Before reviewing the evidence in B & H’s favor to determine if the verdict should stand, we first discuss the law relevant to a creditor’s right to dispose of collateral securing an indebtedness. In this respect, a secured party after default may sell, lease, or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing, Ark. Code Ann. § 4-9-504(1) (Repl. 1991), and the disposition of the collateral may be by public or private proceedings . . ., but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable. Ark. Code Ann. § 4-9-504(3) (Repl. 1991). While a creditor is given the right to a deficiency judgment under Ark. Code Ann. § 4-9-504(2) (Repl. 1991), the creditor’s right to such judgment depends on whether he has complied with the statutory requirements concerning disposition and notice. First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987). When the debtor defends upon the ground that the secured creditor did not proceed in accordance with the provisions of the Uniform Commercial Code, the creditor has the burden of proving that he pro ceeded in a commercially reasonable manner. Farmers Equipment Co. v. Miller, 252 Ark. 1092, 482 S.W.2d 805 (1972); Henry v. Trickey, 9 Ark. App. 47, 653 S.W.2d 138 (1983). Courts have held, and we agree, that whether a sale of collateral was conducted in a commercially reasonable manner is essentially a factual question. United States v. Conrad Publishing Co., 589 F.2d 949 (8th Cir. 1978); Cheshire v. Walt Bennett Ford, Inc., 31 Ark. App. 90, 788 S.W.2d 490 (1990); Henry, 9 Ark.App. 47, 653 S.W.2d 138. And, if a secured party sells the collateral in a commercially unreasonable manner, a presumption arises that the value of the collateral is equal to the outstanding debt; however, the secured party can still recover a deficiency upon proving that the reasonable value of the collateral was less than the debt. Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968); Henry, 9 Ark. App. 47, 653 S.W.2d 138; and J. White & R. Summers, Uniform Commercial Code (2d ed. 1980). Finally, when determining whether the sale of a collateral was handled in a commercially reasonable manner, this court has held that a major consideration is the determination of the fair market value of the collateral. Thrower v. Union Lincoln-Mercury, Inc., 282 Ark. 585, 670 S.W.2d 430 (1984).
After a careful review of the record, we conclude that Mercantile Bank failed to overcome its legal burdens as set out above and that there is substantial evidence to support the jury’s decision that the Bank’s sale to Sparak was not commercially reasonable. We now allude to that evidence that favors B & H’s verdict.
While Mr. Edwards testified that he had incurred in excess of 100 hours in trying to find potential buyers for the UniBanc System, he conceded that, other than a company he had located named Advance Data, the Bank essentially limited its contact to eight persons or entities given it by Mr. Boling. The Bank admitted that it did not advertise in magazines, American Bankers’ Journal, state bank journals, banking computer trade magazines, or newspapers. Yet, a banker and financial consultant, Johnny Ray McFarland, testified that, in locating potential buyers for UniBanc, he would not have limited his contacts to Mr. Boling’s prospects and would have advertised in the most accessible market and utilized trade publications sent to bankers. We point out, as well, that sales have been held not to have been commercially reasonable where there was minimal advertising of the sale and where there was a great disparity between the sale price and the fair market price. United States v. Conrad Publishing Co., 589 F.2d 949 (8th Cir. 1978).
Edwards also admitted Mercantile Bank had a duty to obtain a fair market value when selling the system, but the Bank obtained no such value. The Bank’s witness, Tim Gibson, who sells licenses for computer software systems, stated that he was unable to place a value on the Uni-Banc System. In his opinion, Gibson said “there was no way to determine whether the system was worth $25,000.00, $1,000.00, $500,000.00, or $1,000,000.00.” In sum, there is substantial evidence in the record that reflects the Bank made no reasonable effort to determine the fair market value or identify potential buyers.
On the other hand, the Bank was well aware that Sparak had purchased its interest in the Uni-Banc System for $805,000.00, and knew James V. Burnett had purchased an interest in the UniBanc System in 1993, and his contract had resulted in payments to B & H in the approximate annual amount of $25,000.00 in royalties. Concerning Sparak’s purchase, Mr. Boling testified that Sparak had licensed the Uni-Banc software to eighty banks and had earned $1.5 million on its $805,000.00 investment.
Because the foregoing reflects substantial evidence to support the jury’s decision that the Bank’s sale to Sparak was not commercially reasonable, we conclude the trial court did not abuse its discretion in denying the Bank’s request for a new trial.
In its second point for reversal, Mercantile Bank argues value testimony given over its objection at trial had prejudiced its case and caused reversible error. It first challenges Mr. Boling’s trial testimony concerning an offer that he had received in August 1994 from Oracle Corporation to buy B & H’s Uni-Banc System. The Bank objected on hearsay grounds. The trial court ruled Mr. Boling could discuss the sale of the property to the people (Oracle), but he could not mention the amount offered. When Boling resumed testifying, he was asked the purpose of Oracle’s contacting him, and he responded that Oracle wanted to make an offer. Boling then volunteered, “I asked [Mr. Smith] to contact Mercantile Bank and also give Mercantile Bank the information about the price that he was asking which was in excess of $400,000.00.” The Bank’s counsel approached the bench, renewed his objection, and requested a mistrial. The trial judge rejoined that a mistrial was too drastic, but he would (and did) instruct the jury to disregard the amount mentioned by Mr. Boling because it was hearsay.
The rule is well settled that a mistrial is an extreme remedy to be taken only when it is apparent that justice cannot be served by continuing the trial. Bull Shoals Community Hosp. v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1992). It is proper only when the error is beyond repair and cannot be corrected by any curative relief. Nobles v. Casebier, 327 Ark. 440, 938 S.W.2d 849 (1997). The granting of a mistrial is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse.
As discussed in detail above, considerable evidence was presented, bearing on Uni-Banc System’s worth or value, and some of that testimony offered figures well in excess of the $400,000.00 offer which Boling mentioned at trial. Considering the circumstances, we simply are unable to say the trial court’s cautionary instruction to the jury did not cure any prejudice caused by Boling’s offer statement.
The Bank also questions the trial court’s allowing Johnny Ray McFarland to testify as an expert and specifically permitting him to give value testimony concerning Uni-Banc System’s software. First, in reviewing the abstract of record, we do not find a definitive ruling on accepting or rejecting McFarland as an expert. However, the Bank did question whether B & H had established a proper foundation upon which McFarland could offer an opinion in putting a market value- on the Uni-Banc System’s software. We believe such foundation was sufficient.
McFarland explained his long-standing experience with B & H’s software. He had been a Senior Vice President with the Bank of Wynne, and in that capacity, he became intimately familiar with the Uni-Banc System. During his thirteen years with the Bank of Wynne, he worked with the system. He testified in detail how the system worked, compared it as being superior to others, and related that the Wynne Bank had paid B & H $25,000.00 just for the right to use B 8c H’s software. While McFarland admitted he had no college course or education with respect to placing a market value on software, he said that he had been involved in the purchase or sale of source codes for software. He said that his company, Alpha Financial Services, evaluated properties and businesses, and he mentioned the three appraisal approaches he utilized when establishing a market value.
After giving the foregoing testimony, McFarland was asked if he had an opinion concerning the Uni-Banc System, to which Mercantile Bank objected. And while McFarland started to mention an offer he knew had been given to Mr. Boling, the trial court interrupted, by instructing McFarland his opinion could not be based on what somebody else told him. McFarland then stated without objection he valued the system at $1.2 million. Later, when the Bank and the trial court questioned McFarland’s basis for arriving at his value testimony, he assured them his opinion was not based on someone else’s opinion as to the software’s worth, but instead he reached his opinion by employing the hours that went into developing the B & H software and using the knowledge that, in 1992, Sparak had paid more than $800,000.00 for a copy of the software.
This court has long recognized that the admissibility of expert testimony rests largely within the broad discretion of the trial court, and the appellant bears the burdensome task of demonstrating the trial court abused its discretion. Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997). Generally, the tendency is to permit the jury to hear the testimony of the person having superior knowledge in a given field unless clearly lacking in either training or experience, and too rigid a standard should be avoided. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). If some reasonable basis from which it can be said the witness has knowledge of the subject beyond that of persons of ordinary knowledge, his evidence is admissible. Id.
Here, given McFarland’s background and his intimate knowledge of the Uni-Banc System, there was more than a suffi cient basis to uphold the trial court’s ruling allowing his value testimony.
Affirmed.
Hereinafter, for writing purposes, appellees collectively are often referred to as B & H and B & H Associates.
Mercantile Bank is now Union Planters Bank of Northeast Arkansas. | [
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Ray Thornton, Justice.
This case involves two issues: the interpretation of Arkansas Rules of Civil Procedure relating to personal service inside the State, and sovereign immunity as a bar to appellee’s claim against the State.
Rule (4) (d)(1) of the Arkansas Rules of Civil Procedure provides that substituted service of process may be made on an individual by delivering a copy of the summons and complaint “at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age . . . .” Appellant, the State of Arkansas Office of Child Support Enforcement (OCSE) asks us to adopt a liberal interpretation of the phrase, “dwelling house or usual place of abode.” The rules do not define these terms.
OCSE, acting on a paternity complaint against appellee, Garry Mitchell, served process on Mitchell by handing the summons and complaint to his mother at her house on 714 Lindsey, in Marked Tree, Arkansas. The evidence showed that Mitchell used his mother’s address for his mailing address, but that he lived at 507 Sam Anderson, in Marked Tree. When Mitchell failed to appear at the paternity hearing, a default judgment was entered under which Mitchell’s wages were garnished for child support. Mitchell immediately filed a motion to have the judgment set aside, claiming that he was not properly served and that he was not the child’s father as alleged by the child’s mother in the complaint. Mitchell failed to request an abeyance of support payments.
Six months later, the trial court suspended Mitchell’s wage garnishment pending the outcome of genetic testing for paternity. By this time, Mitchell had paid $1377 in support to OCSE. When the paternity results showed that Mitchell could not be the child’s father, OCSE moved to dismiss its paternity complaint. Mitchell counterclaimed for return of the support payments on the basis that he had not been properly served. The trial court held that service of process was invalid because Mitchell did not live at the location where process was delivered; therefore, the judgment for paternity and child support was void ab initio. Further, it found that Mitchell was precluded from suing the State for return of payments under the doctrine of sovereign immunity. OCSE appeals the judgment of the trial court on the validity of service of process, and Mitchell crossappeals the sovereign immunity ruling. We affirm on both points.
OCSE asks the court to broaden the meaning of the phrase, “dwelling house or usual place of abode” to include that location which could be reasonably calculated to provide notice to defendant of a pending action against him. OCSE supports its argument with two opinions from other jurisdictions. In Doyle v. Barnett, 658 N.E.2d 107 (Ind. Ct. App 1995), a personal-injury case, Doyle sought to have a default judgment against him set aside because service of process was not delivered to his residence, but rather to his father’s house. The evidence showed that Doyle received all of his mail at his father’s address, he listed his father’s address on the accident report, the address he maintained with his insurance company was his father’s address, and, at the time service was attempted and when he sought to have the default judgment set aide, Doyle’s driver’s license showed his father’s address. In construing dwelling house or usual place of abode, the Indiana Court of Appeals concluded that “[bjased on the totality of this evidence, we find that it was within the trial court’s discretion to determine that Doyle’s father’s address was Doyle’s usual place of abode, and because [plaintiff’s] complaint was delivered to that address, that Doyle received proper service of the complaints.” Id. at 109.
The Washington Supreme Court construed its substituted service statute so as to “effectuate the purpose of the statute while adhering to its spirit and intent.” Sheldon v. Fettig, 129 Wash. 2d 601, 607, 919 P.2d 1209, 1211 (Wash. 1996). The court recognized two purposes to its statute: “to (1) provide means to serve defendants in a fashion reasonably calculated to accomplish notice and (2) allow injured parties a reasonable means to serve defendants.” Id. at 608, 919 P.2d at 1212. In Sheldon, the defendant had lived away from her parent’s home for over two years, but maintained her driver’s license, her car insurance, her voter’s registration, and mailing address at her parent’s house. At the time of service, the defendant was living in another state. The court, recognizing that a defendant can “maintain more than one house of usual abode if each is a center of domestic activity where it would be most likely that defendant would promptly receive notice if the summons were left there,” held that defendant had received valid service when process was delivered to her parent’s home. Id. at 612, 919 P.2d at 1214.
As in Doyle and Sheldon, above, the facts in this case establish that the defendant, Mitchell, had significant contacts with the place of service. Mitchell received most of his mail at 714 Lindsey. In addition, his driver’s license, his employer, and his property assessments all listed 714 Lindsey as his address. The only two sources Mitchell identified as having his 507 Sam Anderson address were his landlord and the gas company, but it appears that he had moved from his mother’s house to the Sam Anderson address six years before the commencement of this litigation, and had not thereafter resided at his mother’s house. The record reflects that Mitchell maintained significant ties with his mother’s house. He testified that he stops by 714 Lindsey at least three time a week to see his mother and pick up his mail. OCSE claims that a defendant, who represents to most of the world that his address is at a certain location, should not be able to deny that it is otherwise. As a conscientious plaintiff, OCSE pleads that it should not suffer an adverse judgment when it relied on an address that Mitchell reported to sources that OCSE regularly uses for locating putative fathers.
Notwithstanding the views of the courts cited above and OCSE’s argument, we are bound to prior case law under the doctrine of stare decisis. The policy behind stare decisis is to lend predictability and stability to the law. Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds). In matters of practice, “adherence by a court to its own decisions ... is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases.” Brickhouse v. Hill, 167 Ark. 513, 523, 268 S.W. 865, 868 (1925) (quoting 7 R.C.L. 1008 (1915)). In Parish, this court held that “[precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Parish, 244 Ark. at 1252, 429 S.W.2d at 52. The test is whether adherence to the rule would result in “great injury or injustice.” Independence Fed. Bank v. Webber, 302 Ark. 324, 331, 789 S.W.2d 725, 730 (1990).
The issue of substituted service was squarely addressed in Sims v. Prescott Feed Mills, Inc., 286 Ark. 22, 688 S.W.2d 743 (1985). In Sims, the defendant and his brother lived in the same dwelling. The sheriff attempted to deliver service by handing a copy of the summons and complaint to defendant’s brother at law offices of plaintiff s attorney. The defendant never saw the papers. We held that service was void because an attorney’s office is not the defendant’s dwelling. In so ruling, we said: “Substituted service is a departure from the common law, and rules or statutes providing for it are mandatory and to be complied with exactly.” Id. at 23, 688 S.W.2d at 744 (citing Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978)). We said that this construction of the rule is the “most certain mode of conveying actual notice to an absent defendant.” Id. at 23-24, 688 S.W.2d at 744. In Edmonson, like the case at bar, the appellant moved the court to set aside the default judgment on the ground of defective service of process. The appellant’s wife testified that she collected the summons and complaint at the sheriff s office. In that case, we stated that because the deputy failed to comply with the mandatory provisions of substituted service, the judgment was void ab initio. Id. at 509, 565 S.W.2d at 618.
OCSE argues that the Sims and Edmonson cases did not address construction or definition of “dwelling” or “abode,” but rather, that these cases are predicated upon obvious departures from the rule. In Sims, the summons and complaint were left at a lawyer’s office, not at the defendant’s, or anyone else’s residence. In Edmonson, defendant’s wife was served at the sheriffs office. OCSE argues that these cases are not on point with the facts present here, as the court did not have to decide whether a residence where service was effected was the defendant’s dwelling or usual place of abode.
OCSE’s point is well taken. This court, however, defined the term, “usual place of abode” in McGill v. Miller, 183 Ark. 585, 37 S.W.2d 689 (1931). In McGill, we held that “[ojne’s usual place of abode, in its ordinary acceptation and in the sense used by the statute, means the place where a person lives or has his home, that is, his fixed permanent home; the place to which he has — whenever he is absent — the intention of returning.” Id. at 589, 37 S.W.2d at 690. The defendant in McGill had moved to Little Rock three months before the institution of the suit. He had a permanent job and intended to move his family to Little Rock as soon as he could sell his house in Lafayette County. We held that service was insufficient when his wife was served at the Lafayette County home because the defendant had changed his usual place of abode.
Applying the McGill definition of place of abode to the facts in this case, we hold that Mitchell has his usual place of abode in a trailer at the 507 Sam Anderson address. He lives in the trailer, and pays the rent and utilities at that address. Mitchell tes tified that he does not five with his mother at the 714 Lindsey address. In fight of our holdings that the rule for substituted service of process must be complied with exactly, and because Mitchell intends 507 Sam Anderson as his fixed and permanent home, it follows that service of process at 714 Lindsey was insufficient for the purpose of proper notice.
The factual circumstances in this case are such that continued adherence to precedent does not “give a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Parish, at 1252, 429 S.W.2d at 52. It may be that a change in rules to place a liberal construction on the meaning of dwelling house or usual place of abode to include a “reasonable notice” component might become appropriate in the future, but we choose to proceed with caution. We should not lose the predictability of knowing that the method of service is the most certain to convey actual notice to an absent defendant. A departure from the settled rule could lead to an escalation of litigation over notice as parties dispute whether notice was actually received, or whether the chosen method was reasonable.
We also note that the current rule does not unduly burden a conscientious plaintiff. If the defendant cannot be served in person or at the place he resides, then the rules provide that the plaintiff may serve process by sending “any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.” Ark. R. Civ. P. 4(d)(8)(A). For these reasons, in keeping with the doctrine of stare decisis we adhere to the current rule.
Because service of process was insufficient to give notice, the default judgment below is void ab initio. Ark. Code Ann. § 16-65-108 (1987). We reach now Mitchell’s claim that the doctrine of sovereign immunity does not bar the court from awarding judgment and assessing damages against the State for monies paid to the custodial parent as child support by him. The doctrine of sovereign immunity comes from constitutional law providing that “[t]he State of Arkansas shall never be made Defendant in any of her courts.” Ark. Const, art. 5, § 20. We have held that the doctrine of sovereign immunity is rigid and, as such, immunity may be waived only in limited circumstances. Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 258, 943 S.W.2d 230 (1997) (citing State v. Staton, 325 Ark. 341, 934 S.W.2d 478 (1996)). Under the doctrine, the State possesses jurisdictional immunity from suit. Department of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). Where the suit is one against the State and there has been no waiver of immunity, the trial court acquires no jurisdiction. Cross, 328 Ark at 259, 943 S.W.2d at 232. We have recognized exceptions to the doctrine of sovereign immunity when an act of the legislature has created a specific waiver of immunity, and when the State is the moving party seeking specific relief. Id. (citing State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996); Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990), cert. denied 498 U.S. 824 (1990)). Mitchell argues that, here, the State waived its immunity defense when it brought the paternity and child-support actions against him. We disagree.
In Fireman’s Insurance, we noted that “[t]he only exception to total and complete sovereign immunity from claims which have been recognized by this court occurs when the state is the moving party seeking specific relief. In that instancef,] the state is prohibited from raising the defense of sovereign immunity as a defense to a counterclaim or offset.” Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 455, 784 S.W.2d 771, 774 (1990), cert. denied 498 U.S. 824 (1990) (quoting Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953). In Parker, this court refused to consider the State’s immunity defense when the State Commissioner of Revenues, who was named as a defendant, intervened and
crosscomplained, asking for specific relief. Parker v. Moore, 222 Ark. 811, 812, 262 S.W.2d 891, 892 (1953). Relying on Fireman’s Insurance, Mitchell concludes that he is not precluded from claiming a refund because his action in this case was by counterclaim.
In addressing the sovereign-immunity issue, we first decide whether Mitchell has made a claim against the State. If he has, then sovereign immunity applies unless the State has waived its defense. We established the test for determining whether a suit is one against the State in Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938). There, we held that when the relief sought by a decree “operates to control the action of the state or subjects it to liability, the suit is in effect a ‘suit against the state’ and cannot be maintained without state consent.” Ralls v. Mittlesteadt, 268 Ark. 741, 743, 596 S.W.2d 349, 351 (1980) (citing Page, 196 Ark. at 336-37, 118 S.W.2d at 235)). Accordingly, it is the effect of tapping the state treasury that makes the State a defendant. See Magnolia Sch. Dist. 14 v. Arkansas State Bd. of Educ., 303 Ark. 666, 799 S.W.2d 791 (1990) (noting that this court will not order the State Treasurer to refund money already spent, as such an action would amount to a suit against the State).
We conclude that Mitchell has made a claim against the State. In the action below, OCSE served only as a conduit for support payments. OCSE collected the money from Mitchell and disbursed it directly to the custodial parent. Were OCSE ordered to refund previously paid child support, the only source of payment would be the State Treasury. Such a judgment would subject the State to liability, making the State a defendant as contemplated by the prohibition in Ark. Const, art. 5, § 20. As such, the suit is one against the State, which cannot be maintained unless the State has waived its immunity defense.
To determine whether the immunity defense has been waived, we address two questions: (1) Did the State become a “moving party” by virtue of bringing the paternity and child-support actions; and (2) is the State asking for specific relief. Two recent cases inform our decision that the State is not a moving party. Arkansas Dep’t of Human Servs. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993); D.H.S. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). In Cmnkleton, we held that the statute providing for wage assignments and deductions for child support “affords no jurisdiction over the state.” Crunkleton, 303 Ark. at 23, 791 S.W.2d at 705 (referring to Ark. Code Ann. § 9-14-102 (Repl. 1993)). Instead, the statute “merely provides a means by which the payment of child support can be more effectively enforced.” Id. In that case, DHS did not become a moving party for the purposes of waiver when it acted under the provisions of the statute to collect child-support payments. The next case extends this proposition.
In Arkansas Dep’t of Human Servs. v. State, the precipitating act was DHS’s petition for custody of certain juveniles. In a subsequent action against DHS for court costs and restitution arising from offenses these juveniles committed, DHS claimed the immunity defense. We held that the State was not a moving party when it sought custody of juveniles and appeared in dependency-neglect proceedings. Id. at 488-89, 850 S.W.2d at 850. We acknowledged the trial court’s finding that DHS is obligated, by statutory mandate, to initiate petitions in juvenile court whereby it voluntarily subjects itself to the jurisdiction of the court. We held that because DHS was under an obligation to appear, it did not voluntarily waive sovereign immunity. Id. at 489, 850 S.W.2d at 851 (distinguishing Arkansas Game & Fish Comm’n v. Lindsey, 299 Ark. 249, 771 S.W.2d 769 (198)).
Like the State in Arkansas Dep’t of Human Services and Crunkleton, OCSE, in bringing its paternity and child-support actions, is acting pursuant to statutory mandate. Under Title IV, part D of the Social Security Act, a state receiving federal funds to administer a plan for child and spousal support must “provide services relating to the establishment of paternity or the establishment, modification, or enforcement of child support obligations . . . to . . . any other child, if an individual applies for such services with respect to the child; and enforce any support obligation established with respect to . . . the custodial parent of such a child.” 42 U.S.C. § 654(4)(A)(ii), 654(4)(B)(ii) (Supp. 1997). Select sections within Title 9 of the Arkansas Code, including wage assignments and deductions for child support, govern OCSE actions. Applying the reasoning of Crunkleton and Arkansas Dep’t of Human Servs., OCSE did not become a moving party for the purpose of waiver when it initiated a paternity and child-support action against Mitchell. Pursuant to statutory law, OCSE was obligated to subject itself to the jurisdiction of the court to procure and enforce child support for the custodial parent. In so doing, it did not voluntarily waive sovereign immunity.
As to whether OCSE sought specific relief, we note, again, that OCSE initiated the action on behalf of the custodial parent for whom it sought specific relief. That parent and the child were not welfare recipients, so OCSE did not itself benefit from the suit by recouping any of the monies collected from Mitchell as an offset to a welfare debt. It follows, then, that even if OCSE were a moving party, it did not waive its immunity defense because it did not seek specific relief for itself.
Mitchell has not sought permission to sue the State, nor has the State waived its immunity. See Arkansas Dep’t of Human Servs. v. State; D.H.S. v. Crunkleton, supra. Therefore, the trial court was correct in ruling that Mitchell’s claim is barred by the doctrine of sovereign immunity. Plaintiffs like Mitchell, however, are not left without remedy. The Arkansas State Claims Commission was established to provide for payment of all just and legal debts of the State. Ark. Code Ann. §§ 19-10-201 to -210 (Repl. 1994).
We are bound by the doctrine of stare decisis and the rule of construction of laws in derogation of the common law. As a result, we decline to place a liberal construction on the meaning of dwelling house or usual place of abode in the substituted process rule. This phrase means what it says it means: the place where the defendant lives or resides. Because service of process was delivered to Mitchell’s mother’s residence, service was invalid to give notice, resulting in void paternity and wage-garnishment judgments. Under the principles of sovereign immunity, this court does not have jurisdiction to order the State to refund Mitchell’s child-support payments.
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Per Curiam.
Don Sellers petitions this court for a writ of prohibition against the Faulkner County Circuit Court, directing the circuit court be prohibited from trying him on a theft by receiving charge. The basis for Sellers’s petition is his claim of double jeopardy.
The State filed its criminal theft charge against Sellers on July 28, 1994, but when his case came to trial two years later, the State was unable to produce a material witness. Because the trial court refused the State a continuance, the State requested a dismissal, which the court granted and filed on July 18, 1996. On August 13, 1996, the State filed a motion to reconsider, asking the trial court to reconsider its earlier dismissal order and to reinstate Sellers’s case. The trial court granted the State’s request on November 13, 1996 — almost four months after its July 18 dismissal order. Sellers then moved for the court to set aside the November 13 order, but the court declined to do so by order filed on February 18, 1997. On May 14, 1997, the trial court again denied Sellers’s second motion to set aside the November 13 order. The trial court has set Sellers’s case for trial, which prompts his request to this court for a writ of prohibition.
Citing the case of U.S. v. Martin Linen Supply Co., 430 U.S. 564 (1977), and Reaves v. City of Little Rock, 25 Ark. App. 14, 751 S.W.2d 18 (1988), Sellers argues double jeopardy attached when the trial court dismissed his case on July 18, 1996. The State counters, stating among other things, that jeopardy does not attach prior to the swearing of a jury or the taking of evidence in a bench trial. Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992); see also McKinney v. State, 215 Ark. 712, 223 S.W.2d 185 (1949).
Besides the foregoing double-jeopardy argument, Sellers suggests the circuit court had lost jurisdiction under Ark. R. App. P. — Civ. 4(c) (1997) (see also Ark. R. App. P. — Crim. 2) because the court entered an order beyond the “deemed denied” date provided in that rule. The State argues Rule 4(c) merely delineates the jurisdictional requirements for filing a notice of appeal and does not apply here. The State also contends Rule 4(c) is inapplicable because the motion for reconsideration the trial court granted on November 13, 1996 was not a post-judgment motion covered by that rule. The trial court adopted the State’s contention.
Another question bearing on the trial court’s jurisdiction which is not raised by the State or Sellers is what power, if any, the trial court had to “reinstate” the theft charge against Sellers when more than thirty days (almost four months) had passed from when the charge was dismissed (July 18, 1996) and when the case was reinstated on November 13, 1996. Moreover, was the State relegated to refiling its theft charge against Sellers, assuming jeopardy had not yet attached?
We request the parties brief the foregoing issues that bear on the lower court’s jurisdiction to proceed against Sellers in the case. Because Sellers is the moving party, he should proceed first in the preparing and filing of his brief. This court’s clerk shall establish the briefing calendar for both parties. A temporary stay shall be entered in the pending trial below until this court renders its opinion in this proceeding. | [
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Tom Glaze, Justice.
Appellant Alvin Jackson was serving a life sentence without parole in prison for one count of capital murder and two counts of attempted murder when he stabbed a prison guard to death. In this appeal, Jackson does not challenge the sufficiency of the State’s evidence leading to his capital murder conviction for killing the guard, but he raises five other points for reversal. We consider each point in the order presented in his brief.
Jackson first contends that the State unconstitutionally exercised two of its challenges when striking two black persons, Arlene Camp and Carl McCraney. He relies on Batson v. Kentucky, 476 U.S. 79 (1986), where the Court held that the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on the basis of race. In determining whether such a violation has occurred, we apply a three-step analysis. First, the defendant must make a prima facie case that racial discrimination is the basis for excluding the juror. Second, if the court concludes that the defendant has made this showing, the State must provide a racially-neutral explanation for striking the juror. The trial court must then determine from all the relevant circumstances the sufficiency of the offered explanation. Third, if the court is not satisfied with the State’s explanation, it must conduct a sensitivity inquiry, and the defendant must explain how the State’s racially-neutral explanation is merely a pretext. Roseby v. State, 329 Ark. 554,_S.W.2d_(1997).
The first of the three-step analysis above requires us to determine whether Jackson proved a prima facie case of discrimination which may be established by (1) showing that the totality of the relevant facts give rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportional exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).
In the present case, Jackson made no effort to show a disproportionate exclusion of blacks from the jury, nor did he show a pattern of strikes evidencing a discriminatory purpose. In fact, two black males were seated on the jury, and as this court has previously stated, the best answer the State can have to a charge of discrimination is to point to a jury which has black members. Id.; see also Roseby, 329 Ark. at 562. In this respect, we also note that, while the State was entitled to ten peremptory challenges, it used only six. Additionally, Jackson presented no evidence that the prosecutor made any racial statements or asked any racial questions. In sum, Jackson failed to show a prima facie case.
Even if Jackson had shown a prima facie case, the State’s explanations for challenging Camp and McCraney were racially neutral, and the circuit court was well within its discretion to deny the Batson challenge. Ms. Camp, for example, had an ex-husband who had been charged with past crimes by the same prosecutor who was prosecuting this case. More pertinent, Ms. Camp, too, had been in the prosecutor’s office in connection with past serious crimes. While Jackson complains that the prosecutor’s “information was not gathered from questioning Ms. Camp,” he cites no authority such information must be furnished by the challenged juror. To the contrary, it is accepted practice for the prosecution as well as the defense to undertake a pretrial investigation of prospective jurors. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 21.3, at 724 (1984).
Jackson’s argument concerning the State’s peremptory challenge of Mr. McCraney also must fail. When defense counsel raised a Batson objection to the State’s use of a peremptory challenge to venireman McCraney, the prosecutor explained that he had previously prosecuted McCraney’s nephew and the prosecutor’s information was that the nephew lived with McCraney. The State added that McCraney was also evasive when asked his opinion about the death penalty. Defense counsel’s only rejoinder questioned whether the prosecutor gathered information concerning Mr. McCraney “outside the courtroom” and argued venireman McCraney was no different than white venireperson Ms. Krank who had a nephew who had been previously prosecuted. Again, it is difficult to understand the relevance of Jackson’s argument regarding where the State “gathered its information,” but the trial judge very clearly pointed out the difference in Ms. Krank’s situation from that of McCraney’s, stating Krank’s nephew had been prosecuted by another prosecutor in a different circuit. In sum, Jackson failed in showing a prima facie case, but even if he had, the State gave racially neutral explanations for its striking both Camp and McCraney. Once again, we point out that the record reflects the jury contained two black members and the State had exhausted only six of its ten peremptory challenges. Given the proof and record before us, the trial court’s ruling on the Batson issue was unquestionably correct. See Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996).
Jackson next asks the court to reconsider its decision in Kemp v. State, 324 Ark. 17, 919 S.W.2d 943 (1996), cert. denied, 117 S.Ct. 436 (1996), where this court held the introduction of victim impact evidence is not a deprivation of a defendant’s right of due process. Specifically, he argues on appeal that Ark. Code Ann. § 5-4-602(4) (Repl. 1994), a procedural statute, created a new aggravating circumstance, which he contends violates the Due Process Clause. Also, he claims it denies his due process rights because the statute represents a wholesale departure without guidelines from the normal sentencing scheme which permits aggravating factors to be weighed against mitigating factors. For whatever reason, the trial court was never asked to rule on these arguments. Thus, because these arguments are not preserved on appeal, we do not consider or discuss them. Nichols v. State, 328 Ark. 339, 994 S.W.2d 83 (1997).
