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Conley Byrd, Justice.
The appellant Dorothy Sauter, individually and as mother and next friend of Larry Imler, a minor, brought this action to recover for injuries received by Larry when a parked car owned by appellee Dicki Atchinson and occupied by appellee Diane Masingill suddenly rolled forward and over Larry. The jury, upon interrogatories, found that neither Larry, Dicki nor Diane was guilty of negligence. For reversal of the judgment entered on the jury’s verdict, appellant contends: (1) that the trial court should have sustained her motion in limine to prohibit appellees from re ferring to headlighting rabbits from the car hood prior to the occurrence here involved; (2) that the trial court should have given an instruction on Res ipsa loquitur; and (3) that the findings of the jury are contrary to the law and the evidence.
The record shows that Larry, Dicki, Diane, Diane’s sister Karen, Jimmy Ryburn, and Fred McMurtry decided to headlight rabbits. They obtained a shot gun from Dicki’s house and took Dicki’s car out Chicot Road to the end of the pavement. At this point Diane started driving with Larry and Dicki riding on the hood of the car with the shot gun. Diane turned off onto a fire lane and proceeded to the end where she parked on the crest of a hill. Not finding any rabbits to shoot, they decided to shoot some cans. Dicki got back into the car. He said that he put the gear shift in park, set the hand brake and switched the lights to bright. Diane moved to the passenger’s side of the car where she remained until after Larry was injured. Dicki and Jimmy Ryburn took their turn shooting, standing in front of the headlights and shooting at cans thrown by the others. When Larry took his position to shoot, the car started rolling forward, and rolled over him, causing the injuries complained of. All during the can shooting, Diane testified, she remained on the passenger’s side of the front seat and her sister Karen and Fred McMurtry remained in the back seat. The car’s motor was left running and a stereo tape player was on. The automobile was in neutral when it eventually came to rest.
1. The evidence of the events leading up to parking the car on the crest of the hill was admissible to show the relationship among the parties. It follows that the trial court did not err in refusing appellant’s motion in limine.
2. Appellant only asked for the Res ipsa loquitur instruction as to Dicki. When we consider that the car stood in its parked position while Dicki and Jimmie Ryburn took their turns shooting and that the car was occupied by Diane, her sister Karen and Fred McMurtry, we hold that trial court properly refused the Res ipsa loquitur instruction as to Dicki. The doctrine of Res ipsa loquitur is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured party, and also on the premise that the defendant had exclusive control. See Ford Motor Company v. Fish, 232 Ark. 270, 335 S. W. 2d 713 (1960). Here neither situation exists.
3. In her last point appellant contends that under the facts as developed Larry could not have been injured and the accident could not have happened, had not someone been negligent and thus the jury’s findings to the contrary are contrary to the law and the evidence. This argument overlooks the fact that there was other testimony from which the jury could have found that Dicki acted as a reasonable and prudent person in placing the car in “park” and setting the handbrake and that Diane did nothing to cause the car to start rolling.
Affirmed. | [
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J. Fred Jones, Justice.
This appeal originates from a suit in the Washington County Chancery Court brought by the appellees Ottis Watson and his