In his third point, Jackson argues that the sentencing provisions in Ark. Code Ann. § 5-4-603 (Repl. 1994) are unconstitutional because they prohibit the jury from exercising mercy, and therefore amount to a mandatory death penalty. This identical argument was made in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, 116 S.Ct. 1436 (1996), and the court rejected it. We need not address it again.
Jackson’s fourth point asserts the trial court erred when it refused to prohibit the State from seeking the death penalty. Jackson claims that the State has historically imposed the death penalty in a racially discriminatory manner against blacks who kill whites. While he refers to a Stanford law review article when arguing this point, Jackson presented no evidence showing racial considerations had played a part in his sentence. The Supreme Court and this court have held that for such an argument to prevail under the Equal Protection Clause, the defendant must prove that the decisionmakers in his case acted with discriminatory purpose. See McCleskey v. Kemp, 481 U.S. 279 (1987); Nooner, 322 Ark. 87, 907 S.W.2d 677.
Finally, Jackson contends the trial court erred by allowing the State to utilize two aggravating circumstances during sentencing. He claims these aggravating factors, Ark. Code Ann. § 5-4-604(1) and (3) (Repl. 1993), were duplications and were unconstitutional “double counting” awry of the eighth amendment. In brief, Jackson’s objection was the State should not be permitted to prove two aggravating circumstances with the same evidence. The two provisions and aggravating factors at issue read as follows:
(1) The capital murder was committed by a person imprisoned as a result of a felony conviction.
(3) The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person.
The trial court denied Jackson’s argument, reasoning that the legislature intended to cover two separate aggravating factors by the above provisions, one, the evidence showed Jackson had a prior violent criminal history, and two, the proof also showed he was a prison inmate. The trial court was correct.
Terry Campbell, warden at the maximum security unit, testified that Jackson was incarcerated there on November 29, 1995, the day that he murdered the guard. Mr. Campbell also testified that, at the time of the murder, Jackson was serving sentences for one count of capital murder and two counts of attempted capital murder. The State introduced copies of the judgment and commitment orders showing that Jackson had committed these crimes. From this evidence, the jury found that the State proved both aggravating factors showing two separate aspects of Jackson’s criminal history beyond a reasonable doubt.
Jackson urges this court to adopt the holding in Collins v. Lockhart, 754 F.2d 258 (1985), where the Eighth Circuit found that an aggravating circumstance that duplicates an element of a crime is in violation of the eighth amendment. We fail to see the ruling in Collins as applicable here. Nevertheless, Collins was overruled in Perry v. Lockhart, 871 F.2d 1384 (8th Cir. 1989), based upon the U. S. Supreme Court’s decision in Lowenfield v. Phelps, 484 U.S. 231 (1988). Therefore, Collins is no longer good law.
Our decision appears in line with other states that have dealt with this precise issue. For example, appellate courts in North Carolina, Oklahoma, and Florida have found that the aggravating factors of being under sentence of imprisonment and being previously convicted of another felony involving violence do not cover the same aspect of the defendant’s criminal history. State v. Rich, 484 S.E.2d 394 (N.C. 1997); Green v. State, 713 P.2d 1032 (Okl. Cr. 1985); and Delap v. State, 440 So.2d 1242 (Fla. 1983). In Delap, the court reasoned that the defendant could be under a sentence of imprisonment without having been convicted of a felony involving violence. Id. at 1256. Conversely, a defendant could be convicted of a felony involving violence without being under a sentence of imprisonment. Id. In short, those aggravating circumstances are exclusive of each other, and including them both in the weighing process does not constitute a doubling of aggravating circumstances. Id. Accordingly, for the reasons above, we reject Jackson’s “double-counting” argument.
Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined in its entirety and no other rulings adverse to Mr. Jackson involving prejudicial error were found. We affirm.
Gross and Mauro, Patterns of Death, An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27 (1984). | [
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Conley Byrd, Justice.
The trial court cancelled a deed from appellees William R. and Doris Nelson to Jimmy Ray Jones and voided a mortgage from Jones to appellant Modern American Mortgage Corporation. For reversal, appellant contends:
“I. The evidence failed to establish fraud or misrepresentation in the procurement of the warranty deed.
II. The failure of either Mr. or Mrs. Nelson to read the warranty deed estops them from denying the conveyance.
III. Modern American Mortgage Corporation is a bona fide purchaser of a mortgage without notice of defects, and the claim of fraud cannot be asserted against it.”
The undisputed facts show that for some time prior to June 20, 1969, the Nelsons were in possession of and living on a small plot of land on Kenova Road in Smackover, Arkansas. After negotiations with R. W. Miller, Jr., agent of Jimmy Ray Jones d/b/a Imperial Builders Inc., the Nelsons on June 20, 1969, entered into a contract for construction of a new hpuse on the same plot. The printed contract referred to Imperial Builders as “Contractor” and the Nelsons as “Purchasers.” After stating that the contractor was to provide all labor, materials and things necessary for the proper construction, the contract recited:
“In consideration of the performance of the Contract, the Purchasers agree to pay the Contractor in current funds as compensation for his services hereunder the sum of $10,300.00 (for house only) to be paid on closing of FHA insured loan of $10,300.00. Buyer to furnish lot valued at $600.00. Builder to pay all closing cost. It is further agreed that said Purchasers will execute a note in the sum of $10,300.00 to Imperial Builders Inc., and also execute a mortgage upon said property to Imperial Builders Inc. as security herein, said property to be mortgaged is described as follows: (Legal description sanje as above.) It is further agreed that the note is to be returned and said mortgage removed and released upon closing of the loan and full payment thereof in the sum of $10,300.00 to Imperial Builders Inc. It is further agreed that this Contract is contingent upon the approval of Purchasers’ loan from Modern American Mortgage Co. and Purchasers providing satisfactory proof of title to said land to Imperial Builders Inc.”
Imperial Builders through R. W. Miller, Jr., again contacted the Nelsons sometime in July and had them execute another contract explaining that either the description or the wording was not right.
Thereafter Imperial Builders (Jones) through appellant obtained an FHA loan commitment on August 26, 1969, to insure a loan by appellant to the Nelsons when Imperial Builders completed the house.
On September 15, 1969, Jones and his wife executed a construction money mortgage on the same plot of ground to appellant. Appellant in making the loan relied upon a title insurance binder showing Jones to be the owner of the property. Neither appellant nor any of its agents inspected the property prior to the mortgage. Based upon FHA appraisals, appellant advanced a total of $6,310.00 to Jones.
Before the house was completed, Jones d/b/a Imperial Builders went bankrupt. After numerous labor and materialmen’s liens had been filed, Mrs. Nelson contacted appellant and for the first time learned that she and her husband had conveyed the land on which they lived to Jones by a deed dated September 4, 1969.
Mrs. Nelson testified that they had never built a house before this one; that after they arrived at the terms of the June 20th contract, Miller again contacted them about the July contract; that the house was commenced in the latter part of August; and that Miller and Jones again contacted them about September 4th. At that time Miller had two or three papers clipped together—one of which was shorter than the other. At the same meeting she and her husband were to pick out the paneling. At this meeting Miller told them (the Nelsons) these additional papers had to be signed to get on with the building. Admittedly, Mrs. Nelson and her husband signed the papers without reading them. She concluded that one of these papers was the deed dated September 4th bearing her signature. She also testified that she would not have signed the deed had she known that it was a deed.
Mr. Nelson’s testimony is similar to Mrs. Nelson’s except that he thought that at one time he signed an application for an FHA commitment and also an authorization for a credit check.
John Kooistra, senior vice president of appellant, testified that a copy of the June 20th contract was in appellant’s files; that appellant obtained the FHA commitment at the instance of Imperial Builders for the loan to be made to the Nelsons; that in making the construction money mortgage, appellant did not check to see who was in possession of the premises but relied solely upon the title insurance binder as to the fee title; and that disbursements had been made in the total amount of $6,510.00 based upon the FHA inspections. Mr. Kooistra stated that before appellant would make a construction money mortgage to a builder, appellant required a take-out letter from a lender and a copy of the builder’s contract.
Jimmy Ray Jones denied that he was present when any documents were signed by the Nelsons. He admitted that Miller had been his salesman and that he had been unable to reach Miller.
POINT I. Appellant argues that this was a normal business transaction and that the circumstances of the execution of the warranty deed as related by the Nelsons cannot be construed as an attempt on the part of the builder to deceive. We disagree. It appears from the testimony that the Nelsons were ignorant of the papers necessary to secure the FHA commitments required to comply with the contract and that these details were gratuitously undertaken by the builder who apparently had had some experience in the matter. The representation that the execution of the papers was necessary to get on with the building was a misrepresentation, for by the express terms of the bargained contract a conveyance of the premises to the builder was not necessary to get on with the building.
POINT II. In arguing that the Nelsons are estopped to deny the conveyance to Jones, appellant relies upon Upton v. Tribilcock, 91 U. S. 45 (1875) and Stewart v, Fleming, 105 Ark. 37, 150 S. W. 128 (1912).
In Upton it was pointed out that “a contractor must stand by the words of his contract, and, if he will not read what he signs, he alone is responsible for his omission.” The same rule was applied in Stewart v. Fleming, supra, but in doing so the court pointed out that there was no misrepresentation as to any matter of inducement to the making of the lease, which, from the relative position of the parties, the one could be presumed to contract upon the faith and trust reposed in the other party. However, in the first appeal of Stewart v. Fleming, 96 Ark. 371 (1910), the applicable law was stated in this manner:
“ ‘It is true that when the means of information are open to both parties alike, so that with ordinary prudence and vigilance each may be informed of the facts and rely upon his own judgment in regard to the thing to be performed or the subject-matter of the contract, if either fails to avail himself of his opportunities, he will not be heard to say he has been deceived. * * * But when the representation is made of a fact that has nothing to do with opinion, and is peculiarly within the knowledge of the person making it, the one receiving it has the absolute right to rely upon its truthfulness, though the means of ascertaining its falsity were fully open to him. It does not lie in the mouth of the declarant to say it was folly in the other party to believe him.’ ”
Thus it can be seen from the record that Jones was an experienced builder. The Nelsons who were building their first house had no knowledge of the papers necessary to be signed to get on with the construction. While it may have been folly for the Nelsons to sign without reading whatever Jones or his agent stuck in front of them, we cannot agree that as between them and Jones, Jones is in a position to argue that the Nelsons are estopped to say that they believed the representations made by Jones’ agent. Of course appellant as assignee of Jones stands in no better position than Jones, unless it stands in the position of a bona fide purchaser for value without notice.
POINT III. The question of whether a subsequent purchaser or mortgagee can be a purchaser for value and without notice as against a grantor continuing in possession after the execution of a conveyance has been before us a number of times. See Turman v. Bell, 54 Ark. 273 (1891); Morgan v. McCuin, 96 Ark. 512, 132 S. W. 459 (1910); American Bldg. & Loan Assn. v. Warren, 101 Ark. 163, 141 S. W. 765 (1911); and Temple v. Tobias, 186 Ark. 851, 56 S. W. 2d 585 (1933).
In American Bldg. & Loan Assn. v. Warren, supra, the applicable rule was stated:
“Ordinarily, possession by a person under a contract of purchase, though unrecorded, is notice of his equitable rights and interests in the property. Actual possession is evidence of some title in the possessor, and puts the subsequent purchaser or mortgagee on notice as to the title which the occupant holds or claims in the property. Generally, actual, visible and exclusive possession is notice to the world of the title and interest of the possessor in the property, and it is incumbent upon the subsequent purchaser or mortgagee to make diligent inquiry to learn the nature of the interest and claim of such possessor; and if he does not do so, notice thereof will be imputed to him. (Citing cases.)
“But it is urged that this rule does not obtain in cases where the grantor continues in possession of the property at the time of the grant and after the execution of the conveyance. It is urged that in such cases the law presumes that the grantor holds in subordination to the tide which he has conveyed, and not in opposition to it; and that third persons dealing with property may presume that the possession of the grantor is only by sufferance of the grantee.”
Here appellant had obtained an FHA commitment insuring a loan to be made by appellant to the Nelsons upon completion of the building. Appellant, as a prerequisite to making the construction loan, required not only the FHA commitment but also a copy of the builder’s contract with the Nelsons. The contract showed that the Nelsons owned the lot upon which the house was to be built. Furthermore appellant relied upon the FHA inspections on the commitment to the Nelsons to advance the construction money to Jones. It would be illogical to say that appellant under the circumstances could presume that the possession of the Nelsons was at the sufferance of Jones. Since appellant cannot come within the exception to the rule that possession is notice to the world, it follows that appellant was not a purchaser for value without notice as against the Nelsons.
For the reasons herein stated, the decree is affirmed.
George Rose Smith and Fogleman, JJ., dissent. | [
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Frank Holt, Justice.
The appellant brought this action against the appellee to recover damages for the death of Gerald Cowart, appellant’s husband, allegedly caused by the negligence of the appellee. The deceased was fatally injured when a crane, rented from appellee, struck the decedent and caused him to fall from a building under construction. When the appellant concluded the evidence in her case, the trial court directed a verdict for the appellee on the basis that the continued use of the crane by Bechtel (decedent’s employer), with the knowledge that it lacked certain safety devices, constituted a separate and intervening cause.
For reversal of the judgment appellant contends that the trial court erred in directing a verdict for the appellee, the lessor, because the crane was a dangerous instrumentality without the necessary safety devices and that the appellee, lessor, being a bailor for hire, owed a duty to furnish a safe appliance to those expected to use it and, further, that the appellee, lessor, is not relieved of liability even though the decedent’s employer was also negligent in continuing to use the dangerous instrumentality after detecting the dangerous condition.
The decedent, an iron worker, was part of a “raising gang” employed by Bechtel Corporation at a construction of facilities for Union Carbide Corporation. On the date of the accident, he and his crew were transferred by his superior to a “preheater building” from an adjoining building where they had been erecting steel with the use of a small crane. The decedent and his coworkers had not previously used the particular crane which was at the “preheater” site. This was a large, heavy-duty crane with a load capacity of 100 tons and a 170-foot boom. Decedent’s employer had two large cranes of this type, as well as smaller ones, on the job site. This large type crane was necessary at the “preheater” site because of the weight of the steel and the height required to set it in place. The fatal accident happened when the first steel column was raised by the crane and placed at the top of the “preheater” building. After decedent had unhooked his “choker” from the steel column, his co-worker had difficulty in disconnecting his side of the “choker.” Decedent assisted his coworker and when the “choker” was released, the “headache ball,” a steel ball weighing approximately fifty pounds and approximately fourteen inches in diameter, began spinning at a rapid rate with great force, knocking decedent from his position on top of the building and causing him to fall seventy-five feet to his death.
This crane, designed and customarily used for steel construction work at high elevations, was not equipped nor supplied with a non-spin swivel or a non-spin cable. Following the accident, a safety consultant for the Arkansas Labor Department investigated and testified that: “It didn’t have a swivel on it which would have prevented this (the accident).” He recommended “a non-rotating cable which tends to not twist up or swivel on this cable and they were putting that on there when I left.” According to him, the use of the swivel is “standard knowledge or standard procedure, it goes on there to prevent the cable from getting twisted up.”
The decedent’s co-worker testified that it is standard procedure that cranes of this type engaged in “hanging iron” be equipped both with a non-spin swivel and non-rotating cable. This witness denied any knowledge before the accident that the crane was not equipped with these two safety devices. According to him, this crane was very dangerous without this equipment. The decedent’s foreman testified that: “A swivel headache ball is standard equipment” and the swivel is an absolute necessity. Further, there was no tag line on the steel column being set. Another witness, an iron worker for 21 years, stated that in the absence of these devices this large crane, a utility rig used for heavy equipment such as “hanging iron,” was certainly “unsafe.”
The construction superintendent testified that this crane was multi-purpose in its nature and was used primarily for “setting structural steel” and “hanging iron;” that it was equipped with a long boom “to reach high places” in steel erection jobs; that the crane, rented from appellee, had been received from the appellee three to four weeks before the accident; that he and the particular crew which assembled this crane after its receipt were aware that it was not equipped with these safety devices. According to him, appellee was contacted about the lack of these safety features. He testified that he had used this and other cranes without the safety features and that this crane had not been used to set heavy iron, although it had been used every day to set “little stuff.” He testified that he had set the rig “in operation” knowing that it was not safety equipped and the foreman on the job knew the crane was not so equipped. Further, he stated that customarily a “tag line” was used to take the slack out of the line when the crane was not equipped with a swivel.
Appellant correctly states the rules of law which apply in determining whether a directed verdict is correct. In Shearer v. Morgan, 240 Ark. 616, 401 S. W. 2d 21 (1966) we said:
“It is the long-established rule of this court that, in determining the correctness of the trial court’s action in directing a verdict for either party, we must take that view of the evidence which is most favorable to the party against whom the verdict is directed; and, if there is any substantial evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error for the court to take the case from the jury.” [citing cases]
Also, in Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226 (1959) we said:
“The rule is well established that where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question should go to the jury.”
Even though we hold, which we do not, as contended by appellant, that the crane was an inherently dangerous instrumentality and that the appellee was negligent in furnishing or supplying decedent’s employer with unsafe equipment, the appellant cannot prevail. This is true because, in directing a verdict for appellee, the court was correct in stating:
“The most important and persuasive reason why this court is directing a verdict for the defendant Casey Jones is that there can be no question, I rule as a matter of law that representatives in high capacity in Bechtel Corporation admittedly knew that this crane was received from whatever source without the safety devices. That they used it for a period of time.- * * * But in any event, charged with that knowledge, in my opinion the law is clear that there was a very definite intervening cause that we cannot attribute to Casey Jones.”
In Collier v. Citizens Coach Co., 251 Ark. 489, 330 S. W. 2d 74 (1959) we defined proximate cause as being:
"That which is a natural and continuous sequence, unbroken by any efficient intervening cause,- produces the injury, and without which the result would not have occurred.”
See, also, Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S. W. 2d 117 (1963); Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647 (1908); AMI 503.
In the case at bar it is undisputed that the crane had been on the job site and out of the appellee lessor’s control for at least three to four weeks; that the crane was assembled on the job -site and operated by the decedent’s employer, during which time the appellee exercised no control over-the crane’s operation. Further, that decedent’s employer was aware during this three to four weeks of use that the two safety devices were not on this crane; that, knowing this, decedent’s employer directed him to work with or about this crane in the lifting of heavy structural steel which, according to the record, is the only time during the three to four weeks it had been so used; and that decedent’s employer admitted that it was customary, in the absence of these safety devices, to take “the back lay out of the cable” before it is sent up. In the circumstances we are of the view that the acts of decedent’s employer constituted an efficient, independent, and intervening proximate cause which superseded or broke the causal connection of the negligence, if any, of appellee.
Affirmed.
Byrd, J., concurs. | [
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J. Fred Jones, Justice.
The appellant, Cloys A. Thomas, was convicted of second degree murder in the Howard County Circuit Court and was sentenced to ten years in the penitentiary. On his appeal to this court he relies on the following points for reversal:
“The verdict and judgment are contrary to the law.
The verdict and judgment are contrary to the evidence.
The verdict and judgment are contrary to the law and to the evidence.
The Court erred in refusing to sustain Defendant’s motion at the conclusion of Plaintiff’s testimony for a directed verdict.”
Under Arkansas law, murder is the unlawful killing of a human being, in the peace of the state, with malice aforethought, either express or implied. Ark. Stat. Ann. § 41-2201 (Repl. 1964). All murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious and premeditated killing, or which is committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree. Ark. Stat. Ann. § 41-2205 (Repl. 1964). All other murder shall be deemed in the second degree. Ark. Stat. Ann. § 41-2206 (Repl. 1964).
The facts are not in dispute that about midnight on Friday, January 16, 1970, Billie June Thomas, the wife of the appellant, died from a .22 caliber rifle bullet fired at close range through her heart while in the bedroom of their trailer home. The appellant then carried his wife’s body from the trailer; placed it in the trunk of his automobile; drove to a secluded area about two and one-half miles from their trailer home, and there he secreted the body under brush and leaves. On Saturday morning he went to visit a girl friend in Hooks, Texas, and on Sunday evening he returned to Nashville and reported to his brother, who lived about 150 yards from the appellant’s trailer, that his wife was missing. On Monday following the death of his wife, the appellant told Eugene Ray about where he left his wife’s body and he solicited the assistance of Eugene in going to the spot for the purpose of burying the body. He and Eugene went out to the area on Monday night but were unable to find the body. On Wednesday he went with Eugene to Hot Springs to deliver a truckload of tomatoes and on this trip he continued in his effort to convince Eugene that his wife was dead and that he had secreted her body. Either on Wednesday or Thursday night, he again went to the scene with a shovel, and this time he found his wife’s body and buried it in a shallow grave. Eugene Ray refused to believe what the appellant had told him, but after learning that Mrs. Thomas was missing, Ray told the officers what the appellant had related to him, and the officers soon found the body buried in the shallow grave.
The record is replete with testimony of threats made by the appellant to kill his wife, but on such occasions appellant would be either drunk or drinking and there is ample evidence that he became belligerent when under the influence of alcohol. The evidence is also clear that on the night of Mrs. Thomas’ death, she and the appellant had both been drinking when they went to their trailer from his brother’s home about 11:30 at night.
The appellant made a statement to the officers which was accepted in evidence and he also testified in his own defense. The theory of his defense was that his wife accidentally shot herself while moving a .22 rifle and a shotgun from a corner of the bedroom where he had left them, to a closet in the bedroom of the trailer. The appellant testified that he and his wife had many quarrels, as well as separations, during the ten years they were married to each other. He testified that on the Friday night of his wife’s death, he and his wife visited in his brother’s home until about 11:30 when they returned to their house trailer. He says that he had been bird hunting and had his shotgun in the car when he and his wife returned to the trailer from his brother’s home; that after going into the trailer his wife went about putting some groceries up while he returned to his car, got his shotgun and put it in the corner of the bedroom where he usually kept his guns. He says he did not notice the .22 rifle that he usually kept in the corner but that it was probably there. He testified that after he put his gun and hunting shell vest in the corner, he turned on the TV and lay down on a couch in the living room to watch it. He says that in about three minutes he heard a muffled gunshot and a lot of racket. He says that he went into the master bedroom and that his wife was lying on the bed with one leg hanging off the bed, and that he saw her breathe one time. He says that both guns were laying on the bedroom floor with one or two coat hangers in between the guns; that the clothes closet door was off the track and that there were some coat hangers hanging inside the bedroom closet door. He says that he checked his wife’s pulse and felt for her heart beat. He says that he picked up the guns and placed them in the corner and,
“I thought I’d carry her to the hospital. Picked her up in this sheet that she was laying on, and I got down to the bottom of the steps and I got to thinking about all the trouble we’d had. I had been going with women, and she had been going out with these men. I got to thinking that people would think I was the cause of her death, had killed her, so I put her in the trunk of the car. I started driving this car, and I never could think where I was going to, but I went to this place where I used to hunt. I took her out of the car, put her in the leaves and went back home. I don’t remember driving the car back home, but I know I did because it was setting out in the yard next morning. Next morning my dog woke me up scratching at the door. I let him in and he went into the bedroom, and this all come back to me. First I thought I’d had a bad dream. I couldn’t find June and I got to looking around, and I found her shoes and her dress, and I knew it happened. I set down at this table and I got to thinking. I didn’t know what to do, so I told this friend that lives at Hooks. I told her about it.”
The appellant testified that in the past few years he had not cared anything about his wife and he didn’t think she cared anything about him. He testified that when he checked his wife’s pulse and found that she was dead,
“I first started to the hospital and I started down these steps and I got to thinking about all the trouble we had had, things that she had said about everything, and I had been going with this woman from Texas. She had been going with about every man she could go with. I got scared. * * * When I started down those steps I got scared. I got to thinking about all the trouble we’d had, the things she had said, I got to thinking about the women I had went, with and the men she had went with, and I went berserk, and I put her in the trunk of the car.
Q. . . . You say that you and June came into the trailer the last time, and you lay down on the couch?
A. Yes, sir.
Q. And that two or three minutes later your heard this noise?
A. Yes, sir. I turned on television before I laid down on the couch.
Q. Didn’t you say she brought some groceries in with her?
A. Yes, sir.
Q. What did she do with those?
A. When I first opened the door, she had this steak, and I believe it was an apple pie, a frozen apple pie. I said, ‘I’ve forgot my shotgun.’ She went in the kitchen and put the groceries up, and I got my shotgun and put it in the corner. Then I turned on TV and laid down on the couch.
Q. And it must have been immediately then that you heard the shot.
A. Approximately two or three minutes.
Q. Possibly two or three minutes.
A. Approximately two or three minutes.
Q. And you relate that up to that second of time there had been nothing whatever unusual or out of the way happen?
A. She mumbled something in there. I had the TV on. Maybe she was trying to slide the door open or something. She mumbled something. I didn’t understand what she said. She might have cussed or something.”
In the statement that the appellant gave to the officers, the appellant stated, in part, as follows:
“A. We hadn’t been in the trailer but just a few minutes ’till—I was in the living room and she was in the bedroom, and I heard the gun shoot, and I went in there and she was—fell back on the bed.
Q. Now, for the time being, I wish you would go ahead and tell in your own words, Tom, what happened then. Just relate what you did.
A. She was trying to put the guns in a closet, the way I thought, and the guns was laying there, and one coat hanger was laying out in the middle of the floor. She had a bunch of* coat hangers she had brought back from Texarkana. And she didn’t live a minute. By the time I got in there she breathed once or twice. So I started to call an ambulance, and I didn’t want to run off and leave her. I got scared. I checked her pulse to see if she was still alive, and she didn’t have no pulse.
Q. All right, then what?
A. I went out—I first started to call an ambulance and Lewis Tollett, and when I got scared I got to thinking maybe somebody would think I had shot her. We’d had so many arguments during her lifetime. So I got, her and put her in the turtle hull. I didn’t know where I was going. I just took off driving, and I carried her to that place up there in them woods. I didn’t have anything to bury her with, so I checked her again to see if she was still alive. She had got stiff.
Q. What did you do at that time to hide the body?
A. I don’t think I hid her very good.
Q. Did you cover her with leaves?
A. I didn’t have anything to cover her with but my hand.
Q. How was the body dressed at that time when you covered her with leaves there?
A. She might have been trying to take a bath. I don’t know, or go to bed one. She had a brassiere and her britches on.
Q. When you say britches, you are referring to what a lot of people call panties?
A. Yes.
Q. All right. And then, Tom, what happened after you—What did you do after you left her there?
A. I burned that sheet. Or I might have burned it before, and I drove back to the house.
Q. Now, in talking about that sheet, I believe you told us that you had taken her from the house—
A. —in a sheet.
Q. In a sheet. Was this the sheet from the bed?
A. Yes.
Q. Was it the bottom sheet on the mattress on the bed, off the bed?
A. Yes.
Q. Was that the only sheet that you had out there with the body?
A. Yes.
Q. And you burned the sheet down at the gravel pit?
A. Yes.
Q. For the record, that’s the gravel pit just on down a few yards, maybe a half a quarter, past the point where the body was buried?
A. (witness nods affirmatively.)
Q. All right. Now, Tom, that was after midnight on Friday night, wasn’t it?
A. Yes, sir.”
In his statement to the officers the appellant stated that he had left the shotgun and the .22 rifle in the corner of the bedroom; that he left the chamber open on the pump shotgun and that there wasn’t supposed to be a bullet in the .22 rifle. He stated that he never did leave a live round of ammunition in the barrel of the rifle, but there must have been one left in the barrel on the night his wife was killed. He stated that he and his brother’s little boy had recently been squirrel hunting, “and I always left it with a hull in the chamber where he would have to reload to where it would fire, you know.” He stated that regardless of the fact that he never left a live shell in the barrel of .his .22 rifle, “I know there was bound to be a live shell in the barrel when it was stood up there.” He stated that he always kept his guns in the corner of the bedroom but when his wife was there she would put them in the closet. He says that when he heard the shot and went into the bedroom, his wife was lying on her back across the bed with her feet hanging off of it, and that the guns were lying in the middle of the floor.
He stated that he saw the wound just below- her breast. He stated that his wife had a brassiere and panties on, and that the .22 rifle was lying on the floor with the barrel pointed towards the bed; that the shotgun was also in the floor with the barrel pointed kind of towards the closet. He stated that there was a coat hanger or two lying with the guns and that the slide closet door was off the track. He explained in his statement as to why he did not call his brother who lived nearby:
“A. I got scared. I didn’t know what to do. And I got to thinking that we had had so many arguments in the past that everybody would think that I shot that gun.
Q. Did you have your hand on the gun before it was fired?
A. No, I had put my shotgun over there, but I never touched the twenty-two.
Q. You hadn’t touched the twenty-two that night before she was killed?
A. No. There was a hull in the twenty-two, but there wasn’t no other bullets.
Q. Since that time have you re-loaded that gun?
A. Yes, I have re-loaded it.
Q. Why did you do that?
A. My little dog got out, and somebody kicked it out there, or it run into a bush. It hollered out the side of the trailer. I heard it holler, and it come back in. He was—
Q. Let me ask you this. There was an empty shell found out there in your trailer. Is that the shell that killed her? Is that the casing from the shell that killed her?
A. No.
Q. What did you do with the shell that was in the gun?
A. I thro wed it out in front of the yard.
Q. Thro wed it out in front of the yard? You mean you threw it out the front door?
A. Yes.
Q. Straight out the front door, or the right, or to the left?
A. It hit my car fender out there. I heard it hit.
# # *
Q. When did you take that shell out?
A. Right that night.
Q. Right after it happened?
A. And throwed it out. And I checked and there wasn’t any shells in the gun for the next two or three days, and I reloaded it.
Q. Why did you re-load it? Because of the dog incident?
A. I heard the dog holler and I thought there was somebody out there. The hull, if there was one in the trailer, I shot that gun at a field lark out there several times, a long time ago.
Q. Now, Tom, why was the body found without anything on it other than brassiere around the neck?
A. Her britches was on her unless they hung on sdmething about the turtle hull. The britches are still out here—her pants is.
Q. You are saying, Tom, that her panties are definitely there in the grave?
A. Or between there at that place somewhere, because I hung them when I started—They hung when I started out with her.
Q. Why was her brassiere up around her neck?
A. I guess it’s when I moved her. It probably slipped up.
Q. You have told us before this afternoon that when you went out there and moved the body from where it was covered with leaves down to the shallow grave that you dug Monday night, that you may have pulled her by her brassiere.
A. I might have.
Q, You didn’t take the brassiere off of her body and put it around her neck?
A. No.
JL JL bU, TV W ÍT
Q. I believe you told us earlier that you did not take a piece of that sheet to this barrel just north of your trailer and burn it.
A. I don’t know whether I did or not. I was so scared.
Q. Did you tear the sheet?
A. I don’t remember that sheet.
Q. You don’t think you could remember if you took a piece of this bloody sheet and—
A. I don’t believe I carried any out, but I possibly could.
Q. You say you don’t believe you carried any back to the trailer?
A. I know I didn’t carry any back. I might have took it out before I left, but I don’t even remember it. I can’t—I was so scared I didn’t know what to do.
Q. Are you sure this body was stiff when you first—by the time you got there?
A. Yes. I checked it three or four times, and I checked it up there.
Q. I believe you told us earlier it was between 30 and 40 minutes after she died that you took her out there.
A. It took me a long time to lift her.
Q. And get her in your car?
A. Around 40 minutes. Or 30 minutes.
Q. Did you fire up your car then and turn the lights on and drive out toward Center Point when you took the body out there?
A. Yes.
Q. Tom have you changed the mattress on the bed since that happened?
A. No.
Q. Didn’t it have blood on it?
A. No.
Q. You must have taken the body off the bed right away.
A. I checked it 30 minutes, 30 or 40 minutes.
Q. You mean the body remained on the bed 30 or 40 minutes?
A. It sure did.
Q. You’re saying then that it stayed on the bed till you got ready to take it out, put it in your car and go on out to the woods?
A. That’s right. I didn’t know where I was going when I started out.”
We are of the opinion that the evidence in this case is amply sufficient to sustain the conviction of murder in the second degree. It is well settled that in testing the sufficiency of the evidence on appeal to sustain a jury verdict in a criminal case, the evidence must be viewed in the light most favorable to the state, and that circumstantial evidence has long been recognized by law as sufficient to sustain a conviction. Cook v. State, 248 Ark. 332, 451 S. W. 2d 473. We are also of the opinion that there was ample circumstantial evidence in this case from which the jury could have reasonably found that the appellant fired the gun that killed his wife.
The jury had a right to consider the circumstantial evidence of the appellant’s mistreatment and threats to kill his wife over the years, as well as his panic following her death, and his attempt to secrete her body first by covering it with leaves and then burying it in a shallow grave.
There is no question but that the gun was fired at close range as evidenced by powder burns around the hole in the brassiere the deceased was wearing, as well as powder stains on the skin around the wound. The appellant testified positively that it was only a very short period from the time they entered the trailer until he heard the gunshot. The deceased put groceries up while the appellant put his shotgun in the corner, yet his wife was completely undressed with the exception of her brassiere and panties according to his testimony. The appellant testified positively that when he went into the bedroom following the shot, his wife was lying on her back across the bed and with the .22 rifle also lying with the shotgun on the floor of the trailer with the rifle barrel pointed in the direction of the bed. The most damaging bit of circumstantial evidence is the course of the bullet through the deceased’s thoracic cavity. The state medical examiner, Dr. Rodney F. Carlton, testified as follows:
“Q. Did you in your autopsy determine the course that the bullet had taken through the body?
A. Yes, I did.
Q. What did you determine that to be?
A. The bullet went front to back, left to right, with a slightly downward deviation. The resting site of the bullet was approximately one to one and a half inches below the entrance site in the skin.
Q. Now, Dr. Carlton, when you say—Did you say a slightly downward?
A. Yes, sir.
Q. Can you tell the jury what you mean by slightly downward through the body?
A. Approximately one and one-half inches from the entrance wound to the resting site, down, toward the feet.
Q. Did you examine the internal organs between the place of the entrance wound and the place where the bullet rested?
A. Yes, I did.
Q. And did that confirm the course of the bullet through the body?
A. Yes, sir.
Q. Can you describe the track between the entrance wound and where the bullet lay, or rested?
A. Yes, sir. It entered the first cavity through the fourth intercostal space, that is, the space between the fourth and fifth ribs. It perforated the right and left side of the heart, went through the sac enclosing the heart and into the backbone, which was practically in the mid-line of the body.
Q. Then there wasn’t any substantial deviation in the course of the bullet after the bullet entered the body and where it wound up?
A. No, sir.”
The jury might well have concluded from this evidence that had the deceased accidentally shot herself, the bullet would have ranged upward through her body rather than downward, and that she would have fallen forward on the floor rather than backwards onto the bed. The jury might well have considered that the most logical explanation for the position of the body and the course of the bullet was that the appellant simply shot his wife while she was sitting on the side of the bed. Another bit of circumstantial evidence the jury might well have considered as pointing to the guilt of the appellant, was his admitted effort to burn the bedsheet bearing the blood stains from his wife’s fatal wound. He remembered attempting to burn the sheet in the gravel pit near where die body was found and in which a part of the burned sheet was found. He remembered nothing of attempting to burn the sheet in the barrel incinerator near the trailer, but admits that he may have attempted to do so.
Another very potent item of circumstantial evidence unfavorable to the appellant lay in his attempted explanation of the ejected .22 rifle ammunition casing found on the bedroom floor of the trailer. He testified that the rifle was a pump type repeating rifle and that when the rifle was last used, an empty casing was left in the barrel. He also testified that after the round was fired that killed his wife, he ejected the empty casing from the chamber of the rifle and disposed of the casing by throwing it into the yard. He does not attempt to explain how the empty casing got onto the floor of the trailer, except to state that he had shot at a field lark sometime previously. Of course, if there was an empty casing in the firing chamber of the rifle when he left it standing in the corner of the bedroom, it would have been necessary to eject this casing before a live round of ammunition was placed in the chamber for firing. The appellant testified that there must have been a live round of ammunition in the firing chamber rather than a spent casing, but the jury might well have concluded that if the empty casing found on the floor of the trailer did not originally contain the bullet that killed Mrs. Thomas; then it must have been the casing which was ejected, at the same time the live ammunition that did kill Mrs. Thomas, was injected into the firing chamber of the rifle. There was also uncontradicted evidence from the police officers who examined the rifle, that they could not cause it to fire accidentally by jarring it, and no fingerprints could be found on the rifle.
In the appellant’s statement admitted in evidence, he stated that he remained in the trailer from 30 to 45 minutes before attempting to remove the body of his wife and he makes no explanation of what he was doing during this time. In the testimony he gave before the jury, he testified that when he was carrying his wife’s body out of the trailer, and as he was going down the steps of the trailer, he panicked and decided to secrete the body. The jury might well have considered such delay as deliberate on the part of the appellant to make sure his wife was dead before he attempted to do anything for her, or to do anything with her dead body.
We conclude, therefore, that the evidence was substantial and that the jury was lenient in assessing the penalty at only ten years on the appellant’s conviction of murder in the second degree.
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J. Fred Jones, Justice.
James Cleborn Ballard was injured while in the course of his employment as a switchman for the Missouri Pacific Railroad Company when he was struck by an automobile being driven by a Mr. Pack on a service road in the Missouri Pacific yards in North Little Rock. He filed suit in the Pulaski County Circuit Court against Pack and the railroad company, charging Pack with common law negligence and charging Missouri Pacific with negligence under the Federal Employers’ Liability Act (45 U. S. C. A. § 51 et seq.). Both defendants pleaded Ballard’s own negligence as a bar to recovery, and the issues of negligence were submitted to the jury on interrogatories. The jury apportioned the negligence as 10% to Ballard, 10% to Pack and 80% to Missouri Pacific. It found that Ballard had sustained damages in the amount of $35,000 as a proximate result of the combined negligence. Judgment on the verdict was rendered against Missouri Pacific for $31,500 and on appeal to this court Missouri Pacific relies on the following points for reversal:
“The court was in error in failing to direct a verdict for the Missouri Pacific Railroad Company at the close of the plaintiff’s case and at the close of all the evidence.
The verdict is not supported by substantial evidence.
The court was in error in giving AMI 305 among its instructions to the jury.
The court was in error in giving AMI 1909 among its instructions to the jury.”
The facts as we gather them from the record are as follows: Mr. Ballard was injured about midnight on September 4, 1966. There were three individuals involved in connection with the incident resulting in the injuries—Mr. Ballard, Mr. Pack and Mr. Thurman. All three were employees of Missouri Pacific and were the only eye witnesses to the occurrence resulting in the injuries. Mr. Ballard was a switchman in the transportation department and was engaged in his duties as such when he was injured. The defendant Pack was a locomotive engineer and was on his way to work when Mr. Ballard was injured, and Mr. Thurman was a rip track foreman in charge of repairing damaged railroad cars when they were placed on the rip track for that purpose. The rip track, where cars were repaired, was laid out in a north-south direction and was protected at each end against careless switching operations by switches locked with blue colored locks. Only Mr. Thurman, and car repair personnel under his supervision, carried keys to blue locks and they were the only ones who had authority to open the switches into the rip track; regular switchmen or transportation personnel had no such authority.
An access road with asphalt surface about 18 or 20 feet wide ran near, and parallel to, the rip track. It was designed and used for motor vehicular traffic by employees going to and from their work at various places in the railroad yard. On the night in question, the switching crew with which Mr. Ballard was working was directed by the yard master to switch approximately 45 railroad cars into the north end of the rip track. Upon arriving at the north end of the rip track, they found the rip track switch closed with the blue lock, so they were then directed to take the cars into the rip track from the south end. In the meantime, and while the switch engines and crew were on their way to the south end of the rip track with the cars, Mr. Thurman, the rip track foreman, was directed by the yard master to open the switches into the rip track by removing the blue locks at both ends of the rip track. Mr. Thurman drove in his automobile to the north end of the rip track and opened the switch at that point. He then drove to the south end of the rip track where he found the switch crew in the process of taking the cars through a regular switch adjacent to the access road; after which, that switch would be thrown and the cars would be shuttled back onto the rip track, through the nearby rip track switch. Mr. Ballard was attending the switch through which the cars were passing and about five of the cars had passed through the switch when Mr. Thurman arrived in his automobile headed south on the access road. Mr. Ballard was standing an undisclosed distance from the switch and an undisclosed distance from the access road, but he had his back to the access road and was watching the cars pass through the switch which he was to realign after the cars had passed through. Mr. Thurman stopped his automobile across the access road from Mr. Ballard. He called from his automobile to Mr. Ballard and inquired as to whether the nearby rip track switch was open. There is a slight conflict in the testimony of Mr. Ballard and that of Mr. Thurman as to the exact details of what happened at this point; but, in any event, Mr. Pack, who was driving his automobile north on the access road, struck and injured Mr. Ballard.
Mr. Ballard’s original complaint alleged negligence on the part of Pack in driving at an excessive rate of speed; in failure to keep a proper lookout; in failing to keep his vehicle under proper control; and in driving although afflicted with poor eyesight. The original complaint as amended alleged negligence on the part of Missouri Pacific in failing to provide Mr. Ballard with a reasonably safe place in which to work, and in requiring Mr. Ballard to go to the service road to receive instructions from Mr. Thurman. A second amendment to the complaint against Missouri Pacific alleged that Thurman was a fellow-employee of Ballard’s and that his negligence was imputable to Missouri Pacific; that Thurman, as a superior of Ballard, called Ballard over to the edge of the road where he was struck by an automobile; that Thurman as agent for Missouri Pacific, was negligent in enticing Ballard to enter a place of danger in the course of his work; and in failing to warn Ballard of the approach of a motor vehicle which presented danger to his person and in sitting silently by while observing an automobile bearing down on his person and in otherwise failing to observe ordinary care under the circumstances.
Mr. Pack answered by general denial and alleged that the injuries to Ballard were proximately caused, or contributed to, by his own negligence, or resulted from a risk assumed by him; and that in so far as Pack was concerned the accident was an unavoidable mishap.
Missouri Pacific answered by general denial and alleged that Ballard’s injuries were proximately caused by his own negligence or his contributory negligence and the negligence of Mr. Pack. In answer to the second amendment to Ballard’s compalint, Missouri Pacific, in addition to repleading the matter set out in its original answer, further pleaded the doctrine of assumption of risk.
Approaching the points relied on in reverse order, we are of the opinion that the trial court did not err in giving AMI 1909 among its instructions to the jury. AMI 1909, as given by the trial court, is as follows:
“At the time of the occurrence, there was in force a Federal statute which provided that in any action brought against a railroad to recover damages for injury to an employee, the employee shall not be held to have assumed the risks of his employment in any case where the injury resulted in whole or in part from the negligence of any of the officers, agents or employees of the railroad.”
Missouri Pacific as well as Pack definitely and affirmatively pleaded assumption of risk and although neither requested an instruction on assumption of risk, the evidence as presented constituted very potent factors of assumed risk. Although the trial court failed to define “assumed risk” for the jury, we are of the opinion that the giving of instruction AMI 1909 was not reversible error under the facts and circumstances of this case. In the Committee comment as to the use of this instruction is found the following: “Giving an instruction that the employee has not assumed the risk of his employment has been sustained without regard to whether the defense has been asserted. Wantland v. Illinois Central R. Co., 237 F. 2d 921.” (See also Larsen v. Chicago & N.W. R. Co., 171 F. 2d 841).
As to Missouri Pacific’s third point, AMI 305, as given by the trial court, is as follows:
“It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others.”
This instruction as given was in the exact wording of the Model Jury Instruction 305B as approved by this court. As set out in the Committee comment, this instruction is designed for use when negligence on the part of the plaintiff is an issue, or when the jury is to consider a counterclaim or multi-party suit. This instruction was preceded by AMI 303 as follows:
“A failure to exercise ordinary care is negligence. When I use the words ‘ordinary care,’ I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.”
It was Ballard’s contention that Thurman was an agent for Missouri Pacific; that his negligence in calling Mr. Ballard from his position of safety into the unsafe highway, and in failing to warn him of impending danger was a proximate cause of Ballard’s injuries and damage; and that such negligence was imputed to Missouri Pacific. Mr. Ballard, Mr. Pack and Mr. Thurman were the only persons involved in the occurrence and each of them was charged with negligence. We find no error in giving instruction AMI 305 under the circumstances of this case.
Missouri Pacific’s assignments under its second and first points are closely related and have given us considerable difficulty. Recognizing that every case of negligence must turn on its own particular facts, we find it necessary to set out the facts in this case as well as the facts in similar Federal decisions in much greater length and detail than would be necessary if this were a simple common law negligence case to be decided under state law and decisions, rather than the Federal Employers’ Liability Act as interpreted and applied by the Federal Courts.
The situation in the case at bar is similar to the one presented in Missouri Pacific R. Co. v. Eubanks, 212 Ark. 652, 207 S. W. 2d 610, where (substituting Mr. Pack for Mrs. Keene) we said:
“The suit was brought to compensate a single injury against two defendants having no relation to each other, and different rules are applicable in determining their respective liability. The suit against Mrs. Keene [Mr. Pack] is determinable by the laws of this state, but our state laws are not determinative of the liability of the railroad company. As against the railroad company the Federal Employers’ Liability Act governs and as said in the case of St. L. S. F. Ry. Co. v. Smith, supra, ‘the question as to the sufficiency of the evidence to establish negligence must be determined by that act and the applicable principles of the common law as construed by the federal courts.’ ”
The dissenting opinion in Eubanks further points up the problem before us by citing from Federal Court decision the following language:
“ ‘The focal point of judicial review is the reasonableness of the particular inferences or conclusion drawn by the jury. It is the jury, not the court, which is the fact finding body...’
# # #
. . . Under the old concept of proximate cause, that cause must have been direct, the complete, the responsible, the efficient cause of the injury. Contributing and remotely related causes were not sufficient. Now, [under F. E. L. A.] if the negligence of the railroad has ‘causal’ relation,—if the injury or death resulted ‘in part’ from defendant’s negligence, there is liability.
The words ‘in part’ have enlarged the field or scope of proximate causes—in these railroad injury cases. These words suggest that there may be a plurality of causes, each of which is sufficient to permit a jury to assess a liability. If a cause may create liability, even though it be but a partial cause, it would seem that such partial cause may be a producer of a later cause. For instance, the cause may be the first acting cause which sets in motion the second cause which was the immediate, the direct cause of the accident.”
Returning now to the evidence of Missouri Pacific’s negligence through Mr. Thurman; he was directed to open the switch at the south end of the rip track. He testified as follows:
“Q. When you drove up there, he had his back toward you and let me ask you this, this train is in motion down on this 311 rail, wasn’t it?
A. Yes, sir, it was.
Q. And he had his back over here towards your car and he was facing the train and facing the switch that he is going to throw when it passed?
A. Yes, sir.
Q. To your knowledge, was there any reason for him to leave his position there by the switch prior to your coming up there?
A. No, not to my knowledge.
Q. All right. Now, he did leave that position there by the switch, did he not?.
A. Yes, sir.
Q. What distracted his attention away from the train and caused him to draw nearer to you?
A. I called to him across the road and spoke to him and asked him if the switch was unlocked.
Q. Was this train making noise moving by?
A. Making a little noise.
Q. All right. Now, what did he do?
A. When I asked him the question?
Q. Yes.
A. He made a motion backwards and answered me, yes.
Q. When you say he made a motion backwards, he took a step backwards?
A. As near as I can remember, yes, sir, took kind of a step backwards.
Q. Took a step back and...
A. And he was ...
Q. And in which direction did he turn?
A. He was turning his head from left to right and at the time he answered me, his head was to the left.
Q. Turning his head from left to right, turning his head to the left?
A. And to the right, watching his cars.
Q. Well, he turned to the left to get to facing toward you, did he not?
A. Yes, sir.
Q. And then back over here to where the train was running? He moved himself in a position to where his back was toward an oncoming car that we are going to talk about in just a minute, isn’t that true?
A. I don’t recall his back being turned completely towards the oncoming car, his back was to the road.
Q. That was where he was positioned originally?
A. Right.
Q. His position originally?
A. Yes, sir.
Q. But when you called him, he made a turn to the left, he made a turn around this way to where his back was then facing in this direction?
A. I don’t recall him turning completely around.
Q. Well, partially around.
A. Yes, sir.
Q. The point still being that he had turned away from the direction this car was coming from?
A. Partially, yes, sir.
Q. All right. Now, at the time you drove up there, stopped your vehicle, and at the time you called him, were you aware of an automobile approaching from the south going north?
A. Yes, sir.
Q. Did you see it?
A. Yes, sir.
Q. Did you know it was coming?
A. Yes, sir.
Q. Were you parked on the road or off the road?
A. Partially off and on.
Q. You were partly on the road?
A. Yes, sir.
Q. And partly off the road.
A. Mostly off the road.
Q. Why didn’t you park completely off the road?
A. It just didn’t occur to me to pull completely off the road, I was only going to be there a second.
Q. Is this a wide road out there?
A. No, sir.
Q. It’s a right narrow road, isn’t it?
A. Yes, sir.
Q. Did you turn your lights off?
A. Beg your pardon?
Q. Did you turn your lights off?
A. No, sir.
Q. Did you turn them down to dim?
A. They were on dim.
Q. Now, let’s get back to Mr. Ballard. You’ve described to the jury that he’s got his back towards you, looking at the switch and the train going by him and he takes a step backward and turns partially to the left to where he can speak kind of directly to you, that’s what happened wasn’t it?
A. Yes, sir.
Q. And you sáid what?
A. I asked him if the switch was unlocked.
Q. What did he say?
A. He said yes.
Q. What did he do then?
A. He started moving back towards his switch.
Q. How far did he ever get onto that road from the time he made a step back until the time he started moving back toward his switch?
A. I don’t remember him ever getting more than one foot on the road.
Q. You saying to the jury that he never got more than a twelve inch distance on the edge of that road?
A. Something in that proximity, one leg.
Q. And his only time on that road was to step back up here and answer your question, to say yes, and immediately move away?
A. It wasn’t necessary for him to come up on the road to answer me.
Q. I didn’t ask you that. I didn’t ask you that. I asked you did he move one step back and answered your question and immediately moved back to that switch.
A. Yes, sir.
Q. And all the time you knew Mr. Pack’s car was coming down the road because you had seen it and been watching it, hadn’t you?
A. Yes, sir.
Q. Did you ever, at any time, give any warning to Mr. Ballard that this car was approaching from the back, from his back side at a place where you were partially on that highway, did you ever at any time give him any warning of the approach of that car?
A. No, sir.”
Mr. Thurman testified that there were several telephone poles between the railroad track and the service road on which he was parked but that, in his opinion, the roadway was well lighted and one would have to be looking for shadows of poles in order to find them.
On cross-examination Mr. Thurman testified that when he brought his automobile to a stop, he noticed Mr. Pack’s automobile lights approaching from about a mile away; that he simply called to Mr. Ballard and asked “is that switch unlocked?” and that Mr. Ballard was backing up toward him and replied, “yes it is,” and about that time Mr. Pack’s automobile struck Mr. Ballard. Mr. Thurman testified that the service road on which he had parked his car had a blacktop surface and was about 18 or 20 feet wide; he says that the railroad track runs parallel with the road at this point, and that the telephone poles, referred to in his direct examination, were between the track and the service road about eight feet from the edge of the pavement. He says that Mr. Ballard was holding his signal lantern in his right hand while he was facing the railroad track and that Mr. Pack’s automobile approached him from the right side.
On cross-examination Mr. Thurman was asked why he did not tell Mr. Ballard about the approaching automobile and he answered that he felt certain that Mr. Ballard had seen the automobile, and that he did not think that Mr. Ballard was in any danger from the approaching automobile. He denied that he was Mr. Ballard’s superior and testified that he and Mr. Ballard were not acquainted with each other.
Mr. Ballard testified that he alighted from one of the engines pulling the freight cars and was standing near the switch waiting for the cars to pass through. He testified that he was facing the tracks with his back to the service road and intended to realign the switch as soon as the cars passed through so that the cars could then be shutded back onto the rip track through the switch at the south end of the rip track. He says that the cars were moving through the switch immediately in front of him and that his first knowledge that Mr. Thurman was in the vicinity was when he heard someone say something to him from behind. Then Mr. Ballard testified on direct examination as follows:
“Q. Now, with this train and the noise that it was making as you were standing there, did you know Mr. Thurman at the time he called you?
A. When I turned around and seen him, I didn’t know what his name was, but I know that he was with the Car Department, yes, sir.
Q. Why did you move backward from near that switch onto the edge of the road?
A. Because I didn’t understand what Mr. Thurman said.
Q. Because of what?
A. Because of the noise of the cars.
Q. As you moved back there, what did he say to you?
A. He asked me was the switch locked?
Q. What did you tell him?
A. I told him I didn’t know and I turned to go see.
Q. Did you turn immediately?
A. Yes, sir.
Q. I know you don’t go out there and time these movements, but was there any appreciable time at all that it took you from the time he hollered to you and the time you moved closer to him to hear what he had to say and then give him an answer and moving back. Was there any more time lapse than that?
A. No, sir.
Q. Now, are you all supposed to be out there, I’m talking about out there in the yards at these switches?
A. Yes, sir.
Q. Were you doing what you were supposed to be doing?
A. Yes, sir, the best I knew how.”
Mr. Ballard testified that on some occasions it is necessary for a switchman to get out into the service road to conduct his switching duties, but that this is only necessary on a long string of cars when the engineer on the engine, is around a curve where he cannot see the* signals when given from nearer the track. He testified that the service road where the accident occurred is used by the employees of the railroad company and their families in driving to and from work. Mr. Ballard then continued as follows:
“Q. Did you ever see Mr. Pack’s car coming down the road?
A. No, I didn’t.
Q. Tell the jury how far you ever got out off of that road.
A. Well, I don’t even remember putting my foot on the road, I thought I just went out . . . the best I remember, I just went out to the edge of the road as far as I went, I could have had one foot on it, I wouldn’t argue the point, I don’t know, but as far as my own knowledge, I don’t even remember stepping a foot on the pavement, I thought I was on the shoulder of the road.
Q. Now, with reference to these light poles and with reference to the lights and poles they had in the yard, describe, if you will for the jury, this matter, if it be so, of shadows and lights out there.
A. Well, sir, you have some places there that the road has sufficient lights and then there’s places that it has shadows.
Q. Does this actually vary from day to day with reference to boxcars and with reference to telephone poles ... I know the telephones don’t, but the boxcars move.
A. Oh, yes sir, I would say it will vary, depending on how many cars you have in the yard, if they are hopper cars or boxcars or what have you.
Q. What was the first thing that you knew with reference to Mr. Pack’s vehicle?
A. The first thing I heard was just brakes squalling and then just bam, that was it.
Q. Was it almost that close together?
A. Yes, sir.
Q. Were you, at the time, moving away from the road back towards the switch?
A. Yes, sir to the best of my knowledge, I was headed back to see if the switch was locked where I could tell Mr. Thurman whether it was locked or not.
Q. As far as you know, you were not even on the road at the time?
A. As far as I know, I was not.”
On cross-examination Mr. Ballard testified that he weighed around 230 pounds and he then testified as follows:
“Q. Where this accident happened, Mr. Ballard, in 1966, do you agree with me that a man standing on the edge of the road where you were, if he looked, could see close to a mile down that road around that curve, cars approaching from the south?
A. No, no, sir, I don’t think you could see that far.
Q. All right, how far would you say that you could see a car?
A. ’Tween a quarter and a half of a mile.
Q. You would say you could see a car coming from the south, the direction from which Mr. Pack was coming, for a distance of about a quarter to a half of a mile?
A. Yes, sir.
Q. All right, sir. Now, on the night this happened, you never did see Mr. Pack’s car?
A. No, sir, I never did.
Q. You do know better than to step out into a road without looking both ways, do you not?
A. Yes, sir.
Q. Did you look both ways?
A. Yes, sir.
Q. You did look toward the direction from which Mr. Pack was coming?
A. Yes, sir.
Q. But you didn’t see him?
A. No, sir,
Q. Do you agree with me that once you get past the poles, which are approximately eight feet to the east of the pavement, once you get on the pavement side of the poles, that there’s nothing to prevent you from seeing a car that was coming from the direction from which Mr. Pack’s car was coming?
A. There’s no obstruction, no, sir.
Q. Coming from the switch toward the pavement, once you walked by the poles, there’s nothing to prevent you from seeing Mr. Pack’s car coming from the south?
A. There’s nothing.
Q. Sir?
A. There’s no poles or obstacles, no, sir.
Q. Did you look in Mr. Pack’s direction after you passed the poles?
A. I don’t know. To tell you the truth, I don’t know.
Q. You may have looked ...
A. I may have looked.
Q. Before you passed the poles?
A. I may have looked before, I wouldn’t swear to it, but I think I looked after I got past the poles, I’m not for sure, I wouldn’t swear to it.
Q. All right, sir. You do know that cars travel up and down that road?
A. Yes, sir.
Q. When you were working, you probably went back and forth to work over that road, didn’t you?
A. Yes, sir.
Q. Did you not?
A. Yes, sir.
Q. All right, sir. And at shift change time, I guess there are a number of cars on that road?
A. Yes.
Q. Was this about shift change time, Midnight?
A, Well, yes, sir, it was pretty close to shift change.
Q. When this happened, am I correct that there are about five boxcars that had gone by you and you were waiting for forty more to go by before you were going to throw that switch?
A. Approximately, somewhere there abouts.
Q. You were going to wait there by the switch for about forty cars to go by?
A. Yes, sir.
Q. Now, I didn’t hear you say, but Mr. Price demonstrated and you agreed with him, as to how this happened. He showed you standing facing the train, backing towards Mr. Thurman and going back towards the train. Is that the way it happened?
A. No, sir.
Q. How did it happen?
A. The best I remember, when I heard Mr. Thurman’s voice, I turned and seen him sitting in his automobile, I turned and walked to the road, at no time did I back or I would remember backing up.
Q. It’s your recollection that as you approached the road, you were facing it?
A. Yes, sir.
Q. All right, and that you looked left and right?
A. Yes, sir.
Q. And you were carrying a lantern, were you not?
A. Yes, sir.
Q. Do you agree that a lantern of the type you were carrying can be seen if you are holding it down?
A. Yes, sir, it can be seen . . . well, it all depends on which side you are holding it on whether it could have been seen from which side or not.
Q. Assuming there was nothing in the way, if you hold the lantern out here, holding it down, it can be seen from the side?
A. Yes, sir, unless the light is down by your leg and you are coming from the other side.
# # #
Q. As far as you recall, you may have been hit off the pavement, is that what you said?
A. I could have, I don’t ever remember putting my foot on the pavement. I could have had one on it, I said I wouldn’t swear to it, I don’t know whether I had one foot on or they was both on the shoulder or what.
Q. As far as you are concerned, Mr. Pack may have hit you off the pavement?
A. As far as I know, I did not have both feet on the pavement, I could have had one on the pavement, I don’t know.”
Mr. Pack testified that the speed limit posted inside the Missouri Pacific shop area is 30 miles per hour and that he was traveling to work on the night in question at about 25 miles per hour. He testified that as he approached the scene of the accident, he saw the headlights of Mr. Thurman’s vehicle parked on his left-hand side of the service road. He testified that he slowed down a little bit when he saw the parked automobile and he then testified as follows:
“Q. What happened then, sir?
A. Then all at once, an object appeared in front of me, just like that, looked about a car length.
Q. What was this object?
A. Well, it must have been Mr. Ballard, it was just so quick you couldn’t tell what it was.
Q. All right, you know now it was Mr. Ballard?
A. Oh, yes.
Q. What did it look like to you at that time?
A. Well, it was just . . . just a form, it just happened so quick.
Q. What did you do?
A. Slammed my brakes on and went to the left. I thought I had missed him, then I heard that thump on the side of the car. I stopped just as quick as I could.
Q. What did you do then?
A. I ran back to Mr. Ballard and I said, ‘Oh, Mr. Ballard,’ and put my hat under his head, ‘Mr. Ballard, I’m so sorry, I didn’t see you in time to stop.’
Q. And did he say anything to you?
A. He said, ‘I know you didn’t, Mr. Pack,’ he said, ‘I know you couldn’t help it, I didn’t see you.’ ”
On cross-examination Mr. Pack testified as follows:
“Q. Mr. Pack, you were looking down the road and you were keeping your view up ahead of you for objects on the road?
A. Yes, sir.
Q. You have heard the testimony with reference to these lights and shadows on the road, do they have an impact or do they have some bearing on a person’s ability to see?
A. They sure do.
Q. And a person in the shadows as cast by those poles, do they tend to hide him from a person traveling down the road?
A. I would say they do, they cast a shadow on the road, I would say they do.
Q. He wasn’t any great distance on the road, was he, or was he actually on it?
A. It looked like about two or three feet over in the roadway to me.
Q. Well, do you actually know?
A. Well, it just looked like, I’m not sure, but it looked about two or three feet over in the road.
Q. And there was nothing to block your view of him as you approached that area, was there?
A. No, I don’t know that there was.”
In Wilkerson v. McCarthy, 556 U. S. 55, a switch-man was injured in railroad yards when he slipped and fell into a wheel-pit while walking over the pit on a narrow board walk. The walk was constructed for the use of employees using the pit and switchmen had no occasion to use it. The railroad company did not know switchmen used the walk but there was evidence that employees other than pit crews did use the walk. There also was evidence that switchmen could easily go around the pit without crossing on the walk. The railroad company pleaded contributory negligence; the trial court directed a verdict in its favor and the Utah Supreme Court affirmed. In reversing the Utah Supreme Court on certiorari the United States Supreme Court said:
“There are some who think that recent decisions of this Court which have required submission of negligence questions to a jury make, ‘for all practical purposes, a railroad an insurer of its employees.’ See individual opinion of Judge Major, Griswold v. Gardner, 155 F. 2d 333, 334. But see Judge Kerner’s dissent from this view at p. 337 and Judge Lindley’s dissenting opinion, pp. 337-338. This assumption, that railroads are made insurers where the issue of negligence is left to the jury, is inadmissible. It rests on another assumption, this one unarticulated, that juries will invariably decide negligence questions against railroads. This is contrary to fact, as shown for illustration by other Federal Employers’ Liability cases, Barry v. Reading Co., 147 F. 2d 129, cert, denied, 324 U. S. 867; Benton v. St. Louis-San Francisco R. Co., 182 S. W. 2d 61, cert, denied, 324 U. S. 843. And cf. Bruner v. McCarthy, 105 Utah 399, 142 P. 2d 649, cert, dismissed for reasons stated, 323 U. S. 673. Moreover, this Court stated some sixty years ago when considering the proper tribunal for determining questions of negligence: ‘We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others.’ Jones v. East Tennessee R. Co., 128 U. S. 443, 445. And peremptory instructions should not be given in negligence cases ‘where the facts are in dispute, and the evidence in relation to them is that from which fair-minded men may draw different inferences.’ Washington & G.R. Co. v. McDade, 135 U. S. 554, 572. Such has ever since been the established rule for trial and appellate courts. See Tiller v. Atlantic C.L.R. Co., 318 U. S. 54, 67, 68. Courts should not assume that in determining these questions of negligence juries will fall short of a fair performance of their constitutional function. In rejecting a contention that juries could be expected to determine certain disputed questions on whim, this Court, speaking through Mr. Justice Holmes, said: ‘But it must be assumed that the constitutional tribunal does its duty and finds facts only because they are proved.’ Aikens v. Wisconsin, 195 U. S. 194, 206.”
In Missouri Pacific R. Co. v. Eubanks, supra, Mr. Eubanks was a brakeman engaged in a switching operation at Elaine, Arkansas. The night was dark but the weather was clear. Mr. Eubanks was standing on the front of an engine as it slowly proceeded onto a street crossing. A Mrs. Keene was approaching the crossing in her automobile and Mr. Eu-banks flagged the oncoming car with his lantern and thought that the automobile had stopped. As the engine entered the intersection, Mrs. Keene drove her automobile into the front part of the engine striking and injuring Mr. Eubanks. Mr. Eubanks filed suit against Mrs. Keene and the railroad company alleging joint and concurring negligence; alleging that the railroad company failed to maintain a proper lookout; that signals were not given, and that proper care for Mrs. Keene’s safety was not exercised after her peril was discovered or should have been discovered. A verdict was returned by a jury against Mrs. Keene in the sum of $2,500 and against the railroad company in the sum of $7,500. In reversing the judgment against the railroad, this court, in addition to the language quoted, supra, said:
“So here, if we were considering a suit by or against Mrs. Keene, the question of the failure to blow the whistle or ring the bell, thereby giving warning of the movement of the train, would be important, under common law principles, as ordinary care required that notice of the movement of the train be given by blowing the whistle or otherwise; but blowing the whistle or ringing the bell were not the only methods by which warning could be given. The undisputed testimony is that a warning which should have sufficed was given according to appellee’s own testimony. The evidence appears therefore to be ‘so overwhelming on one side as to leave no room to doubt what the fact is,’ that the negligence of Mrs. Keene was the sole proximate cause of appellee’s injury, there being no sub stantial evidence of negligence on the part of the railroad company contributing to the injury.”
The United States Supreme Court granted certiorari and in 334 U. S. 854 reversed the decision of this court by Per Curiam which simply stated as follows: “The petition for writ of certiorari is granted and the judgment of the Supreme Court of Arkansas is reversed. See Myers v. Reading Co., 331 U. S. 477, and Ellis v. Union Pacific R. Co., 329 U. S. 649.”
As was stated in Eubanks and also in St. L. S. F. Ry. Co. v. Smith, 179 Ark. 1015, 19 S. W. 2d 1102,
‘Since this suit was brought and prosecuted under the Federal Employers’ Liability Act, which does not define negligence, the question as to the sufficiency of the evidence to establish negligence must be determined by that act and the applicable principles of the common law as construed by the Federal Courts.’ ”
In Anderson v. Atchison, T. & S. F. R. Co., 333 U. S. 821, a railroad conductor was injured when he fell from the rear vestibule of a train. The train traveled past three stations before other employees reported his absence and any attempt was made to find and rescue him. The conductor was taken to a hospital where he died three days later. His widow sued alleging negligence in the company’s failure to search for the decedent within a reasonable period of time, and that as a result he died due to exposure to the cold weather from the time he fell until he was finally rescued. The trial court found that even if the allegations in the complaint were true, they were insufficient to support a judgment for plaintiff, and entered judgment for defendant. The state Supreme Court affirmed and on certiorari, the United States Supreme Court by Per Curiam opinion said:
“We are unable to agree that had petitioner been permitted to introduce all evidence relevant under her allegations, the facts would have revealed a situation as to which a jury under appropriate instructions could not have found that decedent’s exposure and consequent death were due ‘in whole or in part’ to failure of respondent’s agents to do what a ‘reasonable and prudent man would ordinarily have done under the circumstances of the situation.’ Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 67. See also Jamison v. Encarnacion, 281 U. S. 635, 640, 641; Bailey v. Central Vermont R. Co., 319 U. S. 350, 353; Blair v. Baltimore & O. R. Co., 323 U. S. 600, 604; Lillie v. Thompson, 332 U. S. 459, 461-462.”
In Lillie v. Thompson, 332 U. S. 459, the female petitioner for certiorari was employed in the respondent’s railroad yards in Memphis. Her dudes were to transmit orders to the various employees working in the yards. About 1 A.M. she opened the door of her office in response to a knock which she assumed to be one of the respondent’s trainmen and she was attacked and beaten with a piece of iron by a person who was not an employee of the railroad company. She filed suit under the Employers’ Liability Act alleging that the respondent was negligent in sending her to work in a place that they knew to be unsafe without taking reasonable measures to protect her. The District Court dismissed the complaint for failure to state a cause of action and entered summary judgment for the respondent. In reversing by Per Curiam on certiorari, the United States Supreme Court said:
“The district court stated, in explanation of its action, that there would be no causal connection between the injury and respondent’s failure to light or guard the premises, and that the law does not permit recovery ‘for the intentional or criminal acts’ of either a fellow-employee or an outsider.
We are of the opinion that the allegations in the complaint, if supported by evidence, will warrant submission to a jury. Petitioner alleged in effect that respondent was aware of conditions which created a likelihood that a young woman performing the duties required of petitioner would suffer just such an injury as was in fact inflicted upon her. That the foreseeable danger was from intentional or criminal misconduct is irrelevant; respondent nonetheless had a duty to make reasonable provision against it. Breach of that duty would be negligence, and we cannot say as a matter of law that petitioner’s injury did not result at least in part from such negligence.”
In Lavender v. Kurn, 327 U. S. 645, the petitioner’s intestate was attending switches in the switch yards of the Grand Central Station in Memphis, Tennessee; it was a dark night and he was found near the track with a skull fracture from which he died. The evidence indicated that he had fallen forward and some indication that his feet had dragged a few inches southward as he fell. He sustained a gash in the back of his head with a corresponding black mark on the outside of a white cap he was wearing. It was the petitioner’s theory that her intestate was struck by a mail crane swinging from a car and it was the respondent’s theory that he was murdered. His gold watch and ring remained on the body but his wallet without money was found a few days later some distance from where his body was found. The ground was uneven in the area where the body was found and it appeared that it would have been necessary for the decedent to have been standing on one of the mounds in the area in order for a mail crane to strike him. It could have been inferred from the facts, however, that he could have been struck by a mail hook if he were standing on one of the mounds. In reversing a judgment against the railroad company, the Supreme Court of Missouri held that “all reasonable minds would agree that it would be mere speculation and conjecture to say that Haney was struck by the mail hook,” and that “plaintiff failed to make a submissible case on that question.” It was ruled that there “was no substantial evidence that the uneven ground and insufficient light were causes or contributing causes of the death of Haney.” On certiorari the United States Supreme Court reversed, stating:
“The evidence we have already detailed demonstrates that there was evidence from which it might be inferred that the end of the mail hook struck Haney in the back of the head, an inference that the Supreme Court admitted could be drawn. That inference is not rendered unreasonable by the fact that Haney apparently fell forward toward the main Frisco track so that his head was bVz feet north of the rail. He may well have been struck and then wandered in a daze to the point where he fell forward. The testimony as to blood marks some distance away from his head lends credence to that possibility, indicating that he did not fall immediately upon being hit. When that is added to the evidence most favorable to the petitioner as to the height and swing-out of the hook, the height and location of the mound and the nature of Haney’s duties, the inference that Haney was killed by the hook cannot be said to be unsupported by probative facts or to be so unreasonable as to warrant taking the case from the jury.
It is true that there is evidence tending to show that it was physically and mathematically impossible for the hook to strike Haney. And there are facts from which it might reasonably be inferred that Haney was murdered. But such evidence has become irrelevant upon appeal, there being a reasonable basis in the record for inferring that the hook struck Haney. The jury having made that inference, the respondents were not free to relitigate the factual dispute in a reviewing court. Under these circumstances it would be an undue invasion of the jury’s historic function for an appellate court to weigh the conflicting evidence, judge the credibility of wit nesses and arrive at a conclusion opposite from the one reached by the jury. See Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 67-68; Bailey v. Central Vermont R. Co., 319 U. S. 350, 353-354; Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 35. See also Moore, ‘Recent Trends in Judicial Interpretation in Railroad Cases Under the Federal Employers’ Liability Act,’ 29 Marquette L. Rev. 73.
It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or dis-believe whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.”
In the Arkansas case of Missouri Pacific R. Co., Thompson, Trustee v. Keeton, Adm’x, 207 Ark. 793, 183 S. W. 2d 505, (cert, granted 326 U. S. 689), the decedent brakeman fell from the front of a gravel car in a switching operation involving six cars of sand and gravel. The decedent was sitting astride the corner or the front car with one foot resting on the gravel and the other on a grabiron on the outside of the car. The allegations of the complaint were that the train stopped suddenly which jerked or caused the decedent to fall from the car. All of the train crew testified that there was no unusual jerk or jar in the operation and no sudden stop or quick jerk at all. The appellee-widow testified that her husband, in a “dying declaration,” told her that he was sitting on the corner of the car with his switch list in one hand and a light in the other; that there was a sudden stop and that after he was jerked off of the car he knew nothing more after the sudden hard stop and he was jerked off of the car. A judgment entered on a verdict for the widow was reversed by this court, on the grounds that there was no substantial evidence of negligence on the part of the railroad company. Justice Robins dissented because of the widow’s testimony as to the dying declaration. The Supreme Court of the United States granted certiorari and reversed by Per Curiam opinion holding that the question of respondent’s negligence should have been submitted to the jury.
In Jenkins v. Kurn, 513 U. S. 256, a fireman saw a standing train on a track in front of the moving train he was working on and he shouted to the engineer to apply the emergency brake. The engineer turned and looked at the fireman but did nothing. The fireman then rushed across the cab and stood behind the engineer for a brief time but said nothing. When the train was near collision with the stopped train, the engineer applied the brakes and the fireman jumped from the train landing in rocks and injuring himself. In his suit against the railroad the fireman alleged that he notified the engineer of imminent peril; that the engineer negligently failed to respond, thereby creating a dilemma of imminent peril which forced the fireman to jump from the train. A jury trial resulted in a verdict for $12,000 and judgment thereon. The Supreme Court of Missouri held that the railroad company’s motion for a directed verdict should have been granted and in reversing on certiorari, the United States Supreme Court said:
“There was evidence from which the jury could have concluded that if not subject to any physical disability the engineer would have comprehended petitioner’s monition and understood that peril was imminent. Petitioner testified without contradiction that he ‘hollered’ his warning loudly; that only a narrow space separated his perch from the engineer’s seat; that the engineer’s hearing was ‘all right’; that petitioner and the engineer could and did carry on ‘normal conversations’ while the train was operating; and that there was comparatively little noise in the cab from the train.”
In Larsen v. Chicago & N.W. R. Co., 171 F. 2d 841, the court said:
“Unless there is a complete absence of probative facts, Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740, 90 L. Ed. 916, the question of whether defendant was guilty of negligence in furnishing a reasonably safe place to work was for the jury to determine from all the facts and circumstances. Bailey v. Central Vermont Ry., supra, 319 U. S. at page 353, 63 S. Ct. 1062, 87 L. Ed. 1444. And once there is a reasonable basis for concluding that there was negligence which caused the injury, it is irrelevant that fair minded men might reach different conclusions. In such cases the trial judge is not justified to substitute his conclusions for those of the jury. Lavender v. Kurn, supra, and Ellis v. Union Pacific R. R. supra, 329 U. S. at page 653, 67 S. Ct. 598, 91 L. Ed. 572. Bearing these principles in mind and applying them to our case, we believe there was a reasonable basis for concluding there was negligence which caused the injury, hence the trial court properly left it to the jury to say whether defendant was guilty of negligence in placing the caboose ahead of the pusher engine and whether plaintiff’s injuries resulted in whole or in part from such negligence.
# * *
... It also insists that the court erred in instructing the jury that the Federal Employers’ Liability Act provided that people working in the railroad business did not assume the risk of employment. We see no error in the instruction, given.”
In Wantland v. Illinois Central R. R. Co., 237 F. 2d 921, the court said:
“In actions under this Act, the issue of the carrier’s negligence is for the jury to determine and it is the jury’s function to weigh the contradictory evidence and inferences, judge the credibility of witnesses and draw the ultimate conclusions as to the facts. Wilkerson v. McCarthy, 336 U. S. 53, 69 S. Ct. 413, 93 L. Ed. 497, rehearing denied 336 U. S. 940, 69 S. Ct. 744, 93 L. Ed. 1098. If the jury can find every fact exists which must exist to sustain the plaintiff’s case and if the evidence on the issue of negligence is such that reasonable minds might differ on the question of whether the carrier has been negligent, the case is one for the jury. Frizzell v. Wabash R. Co., 8 Cir., 199 F. 2d 153, certiorari denied 344 U. S. 934, 73 S. Ct. 505, 97 L. Ed. 718.
# * #
Only a complete absence of probative facts to support the verdict reached by the jury would justify this court in substituting its conclusions for those of the jury. Lavender v. Kurn, 327 U. S. 645, 652, 66 S. Ct. 740, 90 L. Ed. 916. We cannot say as a matter of law that the plaintiff was guilty of negligence which was the sole, proximate cause of this accident.”
The above cited cases are by no means all the Federal Court decisions construing the Federal Employers’ Liability Act as amended by 45 U. S. C. A. § 54 (1939), but they point up the general attitude of the courts “where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.”
In the case at bar the 80% negligence attributed to Missouri Pacific seems out of all proportion to the negligence of Ballard and Pack under the evidence as we view the record; but, in Mumma v. Reading Co., 247 F. Supp. 252, the plaintiff-employee was wearing rubbers over his regular work shoes and they became saturated with oil negligently spilled by his fellow-employees and through which he was required to walk in the performance of his duties. He was injured when he slipped and fell because of the oil on his rubbers. A jury made a finding of 45% contributory negligence. In approving the verdict the court said:
“Thus, as to the second accident, there is at least some suggestion in the evidence that the plaintiff might have taken some additional precautions for his own safety. While the percentage of blame attached to plaintiff by the jury seems out of all proportion, that determination was nonetheless for the jury.”
See also Schulz v. Pennsylvania R. Co., 350 U. S. 523, a suit under the Jones Act, 46 U. S. C. A. § 688, where the District Judge directed the jury to return a verdict for the defendánt, stating:
“There is some evidence of negligence, and there is an accidental death. But there is not a shred of evidence connecting the two.”
And where the Court of Appeals affirmed, saying that while the evidence was “perhaps at most only doubtfully sufficient to present a jury question as to defendant’s breach of duty,” it failed to show "where the accident occurred” or “that it was proximately caused by any default on the part of the defendant.” But where the Supreme Court said:
“In this case petitioner is entitled to recover if her husband’s death resulted ‘in whole or in part’ from defendant’s negligence. Fair-minded men could certainly find from the foregoing facts that defendant was negligent in requiring Schulz to work on these dark, icy and undermanned boats. * * * Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.”
See also Stone v. N. Y., Chicago & St. Louis R. Co., 344 U. S. 407, where a section hand injured his back while helping to remove a cross tie from under the rails of the track, and in reversing the Missouri Supreme Court which had reversed a judgment of the trial court on a jury verdict in favor of the section hand; the United States Supreme Court said: “We think there was evidence of a causal connection between the order of Stouston to pull harder and petitioner’s back injury.”
In the case at bar there is little question that Ballard was safe from the hazard of traffic on the access road while he was standing near the switch he was attending in the proper performance of his assigned duties. The record does not reveal the distance between the switch Ballard was attending and the access road where he was injured, but there is no question that Ballard left the safety of his position near the switch and went to the access road where he was injured. According to the evidence pertaining to light poles, he walked at least eight feet toward the road. Whether Ballard walked backwards as testified by Thurman, or whether he walked forward as he testified, makes no difference.
There is no question that Ballard left his safe position near the switch and went to the access road where he was injured in response to a call from Thurman, and there is little question that Ballard would not have been injured if Thurman had performed his own duties as the yard master had directed. We hold that there was sufficient evidence of negligence on the part of Missouri Pacific through Mr. Thurman, to take the case to the jury.
The jury could reasonably have found that Mr. Thurman was negligent in parking his automobile across the access road from Ballard and shouting a question to Ballard under circumstances that would distract Ballard’s attention from his assigned duties and cause him to come to the access road in order to understand the question over the noise of moving cars. The jury could have further found that as Pack approached Thurman’s automobile on the narrow access road, he gave it a wide berth in anticipation of passengers alighting from Thurman’s automobile rather than someone coming from the busy railroad tracks from across the access road to Thurman’s automobile. We conclude that there is some substantial evidence to support the verdict and that the judgment must be affirmed.
The judgment is affirmed.
Fogleman and Byrd, JJ., concur. | [
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Carleton Harris, Chief Justice.
This case involves the question of which insurance carrier, appellant, St. Paul Insurance Company, or appellee, Liberty Mutual Insurance Company, must ultimately pay workmen’s compensation benefits which were awarded appellee claimant Joe E. Herdison. During the years 1968 and 1969, Herdison was employed by Hallett Construction Company, Liberty Mutual Insurance Company, (hereinafter called Liberty) being the compensation carrier through December 31, 1968. On January 1, 1969, St. Paul Insurance Company (hereinafter called St. Paul) became the insurance carrier for Hallett Construction Company. A claim was filed by Herdison, in which he alleged that he had sustained a back injury on November 26, 1968. A hearing was held on August 27, 1969, and the referee ordered that St. Paul be made a party. Another hearing was held on November 4, 1969, at the conclusion of which the referee found that Herdison sustained an accidental injury on November 26, 1968, while Liberty was the insurance carrier, and sustained another accidental injury sometime in February 1969, at which time St. Pjiul was the insurance carrier; that both accidents contributed to Herdison’s condition, and liability was equally apportioned between the two insurance carriers. St. Paul appealed to the full commission, and on March 16, 1970, that tribunal filed its opinion in which it adopted the findings and award of the referee. From this order, St. Paul appealed to the Sebastian County Circuit Court which affirmed the findings of the commission. From the Circuit Court judgment, appellant brings this appeal. For reversal, it is simply asserted that there is no substantial evidence to support the commission’s findings, and that said findings do not support the award.
At the first hearing in August, 1969, the referee found that Herdison had suffered an accidental injury on November 26, 1968, at a time when Liberty was the insurance carrier, and that no time was lost in 1968, but on April 6, 1969, Herdison underwent an operation; that at this time St. Paul was the insurance carrier. The referee then directed that St. Paul be made a party as a respondent along with the employer and Liberty. Don Mitchell, called on behalf of Herdison, testified that he had instructed claimant to move a dozer in November, 1968, and knew that Herdison, while so engaged, had fallen and been taken to the hospital. There was no mention of any other accident or injury by Mitchell. Bill Logsdon, also called on behalf of Herdison, testified that when claimant was injured in November 1968, he (Logsdon) went to the hospital after the accident and brought Herdison back to Ft. Smith. Likewise, there was no mention of any other accident or injury by Logsdon. The record also reflects that Herdison reported no second accident or injury to his employer, nor to either of the doctors who treated him, and to whom he gave a history. The only evidence offered in support of two injuries came from Herdison himself. In a discovery deposition, Herdison testified that after the accidental injury on November 26, 1968, he returned to work the next day, and worked until he was operated on in April, 1969. He was then asked if during that period of time he received any other injuries. Herdison replied, “Well, at one time I noticed my back hurt me more. I was moving some—you know, my legs and things was bothering me more. I was moving some steel and of course, I was doing some lifting and I noticed it.##** It was my leg more or less, my back didn’t hurt me so much it just—I don’t know how to explain it, just my legs.” The record then reflects the following:
“Q. Did you have any specific instance when you were lifting something that you felt—
A. Like I say, when I was lifting that steel that time why I noticed it was hurting me more. I was stiff, you know for awhile.
Q. Did you feel any popping in your back or anything like that?
A. No sir, I didn’t, no.”
When asked when this lifting took place, he answered “It happened somewhere in I’d say in about February”. During counsel’s summary of the evidence taken by deposition, we find the following:
“Q. Joe, as I understand your testimony then, sometime within say two weeks after this accident [the first accident on November 26] when you fell about ten feet you noticed that your left leg or right leg or right foot started going to sleep?
A. Yes sir.
Q. This would have been well before January 1st, wouldn’t it?
A. Yes sir.
Q. That would also have been before you’d done any lifting?
A. Yes sir.
Q. And it just progressively got worse until finally you had to go to the doctor?
A. Yes sir.”
Likewise, before the referee, Herdison testified that he moved some steel out of Durant, Oklahoma, and “I did quite a bit of lifting and seemed like it hurt me worse, you know. I got to hurting worse after that.” He said that he did not recall the month in which this occurred, and would have to look in his log books to determine the month. The record then reflects, referring to his injury,
“A. Well, it was gradually getting worse, yes sir, up until I moved the steel and seemed like it hurt me worse after I did do the lifting.
Q. Well, after the steel incident would it be say kind of a snow balling effect? Is that the way it affected you?
A. Well, I don’t know whether that did it, or whether time. I just got worse, I know.”
However, Herdison again testified that he was having pain and discomfort in January and February of 1969. From the record:
“Q. From the standpoint of the way or as we call it, the symptoms you had, did you have pain and discomfort and so forth in January and February of ’69?
A. Yes sir, just shortly right after I had the accident why my foot and things started bothering me.
Q. As you continued to do the work in January and February would it be a fair statement that the day to day activities that you had seemed to make it worse?
A. Yes sir.
Q. Did it seem to aggravate it?
A. Yes sir, I got worse as every day went on.”
It is apparent that constant complaint was made by Herdison relative to pain in his foot and legs within two weeks after the first accident, and as previously stated, this was the only injury mentioned to the doctors when they discovered that he actually had a back injury. The quoted testimony makes clear that he was getting worse sometime before the first of the year, and that he had extreme pain and discomfort in the early part of 1969 before the alleged second injury. As to this last, Herdison admitted that he did not know whether the steel lifting incident caused his condition to get worse, “or whether time”. It is our opinion that, as a matter of law, the evidence is not substantial that Herdison specifically received a second injury. Actually, the proof was barely enough to establish even that claimant could have sustained a second specific injury. In Aluminum, Co. of America v. Williams, 232 Ark. 216, 335 S. W. 2d 315, this court quoted Larson as follows:
“In Larson’s two-volume treatise on 'Workmen’s Compensation Law’, that writer states the holdings in Vol. 1 § 13.00: ‘When the primary injury is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct’. In 58 Am. Jur. p. 775, ‘Workmen’s Compensation’ § 278, cases from various jurisdictions are cited to sustain the text: ‘A subsequent incident, or injury, may be of such a character that its consequences are the natural result of the original injury and may thus warrant the granting of compensation therefor as a part of that injury’.”
In accordance with what has been said, it is the order of this court that the judgment of the Sebastian County Circuit Court be, and hereby is, reversed with directions to remand the cause to the Workmen’s Compensation Commission for1 an order consistent with this opinion.
Herdison was not aware that his back was injured until his deteriorating condition forced him to see a doctor; originally, he complained only of pain in his feet and legs. | [
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J. Fred Jones, Justice.
Melba Ann Jackson and F. B. Smith are the parents of a nine year old son, Tracy Lynn Smith. In September, 1967, they were divorced in the state of Texas and the custody of the minor child was awarded to the mother with the rights of visitation in the father. The mother married Mr. Jackson in 1968 and in 1970 they moved to Fairfield Bay in Van Burén County, Arkansas, where both Mr- and Mrs. Jackson are employed. Mr. Smith also remarried and on June 1, 1970, he filed a petition in the Van Burén County Chancery Court for a change in custody of the child. The chancellor awarded a change in custody vesting the exclusive custody of said child in the father, F. B. Smith, subject to the rights of the mother to have the child visit her during Christmas school vacation each year, and from the second Sunday in June to the second Sunday of August of each year, with child support payments to continue at $20 per week during the period the child is with his mother.
On appeal to this court Mrs. Jackson relies on the following points for reversal:
“The court erred in talking with the child privately in chambers.
The court erred in granting permanent custody of the nine year old son to the father.”
It is well settled that in child custody cases between divorced parents, the courts are primarily concerned with the welfare of the child. Stephenson v. Stephenson, 237 Ark. 724, 375 S. W. 2d 659. While chancery cases are tried de novo on appeal, (Fye v. Tubbs, 240 Ark. 634, 401 S. W. 2d 752) the rule is well established that a decree of the chancery court will not be disturbed on appeal unless it is against the preponderance of the evidence. Lynn v. Quillen, 178 Ark. 1150, 13 S. W. 2d 624; Henry v. Irby, 175 Ark. 614, 1 S. W. 2d 49; Bornhoft v. Thompson, 237 Ark. 256, 372 S. W. 2d 616. This rule is especially applicable in child custody cases where the chancellor is in a position to observe the parties as well as to hear their testimony. Wilson v. Wilson, 228 Ark. 789 310 S. W. 2d 500; Cheek v. Cheek, 232 Ark. 1, 334 S. W. 2d 669.
As to the points relied on, it seems to be universally held that an interview with children in child custody cases is permissible with the consent or acquiescence of the parties. See 24 Am. Jur., Divorce and Separation, § 794. The child involved in the case at bar was a nine year old boy, and when interviewed by the chancellor, with the consent or acquiescence of the parents, we are unwilling to say that his attitude and wishes should not have been considered by the chancellor, along with the other evidence in the case, in arriving at his decision as to the child’s best welfare and resulting in the decree rendered. The case of Grumlin v. Gray, et ux, 246 Ark. 622, 439 S. W. 2d 290, cited and relied on by Mrs. Jackson in her brief, is distinguishable from the case at bar. In Grumlin the chancellor not only talked with the children in chambers, but he reviewed a welfare department report which was not in the record. In that case we expressed our handicap in having no information about the reasoning that led the chancellor to deny Mrs. Grumlin’s petition, but we are not so handicapped in the case at bar.
In the case at bar the chancellor set out in his decree that there had been substantial changes in the circumstances of the parties growing out of the remarriage of both parties since the entry of the decree in Texas. He based his decree on the “oral evidence adduced in court, both parties having agreed that the court should be allowed to talk privately with Tracy Lynn Smith.” The chancellor is sustained by the record as to the agreement that he should talk with the child. The record reveals that the solicitor for Mr. Smith requested the chancellor to talk with the child privately and the chancellor stated as follows: “The court would advise or visit with the boy only by the consent of both parties.” Whereupon the solicitor for Mrs. Jackson stated: “Your Honor, my client has the child downstairs and for the purpose here if the court wanted to confer with him.”
Both Mr. Smith and his present wife testified in the case. Mr. Smith testified as to difficulty he had experienced in exercising his visitation rights under the Texas decree, and as usual, in cases of this nature, there is some conflict in the testimony as to the reason for the difficulty experienced by Smith. The mother of the child had been married twice since she and Smith were divorced, and she had been married to Jackson for approximately two years. As to a part of Smith’s difficulty, he testified as follows:
“Q. Since she has been married to this last husband have you ever gone to their home and been ordered away?
A. Yes.
Q. Have you ever been ordered away with a gun?
A. I was told the next time I come there I would be blowed off of the front porch, in those words.
Q. That is quote of what was said?
A. Yes.”
Mr. Jackson did not testify in the case and the above testimony of Smith was not contradicted. Mr. Smith’s testimony was also to the effect that the mother drinks intoxicants in the presence of the child and is neglectful of him. The evidence also indicates however, that a part of the difficulty was occasioned by Mr. Smith’s objection to the way the child’s mother was spending the $20 per week child support he was sending to her. Mr. Smith also testified that the child sustained an injury to his arm from the discharge of a sawed-off shotgun loaded with .00 buckshot kept in a a closet of his mother’s home.
Mrs. Smith testified that she was anxious to have the child in their home in Texas; that neither she nor Mr. Smith drink intoxicants; that her marriage to Mr. Smith was her first marriage and that they have no children of their own. She testified that her husband had been married to the child’s mother twice; that she has come to love the child very much and is anxious to assist in rearing him.
Mrs. Jackson testified that she is presently employed at Fairfield Bay and was also employed in Fort Worth, Texas, before coming to Arkansas. She testified that she attended church with the child in Texas, but has bem unable to do so since coming to Arkansas because of work habits; she says her husband works seven days a week and that she works six and sometimes seven days a week. As to the shotgun accident, Mrs. Jackson testified that she purchased a double-barreled modified (sawed-off) shotgun for protection when she was in Fort Worth; that she usually kept the gun locked up but that she and her husband had been awakened two previous nights before the accident by their dog barking in the backyard,
“and we could tell that someone was in the alley way and my husband got up and went and got the gun and went outside, and naturally, he couldn’t find anything and he brought the gun back and he locked it back up the first night and the second night he didn’t lock it up and that is when the accident happened.”
Under questioning by the court, Mrs. Jackson testified that the child comes to a playground near the office where she works, and that she is with him off and on during the day. As already stated, Mrs. Smith testified that she is willing and anxious to have the child in their home. Mrs. Jackson testified that she has been married to her present husband for approximately two years and, as already stated, Mr. Jackson did not testify at all in this case.
We are of the opinion that the chancellor’s decree is not against the preponderance of the evidence and that it should be affirmed.
The decree is affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Patricia Manatt, now Patricia Ray, from an adverse decree of the Western District of the Clay County Chancery Court in a child custody case between herself and her former husband, Sam L. Manatt, Jr. The given names of the parties are hereafter used for convenience.
Patricia and Sam obtained a divorce in Clay County in September, 1960. In contemplation of the divorce, an agreement was entered into, and signed by Patricia and Sam entitled: “Agreement as to Property and Marital Rights and Custody and Maintenance of Children.” This agreement was approved by the court and incorporated as a part of the divorce decree. It reads, in part, as follows:
“. . . [S]ince it is desired by both parties to finally and for all time settle and determine and agree upon their individual property rights in all property owned and possessed by either separately, or both jointly, and to provide for the maintenance and welfare of their children:
Therefore, in consideration of the premises, the mutual promises herein made, and the division of property hereinafter set forth, the parties covenant and agree as follows:
1. Patricia Manatt shall have principal custody of parties four (4), minor children: Sam R. Manatt, age 10 years, James D. Manatt, age 9 years, John D. Manatt, age 8 years, and Susan C. Manatt, age 5 years.
2. Sam L. Manatt, Jr. shall have custody of the four children for two (2) months during the Summer, school vacation period of each year, beginning with the year 1961. In addition, Sam L. Manatt, Jr. shall have custody of the children for at least one week, during Christmas, every alternate year; and, his custody of the children during the Christmas period shall commence with the year 1960.
3. Sam L. Manatt, Jr. agrees to pay to Patricia Manatt for the support and maintenance of said four children the sum of $400.00 per month, payable monthly, with payment to begin when a decree of divorce shall have been granted. Said payments shall continue so long as at least one child is living, but shall cease when the youngest child reaches 21 years of age or marries, whichever event occurs first.”
After providing that 75 acres of land in Baxter County together with a runabout boat with motor and trailer, household goods and a Pontiac automobile, should be the property of Patricia, the agreement provided as follows:
“7. The terms of payment under a life insurance policy in the face amount of $35,000.00, now owned by Sam L. Manatt, Jr., shall be amended to provide that Patricia Manatt shall be the sole beneficiary thereunder. Said policy shall be kept in full force and effect now and at all future times by Sam L. Manatt, Jr. and he shall pay the annual premiums thereon.”
The agreement then provided that Sam was to have city property in Corning, all of his stock in the Corning Bank; and all other property not specifically set aside, to go to Patricia. The agreement then provides:
“11. In consideration of the foregoing covenants and agreements and the receipt of the properties described above, Patricia Manatt releases, relinquishes and waives all her rights to alimony, temporary and/or permanent, and it is agreed and understood that neither party shall have any right, title or interest in the property of the other, real or personal, now owned or hereafter acquired.”
This agreement was incorporated as a part of the divorce decree and upon entry of the decree Patricia moved with the children to Colorado and Sam started making the $400 per month payments.
In June, 1961, the oldest child returned to Arkansas to spend the summer vacation with his father. With Patricia’s consent he did not return to live with his mother in Colorado, but continued to live with his father. In June, 1962, the other two boys returned to Arkansas at the beginning of the summer vacaion and they too remained with their father, to which arrangement Patricia reluctantly agreed.
Patricia remarried a Mr. Ray in 1963 and the youngest child, Susan, continued to live with her mother and Mr. Ray in Colorado, except for the summer vacations she spent with her father in Arkansas. At the end of summer vacation beginning in June, 1969, she too continued to live with her father and brothers in Arkansas and failed to return to live with her mother in Colorado.
When the two younger boys continued to live with their father in 1962, Patricia agreed to reduce the monthly payments for child support from $400 to $300 per month. In July, 1963, these payments were further reduced from $300 to $150 per month. Sam contends that this too was done by agreement between him and Patricia, and she contends that she made no such agreement. Nevertheless, payments were continued at $150 per month from 1963 until May, 1969, with the few exceptions when the payments were $175, the difference being attributable to additional expenses for orthodontic services for Susan.
On August 8, 1969, Sam filed his petition for a change in custody of Susan (later amended to include the other children) from Patricia to himself. Patricia filed a response in opposition to the change in custody and prayed judgment for $21,950 in delinquent child support payments. Sam countered by a petition for the cancellation of child support payments. After trial of the case in which both Sam and Patricia as well as the four children testified; the chancellor on May 6, 1970, entered a decree awarding custody of the four children to Sam with the same visitation rights in Patricia as had been awardeci to Sam under the original divorce decree. The support money payments were discontinued from and after January 16, 1970.
As to the reduction of the amount for child support awarded in the original decree, the chancellor found that “the evidence does preponderate to the effect that they did agree to reduce them down .o the $150.00 a month.” The chancellor found that Sam was indebted to Patricia at the rate of $150 per month for back child support from June, 1969, through December, 1969, which, together with interest at 6%, amounted to $1,089.90, and a decree was awarded to Patricia for that amount. The chancellor also awarded to Patricia the sum of $286.67 for expenses in answering a discovery deposition and $573.34 expenses in attending court at the hearing on the petition. The court also ordered Sam to pay attorney’s fee in the amount of $1,250.
As to the $35,000 insurance policy, referred to in the agreement and incorporated as a part of the original divorce decree, the chancellor found that Sam had kept the policy in force but had borrowed $5,300 on it, and after making provisions for Sam to continue the payment of premiums on the policy and providing for notice to Patricia when and as such payments are made, the chancellor denied Patricia’s petition for an order directing Sam to discharge the loan which he had obtained on the security of the policy and to enjoin him from future borrowing thereon.
On appeal to this court Patricia relies on the following points for reversal:
“The chancery court erred in modifying the 1960 decree by taking the custody of Susan Manatt from her mother and awarding custody to her father.
The chancellor erred in canceling retroactively any support money payments ordered by the 1960 decree.
A. The chancery court was without jurisdiction to allow retroactive cancellation of support money obligations.
B. The chancellor’s ruling that there was any agreement between appellant and appellee to reduce the support money payments to $150.00 per month is erroneous and should be reversed.
Appellee’s defense as to the five-year statute of limi tations is not applicable here by reason of payments made within five years of the bringing of appellee’s suit.
Appellant is, in any event, entitled to recover the delinquent payments accruing within five years of February 3, 1970.
The chancery court erred in refusing to order appellee to discharge the loan which he had obtained without knowledge or consent of appellant against the insurance policy which appellant was the beneficiary under the divorce settlement and the divorce décree.”
We cannot say that the chancellor erred in changing the custody of Susan from her mother to her father. We agree with the statement in appellant’s brief that Patricia is shown to have been a dedicated and devoted mother making every effort to meet her daughter’s special problem and, at the same time, permitting the daughter to maintain close relations with her father and his family. Patricia is not only shown to have been a devoted and dedicated mother to her 15 year old daughter, she is shown to have been a very wise, discerning and unselfish mother in so far as her relationship with her daughter is concerned; and it is unfortunate, for both her and the daughter, that she has had no assistance in causing Susan to fully appreciate just how unselfish her mother has been.
Both parents were bound to have recognized the probable result of split custody, and the record is clear that Patricia did recognize that she would eventually lose the custody of Susan to her father. There is no question that Patricia was more interested in the happiness of her young daughter than she was in her own. When the second two of the three boys failed to return to Colorado following their summer vacation with their father, Patricia reluctantly agreed that they could stay with their father and she testified that at that point she realized she would someday lose the actual custody of Susan. Perhaps at that point if Patricia had demanded and received the continued payment of $400 for the support of Susan, she could have furnished Susan with some of the things Susan now seems to think she was denied. Instead of following such course at the risk of alienation between herself and Susan or between Susan and her father, she suggested that the payments be reduced to $300 per month and soon thereafter, whether by agreement or otherwise, she started accepting $150 per month without court order.
There is no hard evidence that Sam directly influenced Susan in desiring to leave the custody of her mother, but certainly there is no evidence that he said or did anything to influence her otherwise. As soon as he received Patricia’s answer to his petition for change in custody, he gave it to Susan to read and interpret. Paragraph 2 of the response reads, in part, as follows:
“. . . [I]n the event the said Susan C. Manatt desires and this court can ascertain that such desire is bona fide on her part to live with the defendant in Corning rather than in Colorado and in the event this court should determine such action would be in the best interest of the said Susan C. Manatt, this plaintiff does not, under such circumstances, desire to oppose a change of custody provided proper assurances are given that the said Susan C. Manatt may visit this plaintiff at her home in Colorado during the summer months when she is not in school and during Christmas vaca don.”
Susan testified that she concluded from reading the papers filed by her mother that her mother did not want her. There is no evidence that Sam did or said anything to change or redirect such conclusion.
The 19 year old son testified that while he lived with his mother and when he visited her in Colorado, he had to pay some of the expenses of his entertainment (“skiing and such as that”) out of his own money his father had given him. He testified that his father also gave him to read, the papers his mother had filed and he testified, in part, as follows:
“Q. Do you love your mother?
A. Yes, sir.
Q. Has she ever done anything to cause you not to love her?
A. In the past year I have got so I don’t respect her so much. It made me mad when Daddy got the papers and I went back to school and me and Sam called her and she said it wasn’t anything to do about keeping Susan, that she felt like she deserved more, like the bank stock and things like that.”
This brings us to the appellant’s second, third and fourth points having to do with the support payments, and these points have given us considerable difficulty; especially in the light of the interpretation the children seem to have placed on their mother’s pleadings in this case.
The agreement as to the payment of support money which was incorporated into the divorce decree, appears to have been either carefully or carelessly drawn. The record does not indicate the value of the Baxter County property awarded to Patricia as compared to the value of the Corning property awarded to Sam. The value of the personal property awarded to Patricia is not set out but from its nature it could not have been a substantial amount. The number of shares of the bank stock awarded to Sam is not indicated but he testified that his share of the dividends (besides bonus of $5,000) in 1969 was around $14,000. The agreement entered into between the parties and incorporated into the divorce decree is entirely open to question as to the intent of the parties.
Under the agreement and the decree, the reason for entering into the agreement, as expressed, is “to finally and for all time settle and determine and agree upon their individual property rights in all property owned and possessed by either separately, or both jointly, and to provide for the maintenance and welfare of their children.” It was agreed and decreed that Patricia should have custody for 10 months and Sam should have custody for two months each year. Paragraph 3 of the agreement as carefully or carelessly drawn, makes no provision for suspension of payrpent while Sam has custody, but simply provides that Sam shall pay to Patricia for the support and maintenance of the four children. $400 per month, payable monthly. The agreement then contains this unusual sentence. “Said payments shall continue so long as at least one child is living, but shall cease when the youngest child reaches 21 years of age or marries, whichever event occurs first.” This provision reads more like a proviso in a will than in a child support agreement. In part consideration of this agreement Patricia not only relinquished and waived her right to alimony but it was agreed and understood that neither party should have any right, title or interest in the property of the other, real or personal, then owned or acquired in the future.
In 57 A.L.R. 2d, § 2, p. 1141, is found the following:
“In determining the validity and effect, as between divorced spouses, of an agreement by which the former wife releases the former husband from his obligation under the provisions of the divorce decree to pay child support to her, the first question to be considered is whether the agreement meets the tests of validity applicable to all releases. In particular, the agreement must be supported by a valid consideration.
There is ample authority in support of the proposition that as between the former spouses, such an agreement is valid and precludes the former wife from enforcing the child support provisions of the divorce decree, at least as long as the in terests of the child are not affected and only an obligation personal to the wife is involved.”
In 57 A.L.R. 2d, § 3, p. 1141, is found the following:
“As in the case of other releases, an agreement by which a divorced wife releases her former husband from obligations under the child support provisions of the divorce decree must ordinarily be supported by a valid consideration.
-\r •Tr *7r
Such an agreement has been held supported by a valid consideration where * * * —the husband assumed the support of the children. Ostrain v. Posner (1926) 127 Misc 313, 215 NYS 259; Bassman v. Bassman (1953, sup) 123 NYS2d 751.”
In the Illinois case of Royster v. Royster, 339 Ill. App. 250, 89 N.E. 2d 279, the wife was granted a divorce and support money by a decree entered on her counterclaim in 1935. In 1938 the parties agreed to a reduction m support payments, which was not approved by the court, and in 1947 the wife brought proceedings to recover the balance of support money. The Illinois Supreme Court held that the trial court had the power to approve or ratify the agreement; and in doing so it could take into consideration changed conditions, if any shown by record, in finances of parties, delay in attempting to enforce original decree, and the corresponding equities presented by record.
In the 1940 Colorado case of Hill v. Hill, 107 P. 2d 597, in approving a subsequent agreement between divorced parents for a reduction in child support, the Colorado Supreme Court said:
“We know of no rule which precludes parties who are sui juris from entering into such a contract, and, while the court is not necessarily bound by the agreement, if its terms are fair and no fraud attends its execution, it may be recognized by the court.’1’
In the Illinois case of Wolfe v. Wolfe, 24 N.E. 2d 871, an agreement between divorced spouses reducing the support money for their minor child awarded by the divorce decree, was held to preclude the wife from enforcing the award by contempt proceedings against the husband. The court pointed out it would be unjust to hold the husband in contempt when the former wife had for five years, without protest, accepted the reduced amount, particularly where the child was cared for by and lived with the mother of the husband, during which time the grandmother contributed to its support. The wife in that case argued that no oral agreement to accept a reduced amount for the support of a minor child is valid unless it receives the sanction of the divorce court.
In the case at bar the chancellor apparently considered the provision for the $400 monthly payments as intended strictly for child support and maintenance and not as a part, or in consideration, of the property rights agreed upon. The provision that the payments would continue as long as at least one child is living, with the additional proviso that the payments would cease when the youngest child reaches 21 years of age or marries, would indicate that these monthly payments were intended as part consideration for an otherwise inequitable property settlement. Especially is this true when the youngest child then living was a girl who would attain her legal majority at 18 years of age. On the other hand, paragraph 3 plainly states that the agreement is to pay for the support and maintenance of said four children, and since the parties apparently so considered it, we cannot say that the chancellor erred in doing likewise.
In any event, the payments were to be made each month and Patricia first agreed that they should be reduced to $300 per month. The chancellor found, on conflicting evidence, that Patricia subsequently agreed that the payments should be reduced to $150 per month, and we are unable to say that the chancellor’s findings are against the preponderance of the evidence as we would be required to do in order to reverse on this point. The fact that Pátricia drew monthly drafts on Sam in the amount of $150 for approximately seven years wihout complaint to the court lends some weight in favor of an agreement. This fact also lends weight to Patricia’s sense of fairness toward Sam and concern for the mental or psychic welfare of the children. In such close matters as this we affirm the chancellor unless his decree is against the preponderance of the evidence. Stephenson v. Stephenson, 237 Ark. 724, 375 S.W. 2d 659.
As to appellant’s fifth point, we are of the opinion the chancellor erred. The insurance policy is clearly personal property and was so regarded in the agreement and in the divorce decree. While the agreement only provided that Sam would keep the premiums paid and keep the policy in full force and effect with Patricia as the sole beneficiary; the findings of the chancellor in the original decree, as to the insurance policy, recite as follows:
“In substance, said agreement provides that the plaintiff shall take ... a certain life insurance policy . . .”
Under the original agreement, and under the original decree as we interpret them, it was never contemplated that Patricia would be awarded as a part of her property an insurance policy to be burdened with debt to the extent of its loan value. It appears that the intent of the parties, in connection with the insurance policy, was that in the event of Sam’s death, Patricia would collect from the insurance company and not from Sam’s estate. Sam’s income for 1969 was between $30,000 and $50,000 and although the necessity for, and purpose of, Sam borrowing on the insurance policy does not appear in the record—we hold that Patricia is entitled to the policy as it was awarded to her—unencumbered by the loan to Sam.
The decree is reversed as to the insurance policy and this cause remanded to the chancery court for entry of an order directing Sam to pay the loan against the policy forthwith, and for an order restraining him from placing future encumbrances against the policy. In all other respects the décree is affirmed.
The appellant’s attorneys have requested, and they are hereby awarded, a fee of $1,250 for their services to the appellant in connection with her appeal to this court.
Affirmed in part; reversed in part and remanded. | [
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Frank Holt, Justice.
This case involves the issue of a cotenancy. The appellees, some of the heirs of Jane Johnson who died intestate in 1919, brought this action against appellant and others in 1969 as cotenants to partition 120 acres and to establish all of their respective interests. The appellant responded, by asserting her ownership by virtue of a recorded deed in 1952 and also by adverse possession and asked that title be quieted in her. The chancellor found that the parties to this action are cotenants and ordered a partition of the lands.
At the time of Jane Johnson’s death in 1919, two of her eleven children, Ralph and Fred Johnson, were living on the property and they continued to live there after her death. Several years later (1922), Ralph married Sallie and she moved onto the property with him. In 1'926, while Ralph and Sallie were living on the property, the taxes were not paid and on June 13, 1927 a tax sale was held whereby C. F. Routon bought the property at the tax sale. Routon received a deed from the County Clerk of Hempstead County, Arkansas and recorded the deed on May 30, 1934. For the years 1927 through 1951, taxes ($302.69) on the 120 acres were paid by Routon, during which time Ralph and Sallie were his tenants. In 1952 Routon and wife conveyed by quitclaim deed their interest in the property for $500 to Ralph and Saliie Johnson. In 1954 Ralph and Sallie moved their residence to a nearby tract but continued to farm the 120 acres. In 1958 Ralph Johnson died. After his death, Sallie continued to either farm or rent the property and retained the profits for her sole benefit without interference from the other heirs until 1969 when this suit for partition was filed.
On appeal appellant asserts that the court erred in holding the 1952 deed from C. F. Routon and wife to Ralph and Sallie Johnson was a mere redemption for the benefit of all cotenants. We think the court was correct. It is well established that a tenant in common of land cannot acquire title to the interest of his cotenants by purchase at a tax sale nor by the purchase of the property from a third person who bought at the tax sale. Findley v. Tyler, 227 Ark. 663, 300 S. W. 2d 598 (1957); Smith v. Smith, 210 Ark. 251, 195 S. W. 2d 45 (1946); Sanders v. Sanders, 145 Ark. 188, 224 S. W. 732 (1920). Ralph and Sallie continued to remain in possession of the property, without visible change to other members of the family or cotenants after the tax sale, throughout the entire time that Routon paid the taxes and also after the conveyance to them of the property by quitclaim deed. It appears that none of the other cotenants had reason to believe that a tax sale and subsequent conveyance to Ralph and Sallie had ever occurred. In fact, Sallie testified that the other cotenants were never notified that she and Ralph were occupying the lands as tenants of Routon because she thought she “had no right to tell them.” The relationship between cotenants is one of trust and confidence and it would be inequitable to permit one of them to do anything which prejudiced the interest of the other.
Appellant also asserts ownership by adverse possession and asked that title be quieted in her. Ralph, until his death in 1958, and Sallie, to the present time, continued to use and possess the land after their purchase from Routon in 1952. In order for one co-tenant to acquire the title of his cotenants by adverse possession, use and possession of the land alone is insufficient; there must be some act sufficient in itself to give notice that the cotenant in possession is claiming in hostility to and not in conformity with the rights of others having an interest in the property. The co-tenant must bring home “to his cotenants the knowledge of his hostile claim, either directly or by acts so notorious and unequivocal that notice must be presumed.” McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714 (1960). See, also, Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125 (1952); Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690 (1944). In order for appellant Sallie Johnson to establish ownership by adverse possession, where a family relationship exists, she must sustain the burden of proof of such possession and such proof must be by stronger evidence than that required in cases involving adverse possession against a stranger. Staggs v. Story, supra. There is a conflict in appellant’s testimony concerning the year in which notice of the Routen deed was given the cotenants. On direct examination she testified to giving notice of the 1952 pur chase to one of the cotenants, Mrs. Wafer, about a year after Ralph Johnson’s death in 1958. However, on cross-examination she replied: “Yes, sir” when asked, “In other words, it could have been five or six years ago that you told them you had the property in black and white.” As previously indicated, she also stated that neither she nor her husband, prior to the Routon deed, gave their cotenants notice of being tenants of Routon as a result of the tax sale. She testified: “I told you I didn’t claim the property until I got it in black and white” (1952 deed). The appellees adduced evidence that they were unaware of appellant’s asserted claim of adverse possession until three or four years at the most before instituting this action. Since there was testimony showing that actual knowledge of the adverse holding was not timely brought home to the cotenants, the trial court could find that appellant Sallie Johnson failed to establish her claim of adverse possession by the required burden of proof.
Nor do we find any merit in appellant’s contention that laches bars the claim of the cotenants, the appellees. Appellant Sallie Johnson was permitted to occupy and benefit from the use of the property without any accounting to the appellees. Any improvements made to the property appear to consist of the construction of a small barn and the expenditure of $40 for a fence. See Vesper v. Woolsey, 231 Ark. 782, 332 S. W. 2d 602 (1960).
As a subsidiary contention, appellant poses the question as to the correctness of the court’s findings with respect to the purchasers of the interests, of two of the heirs. Upon a canvass of the entire record, we are of the view there is no merit in this contention.
After having considered each of appellant’s contentions for reversal, we cannot say that the chancellor’s findings are against the preponderance of the evidence.
Affirmed. | [
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John A. Fogleman, Justice.
Appellant was convicted of escape from the Arkansas State Penitentiary. His oral demurrer to the information, based upon the contention that the venue was not in Lincoln County, made after a jury was empaneled, but before any evidence was heard, was overruled. His attorney argued that, since he had been granted a five-day furlough to go to Pulaski County, the venue of any alleged crime of escape would be in that county. The attorney also asked that the case be transferred to Pulaski County, but this motion was denied.
The trial proceeded and the state’s witnesses, all officials of the Arkansas .Department of Correction, testified that: under the terms of his furlough, Lyons was supposed to go directly to Pulaski County; appellant did not return from his furlough on April 1, 1970, when he was scheduled to do so; none of them knew of his being in Lincoln County on that date; he was apprehended in Missouri on November 20, 1970.
Although appellant’s attorney had stated during the in camera hearing on his original demurrer that the evidence would show that appellant reached Pulaski County, and left from that county, rather than Lincoln County, no witness testified that Lyons ever reached the county to which he was authorized to go. After the state rested, appellant renewed his demurrer and rested. He had also renewed his demurrer after the testimony of the first witness called by the state.
He asserts two points for reversal, but both are based upon the same argument, i.e., that the proper venue was in Pulaski County, and that the state failed to prove venue in Lincoln County, relying upon Thetstone v. State, 32 Ark. 179, and Jenks v. State, 63 Ark. 312, 39 S. W. 361. The sufficiency of the evidence to otherwise show the crime of escape is not questioned.
Both of the above cases were decided long before the adoption of Initiated Act No. 3 in 1936. One section of that act [Ark. Stat. Ann. § 43-1426 (Repl. 1964)] provides:
It shall be presumed upon trial that the offense charged in the indictment was committed within the jurisdiction of the court and the court may pronounce the proper judgment accordingly, unless the evidence affirmatively shows otherwise.
In considering this section of the statute in Meador v. State, 201 Ark. 1083, 148 S. W. 2d 653, we stated that an allegation in an information filed in Grant County that a crime was committed in Hot Spring County would have been a fatal variance were it not for this section, stating that it was the obvious purpose of this act to prevent miscarriages of justice for such reasons. We also stated that the evidence did not affirmatively show that the larceny charge was committed outside the jurisdiction of the trial court.
In Wise v. State, 204 Ark. 743, 164 S. W. 2d 896, we held against a similar contention in a case where the charge was carnal abuse, because there was no evidence showing that the offense, if committed at all, was at another place in another jurisdiction. In Stewart v. State, 214 Ark. 497, 216 S. W. 2d 873, we held that the contention that the state failed to establish the venue was untenable by reason of the statutory presumption, because we found no affirmative evidence to show that the crime of larceny was not committed in the district and county alleged in the information. In Cecil v. State, 234 Ark. 129, 350 S. W. 2d 614, we held that the trial court correctly refused to instruct the jury that the state was required to prove the venue, in reliance on this statutory provision.
We find nothing in our statute which offends Article 2, Section 10, of the Arkansas Constitution providing that the accused is entitled to trial by impartial jury of the county in which the crime shall have been committed. There is no evidence that the crime was committed in any place other than Lincoln County, or that Lyons ever reached Pulaski County.
Because there was no affirmative evidence to show that the offense was committed outside Lincoln County, we affirm the judgment.
Byrd, J., dissents. | [
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Frank Holt, Justice.
This is a condemnation proceeding in which the State acquired 3.72 acres of land in fee and a permanent drainage easement upon another .46 acres of land belonging to appellee landowner. This acquisition from appellee’s 102-acre farm was necessary for the relocation and construction of a part of U. S. Highway No. 64. The area taken in fee consisted of a 60-foot strip along the northern boundary of the farm. The easement acquired is located to the south and adjacent to the area taken in fee. Appellee’s farm is near the City of McCrory and fronted approximately one-fourth mile on State Highway No. ■ 17. The landowner testified that the highest and best use of her land was for residential development and estimated her damages at $13,-000 ($102,000 valuation before the taking and $89,000 after). Three expert witnesses testified in appellee’s behalf to the effect that the highest and best use of the property was for residential purposes. The damages estimated by these witnesses were $4,181, $3,837, and $3,762 respectively. Appellant’s only witness estimated that the land had been enhanced in value in the amount of $2,800 ($31,000 before and $33,800 after). Appellant’s estimate was on the basis that the highest and best use of the lands fronting on Highway No. 17, and at its junction with the new construction of No. 64, was commercial, with the remainder being agricultural. The court, sitting as a jury, found there was neither severance damage nor enhancement to the market value of the remaining land. The court awarded $4,800 for the lands actually taken. For reversal of that judgment, appellant contends there is no substantial evidence upon which the trial court, “upon its own motion,” based its findings of fact.
Appellee, 81 years of age, testified on direct examination, without objection, that her father had purchased the property in 1888 when she was one year old; that this property was part of a larger farm which had been divided between her and her brother; that she had not lived on her particular portion of the farm, although she had lived on that portion now belonging to her brother; that she had owned the property for “about 40 years” and lived nearby; that it is located near the city limits of McCrory; that she had farmed the land through her tenants during the 40 years; that she had sold timber off the property; that she had been on the farm many times and had made improvements upon the land; and that she was familiar with the surrounding land which had been developed into a residential section. She further testified that the highest and best use of the property is for residential development and that in her opinion the fair market value of her property was $102,000 before the taking and about $89,000 after the taking, or damaged in the amount of $13,000. A landowner’s opinion testimony is admissible as to the question of value of his property, regardless of his knowledge of property values, in the event he has an intimate acquaintance with his property. Arkansas State Highway Comm. v. Duff, 246 Ark. 922, 440 S. W. 2d 563 (1969); Lazenby v. Arkansas State Highway Comm., 231 Ark. 601, 331 S. W. 2d 705 (1960).
We think the appellee has shown that she is sufficiently familiar with her property. Having farmed the property through tenants for 40 years, she is certainly aware of the value of the property in terms of the amount of rental income it produces each year, as well as any income derived from the sale of timber. This evidence, along with the fact that she had knowledge of the residential development in surrounding areas, is sufficient to show that her testimony as to damages in the amount of $13,000 is not without a reasonable basis. Any infirmities in her testimony bear upon its weight.
On cross-examination appellant questioned appellee as to whether she had received any offers to purchase portions of her property and the prices made in such offers. Appellee replied that although she had received offers almost every week from prospective purchasers desiring to purchase the property for residential and commercial purposes, she had not allowed a price to be set because she did not intend to sell. Appellee was not further questioned concerning the basis used to estabish value. This limited cross-examination was insufficient to destroy the reasonable basis of her value testimony which she had demonstrated on direct examination. In Arkansas State Highway Comm. v. Clark, 247 Ark. 165, 444 S. W. 2d 702, we said:
"Since Clark did not base his opinion on. comparable sales, appellant’s assertion that he did not show that he was acquainted with the market and other sales in proximity to his lands relied upon by appellant’s experts is of little consequence. Appellant never asked Clark about his knowledge of these sales or for an explanation of their comparability. Consequently, it is in no position to contend that this lack of knowledge made his testimony insubstantial.”
Likewise, in the case at bar appellant’s failure to further seek an explanation of the basis used by appellee to determine her land value precludes it arguing on appeal that her evidence is not substantial.
Furthermore, there was testimony, without objection, by an expert witness for the landowner that comparable lands in the surrounding area had sold for $1,-200 an acre about ten months after appellee’s land had been taken by appellant.
In the case at bar the landowner, as we have indicated, was thoroughly familiar with the utilization of her property, the improvements, and its adaptability for the highest and best use. She was also familiar with the usages of the surrounding lands. Her expert value witness corroborated her testimony and placed a value upon her lands taken at $1,200 per acre based upon a comparable sale. The court awarded appellee $4,800 as just compensation. In doing so, the court allocated $4,464 for the 3.72 acres taken in fee ($1,200 per acre) and the blance of the total award represented just compensation for the .46 acre taken for a permanent easement. In our view the findings of the court, sitting as a jury, are based upon substantial evidence.
Affirmed.
Brown, Jones and Byrd, JJ., dissent and would reverse because the landowner showed no reasonable knowledge of market values as to residential property. Arkansas State Hy. Comm’n v. Darr, 246 Ark. 204, 437 S. W. 2d 463 (1969). | [
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Carleton Harris, Chief Justice.
The only question on this appeal is whether verdicts awarded Joel C. Meredith, his wife, Frances L. Meredith, and daughter Lillian Denise Meredith, a minor, against Juanita Sinkhorn, appellant herein, were excessive. The three appellees were injured ip an accident in Jefferson County on September 1, 1969, and a jury fixed damages at $5,000 for Mr. Meredith, $10,000 for his wife, and $2,500 for the daughter. After motion for a new trial had been overruled, and judgment entered in favor of appellees appellant filed this appeal. Since appellee, Frances L. Meredith, the wife, received the greater injuries, we proceed to first discuss the propriety of the amount of the judgment awarded to her. Following the accident, all three were taken to the Jefferson Hospital in Pine Bluff, where they received treatment from Dr. Nash of that city. Dr. Nash’s report related that when Mrs. Meredith was brought to the emergency room, she was somewhat confused, complaining of head, chest, right leg, right and left shoulder injuries; she was admitted to the hospital for further care. His diagnosis related head injuries, left shoulder injuries with pneumothorax, and right leg abrasions. She was discharged to the care of Dr. R. L. Salb, a physician of Crossett. Dr. Salb testified that he was given a history by Dr. Nash, and primarily was to "follow up” on the pneumothorax, the doctor explaining that this was the collapse of a lung. He stated that the clavicle (collarbone) was displaced at the time of the injury and probably punctured the lung and then slipped back out. He observed the fragmented edges of the clavicle, and, from his experience, presumed that was what had happened. The doctor stated that Dr. Nash had already immobilized the clavicle by brace, which was most uncomfortable to the patient. He stated that her injury was a painful one and that she had a painful healing period; that about eight weeks trans pired before she was free from “quite a bit of discomfort”. He said that as she wore the brace, it became loosened in some manner and this slowed the healing. The clavicle had moved out of position, and a malformation in the form of a knot on the clavical would be permanent. Dr. Salb testified that if she were to have lung surgery on the left side, she might have considerable difficulty, “Instead of the lung collapsing when you enter the pleura space, it don’t and then you have to start and dissect this lung. From the word go it might be very difficult.” He said that the lung was capable of function and would cause no trouble except if she needed lung surgery or another pneumothorax, or treatment for, as an example, tuberculosis; in such case it was possible that there could be grave consequences. The witness stated that this susceptibility would continue for the rest of her life. When asked about a disability evaluation, he answered “It would be somewhere between five and ten per cent, possibly”.
Mrs. Meredith, 24 years of age, stated that she received a blow on the side of her head, a fractured collarbone and lung injury, and a cut on her right leg just below the knee. The witness testified to intense 'pain from the fractured collarbone while in the hospital, and she said the brace, which had to be worn continually, was most uncomfortable and did not help the pain; that the brace irritated a mole on her back, an infection developing. The brace was removed in order for the infection to clear and it was necessary to have the mole removed. Mrs. Meredith wore this brace during September, October, and most of November. She said that after leaving the hospital and going to her mother’s home, she was only able to get up to go to the bathroom and to the table to eat. Mrs. Meredith related the difficulties with the fractured clavical, stating:
“The pain was terrible, especially riding from Pine Bluff home. When I got home, the only time I got up was to go to the bathroom and to the table to eat. I had been home about a week I guess and I got up and I went to the table and the thing—the bone moved or something and I just got sick and had to lay back down. Then that night I was getting up and it moved or done something again and it was just like it broke all over again. I screamed and it just like to have never quit hurting. It was just like it had happened all over again. I couldn’t get up or lay down or anything. I could sit down and start to lay down, but then I’d have to have support on my head to get back down. When I would get up, somebody would have to hold me because I would just be so dizzy I couldn’t stand up. When I would lay back down, it would feel just like I was falling off the bed.”
During this time, Mrs. Meredith also had emotional problems:
“I was nervous anyway, before the wreck. But then when I got there to Mother’s, I don’t know, I just cried and cried and cried and you could ask me why, I didn’t know why I was crying. I was embarrassed to death, because I couldn’t do anything for myself. I couldn’t even go to the bathroom. I couldn’t do anything. I couldn’t get in or out of the bathtub myself.”
She lost twenty-five pounds after the accident, and when asked her condition at the time of the trial, stated:
“I just don’t have any energy. Just doing my normal housework, I’m tired before I get half through. I’m irritable, because I don’t feel good.”
Of course, during the three months period when she was confined, Mrs. Meredith was unable to look after her child in any way. She testified that her left arm was still weak, and that she had trouble in lifting the baby with that arm.
Mrs. Lilliam Hagood, the mother of Mrs. Meredith, testified that she stayed in the hospital with her daughter for six days, and that on leaving the hospital, the daughter was taken to the mother’s home. She said that her daughter was not able to do anything without help, and could not even undress. Mrs. Hagood described the brace as being in the shape of a “figure eight and it was put around her and fastened in the back with some kind of a buckle”. The purpose of the brace was to pull and straighten the shoulder, and it was necessary that Mrs. Meredith wear it at all times. Her left arm was constantly in a sling, and, according to the witness, Mrs. Meredith could do nothing either for herself or the baby. The testimony of Mrs. Meredith and Mrs. Hagood, relative to the injuries and suffering of the wife, was verified by that of Mr. Meredith.
One of the most difficult questions to answer in tort litigation is whether or not a judgment is excessive. This is partly true because there is really no way to measure pain and suffering; actually, some people are more prone to pain than others, and some cannot adjust to it as well as others. We said flatly in Coca-Cola Bottling Co. of Ark. v. Adcox, 189 Ark. 610, 74 S. W. 2d 771, “There is no rule by which we can measure damages for pain and suffering”. Further:
“Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are insusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence adduced, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained. 17 C. J., 869, et seq.”
Likewise, in Turchi v. Shepherd, 230 Ark. 899, 327 S. W. 2d 553 (1959), we said:
“A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value.”
If a dollar no longer had its prior value in 1959, obviously we may use our common knowledge, and courts may take judicial notice of the fact, that the dollar has considerable less purchasing power today than it did even in 1959. See Missouri Pacific Railroad Co. v. Elvins, 176 Ark. 737, 4 S. W. 2d 528. When all of the circumstances are considered, we cannot agree that this judgment was excessive.
The amount of $5,000 awarded to Mr. Meredith is also questioned. Mr. Meredith is an employee at the paper mill in Crossett, and is also an ordained minister, having pastored a church in Newport for over a year. Meredith received a bad bruise on his forearm, and was unable for some time to move the hand because of the bruise and swelling. Dr. Nash took x-rays and a splint was placed on it. He was not able to work during the week and sustained lost wages of $96.64. His x-ray services amounted to $36.95; there was also a bill for $46.00 from the Children’s Clinic for the care of the daughter. The hospital bill for Mrs. Meredith was $196.75, and laboratory and radiology bills amounted to $121.25. Dr. Nash charged $100.00 for his services to Meredith and his wife and Dr. Salb charged $83.00. The damage to the automobile was covered by insurance except for a $50.00 deductible. Since Mrs. Meredith was unable to care for herself, arrangements were made with her parents for Meredith to pay them the sum of $50.00 per week during the three months period that they lived with her parents; this amount, of course, took care of their meals during this three months period. The testimony revealed rather a close relationship between Meredith and his wife. The two always went together when he would preach a sermon at some church to which he had been invited; she helpfully criticized his sermons and made suggestions for improvement. They read and studied the Bible together, enjoyed going to the park with the baby, and hunted and fished together. Of course, these pleasures had to be held in abeyance during the period of time that Mrs. Meredith was being looked after by her mother. In other words, the normal husband-wife relationship did not exist during that time. In effect, what was said relative to the award given Mrs. Meredith, can also be made applicable to the award given to her husband, and though it was liberal, we cannot say that it was in such an amount as to demonstrate prejudice and passion on the part of the jury.
We do agree that the award to the child was somewhat excessive, principally because any sort of finding of a serious or lengthy injury would had to have been based on speculation. Dr. Townsend, a Pine Bluff pediatrician, prepared a report which was read into evidence, as follows:
“I saw this seven month old infant for the first time on September 1, 1969. She was involved in an automobile accident and was seen by me in the Jefferson Hospital emergency room. Examination revealed abrasions of her left nostril and face. She was admitted for observation and did quite well. X-rays failed to reveal any fracture. She was discharged on September 4, 1969, to be followed by her physician in Crossett.”
It developed that another report had been submitted by Dr. Townsend and it too was read into evidence as follows:
“This seven month old infant was involved in an automobile accident on September 1, 1969. She was seen in the emergency room at which time it was noted that she had an abrasion and contusion to her left face. There was some evidence of bruise on the left foot. Other than this the infant was completely normal. It was felt that due to the fact that the Mother was injured and admitted, it was best to admit the infant for observation. The infant did have a URI on admission and developed a low grade fever. Procaine penicillin was given for this. Skull x-rays and chest x-rays and laboratory work were all within normal limits. It was felt that the only thing that this infant sustained out of the accident was a bruise and abrasion of the left face. She was discharged on September 4, 1969, to be followed at Crossett by her local physician.”
The child was never again treated by a physician as a result of the accident, and the testimony offered reflected only that the child cried, mainly because her mother was unable to pick her up. The grandmother testified “I just can’t satisfy her, it took her own mother to do that”. Mrs. Hogood stated that the child would awaken in the middle of the night “screaming”, which she (Mrs. Hagood) interpreted as caused by fear. Of course, many babies awaken during the night—and the day—crying, and this, in itself, establishes very little. It is quite apparent from the report of Dr. Townsend, and the fact that no further medical services were necessary, that the crying was not caused by physical injury. And the child would certainly seem to be too young (at seven months) for it to be said that emotional, or psychiatric, damage had occurred. At any rate, there was no medical testimony to that effect. We are of the view that $1,500.00 would constitute a generous award.
In accordance with what has been said, the judgments in favor of Frances L. Meredith and Joel C. Meredith are affirmed; the judgment in favor of Lilliam Denise Meredith is affirmed on condition that remittitur is entered as indicated within seventeen calendar days; otherwise, this last judgment will be reversed and the case remanded for a new trial.
Fogleman, J., dissents in part.
‘Well, this is a lung being punctured and air getting in between the lung and the chest wall decreasing the ability of the lung to function. As he said, it was about ten per cent expanded the last time he saw her, well, that would give her probably about a fifty per cent less function of lung on that side because as it decreases toward the cone, of course, the less the vital capacity. So, she would have a fifty per cent vital capacity, probably, with the ten per cent collapse on the left side.” | [
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Carleton Harris, Chief Justice.
This appeal relates to whether Kenneth W. Lazenby, appellant herein, is entitled to a commission for the sale of certain real estate in Washington County, Arkansas. Lazenby, d/b/a, Ken Lazenby Real Estate Company was contacted in September, 1968, by appellees, James H. Newell and wife, Sally Raylene Newell, for the purpose of employing appellant to sell their property located at Farming-ton, Arkansas. An “Exclusive Listing Contract” was executed by the parties, Lazenby retaining the original, and the Newells keeping a yellow copy. The contract provided for a 6% commission. Lazenby immediately went to the Newell property, inspected it, and placed a “For Sale” sign in the front yard, the sign reciting “For Sale, Ken Lazenby Real Estate Company, 927 North College Avenue, Fayetteville, Arkansas”. Appellant prepared an ad describing the property and placed it in the Northwest Arkansas Times. The testimony reflects that two parties were shown the property, but no sale was made; however, according to Lazenby, he talked with numerous people who responded to the ad, and also others by telephone who noticed the “For Sale” sign in the yárd. It appears that in October of 1968, on a Sunday night, after Lazenby had retired, a party called and said that he had been driving in Farmington and noticed the sign advertising the Newell property, was interested in it, and would like to have the details. The caller then identified himself as a man named Niccum. According to Lazenby, he had very recently had a problem with a man by the same name, and he thought he was talking with the same party. He was irritated—for two reasons, one because it was late at night, and the other, because he thought Niccum was the same person with whom he had had prior difficulties. Thereafter he discovered that the Niccum who called was an entirely different person, Mr. Newell coming to the office the last of November, and being quite upset about the possible loss of a sale of his property. Lazenby said he admitted that he was wrong, and apologized. Lazenby also called on the Niccums and apologized, and was told that in the event they could arrange to buy the property, he would be contacted. According to appellant, he reported this conversation to the Newells the first week in December, offering to cancel the listing in the event they thought he had rendered a disservice, but he said they told him to go ahead and continue to try to sell the realty. Newell testified however, that Lazenby said, “We could go ahead and continue with him and he would sell the house for us or if we sold the house, we didn’t owe him a commission”. Thereafter, the testimony reflects that on January 27, 1969, Newell went to Lazenby’s office, bringing his yellow copy with him; the evidence is in dispute as to what happened. Newell says that he told Lazenby “Your contract says you need a seven-day written notice” and he inquired if that was necessary, Lazenby replying “No, come in and I will cancel it out”. Newell said that he told appellant that appellees were going to apply for a loan to build a house on some property they had acquired, and if they could get a loan, they would keep the property as rental property. He also stated that they had applied twice for loans but had been unsuccessful. Lazenby gave the following version, “At the time Mr. Newell came into the office to—he brought his yellow copy in and he wanted me to cancel it because he didn’t want to go ahead and sell. It has been my policy that in the event there is illness or some tragedy in the family, or in the event they decided not to sell and to rent the property, then I forego charging a commission. * * * I assumed the man was going to rent his property but I subsequently found out he actually had it sold the day he came in and wanted me to cancel it.” Subsequently, Lazenby testified that “they wanted to build a house on this particular property and that they wanted to use their equity from this subject property to build the new one with. So, we discussed this matter when Mr. Newell came in to cancel the listing and, as I understand it, he told me that he found the cost of building was quite high now and he thought he would just sit back and maybe even rent the property that he had for a while until things settled down where he felt he could afford to build it. Had I known the man had already made a sale on the property, naturally I wouldn’t have entertained any thought of cancelling the listing because he and his wife employed me to make the sale and I used my best efforts to make this sale by spending money on advertising and time to introduce prospective purchasers to it.”
Lazenby then wrote on Newell’s yellow copy, “Owner requested a cancellation on this property so he may rent the property. Therefore, no broker’s fee is charged.” He signed it and handed the copy to Newell.
Tillman Tabor and his wife, Dora Lee Tabor, who live near Farmington, learned that the house was for sale in January, 1969, when passing by and observing the “For Sale Sign” that Lazenby had placed in the yard. They talked with the Newells, who priced it at $13,600, the price that Lazenby had listed. In early March, Tabor again met with the Newells offering to purchase the house for $12,400, and this offer was accepted. The purchase was made on March 13, 1969. Thereafter, Lazenby, learning of the sale, instituted suit for his commission. After the filing of an answer, and the denial of a motion for summary judgment, the case proceeded to trial, and at the conclusion of the evidence, the court, sitting as a jury, entered judgment finding that the contract between the parties had been cancelled after differences between the parties, and that in the month of January, 1969, Lazenby had, in writing, can-celled his contract. From the opinion:
“That the cancellation in writing of this exclusive listing contract by the plaintiff with the specific wording, ‘Therefore no broker’s fee is charged’ effectively ended any obligation on the part of the defendants to pay a broker’s fee to the plaintiff even though there was a subsequent sale of the pertinent property.”
Appellant’s complaint was dismissed, and from the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in permitting appellee to introduce oral testimony of an alleged cancellation of the written contract. It actually is not necessary to discuss this point since the court’s finding of cancellation was based on the written nota tion made by Lazenby on the copy of the contract, and we determine the litigation on that basis. It might be stated however that appellant’s assertation is in error. See Nance v. McDougald, 211 Ark. 800, 202 S. W. 2d 583, where we upheld the cancellation of a written contract by an oral revocation.
It is next contended that the trial court erred in failing to hold as a matter of law that appellant was entitled to a judgment for his real estate commission. This argument is largely based on the fact that the Tabors were made aware of the fact that the Newell property was for sale by virtue of having seen appellant’s sign in the front yard. We disagree with the contention. In Bodine v. Penn Lumber Co., 128 Ark. 347, 194 S. W. 226, a similar argument was made, but in holding contrary to such a contention, this court said:
“Now, the cases just cited declare the law to be that an owner who has given authority to a party to sell his property has a right to withdraw the offer if done in good faith, and the mere fact that the agent has been instrumental in the introduction of a proposed purchaser does not necessarily give him the right to a commission on a sale subsequently made by negotiations between the owner and the purchaser. Of course, the owner has no right to withdraw the authority for the purpose of preventing the agent from making a sale, but if a reasonable opportunity has been given to the agent to make a sale and he has failed to produce a purchaser who is ready, willing and able to purchase on the terms specified, then the owner has the right to withdraw, and if he subsequently makes a sale he is not liable for a commission, even though it be a purchaser who was originally introduced by the agent.”
Finally, it is asserted that there is no evidence of a substantial nature in the record to support the findings of the trial court. Again, we are unable to agree with appellant. As found by the trial court, the cancellation of the contract, with the words, “therefore no broker’s fee is charged” effectively severed the contractual relationship between the parties. From a legal standpoint, under the pleadings in this case, it makes no difference why Lazenby cancelled the contract, the pertinent fact being that it was unquestionably cancelled. Appellant seems to be arguing that a fraud was practiced upon him; that he was induced to cancel the agreement through false representations made by appellee, and that he would not have cancelled except for those false representations. But a careful search of the complaint reveals no such allegations; it is simply asserted that the sale from the Newells to the Tabors was made due to the efforts of Lazenby. If appellant felt that he had been overreached, and caused to cancel the contract through misrepresentations, he should have so alleged in the complaint that he instituted. While Lazenby stated he subsequently learned that the Newells had already sold the property on January 27, 1969, (date of the cancellation of the contract) there is no evidence in the record substantiating this statement. It will also be observed from the testimony of appellant, heretofore quoted, that he did not say Newell stated he wanted to cancel the listing so that he could rent the property; rather, appellant testified, “I assumed the man was going to rent his property . . .”; also “he thought he would just sit back and maybe even rent the property . . .”.
As stated, we cannot agree there was no substantial evidence to support the finding of the trial court.
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J. Fred Jones, Justice.
This is an eminent domain case in connection with the construction of Interstate Highway No. 30 through Nevada County, Arkansas. The State Highway Commission took 30.66 acres for highway purposes diagonally, in a northeasterly-southwesterly direction, across a 409 acre tract belonging to Julius N. DeLaughter, Jr., leaving approximately 182 acres west of the right-of-way and approximately 196 acres east of the right-of-way. The west end of the tract fronts, for approximately one-half mile, on old Highway 67, or Bowden Road; and the east end of the tract is bounded by the Little Missouri River. The Commission deposited $8,750 into the registry of the court as just compensation. Two expert witnesses for DeLaughter testified to damages in the amounts of $38,649 and $30,365 respectively as just compensation. The jury awarded $23,699; judgment was entered for that amount and on appeal the Commission has assigned error under designated points as follows:
“The court erred in allowing testimony regarding alleged valuable gravel deposits on the subject land without a proper foundation being laid for the introduction of such evidence.
The court erred in refusing to strike the testimony of Charles Wilburn and P. M. Brown, witnesses for the appellee, based on their testimony of inconsistent highest and best uses of the subject property.”
Mr. DeLaughter, the owner, is 20 years of age and testified that he acquired the land from his grandfather and had been familiar with it ever since he was two years of age; that ever since he has known the property it has been used for “cattle grazing and gravel operation.” He testified that approximately one-half of the land is open and one-half in wooded area; that jarior to the taking he had access to all fields and that his cattle could run free through the bottom land without the hazard of being trapped by high water coming up from the river on the east portion of the land. He says that since the highway has been constructed his only access from the west to the east portion of the property is through underpasses built for relief bridges for Black Bayou and another creek that runs from west to east across his land and empties into the river. He says that during the winter months and during rainy seasons he is unable to get any kind of vehicle from the west to the east side of the property because of the high water in the creeks in the underpasses. He says that since the construction of the highway all the surface drainage from his property west of the highway must flow through the two underpasses; that when the water backs up in the creeks, his cattle can not get through the underpasses and are in danger of being cut off from access to high ground by the rising water from the river. Mr. DeLaughter answered questions propounded by his attorney as follows:
“Q. What farm equipment can you get through those underpasses to the big tract of land?
A. This big tract of land?
Q. The 196 acre tract?
A. I can’t get any farm equipment at the present time.
Q. Can you get any gravel equipment, gravel trucks or equipment through there?
A. No, there is no way.”
Mr. DeLaughter testified that the only future use he could make of the land east of the highway would be for cattle grazing, which would be limited to approximately six or seven months out of the year. He testified that he has been selling gravel from a gravel pit on approximately 20 or 25 acres “above relief bridge number two on high ground”; that the gravel pit is approximately 30 steps from the right-of-way taken, and that since October, 1967, he has received a total of $8,458 for gravel sold from the property. He testified that there was some gravel on the east side of the right-of-way, but that he has sold no gravel from that area. He testified that he did sell some fill dirt from approximately two acres on the east side of the right-of-way for use in the construction of the interstate. He says that prior to the taking his land would support approximately 170 head of brood cows and that since the taking he can run approximately 70 to 90 head of brood cows on the property. Mr. DeLaughter testified on redirect examination that he could not get vehicles and farm machinery from the west side to the east side of his property at any time, and that cattle could go from one side to the other for approximately six or seven months out of the year.
Mr. Roy Stanley, a geologist, testified that he was familiar with the land involved; that it is farm and cattle grazing land containing extensive deposits of sand and gravel which could be commercially extracted.
Mr. Charles Wilburn, a realtor from Texarkana, testified that he had familiarized himself with the property involved and as to the highest and best use of the land in question, he testified as follows:
“Q. Do you have an opinion what the highest and best use is?
A. I do.
Q. What is that opinion?
A. The highest and best use is farming grazing, cattle operation.
Q. Are there any other uses that this land might be put to?
A. It is enhanced with gravel.
Q. What do you mean enhanced with gravel?
A. It has the possibility of gravel production.”
This witness testified that the fair market value of the property prior to the taking was $122,700 or $300 per acre, and that after the taking the remaining property had a market value of $84,051, leaving a difference of $38,649 as damage to the property because of the taking. This witness testified that he took into consideration comparable sales in the area consisting of one sale of upland at $200 per acre; another sale of 147.99 acres at $223 per acre, and another at $187.50 per acre. This witness then testified as follows:
"Q. Tell the jury why you feel the market value has been effected in the sum of $38,649?
A. Well, if I want to buy a 378 acre place or had a prospect looking at it, he would, in my opinion, sincerely question the access if I’ve got limited access to property over a property that didn’t have any restrictions. 378 acres in one tract where you could go from one side to the other, the cattle could move freely from one side to the other, and like property that would be controlled with access and subject to flooding where you couldn’t get cattle back through the area that remained open, then it would seriously affect the market value of the property.”
On cross-examination Mr. Wilburn testified that he had been on the property eight or ten times since 1967 and he then testified as follows:
"Q. Talking about this highest and best use, now as far as cattle ranching and gravel mining is concerned, what portion of that do you place the highest and best use on for cattle ranching?
A. To the extent of the market value of cattle land, grazing land, river bottom land.
Q. You put the entire tract all as cattle ranching?
A. It is enhanced by the value of the gravel being underneath it.
Q. What I want to know, are you placing so-called and across the board highest and best use to the whole 409 acres as cattle ranching?
A. That would be the primary use for it.
Q. How much of your $38,649 that you testified to are you attributing to the gravel portion of it?
A. You don’t separate it, it’s being enhanced. Like a farm being nearer town. It may be better but you don’t know how much better. It depends on the market.”
On redirect examination Mr. Wilburn testified that in arriving at his opinion as to the value of the land before and after taking, he took into consideration the fact that there were gravel deposits on the land, and that he took into consideration sales of comparable land containing gravel deposits. He testified as to sales of comparable gravel land in Clark and Little River Counties ranging in price from $380 to $700 per acre. The Highway Department moved to strike Mr. Wilburn’s testimony in its entirety for the reason it stated as follows:
“He put the highest and best use of cattle ranching and he says it’s enhanced by gravel deposits which he also states has a highest and best use. It is our position the highest and best use are totally inconsistent. You cannot graze cattle and mine gravel off the same tract of land. He was unable to separate that portion of the testimony he attributed to the highest and best use for gravel as to the cattle ranching. It is inconsistent and improper and we move it be stricken.”
The motion was denied by the trial court.
Mr. P. M. Brown, another real estate appraiser and broker from Texarkana, testified as an expert for the owner. He testified that he had been familiar with the land involved since the taking in 1966. He testified that the fair market value of the entire tract at the time of the taking was $143,150, and that after the taking the value was $112,785, leaving a difference of $30,365 which he considered as just compensation. He also testified that he took into consideration comparable sales within the area including 160 acres which sold for $28,800, which amounted to $180 or $190 per acre; another sale of 324.40 acres which sold for $62,500, or approximately $190 per acre. This witness also testified as to sales of lands for gravel including a 20 acre tract near the Caddo River which sold for $400 per acre, and a 40 acre tract which sold for $875 per acre. He also testified as to another sale of comparable partially overflow land on Little River consisting of 95.22 acres which sold for $525 per acre. This witness testified that in his opinion the highest and best use of the property involved was for farm and grazing land enhanced by gravel deposits, and that in his opinion, just compensation would be $30,365. Mr. Brown then testified that he based his severance damage on lack of access from the west portion to the east portion during the winter months and during wet weather. This witness testified that there were considerable gravel deposits on both sides of the right-of-way and then testified as follows:
"Q. Do you know whether or not this gravel has been marketed?
A. Yes, sir. There has been gravel marketed off it.
Q. "You know whether it has been marketed in a commercial quantity?
A. Yes, sir. The evidence is on the ground.
Q. Did you use this as a basis or one of the basis for your opinion in arriving at the fair market value of the land before and after the taking?
A. Yes, sir. I estimated the land had been enhanced by deposits of gravel that would be commercial.”
An then on cross-examination this witness testified as follows:
“Q. Mr. Brown, you put the highest and best use on the land as grazing and enhanced by gravel deposits?
A. Farming and grazing and enhanced by gravel deposits.
Q. How much did you put on the gravel deposits?
A. I didn’t put any separate—I used what the market would pay.
Q. Does this highest and best use apply to the entire 409 acres?
A. Yes, sir.
Q. It applies to the full 409?
A. That is what I—The market would pay for it.”
On cross-examination this witness continued:
“Q. One final question, sir, on your, I believe the difference you testified to as just compensation was $50,365, is that correct?
A. That is correct.
Q. That is correct?
-A. Yes, sir.
Q. And you say that you have not, you do not have a separate breakdown of that land which is suitable for grazing and that land which is suitable for gravel mines?
A. No, sir. I did not break it down. The market wouldn’t break it down. They buy it as one tract.”
Mr. Benjamin Clardy, a geologist, testified as to extensive gravel deposits on the land involved. He testified that he would estimate from the walls he saw in the gravel pits that the deposits would run from six to eight feet deep, and that he would not be surprised if they would not reach a depth of 10 feet in some places. He testified that he had no idea how much gravel was in the 409 acres; that he knows there are several gravel deposits in the area, but that it would be presumptuous on his part to attempt to testify to the extent of any of them.
Mr. Charles Scott, a highway department appraiser, testified that in his opinion the highest and best use of the land was for cattle grazing. He testified that the market value of the entire tract was $51,500 or approximately $126 per acre prior to the taking, and that in his opinion the fair market value after the taking is $42,750 or approximately $114 per acre, leaving a difference of $8,750 as damages and just compensation for the taking. Mr. Scott also based his opinion on comparable land sales in the area ranging from $76.50 per acre to $191 per acre including improvements.
The court instructed the jury (without objections) as follows:
“The existence of gravel deposits on the condemned land is an element which you may take into consideration, but only to the degree that it influences the fair market value of the land.”
As to the Commission’s first point, we are of the opinion that there was sufficient evidence of a market for gravel to justify the court in allowing testimony as to gravel deposits on the subject land.
As to the Commission’s second point, we are of the opinion that the trial court did not err in its refusal to strike the value testimony of Charles Wilburn and P. M. Brown. Both of these witnesses testified that the highest and best use of the land was for cattle grazing, but that the market value was enhanced by gravel deposits. Both witnesses testified that they took the gravel deposits into consideration in arriving at their opinion as to the market value, but both witnesses were unable to separate the values attributable to the highest and best use as farm and grazing land from the value as enhanced by the gravel deposits. There is no evidence in the record that the taking of the right-of-way disturbed the gravel deposit on the land at all.
When a part of an owner’s tract of land is taken by eminent domain in this state, the rule is well settled that his just compensation is measured by the difference in the value of the land, when put to its highest and best use, immediately prior to the taking and immediately after the taking. Ark. State Highway Comm’n v. Fox, 230 Ark. 287, 322 S. W. 2d 81; Ark. State Highway Comm’n v. Maus, 245 Ark. 357, 432 S. W. 2d 478. Apparently the only intent and effect of the evidence in this case pertaining to gravel at all, was simply to show that this entire tract of land would bring a higher price per acre on the open market, both before and after the taking, because it contained gravel of commercial value.
The appellant-Commission cites and relies on statements in 4 Nichols on Eminent Domain, 1970 Cumulative Supplement, pages 61 and 217, as follows:
“Where different segments of a parcel are susceptible of valuation on the basis of differing highest and best uses, it is error to attribute an overall or average unit of value to the entire parcel.
While valuable mineral deposits on condemned land constitute an element of damages to be considered, if the development of such deposits is in consistent with the highest and best use upon the basis of which the land is valued, such deposits may not be considered.”
We do not agree with the Commission that Wilburn and Brown based their market valuation on two inconsistent highest and best uses. In fact, they refused to do so. They both clearly attributed the highest and best use as a cattle ranch or pasture land, and testified that it was more valuable per acre, on the market, because it contained gravel. No one testified that any one segment of the land involved in this case was susceptible of valuation for gravel mining purposes. Its highest and best use was for cow pasture land and there is no evidence that its value enhancement by its gravel content was any less after the taking than it was before.
By fair market value is meant the amount of money which a purchaser who is willing but not obligated to buy the property would pay to an owner who is willing but not obligated to sell it, taking into consideration all uses to which the land is adapted and might in reason be applied. Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792.
In 4 Nichols on Eminent Domain, 3rd ed., at page 402, § 13.2, is found the following:
"Wnen a tract of land taken by eminent domain contains ore, stone, coal, sand, gravel, peat, loam, oil, gas or other valuable deposits constituting part of the realty, the existence of these features can be taken into consideration in determining the compensation so far as they affect the market value of the land. The same rule would be applicable where the land is covered with growing crops or trees capable of being converted into lumber. But even in such case, the market value of the land as land remains the test. Hence, there can be no recovery for any of the foregoing elements valued separately as saleable items additional to the value of the land.”
The “before and after” valúe rule only applies in condemnation cases where the owner is claiming severance damage, or damage to the remainder. Where there is no claim for severance damage, the owner’s compensation for the land condemned is the market value thereof at the time of the taking for all purposes. Lazenby v. Ark. State Highway Comm’n, 231 Ark. 601, 331 S. W. 2d 705.
In arriving at the before and after value, of land in condemnation proceedings, the owner is entitled to compensation based on the market value of the land put to its highest and best use, but he is not required to confine his evidence to only the highest and best use to which the land is adapted. He may offer evidence of all purposes, comprehending its availability for any use for which it is plainly adapted as well as its most valuable purpose for which it can be used and will bring most in the market. Scott v. State, 230 Ark. 766, 326 S. W. 2d 812; Desha v. Independence County Bridge District No. 1, 176 Ark. 253, 3 S. W. 2d 969; Rinke v. Union Special School District No. 19, 174 Ark. 59, 294 S. W. 410; Weidemeyer v. Little Rock, 157 Ark. 5, 247 S. W. 62; Drainage District No. 11 v. Stacey, 127 Ark. 549, 192 S. W. 904.
In 1 Orgel on Valuation Under Eminent Domain, 2d Ed., § 30, is found the following:
“A properly qualified witness may express an opinion that the property has a ‘fair market value’ of $10,000, and he may explain, both on direct and on cross examination, the particular qualities of the property which lead him to conclude that it is worth this amount. But he is not ordinarily permitted to testify that the property ‘has a value of $10,000 for building lot purposes’ or ‘for the best
Property has but one market value, not one value for one use and another for another. Napa v. Navoni, 56 Cal. App. 2d 289, 132 P. 2d 566 (1942). And as was said by the California District Court of appeal in Joint Highway Dist. No. 9 v. Ocean Shore R. Co., 128 Cal. App. 743, 18 P. 2d 413 at p. 417:
“This market value may be greater or less than the value in use to either the owner or the condemnor, but in the eyes of the law it is a fixed amount determined by ‘the highest sum which the property is worth to persons generally, purchasing in the open market in consideration of the land’s adaptability for any proven use.’ ”
In the case at bar neither Wilburn nor Brown attempted to place a value on the land for farm and cattle grazing as distinguished from a different value for gravel production. They both simply testified that the highest and best use of the land would be for a cattle operation, but that its value was enhanced by the fact that it had gravel deposits that would be considered by a purchaser in the open market. They both testified that the difference in the before and after market value was caused by the diminished access to that portion of the land east of the right-of-way.
The verdict of the jury was well within the difference in market value as testified to by Wilburn and Brown, and we conclude that the judgment of the trial court rendered on the verdict should be affirmed.
The judgment is affirmed. | [
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Carleton Harris, Chief Justice.
This litigation relates to a railroad crossing accident. On May 24, 1968, a vehicle operated by Thelma Hughes, and in which her brother-in-law, Paul Hughes, appellee herein, was a passenger, was struck by a Chicago, Rock Island & Pacific Railroad Company train at a gravel road crossing in Malvern. Paul Hughes suffered injuries, and subsequently instituted suit against the railroad company and Charles Kirk, and Howard Smith, crewmen, for damages. On trial, the jury returned a verdict for Hughes in the amount of $20,000. From the judgment so entered, appellants bring this appeal. Two points are alleged for reversal, the first being that the trial court erred in submitting to the jury the issue of failure to keep a lookout. It is also asserted that the trial court erred in using modified versions of standard AMI instructions. We proceed to discuss these points in the order listed.
Thelma Hughes testified that she was driving a 1967 Opel Cadet automobile, and that her son Ricky was riding in the front seat with her. Appellee was riding to the right of Ricky. The automobile was a station wagon, having one door on each side, and a lid that lifted up at the back. The back door had a handle on the outside but no handle on the inside. The three were on their way to a little league park, and Mrs. Hughes had crossed at this particular crossing before. She stated that on approaching the crossing, she came to a complete stop about ten feet from the track, heard no whistle blowing or bell ringing, and proceeded to change gears and start up on the track. The motor went dead with the automobile in about the middle of the track, the front wheels being completely over and the back wheels not having crossed the track at all. She attempted to start the car five or six times and then heard "the roar and looked and saw the train coming”. She said that it was not traveling very fast and she attempted to start the car again, but without success. She then hollered "jump” and leaped out of the left side of the car, her son following immediately behind her. Paul “went over the back seat”, but was unable to open the back door since there was no handle on the inside. The train struck the automobile, but was not traveling fast enough to overturn the vehicle, and came to a complete stop within fifty or sixty feet beyond the crossing. Appellee suffered injuries from the collision as heretofore stated.
We think the court erred in submitting the issue of whether the train crew failed to keep a proper lookout. In Lovegrove v. Mo-Pac Railroad Co., 245 Ark. 1021, 436 S. W. 2d 798, we held on the question of failure to keep a constant lookout, the railroad company was entitled to a directed verdict if the undisputed testimony of the train crew reflected that such a lookout was being kept; we added that the jury might disregard the crew’s testimony when it was inconsistent within itself or contrary to other accepted testimony. In the instant case, we are of the view that not only did the evidence given by the train crew show that a proper lookout was being kept, but also, the other evidence offered, on behalf of appellee, substantiated this fact.
What was the evidence? Charles Graves, classified as a brakeman, testified that he was seated on the front seat on the west side, or left-hand side of the engine. Charles Kirk is an engineer but was classified as a fireman at the time because there had been a reduction in force; however he had served as an engineer in his own right on other runs, and had passed all the requirements as an engineer. He was sitting on the right-hand side of the engine. Howard Smith is an engineer, and at the time, was observing from the left-hand side of the train. As to keeping a lookout, Graves testified:
“Well, we came around the curve and Mr. Kirk was blowing the whistle in this curve and he made a reduction. He set the air brakes and the train slowed down and we, just as we came around the curve, I guess, I don’t know approximately how far we were from the crossing, 275 to 300 feet from the Collie Road crossing —we call it the ballpark crossing, I saw this car pull up there. * * * * The car stopped right on the tracks.”
He said that the automobile was approximately 15 or 20 feet from the tracks when he observed it and that he pulled the emergency brake valve as soon as the car stopped, this putting “the train in emergency”. Graves stated that the train was traveling around fifteen or fourteen miles per hour when he threw it into emergency; that it was moving about four or five miles per hour when it made contact with, the car and then traveled about an engine’s length past the crossing, or 50 or 60 feet.
Kirk testified that when the car came upon the track, he was able to see the hood and part of the front door, the train traveling around a slight curve. When asked how long it was between the time he saw the door and hood of the car and the time the train went into emergency, Kirk replied “The train was in emergency. The brakeman Graves, had already pulled the emergency valve”. He said that he was entirely satisfied with the stop made by the train and it was the best stop that could have been made.
Smith testified that the train was traveling from fifteen to eighteen miles per hour as it approached the crossing; that there is a twenty mile per hour restricted speed at that portion of the track. He said that he first saw the automobile when it drove up to the crossing and stopped, and that the train was between a quarter and a third of a mile away. The witness stated that only a few seconds elapsed from the time the car pulled into view and stopped, and the train was put in emergency. His testimony was that the speed of the train was between two and three miles per hour at the time it struck the automobile.
Thus the testimony by the members of the crew is all to the effect that the automobile was observed as soon as it could have been observed, and the train practically immediately put in emergency. The testimony of Mrs. Hughes is to the same effect. She said that after five or six attempts to start the car, she heard the roar, looked, and saw the train coming; that it was “not very fast”. From the record:
“Q. Was the train traveling very fast?
A. Well, when it come around the bend it started braking.
Q. Did you get any impression it was traveling at a fast speed or slow speed?
A. I couldn’t tell how fast it was going when it come around the bend. It started slowing as it come around the bend.
Q. You have never measured the distance up to the bend, have you?
A. No, sir.”
Further, from the record:
“Q. Did you see the train when it came around the bend as you were sitting on the track?
A. No. I was trying to start my car and heard the noise as the train started around the bend. I looked and saw it as it started around the bend.
Q. At that time when the train first came into sight, was it putting on its brake at that time?
A. Yes.
Q. In other words, as soon as he saw you he started putting on brakes. Is that what it amounted to?
A. Yes.
Q. Did you think the train was going to get stopped before it hit you?
A. Yes.
Q. I gather it slowed down to the point it was barely moving when it came in contact with your car?
A. Yes.
Q. Could 'y°u hear the brakes squeaking and squealing or however you want to describe it?
A. Yes.
Q. Did they squeal all the time from the time you first saw it—could you hear that?
A. Just as it came around the bend it started applying his brakes.
Q. It kept slowing down as it got closer and kept getting slower and slower?
A. Yes.
Q. Did I understand you to say after you saw or heard the train coming around the bend you tried to start your car some more after that?
A. Yes.
Q. You know about how many times you tried to start it?
A. Two or three times.”
Thus, Mrs. Hughes stated that the train started braking as it came around the bend (when she first could have been observed) that it was traveling slowly; that the brakes were squealing the entire time from when first applied until the car was struck, and that it (train) was barely moving when contact was made. Appellee, Paul Hughes, was not looking and did not even know a train was approaching until his sister-in-law hollered “jump”. We think the evidence herein set out clearly shows that there was no justification for the submission of the issue of whether a proper lookout was being maintained.
It is next asserted that the court erred in giving AMI 305-A instead of following the "Note On Use”, and giving AMI 305-B. 305-A, given, states "It was the duty of the railroad company, its agents, servants and employees, before and at the time of the occurrence, to use ordinary care for the safety of Paul Hughes”. Appellants contend that B should have been given instead of A, 305-B reading as follows. "It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others.”
We think appellants are correct in this contention. Several specific objections were made to the giving of 305-A, but it is sufficient to point out that the Note On Use states that A should be used when negligence on the part of the plaintiff is not an issue, and that B should be used when negligence on the part of the plaintiff is an issue. The negligence of Paul Hughes was an issue in this case, and in fact AMI 2109, instructing on comparative negligence, was given by the court at the request of appellants. The court gave no reason for using 305-A instead of 305-B, and we hold that error was committed.
Finally, it is asserted that the trial court erred in giving the jury a modified form of AMI 502, this modification consisting of adding a sentence to the instruction. AMI 502 reads as follows:
“When the negligent acts or omissions of two or more persons work together as the proximate cause of damage to another, each of those persons may be found liable. This is true regardless of the relative degree of fault between them. If you find that negligence chargeable to the defendant railroad proximately caused damage to Paul Hughes, it is not a defense that some third person may also have been to blame.”
The court then added to this instruction the following sentence, “However, in this case you are told that the negligence of Thelma Hughes, if any, cannot be chargeable to Paul Hughes”. We agree with appellant that this addition should not have been made, and is a clear violation of the per curiam order of this court dated April 19, 1965, wherein we stated' that if AMI contains an applicable instruction it should be used “unless the trial judge finds that it does not accurately state the law”. The order then provides that the court shall state its reasons for refusing the AMI instruction. No reason was given by the court for adding the last sentence, and in addition to what has already been said, we think appellants are correct in stating that the addition was to the advantage of appellee. The word “However”, according to Webster’s Third New International Dictionary (Unabridged), means inter alia, “nevertheless, notwithstanding”. In other words, it seems to qualify, or limit, the first part of the instruction, and to overly emphasize that the possible negligence of Thelma Hughes cannot be chargeable to Paul Hughes. Actually, of course, the additional sentence does not really add anything to the meaning of the instruction, for AMI 502 very definitely states that if negligence of the railroad proximately caused appellee’s damages it is not a defense that some third person may also have been to blame. This “third person” can only have reference to Thelma Hughes, the driver of the automobile. The effect of the addition was simply to tell the jury twice that any negligence on her part could not be charged to appellee.
For the reasons stated herein, the judgment of the Hot Spring County Circuit Court is reversed, and the cause remanded.
It is so ordered.
The court directed a verdict for Smith. | [
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Conley Byrd, Justice.
Appellant Pearline Sutton questions the sufficiency of the evidence and the corroboration to sustain the award of a divorce to appellee Felix A. Sutton on the ground of personal indignities. No property rights are involved, on this appeal.
Felix testified that he and Pearline were married in 1950 and had one daughter who is now of age. When they married, they moved into a house with his parents and were still living with his father and mother when Felix left on July 5, 1969. When his daughter was old enough to be in a room by herself, Pearline moved into the daughter’s room and stayed almost two years. During that time they rarely had marital relations. When Pearline moved back into his room, their relations did not improve. He then told his wife that something had to be done, or he would leave when his daughter grew up. In 1960 he took a job as a timber contractor. His work hours were from 5:30 A.M. to 9:00 or 10:00 P.M. About the same time his wife’s brother was permanently injured while working ’in the timber woods. Felix helped the brother’s family take him to hospitals for treatment. In addition, his logging business required record keeping, food supplies -, for his timber cutters and storage for his equipment. The brother’s wife had had some college bookkeeping courses and also ran a grocery store. Felix arranged for the brother’s wife to keep his books and to make out his payrolls and tax returns. Also his .men assembled at the store each morning and parked his equipment there each evening. This arrangement continued after the brother’s death. During the last few years of their marriage Pearline falsely accused him of going with other women. About a year before he left, she refused to have marital relations with him. At that time he moved into a separate room.
Jim Sutton, Felix’s father, testified that on more than, one occasion he had heard Pearline accuse Felix of adultery. On cross-examination Jim Sutton was specific as to only one accusation some two years before the date of" trial.
Pearline testified that she went to bed with her daughter because the daughter was scared. That, even then, she did not intend to stay but would drop off to- sleep before Felix went to bed. She corrected the matter by getting a night light. Pearline also stated that people in the community had told her that Felix and her, sister-in-law were having an affair. On August 5, 1968, Felix came home about 2:00 A.M. That night he wanted to make love and she refused. In refusing she told him that if she couldn’t be his wife, she wasn’t going to be his mistress. The next night Felix moved into a separate room. On cross-examination she readily admitted that she had accused Felix of having an affair with her sister-in-law.
Peggy McGaha, appellant’s niece and the daughter of appellant’s brother, testified that appellant did not come around while her father lay confined as an invalid. She considered the gossip that her mother and Felix were haying an affair ridiculous. According to her, in that community gossip without any basis was not uncommon.
Thé Chancellor here had the opportunity to observe the parties and their demeanor in the court room. Admittedly Pearline did not continuously and systematical-' ly accuse Felix of “going with” her sister-in-law but she did allow a rumor, supported by her uncorroborated suspicion, to create an “Iron Curtain” between her and Felix. As a result the marriage had been an empty shell for more than a year before the separation. Under such circumstances we are unwilling to say that the Chancellor’s findings resulting in the decree of divorce are not supported and corroborated by the weight of the evidence.
Affirmed.
Harris, C. J. and Fogleman & Jones, JJ., dissent. | [
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Conley Byrd, Justice.
Appellant J. C. Warren was charged by information with burglary and grand larceny. The jury found him guilty on both counts as well as under the habitual criminal statute, Ark. Stat. Ann. § 43-2328 (Supp. 1969). For reversal of his 21 year sentence he relies upon the following points:
“1. Information charging the appellant with the crimes of burglary and grand larceny stated that the appellant stole $154.00. The State failed to prove that the appellant stole $154.00, and, therefore, the verdict was contrary to the law and the evidence.
2. The prosecutor, in his closing argument, held in his hand a hammer which he attempted to get into evidence during the trial and argued to the jury that this hammer could have been used in the breaking and entering of the grocery store. Since this hammer had been excluded as admissible evidence during the trial, this argument was prejudicial to the appellant and, therefore, the verdict of the jury was contrary to the law.”
The proof shows that an officer apprehended appellant as he was leaving the broken door of the Stack Mart Grocery owned by John Shasteen. Appellant went directly to an automobile and attempted to flee from the officers. After a high speed chase he was finally stoppped. In his back pocket was a hammer and on the car’s floor board was a green money bag from Farmers and Merchants Bank containing $93.60. John Shasteen identified the money bag from the coins and some correspondence left therein.
The appellant, relying upon cases such as Wilburn v. State, 60 Ark. 141, 29 S. W. 149 (1895) and Starchman v. State, 62 Ark. 538, 36 S. W. 940 (1896) argues that since the information charged larceny of $154.00 and the proof showed only $93.60 taken, the evidence is ^ insufficient to support the charge. We find no merit in the contention. Such a variance would have been reversible error before Initiated Act No. 3 of 1936. See Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304 (1943). However since that time a variance between the charge and the proof, which does not tend to prejudice the substantial rights of the defendant on the merits, has not been fatal. Ark. Stat. Ann. § 43-1012 (Repl. 1964).
Under Ark. Stat. Ann. § 41-3907 (Repl. 1964), larceny is a felony when the value of the property stolen exceeds $35.00. Thus when, as here, the money taken exceeds $35.00, we are at a loss to understand how appellant’s rights were prejudiced because the proof showed that less money was taken than was charged.
Appellant’s last point, relative to the hammer, was not brought forth in his motion for new trial. There fore, we do not reach this issue for the first time on appeal. Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702 (1944).
Affirmed. | [
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Conley Byrd, Justice.
Appellees Robert L. Reid and Billie Marie Reid, his wife, on April 26, 1967, purchased through W. H. Capps, d/b/a Capps Motor Company, a 1967 Lincoln Continental automobile manufactured by the appellant, Ford Motor Company. Approximately 1,800 miles later, on May 29, 1967, the automobile caught fire while parked in the garage attached to the Reid residence. Within ten minutes from the time the fire was first observed in the electrical harness under the right front seat of the automobile, it spread to and engulfed the residence in flames, resulting in total destruction of the automobile and the residence. The Reids brought this action against both W. H. Capps and Ford Motor Company alleging that the wiring under the front seat was defective in violation of the basic warranty on said automobile and that the damages sustained by them in the fire were proximately caused by the defect in the automobile. The first trial resulted in a directed verdict for Capps and a hung jury on the liability of Ford Motor Company. Upon retrial against Ford Motor Company, the jury returned a verdict for $89,279.00 for which judgment was entered. For reversal Ford Motor Company contends that the directed verdict in favor of Capps exonerated Ford Motor Company and that the court erred in giving its Instructions No. 6 and No. 7.
The testimony presented clearly made a fact issue as to whether there was a defect in the wiring harness that worked the solenoid for the reclining back of the right front seat and the motor which operated the head rest. The express warranty that came with the vehicle provided:
BASIC WARRANTY
“Ford Motor Company warrants to the owner each part of this vehicle to be free under normal use and service from defects in material and workmanship for a period of 24 months from the date of original retail delivery or first use, or until it has been driven for 24,000 miles, whichever comes first.
POWER TRAIN WARRANTY
“In addition, Ford Motor Company further warrants to the owner each part of the engine block, head, and all internal engine parts, water pump, intake manifold, transmission case and all internal transmission parts, torque converter, drive shaft, universal joints, rear axle and differential, and rear wheel bearings of this vehicle to be free under normal use and service from defects in material and workmanship for a period of five (5) years from the date of original retail delivery or first use, or until it has been driven for fifty thousand (50,000) miles, whichever comes first.
STEERING, SUSPENSION AND WHEEL WARRANTY
“In addition, Ford Motor Company further warrants to the owner each . part of the suspension system, steering gear and linkage, power steering pump, road wheels, and front wheel bearings and seals of this vehicle to be free under normal use and service from defects in material and workmanship for a period of five (5) years from the date of original retail delivery or first use, or until it has been driven for fifty thousand (50,000) miles, whichever comes first.
“The further warranties do not include or apply to related items such as ignition, electrical, fuel, cooling, or brake systems, engine or transmission controls or linkages, steering column, clutch assembly, shock absorbers, or load leveling system.
GENERAL WARRANTY PROVISIONS
“It is a condition of all the warranties that the owner maintain this vehicle according to the maintenance schedule set forth in the Customer Maintenance Record in the Maintenance section of this Owner’s Manual. It is also a condition of all the warranties that, every twelve months, the owner furnish an authorized Ford or Lincoln-Mercury dealer with evidence that these maintenance services have been performed and obtain the dealer’s written certification that he has received such evidence.
“All the warranties shall be fulfilled by the Selling Dealer (or if the owner is traveling or has become a resident of a different locality, by any authorized Ford or Lincoln-Mercury dealer) replacing with a genuine new Ford or Ford Authorized Reconditioned part, or repairing at his place of business, free of charge including related labor, any such defective part.
“None of the warranties shall apply to (i) tires or tubes (adjustments for them being provided by their manufacturers), or (ii) normal maintenance services (such as engine tune-up, fuel system cleaning and wheel and brake adjustments), or (iii) normal replacement of service items (such as filters, spark plugs, ignition points, wiper blades and brake linings), or (iv) deterioration, due to normal use or exposure, of soft trim, appearance items, hoses, belts or moulded rubber or rubber-like items.
“The warranties herein shall not apply to any vehicle normally operated outside of the United States, Puerto Rico, or Canada, except a vehicle ordered through an Exchange or Ship’s Store of the U. S. or Canadian Armed Services. A vehicle normally operated in a country other than the United States, Puerto Rico or Canada will be provided the dealer’s warranty authorized for that country. If an owner is temporarily traveling in other countries, his U. S., Puerto Rican, or Canadian license plates or Certificate of Registration will identify him as a visiting owner entitled to the privileges of the U. S., Puerto Rican, or Canadian warranty.
“The warranties herein are expressly IN LIEU OF any other express or implied warranty, including any implied WARRANTY OF MERCHANTABILITY or FITNESS, and of any other obligation on the part of the Company or the Selling Dealer.”
The trial court instructed the jury with reference to their duties, the opening statements and arguments of counsel, credibility of witnesses, circumstantial evidence, burden of proof, expert witnesses and sudden emergency. Then the court gave the following:
INSTRUCTION No. 6
“Robert L. Reid and Billie Marie Reid claim damages from Ford Motor Company, and, therefore, have the burden of proving each of four essential propositions:
First, that they sustained damages;
Second, that there was a defect in the Lincoln automobile;
Third, that the defect existed at the time the automobile was delivered to the plaintiff;
Fourth, that the defeat in the automobile proximately caused their damages.
If Robert L. Reid and Billie Marie Reid failed to prove any one of these propositions, they would not be entitled to recover from defendants, Ford Motor Company.”
INSTRUCTION No. 7
“You are instructed that Ford Motor Company, at the time of its sale of the Lincoln automobile involved in this cause of action to the plaintiffs, Robert L. Reid and Billie Marie Reid, warranted that the vehicle would be free, under normal use and service, from defects in material and workmanship for a period of twenty-four (24) months from the date of the original retail delivery or first use, or until it had been driven for 24,000 miles, whichever came first. If you find from a preponderance of the evidence that this warranty was breached by the defendant, Ford Motor Company, and that such breach of warranty resulted in damages to plaintiffs in this cause of action, you may then find for the plaintiffs in the amount of damages which you find they sustained by reason of the breach of warranty.”
The other instructions dealt with proximate cause and damages.
Ford Motor Company’s argument here on instruction No. 7 is as follows:
"While the express warranty provides that it is expressly in lieu of any other express or implied warranty, including any implied warranty of merchantability or fitness, and exclusion or modification of warranties is permitted by statute (Ark. Stat. Ann. 85-2-316 [2]), and this case does not involve injuries to a person, this is not the point that we are here making.
"In this facet of the case, the plaintiffs seek to use and rely upon an express warranty and part of that warranty spells out how it will be fulfilled. There is a contractual modification or limitation of remedy with respect to the express warranty and that is replacement of ‘any such defective part’. At the most, this could not be more than the automobile which had cost $6,100.00.
"Ark. Stat. Ann. 85-2—719 provides that an agreement may limit or alter the measure of damages and may limit the buyer’s remedies to repair and replacement of non-conforming goods or parts.
“If the plaintiffs are going to rely and seek recovery under an express warranty, they should not be permitted to select certain parts of the whole and reject other parts.”
In its reply brief Ford Motor Company stated the matter in this language:
“Since appellant is not here claiming exclusion, modification or limitation of the implied warranty of merchantability, there need be no concern with whether negation of limitation is unreasonable or unconscionable. But if there is to be a claim that any contract or clause is unconscionable, the parties are to be afforded an opportunity to present evidence in connection with the making of a determination. Ark. Stat. Ann. 85-2-302 (2). As long as consequential damages from breach of implied warranties are neither limited nor excluded, it is submitted that a limitation in an additional, or ‘bonus’ express warranty is not unconscionable. But, in any event, there has been no factual determination of unconscionability as a basis for departing from the express terms of the express warranty.”
The pertinent portions of the Uniform Commercial Code provide:
Ark. Stat. Ann. § 85-2-714 (3). “In a proper case any incidental and consequential damages under the next section may also be recovered.”
Ark. Stat. Ann. § 85-2-715. “(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
(2) Consequential damages resulting from the seller’s breach include
(a) any loss resulting from general or particular requirements and needs of which the seller at the time contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty.”
Ark. Stat. Ann. § 85-2-719. “(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages,
(a) the agreement may provide for remedies in addition to or in substitution for those provided in this Article [chapter] and may limit or alter the measure of damages recoverable under this Article [chapter], as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and
(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.
(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act.
(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”
Ark. Stat. Ann. § 85-2-316. "(1). Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article [chapter] on parol or extrinsic evidence (Section 2-202 [§ 85-2-202]) negation or limitation is inoperative to the extent that such construction is unreasonable.”
When we read the second paragraph of the general warranty provisions under the guide lines of Ark. Stat. Ann. § 85-2-316 (1) that words "tending to negate or limit warranty” are to be construed whenever reasonable as consistent with each other but if the clauses are inconsistent then the words of disclaimer of express warranties must give way to the words creating the express warranty, we reach the conclusion that the mandatory language "all the warranties shall be fulfilled by the selling dealer. . .” is an instruction to the dealer and not a limitation on other remedies of the buyer. This construction is supported by Ark. Stat. Ann. § 85-2-719 (1) (b) which provides that “resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.”
There is no language anywhere in the warranty form "expressly” stating that the remedy of repair or replacement of defective parts is to be the exclusive remedy. The language in the fifth paragraph of the “General Warranty Provisions” goes only to "obligations” and "warranties,” not to remedies. As Section 85-2-301 (Add. 1961), General Obligations of Parties, shows “The obligation of the seller is to transfer and deliver. . . . in accordance with the contract.” Remedies are not "obligations,” they are the rights arising from failure to perform obligations. This is further made clear by the provisions of Section 85-2-316 (4) cross referencing to contractual remedy section of the Code as governing those phases of the agreement. If the Ford Motor Company intended the repair remedy to be exclusive, as it now contends, it should have stated that intention in express language. Consequently it follows the Instruction § 7 was correct.
Ford Motor Company’s complaint about Instruction No. 6 is that it did not limit liability to defects existing prior to the time the vehicle left Ford’s control or to defects for which Ford had some manufacturing responsibility. This argument of course is premised upon the basis that Ford is not liable under the express warranty. As shown above, Ford is liable on its express warranty and it follows that this contention is without merit. By the very terms of the warranty it runs from the date of delivery to the purchaser.
It is also suggested that Instruction No. 6 is defective in that it did not limit the jury to a defective wiring condition in, under and about the front seat. We can find no prejudicial error here, because the pleadings and all of the proof had to do with a fire that started in the electrical wiring under the right front seat.
Ford also argues that the directed verdict in favor of Capps, the dealer, in the first trial also exonerated Ford. This argument, too, is premised upon the theory that Ford’s liability could only be upon the basis of an implied warranty of fitness. As pointed out above, Ford’s liability under the circumstances is that under its express warranty. That liability by its terms is independent of any liability of the dealer. It therefore follows that the exoneration of the dealer was in no way an adjudication of Ford’s liability under its express warranty.
The appellees in their brief and the Amicus Curiae briefs have urged us to adopt the doctrine of strict liability as set out in Restatement of Torts 2d § 402A. Our disposition of this case under the Uniform Commercial Code makes it unnecessary to pass upon that argument.
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George Rose Smith, Justice.
By Act 100 of 1967 the General Assembly authorized state agencies to purchase duplicating equipment, which is used for making multiple copies of documents, forms, and other papers. Ark. Stat. Ann. §§ 14-354 to -356 (Repl. 1968). Under the authority of the act the appellees, who constitute the Legislative Joint Auditing Committee, decided to buy a Multilith Duplicator, made by the Addressograph Multigraph Corporation. The Auditor of State, relying upon opinions delivered by the Attorney General from time to time, refused to approve the purchase, on the ground that the machine would produce “printing,” contracts for which must be let to the lowest responsible bidder under Article 19, § 15, of the Constitution of 1874.
The appellees then brought this suit for a declaratory judgment with respect to the validity of Act 100 insofar as it authorizes the purchase of a machine such as a Multilith Duplicator. Interventions were filed by the appellants, who are printers or representatives of the printing industry. After a trial at which many witnesses were heard, the chancellor concluded that Act 100 is valid and that the proposed purchase is not forbidden by the Constitution. The correctness of those conclusions is the issue on appeal.
A Multilith Duplicator appears, from the testimony and exhibits in the record, to be a machine about four feet long, two feet wide, and four feet high. The operator inserts the original paper that is to be duplicated. By a series of processes that are largely automatic in the sense that great skill on the part of the operator is not required, the machine turns out duplicates at speeds up to 250 copies a minute. The machine first makes a “master,” which is a reverse-reading (mirror image) copy of the sheet to be duplicated. The “master” may be imprinted on paper if only a few copies are needed or on aluminum if a great many copies are required. The machine produces copies by the application of ink to the surface of the “master,” which in turn is applied to blank pieces of paper in much the same way as a lithographic printing press produces printed matter. A more elaborate model of the Multilith Duplicator is capable of turning out copies that have written or printed matter on both' sides of the paper.
The emergency clause of Act 100 contains a legislative finding that the use of modern duplicating equip ment will save thousands of dollars in state printing costs. There is testimony that the use of such equipment by the Revenue Department and by the Joint Auditing Committee may save as much as $20,000 a year. Although that testimony is not entirely undisputed, it is fair to say from the proof that the legislature was justified in finding that the use of modern equipment can effect a saving of tax dollars.
The constitutional provision in question was manifestly designed to save money by requiring that certain contracts be let by competitive bidding. The pertinent sentence in Article 19, § 1.5, reads as follows:
All stationery, printing, paper, fuel, for the use of the General Assembly and other departments of government, shall be furnished and the'printing, binding and distributing of the laws, journals, department reports and all other printing and binding, and the repairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees, shall be performed under contract to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law.
In Section 1 of Act 100 the General Assembly recognized the existence of a constitutional question, in this language:
In the passage of this act, the General Assembly is cognizant of the requirements of Section 15 of Article 19 of the Constitution of the State of Arkansas that all printing required by the General Assembly and state agencies and departments shall be performed under contract to be given to the lowest responsible bidder, with such contract to be approved by the Governor, Auditor and Treasurer. The General Assembly is further aware of the fact that improved technology has made available various types of duplicating equipment and processes which were not in existence at the time of the adoption of the Constitution, and which are not printing processes for which contracts were to be let pursuant to the provisions of Section 15 of Article 19 of the Constitution. It is, therefore, the purpose and intent of this act to define such duplieating equipment and processes to the extent that the same may be used by state agencies, yet preserving the requirements that all printing needs of state agencies let under contract shall be as provided in the Constitution. [Ark. Stat. Ann. § 14-354.]
In the second section of Act 100 the General Assembly set forth a comprehensive description of duplicating equipment that may be purchased and used by state agencies. Section 14-355.
At the trial the various parties to the case attempted to show by knowledgeable witnesses what is printing and what is not printing. The only conclusion to be drawn with confidence from the record is that it is impossible to arrive at a precise definition of printing. Among the factors stressed by one or another of the witnesses were: (a) Whether the particular process involves the production of an original or the mere duplicating of an existing original; (b) whether the work is done on the premises or outside in a commercial printing establishment; (c) the comparative size of the equipment being used; (d) the, degree of skill needed to operate the equipment; (e) whether lithography is involved; (f) whether an offset process is involved; (g) whether photography is involved; (h) the distinction between the use of. ink and the use of powder, as in xerography; (i) the number of copies being made; and (j) whether the particular process or machine has been generally accepted and used by the printing industry.
The proof clearly establishes what several of the wimesses stated in substance: Printing and the various modern methods of duplicating all have some characteristics in common and some points at which they tend to overlap one another. In between the two extremes represented by commercial printing on the one hand and the simpler forms of duplicating on the other, there is a middle ground occupied by machines and processes that cannot be classified one way or the other with absolute assurance.
In this court, both in the briefs and in the oral arguments, the appellants have put their principal emphasis upon factor (j)—the usages within the printing trade itself—as the most reliable method of distinguishing printing from duplicating. By using that test the appellants profess to have no objection to the use by state agencies of the simpler methods of making copies, such as typewriting with carbon paper, stenciling, and mimeographing, or to the use of certain duplicating equipment identified by brand names, such as Ditto, Thermofax, Verifax, and Xerox.
The weight of the evidence does not support the appellants’ contention that printing is properly defined as the product of the processes and machines that have been generally accepted and used by the printing in? dustry. That definition appears to be merely a self-serving conclusion expressed by interested witnesses who are engaged in the printing business. To accept that point of view would mean in reality that the effect of the constitutional provision in question would be not so much to effect economies in state government as to establish a monopoly in the field of modern duplicating equipment, regardless of the comparative expense to the state.
Moreover, the evidence does not show that the Multilith Duplicator has been accepted and used exclusively or even predominantly by the printing industry. To the contrary, the record shows that 85% of all Multilith Duplicators have been purchased for in-office or on-premises use by private businesses or governmental agencies. Some of the remaining 15% of sales have been to printers, but the same thing could be said of typewriters, mimeographs, and other office machines that are useful in large business establishments.
We conclude from the preponderance of the testimony that modern on-premises duplicating equipment comprises a separate category that came into existence after the adoption of the Constitution of 1874. Such machines have some aspects and characteristics in common with printing presses, but it does not follow that duplicating equipment produces "printing” as that term was understood in 1874 or as it is understood today. To the contrary, it is the essential and intended suitability of duplicating machines to in-office use that is their distinguishing quality. We are unwilling to say that the General Assembly exceeded its constitutional authority in permitting state agencies to use the same type of modern office machinery that is customarily used in business establishments throughout the country.
Affirmed.
Fogleman, J., not participating. | [
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Carleton Harris, Chief Justice.
This is the .econd appeal of this case. In M. L. Sigmon Forest Products, Inc. v. Harold E. Scroggins, Sr., 247 Ark. 493, 446 S. W. 2d 198, this court reversed the decree of the Drew County Chancery Court and remanded this cause for further proof on two points, first, a determination of how long the appellant had been, and would be, kept from possession of the premises sought in the action and secondly to permit appellee to offer competent evidence of his reasons for withholding possession of the lands in controversy from appellant. The parties had entered into a lease agreement on January 18, 1967, which inter alia, provided:
“Lessor hereby leases and lets to Lessee for a term of two (2) years commencing on the 18th day of January, 1967, the following described lands lying and situated in Drew County, Arkansas, to wit: [description of lands follows]”
On December 13, 1968, appellant notified Scroggins that it would expect to take full possession of the farm on the expiration date. Whereupon Scroggins filed suit in the Chancery Court of Drew County alleging that he was a tenant for years under the lease agreement and was entitled to six months’ written notice of termination, with such notice to end with the rental period of 1971. He further asserted that he had done substantial work in preparing the lands for the 1969 crop year, and that he had more than six months prior to the termination date in the lease, attempted to ascertain from appellant whether the lease would be continued or terminated, but without success. It was asserted that the annual rental value of the farm was $30,000 and that appellant should be enjoined from taking possession or from interfering with appellee’s possession. Sigmon agreed that the rental value for one year’s rental was $30,000. The chancellor decided the issues on the basis of a motion for summary judgment, responses, affidavits, and exhibits to the affidavits; but we reversed, remanded the case stating:
“There is, however, one fact definitely left for determination. Section 50-509 provides that one who willfully holds over, thus preventing possession to the person entitled thereto, shall pay the person so kept out of possession double the yearly rent of the lands detained for all the time he shall keep the person entitled thereto out of possession. This record does not reflect for how long the appellant has been, or will be, kept from possession, and this fact will have to be determined at another hearing. Also, while there is nothing in the record before us which reflects that appellee acted in good faith in not surrendering the premises, inasmuch as the case is being remanded anyway, we think it proper to permit Scroggins to offer competent evidence of his reasons for withholding possession. In Lessor-Goldman Cotton Company v. Fletcher, 153 Ark. 17, 239 S. W. 742, this court pointed out that, under the statute:
<# # * to entitle the landlord or lessor to double rents after the termination of the lease term, the holding over by the tenant must be done wilfully. The statute is highly penal, must be strictly construed, and cannot be extended by intendment beyond its express terms. A holding over by the tenant under the bona fide belief that he has the right to do so, even though he were mistaken, is not a wilful or contumacious holding under the statute, where the undisputed facts show, as they do here, that there were reasonable grounds for such belief.’ ”
On remand, the court conducted a hearing as a matter of determining these two matters, and at the conclusion of the hearing, made the following findings:
“1. Scroggins retained possession of the land in issue to November 17, 1969.
2. The ‘yearly rent’ of the land in issue for 1969 is $30,000.00.
3. Scroggins ‘acted in good faith (under the facts and circumstances in this action)’ in not surrendering the possession of the land in issue to Sigmon and is not subject to the penalty of double rents as authorized by Section 50-509 supra.
4. Sigmon should have a judgment against Scrog-gins for $30,000.00, less $26,249.44 previously paid, or a sum of $3,750.56, with interest and all costs of this action for which execution or garnishment may issue.
The rice and bean crop was stored and sold to certain graineries and certain amounts- are paid by said graineries to Sigmon and Scroggins at intervals. This to state the full purchase price of the crops had not been paid by the graineries to Sigmon and Scroggins on the date this action was heard. Sigmon should file or cause to be filed with the Clerk of this Court a statement of further advances made by the graineries to it since this trial of this action, and if such advances have been received by Sigmon the same should be credited to the judgment granted in Part 4 hereof.”
From the judgment so entered, appellant brings this appeal, contending that the court erred in holding that Scroggins acted in good faith in not surrendering the lands leased and was therefore not subject to double rental under the provisions under Ark. Stat. Ann. § 50-509 (1947). Appellee cross-appeals, contending that the trial court erred in not granting Scroggins judgment against appellant for one-half of the cost of seed, fertilizer, and herbicides used in the growing of the 1969 rice crop and one-fourth of the cost of fertilizer and herbicides used in growing the 1969 soybean crop in the sum of $7,227.01. We first discuss the direct appeal.
In Lesser-Goldman Cotton Company v. Fletcher supra, we held, as pointed out on the first appeal of this case, that the landlord or lessor is only entitled to double rents when the holding over by the tenant is wilfully done, and in the case before us, the trial court found that the holding over was not “wilful”. In giving his reasons, the chancellor said that the relationship between the parties appeared to have been satisfactory for more than 25 years, and “because of this long tenure, development and improvement of the farm by Scroggins there had been created a feeling of possession and maybe some degree of proprietary claim by Scroggins in the land”; further, that Sigmon had knowledge of the work being done by Scroggins in preparing the land for the crop year but did not warn appellee that the lands would not be rented to him in 1969. Further from the chancellor’s opinion:
“Scroggins testified that it would have been inconvenient for him to remove from the lands, that he would have suffered the loss of the preparatory work done on the land for the 1969 crop (neither of which are legal causes to withhold possession of the land), that he knew the lease in issue had a termination date but that he was entitled to remain in possession until he had received a six months notice of the termination of the lease or to quit possession.”
Saying that he really thought he had the legal right to retain possession of the premises unless he had received a six months’ notice to vacate does not establish the bona fide belief referred to by the law. Such bona fide belief might well arise where several heirs were contending to be owners of land—or where there was a will contest to determine whether one party had been legally devised some realty—-or where there was a boundary line dispute. But, of course, there are no circumstances of this nature presented in the instant litigation.
We do not agree that the reasons enumerated justified Scroggins in holding over, and we have reached the conclusion that the holding over by appellee, under the law, was entirely “wilful”. Scroggins testified that he talked with Glenn Cooper, president of appellant company, in June or July of 1968, with reference to whether he would be allowed to farm the lands past January 17, 1969. While it is asserted in appellee’s brief that Scrog-gins was told by Cooper “that he thought it would be all right for Scroggins to farm the lands for another year”, the record lacks quite a bit of supporting this interpretation. The first time that Scroggins was interrogated, and by his own attorney, relative to what was discussed in regard to the leased lands, Scroggins replied: “Not much of anything, I just asked him if he was going to let me farm on and he said that he would let me know. That was all that was ever said [emphasis supplied]” When he was next asked by his attorney what he had been told, appellee stated: “He said that he would let me know—at that time he said that it was all right.” This was the first mention of any inference that it “would be all right”. Following this answer, the court asked “what was that? Did he say that, or, did he think that?” Appellee’s attorney then askéd “What did Mr. Cooper say?” Scroggins replied as at the outset “He didn’t say anything, really. He said that he would let me know.” Subsequently, appellee stated that he assumed that he would have the lands for another year “when he told me that everything was O.K.”. It somewhat appears that the alleged statement by Cooper “at that time he said it was alright” was an afterthought.
It is also argued that Scroggins began preparing the lands for another crop year in October of 1968 and that Sigmon had knowledge of this fact but did not warn Scroggins not to incur the expense necessary in such preparation. It is likely that Sigmon did know of the preparation, but there is no proof that this was true. Though Cooper testified in the case, he was never questioned along this line and the testimony of Scrog-gins certainly did not establish this knowledge on the part of appellant. When asked if Sigmon Farms knew if he was preparing the lands for the next crop year, Scroggins said “I assume that they did. They were around all the time—some of them”. It developed that by “they” he meant a Mr. Hobbs, whom Scroggins identified as follows. “I guess that he is right-hand man for Cooper, I don’t know.” When asked if Hobbs saw him preparing the land, he said that he guessed that he did. Be that as it may, there was no legal obligation on the part of appellant to tell Scroggins anything at all concerning renewal of the lease until 30 days before the expiration date. Scroggins testified that he had been renting the land since 1955, some years without a written lease; that he first had a ten year lease, but then entered into the two year lease in January, 1967. This fact, in itself, should have served as a notice to appellee that he could not depend upon prior practices, and of course, the testimony, earlier quoted, that Cooper would let him know about the lease of the land for 1969 like wise should have served as a warning not to incur expense until definite arrangements had been made. The evidence also reflects that Scroggins locked the gates to keep appellant off the farm.
His determination to maintain possession is further shown by the fact that he ignored the finding of the chancery court which was filed on February 18, 1969. The chancellor had held that a three day notice must be served on Scroggins (in compliance with Ark. Stat. Ann. § S4-1503 [Repl. 1962]) before appellant would be entitled to the land, and this notice was served on March 5, notifying Scroggins to give up the premises. Scroggins refused to do so and the next day appellant commenced an action in unlawful detainer in circuit court praying for possession of the land in issue and seeking double the annual rental value of the lands for the time Sigmon was kept out of possession; also for any sums for which Sigmon might be held liable for the reason of its breach of its rental contract with James E. Henly to whom Sigmon had leased the lands for a period of three years to commence on January 18, 1969. A writ of possession was issued by the clerk but Scroggins filed a bond to retain possession, and continued to hold on until November. The Supreme Court opinion was issued on November 4, 1969, and Scroggins delivered possession of the land on Noevember 17, 1969. The circuit court action was thereupon dismissed on December 4, 1969. In other words, appellant was prevented from using its lands for the entire crop year of 1969.
Though not argued by appellee, nor mentioned by the trial court, top, side, or bottom, in either the first case to reach this court, or on the present appeal resulting from the remand, it has been suggested by a member of this court that the case should be affirmed for the reason that equity will not lend its aid to the enforcement of penalties. See Cooley & Cooley v. Lovewell, 95 Ark. 567, 130 S. W. 574; Hendrix v. Black, 132 Ark. 473, 201 S. W. 288. We do not agree with this view. Brushing aside the fact that this defense is not argued by appellee, nor relied upon by the court in reaching its determination, there are more cogent reasons why such a defense is not applicable. In the first place, this was not an action instituted by appellant in the chancery court wherein it sought double damages; to the contrary, chancery jurisdiction was invoked by appellee, and as stated in our first opinion, in answering, it was necessary under the provisions of Ark. Stat. Ann. § 27-1121 (Repl. 1962), that appellant file any counterclaim that it might have, or be thereafter barred. In Augusta Cooperage Co. v. Bloch, 153 Ark. 133, 239 S. W. 760, Bloch instituted an action against the company in the circuit court to recover damages, including treble damages, for the wrongful cutting and removing of timber. The appellant moved to transfer the case to chancery court, asserting that the deed under which it claimed should be reformed. The case was transferred, the court deciding the litigation in favor of Bloch, however denying treble damages. The company appealed from an adverse ruling on reformation of the deed. On the question of treble damages, this court said:
“The trial court found that the trespass was wilful, but refused to award treble damages, citing Cooley v. Lovell, 95 Ark. 567; Hendricks v. Black, 132 Ark. 473. These were cases originating in courts of chancery to enforce penalties, and we held that ‘courts of equity will not aid in the enforcement of penalties.’ But, where one goes into a court of law to recover treble damages awarded by the statute (§ 10320, C. & M.) and the defendant in the action asks and succeeds in having the cause transferred to equity, the chancery court, having acquired jurisdiction and having determined on trial of the issues that the plaintiff is entitled to treble damages under the statute, may follow the law and award such damages without sending the cause back to the law court. ”
In United States v. Flint Lumber Co., 87 Ark. 80, 112 S. W. 217 (1908), suit was instituted in the Yell Chancery Court against the Flint Lumber Company to wind up the company’s affairs on account of its insolvency, and a receiver was appointed. Thereafter, appellant was allowed to intervene, the intervention alleging that the property in question was vacant land of the United States and subject to homestead entry at the land office of the United States at Dardanelle; that one George Gamey, at the instance of appellee, and with the intent of defrauding the United States out of the pine timber growing on the lands, violated the laws regulating homestead entries and cut and removed 350,000 feet of pine logs. The court rendered a decree in favor of intervener but awarded only the measure of damages provided for cutting of timber by inadvertence or mistake (the value of the timber when first taken or “logs in the tree” value), rather than making an award under the provisions of the law relating to a wilful trespass (trespasser being liable for the full value of the property without deduction of labor or expense). The intervener appealed on this one point only and in reversing the trial court, this court, in an opinion by Mr. Justice Hart, stated:
“The amount of the liability in this case depends upon the fact of whether or not George Gamey and the Flint Lumber Company were wilful trespassers acting in bad faith and for that reason ought to suffer some punishment for their depredation.”
The court held that the evidence showed appellee to be a trespasser, that the penalty should have been invoked, and reversed the chancellor.
It thus appears that there is a difference in the rule relating to the award of damages for wilful trespass (in chancery court) where the owner of the land instigates the action, and where the tenant or trespasser institutes the action. In Augusta Cooperage Co. v. Bloch supra, the case was transferred to the chancery court on the application of the alleged trespasser, and we said the penalty was entirely proper. Of course, in United States v. ,Flint Lumber Co. supra, the benefit of the penalty was given to the intervener, who had not orginally filed the suit, but who had a definite interest in the outcome of the litigation.
We can see no legal difference where a person against whom a penalty is sought moves to transfer the case to equity (as in Bloch) and where a prospective defendant files the suit originally in chancery.
There is yet another reason why such a defense would have no merit iri the present instance. Paragraph four of this opinion, quoting from the opinion in the first appeal of this case, makes it clear that the case was remanded for the purpose of determining how long appellant was kept out of possession of the premises, and whether Scroggins acted in good faith, in order to determine whether appellant was entitled to double damages, and in what amount. That opinion became the law of the case and is now controlling on this appeal. In Farmers Cooperative Assn. v. Phillips, 243 Ark. 809, 422 S. W. 2d 418 (1968), we said:
“There are two answers to this contention. First, our prior opinion became the law of the case and is controlling upon this appeal even though we should now think it to have been erroneous (which we do not imply).”
Numerous cases could be cited to the same effect.
On cross-appeal, it is urged that the court erred in not allowing Scroggins judgment against Sigmon for one-half of the cost of seed, fertilizer and herbicides used in the growing of the 1969 rice crop and one-fourth of the cost of fertilizer and herbicides used in growing the 1969 soybean crop, the amount sought being $7,-227.01. Actually, even if we agreed with appellee, it appears that the amount would be incorrect since appellee’s accountant, H. W. Wall, admitted that in reaching this figure, he had charged Sigmon with one-half of the expense of the bean crop, where he should have charged only one-fourth. Also, it appears that certain items were included in this sum which were not the responsibility of Sigmon under the terms of the lease. Be that as it may, appellee is not entitled to reimbursement, for his 1969 operation was not under the lease but rather came about as a matter of his holding over. The lease was not in effect because it had expired on January 18, 1969. The sharing of the cost of making the crop, as heretofore set out, was based on a provision in the lease. Since the lease was not applicable to the 1969 crop, its provisions cannot be relied upon.
To summarize, we find that the holding over was wilful, and appellant was entitled to double damages for the time that Scroggins held over and kept possession from appellant. This simply means that Sigmon is entitled to rent for 1969 in the amount of $30,000 (for which judgment was given by the trial court), plus a penalty of $25,000, this last figure being reached on the basis of the fact that Sigmon was denied possession for a period of ten months. This makes a total due from Scroggins to Sigmon of $55,000, less amounts already paid.
The decree on direct appeal is reversed and the cause remanded with directions to the chancellor to enter an additional judgment for M. L. Sigmon Forest Products, Inc. against Harold E. Scroggins, Sr. for the sum of $25,000 representing double damages; on cross-appeal the decree is affirmed.
It is so ordered.
Fogleman, J., dissents.
Appellee’s father had farmed the lands previous to any lease to Scroggins.
The only complaint instituted by appellant was filed in the Drew County Circuit Court, but was dismissed after appellee surrendered the premises.
The case was affirmed, the court finding that there actually had not been a wilful trespass, stating:
Even though the trial court gave erroneous reasons for its findings and decree, nevertheless, we find that the amount of the decree based on the stumpage value of the timber was justified by a preponderance of the evidence in the record.” | [
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Frank Holt, Justice.
Appellant was charged in June 1966 with first degree murder. Thereupon, he and a codefendant were afforded the assistance of a court-appointed attorney. About five months later they entered a plea of guilty to the reduced charge of second degree murder, and each was sentenced to twenty-one years in the State Penitentiary. In March 1970 appellant filed this Rule 1 petition for post-conviction relief. Ark. Stat. Ann., Vol. 3A, 1969 Supp., p. 91. His present counsel was then appointed, and an evidentiary hearing was conducted after which the trial court, by written findings of fact and conclusions of law, denied the petition. This appeal follows.
For reversal appellant first argues that he was not advised of his right to remain silent and did not have the benefit of counsel at the time of his alleged guilty plea. He therefore asserts that the trial court erred in failing to find that his constitutional rights were violated. Although the record adequately reflects that appellant was in fact given the Miranda warnings, we need not further consider this contention since it was not included in appellant’s Rule 1 petition but, instead, raised here on appeal for the first time.
It is undisputed that appellant’s court-appointed counsel represented appellant at his arraignment and when he later entered his plea of guilty. Appellant’s claimed lack of representation appears to be founded upon his personal impression that unless he pleaded guilty, his court-appointed attorney would represent his codefendant exclusively. This was denied by the attorney who testified that he submitted a plea to the lesser degree because he thought it was “wise under the circumstances.” There was evidence that appellant was fully advised of his rights by his counsel and the court. Appellant does not question the attorney’s competency, and the record amply demonstrates that his approval of a guilty plea to a lesser charge was a matter of professional judgment based upon a thorough investigation of the facts, including the evidence accumulated by the prosecution and the probabilities of an unsuccessful trial of the case upon the original charge. An elderly person was murdered, and it appears that appellant was present as a participant with his codefendant when the alleged crime was committed. The crime was described as “gruesome” and committed with “brutality.”
Appellant’s 1 court-appointed counsel is an experienced lawyer, having practiced for the past seventeen years. Upon appointment he learned that appellant had a history of some mental instability and treatment while living in Chicago. He promptly secured an order from the trial court committing appellant to the State Hos pital for a mental examination and advised the Hospital concerning the information he had about appellant. The Hospital, however, found appellant without psychosis. Further, he contacted appellant’s relatives in Chicago numerous times and acquired data from a mental institution there for the trial court’s consideration. Appellant’s counsel secured two continuances to facilitate his duties and discharge his responsibilities. It appears that appellant was ably and diligently represented by his court-appointed counsel. In our view, the evidence supporting the court’s findings on this issue is certainly sufficient.
In his. next two points for reversal appellant contends that he did not in fact enter a plea of guilty or, alternatively, that if he did, it was a product of duress. He claims that his guilty plea was in contravention of Ark. Stat. Ann. § 43-1221 (Repl. 1964) in that it was submitted by the court-appointed attorney while he himself remained silent. However, witnesses who were present when the plea was entered testified that upon pleas of guilty it was the practice of the trial court to affirmatively determine from the defendant himself whether he desired to plead guilty and, also, if he understood the significance of such a plea, and that in the case at bar the appellant did, in accordance with that practice, confirm the plea submitted by his attorney. Appellant nevertheless maintains that in any event the plea was extracted as a result of harassment and numerous threats which, according to his testimony, were made by the police during his pretrial incarceration to the effect that he would be sentenced to death unless he pleaded guilty to a lesser offense. This complaint, which was never asserted prior to appellant’s Rule 1 petition, is not corroborated and is, in fact, contradicted by other testimony that he was not abused or "mistreated in any manner.” There was also evidence that the officers brought him clothing and attended to some of his other needs. We think there was sufficient evidence of a substantial nature to support the finding of the trial court that appellant’s plea was properly entered.
Appellant lastly argues for reversal that because of his age at the time of the crime (16) and his history of mental instability, the common-law presumption of incapacity should apply. Again, this point is raised for the first time on appeal and cannot, therefore, be considered. However, we note that the appellant had attained the ninth grade and, as previously indicated, the State Hospital found him without psychosis.
In the case at bar, a full canvass of the record reveals no violations of appellant’s constitutional rights.
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Lyle Brown, Justice.
Appellant Bertha Gregory was the plaintiff below and appeals from a summary judgment in appellee’s favor. She was the beneficiary in an insurance policy on the life of her son, Daniel Eans, covering death by accidental means. The policy excluded payment in case of death resulting “from the insured’s commission of, or attempt to commit, an assault or felony.” Appellee moved for summary judgment and attached the affidavit of the wife of Daniel Eans, she being the only eyewitness to the fatal event. Appellant contends that her cross motion for summary judgment should have been granted, and alternatively, that the case presented fact questions for the jury.
In November 1968 Daniel Eans and his wife, Bessie Mae, resided in Michigan. Her affidavit recited that the couple engaged in a quarrel on November 11 and it culminated in his striking her, knocking her to the floor and then stomping her; that she locked herself in the bathroom and he opened the door with a clothes hanger; that he again attacked her; that she succeded a second time in getting in the bathroom and fastened the latch; and that he opened the door with an ice pick. Then she recited, as gleaned from the abstract, these events:
When he entered the bathroom he had the ice pick in his hand and I grabbed for the ice pick and we wrestled over it. I got it from him and we fell into the bathtub when we were wrestling and he got up first with the ice pick in his chest. ... I don’t know how the ice pick got lodged in his chest. I was scared because he was fighting me and when he opened the door I saw the ice pick and the first thing I thought about was getting it from him. When he came in we were sort of wrestling and I ended up with the ice pick in my hand. . . . After he came in the bathroom the second time with the ice pick in his hand he didn’t strike me then because I think my main concern was getting the ice pick and I know he didn’t hit me after he got in the bathroom. When he came in he had the ice pick in his hand and holding it so that the pick part was facing his body towards his upper arm. He didn’t make any gesture with the ice pick towards me. . . . The only struggle we had after he came in was for the ice pick itself. I wanted to get it away from him and we accidentally stumbled into the bathtub.
Our unhesitating conclusion is that this was not a case for summary judgment. That judgment is appropriate only when “there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law.” Ark. Stat. Ann. § 29-211(c) (Repl. 1962). In determining whether there was a genuine issue of fact on such a motion we view the proof in the same light as if it were a motion for a directed verdict. McClain v. Anderson, 246 Ark. 658, 459 S. W. 2d 296 (1969). The evidence is viewed in the light most favorable to the party resisting the motion, with all doubts and inferences resolved against the moving party. Deam v. Puryear, 244 Ark. 18, 425 S. W. 2d 554 (1968). “[I]n a case where fairminded men may honestly differ about the conclusions to be drawn from the testimony, a summary judgment should be denied.” Mason v. Funder burk, 247 Ark. 521, 446 S. W. 2d 543 (1969). Additionally, the policy being one of insurance against death by accidental means, there was a presumption of death by accident. Mutual of Omaha v. George, 245 Ark. 670, 434 S. W. 2d 307 (1968). The character of the assault contemplated by the exclusion means more than a simple assault; it must have been of such severity “as would have justified the assaultee in inflicting death or serious injury by way of self-defense.” The severity of an assault is ordinarily a question for the jury. Lincoln Income Life Insurance Co. v. Alexander, 231 Ark. 63, 328 S. W. 2d 266 (1959). Such a reservation as is before us is to be construed strictly against the party for whose benefit the reservation was made. Harrison v. Interstate Business Men’s Accident Ass'n., 133 Ark. 163, 202 S. W. 34 (1918).
In order to reach the conclusion that no justiciable issue existed the trial court necessarily had to weigh the facts set forth in the affidavit and in light of the numerous principles we have recited. The court had to determine whether the acts of the insured unquestionably constituted a severe assault, whether the presumption of death by accident was overcome, and the credibility of affiant’s testimony had to be evaluated. Those were factual questions which addressed themselves to a jury.
Reversed and remanded with directions to set aside the summary judgment.
Harris, C. J., not participating. | [
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Conley Byrd, Justice.
The trial court directed a verdict for the appellees in this action by appellants Ida Chlorine Haralson, Gene Haralson, and Arnold Johnson, administrator' of the estate of Gladys Johnson, deceased, for injuries received in a car-truck collision with a truck and trailer owned by appellee Atlas Transit Co., Inc., and operated by appellee Buddy Reese.
For reversal appellants contend that there was ample evidence to show that the driver of the truck failed to keep a proper lookout; failed to keep his vehicle under control; was driving his vehicle at an excessive speed under the circumstances; and was driving his vehicle on the wrong side of the road.
Robert Faulk, the investigating State trooper, testified that the accident occurred on Highway 167 in Grant County at approximately 6:00 A.M. on January 6, 1970. It was snowing when he received word of the accident and because of the weather it took him forty-two minutes to drive the twenty-two miles from the Markham Street interchange on Interstate 30 to the scene of the accident. The road where the accident occurred was straight, with a curve commencing a short distance to the north. He found debris right around the center line and some gas spilled on the highway.
Buddy Reese testified that he was driving the truck and trailer. He saw the reflection of lights before he saw the car. When he first saw the car it was turned crossways in the road. He knew there was a side road ahead and it looked as though the car was coming out of the side road and making a left hand turn. When he first saw the car he applied his brakes but upon determining that his trailer was sliding a foot or two to the left, he let off his brakes. His truck had fifteen forward gears and at the time he was traveling in 13 th gear at a speed of 35 to 45 miles per hour. When he first saw the car it was 35 to- 45 yards from the point of impact and he was also 35 to 45 yards from the point of impact. He placed his truck in its proper lane of travel with its right front off the pavement, on the right hand shoulder at the point of impact. He estimated the stopping distance of his truck, considering the road conditions and his speed, at 150 yards. Under normal conditions he estimated the truck’s stopping distance at 35 to 45 yards at the speed he was traveling.
Herbert Slyby was parked on the road side, fixing the windshield wipers on his wife’s car, and witnessed the collision. He said the car, driven by Mrs. Billy Wilson, went out of control and skidded around at least one and one-half times before it collided with the truck on the truck’s side of the road. He would not attempt an estimate of the truck’s speed but said that it did not appear to be coming fast.
Loretta Slyby testified that she watched the car slide around into the truck in just a split second. She could not tell the jury anything about speed and distances involved.
Billy Wilson, husband of the car’s driver, testified that he talked to Buddy Reese at the hospital and that Reese said he thought the car pulled out from that side road and he could have avoided the collision if he had taken the ditch. He also testified that he was familiar with the type of truck involved and in 13 th gear it would run 50 to 55 miles per hour. Its minimum speed in that gear would be 50 miles per hour.
Gene Haralson testified that Buddy Reese was at the hospital. When asked if Reese made a statement, Haralson answered:
“He said he thought she had come out of that side road there by that ranch and he thought she had just lost control of it and would get back on her side of the road. He said he could have avoided the accident. He said when he realized she had lost control of the car it was too late.”
Haralson admitted that Tony and Billy Wilson were present when the statement was made.
Tony Wilson testified that he saw where the car was apparently hit first. He saw dirt, glass, mud and gasoline about twenty feet the other side of where the car came to rest.
Leslie Tannahill, a deputy sheriff, testified thai when standing in the south bound lane where the curve begins one could see down the road 1416 feet.
We can find no substantial testimony in the record from 'which it can be inferred that the collision occurred in the north bound lane.
Without the testimony of Billy Wilson that the truck would have been going from 50 to 55 miles per hour in 13 th gear, we would affirm the directed verdict. However, because we must view the testimony in the light most favorable to the party against whom a verdict is directed, we must consider his testimony without regard to its credibility. Viewed in this light, there is testimony from which the jury could find that Reese was driving the truck and trailer along a snow covered highway at a speed of 55 miles per hour; that prior to the collision Reese had seen the back ends of some cars sliding; that his visibility was 150 yards; that his stopping distance under the existing conditions at 35 to 45 miles per hour, was 150 yards; and that he did not see the car with which he collided until it was 70 to 90 yards away from him and already out of control. When this evidence is added to the statement of Reese that he could have avoided the accident by taking the ditch, we cannot say that there is no substantial evidence to show that Reese was negligent in failing to keep a lookout and in driving at an excessive speed under the circumstances.
Appellees argue, however, that the cause of the collision was the fact that the car went out of control and not any alleged negligence of appellees. Here again, we must view the evidence and the inferences in the light most favorable to the parties against whom the verdict was directed.
In Prosser, Torts, 3rd ed., Ch. 7, § 41, p. 246, it is stated:
“The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. Proof of what we call the relation of cause and effect, that of necessary antecedent and inevitable consequence, can be nothing more than ‘the projection of our habit of expecting certain consequents to follow certain antecedents merely because we had observed these sequences on previous occasions.’ If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.”
We are unwilling to say that jurors cannot conclude that there was a causal relation between the speed of the truck, and the driver’s failure to see the car until it was 70 to 90 yards away and the collision with the disabled vehicle in which appellants were riding.
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George Rose Smith, Justice.
This action for the wrongful death of Sam Little was brought by the appellant, his administratrix, against three defendants, Darrell Riddell, Carl Riddell, and the appellee, Harold McGraw. All three defendants filed motions for summary judgment. The court denied the Riddells’ motions but sustained that of McGraw. This appeal is from a summary judgment in favor of McGraw.
Our summary judgment statute, Ark. Stat. Ann. § 29-211 (Repl. 1962 and Supp. 1969), was copied from Rule 56 of the Federal Rules of Civil Procedure. Under Federal Rules 54 and 56 there would be some doubt about the finality and appealability of a summary judgment in the federal court in favor of only one of several defendants. Barron & Holtzoff, Federal Practice and Procedure, § 1241 (Wright’s ed., 1958). Our legislature, however, has not adopted Federal Rule 54, which has to do with the finality of a partial judgment. Hence the finality and appealability of a summary judgment dismissing only one of several defendants must be determined under our general statutes governing appellate procedure. We are of the opinion that such a judgment is final and appealable. Safeway Stores v. Shwayder Bros., 238 Ark. 768, 384 S. W. 2d 473 (1964); Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175 (1914).
The facts, as developed in the depositions accompanying the motions for summary judgment, are not entirely without dispute. Sam Little, the decedent, was employed by McGraw, a farmer. On May 20, 1968, Mc-Graw telephoned Riddell Flying Service, which was engaged in cropdusting, to arrange for the spraying of a rice field. McGraw says that in the course of his conversation with Darrell Riddell he asked if the flying service was qualified to spread 2, 4-D, which requires a special license. According to McGraw, Darrell said that he was so qualified, though in fact he was not. Darrell denies that he was asked about his license. Darrell, who was then 22 years, old, had only a student pilot’s license and was not qualified to do any kind of cropdusting, for which a commercial pilot’s license is required.
Late the next day Darrell flew a small single-seated plane to a landing strip about four miles from the rice field that was to be sprayed. There McGraw helped Darrell mix and load the chemical. Darrell then began spraying the field. McGraw had stationed Sam Little and another man at opposite ends of the field, to guide the flier as he made passes over the area. After every pass the two men would each move 14 steps in the same direction and take a new position to guide the plane upon its next passage over the field. At one point in the operation the plane was flown so near the ground that its landing gear struck Little and fatally injured him.
We are not here concerned with the liability of either Darrell Riddell or his father, who are not parties to this appeal. The issue before us is the existence of supporting evidence for the four separate theories upon which the appellant administratrix asserts a cause of action against McGraw. In considering that evidence we must view it in the light most favorable to the appellant. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963).
First, the appellant invokes the doctrine of respond-eat superior, on the theory that Darrell Riddell was an employee of McGraw. There is no merit in this contention. According to the undisputed evidence, Darrell was an independent contractor over whom McGraw had no right of control.
Secondly, the appellant contends that McGraw failed to exercise ordinary care to furnish Little with a reasonably safe place to work. This contention, too, is without merit. Little’s death was due not to a dangerously de fective condition of the field where he was standing but to Darrell Riddell’s asserted negligence in flying too low. See, by analogy, our opinions in Tatum v. Rester, 241 Ark. 1059, 242 Ark. 271, 412 S. W. 2d 293 (1967)', where, as here, the condition of the landowner’s premises had no causal connection with the plaintiff’s injury, which was caused by the landowner’s negligence in backing his car out of his carport.
Thirdly, the appellant insists that the spraying of a crop by airplane is so inherently dangerous that the negligence of Darrell, as an independent contractor, is chargeable to his employer. AMI 708, Civil. There is actually no proof to sustain this argument. Many years ago aviation was considered to be an ultrahazardous activity. Restatement of the Law, Torts, § 520, Comment b (1938). Although the spreading of 2,4-D by air is unduly hazardous to nearby crops, Chapman Chem. Co. v. Taylor, 215 Ark. 630, 222 S. W. 2d 820 (1949), it does not follow that an airplane in flight is inherently dangerous to a person standing on the ground. Aviation is now so commonplace that it cannot be considered to be either inherently dangerous or ultrahazardous. For a full discussion of this fact see Boyd v. White, 276 P. 2d 92 (Cal. App., 1954).
Fourthly, the appellant asserts that McGraw failed to use ordinary care to select a competent independent contractor to do the work. AMI 709, Civil. Upon that issue the proof made a question of fact for a jury. Mc-Graw admittedly knew that a flier must have a special license to engage in cropdusting. McGraw remembered that about a year earlier Darrell had said that “he hoped in another year he would be qualified to do that type of work himself.” Although McGraw testified that he asked Darrell during the telephone conversation if the flying service was qualified to disperse 2, 4-D, Darrell testified that he was never asked if he was properly licensed. Finally, Mrs. Little testified that when McGraw came to tell her that her husband was dead, McGraw “said that the boy said that he had hit Sam, and he said that he didn’t think the boy had a license, and that he thought that it was his father’s business.” We are unable to say that the record is devoid of substantial evidence to support the appellant’s fourth theory of liability.
Thus the court erred in entering a summary judgment in favor of McGraw. The statute provides that a defendant may move for a summary judgment “upon all or any part” of the plaintiff’s claim. Ark. Stat. Ann. § 29-211 (b). Here the court should have entered an interlocutory order, which the federal decisions liken to a pretrial order, finding that there was a disputed issue of fact only with respect to the fourth asserted ground of liability.
Reversed and remanded for further proceedings. | [
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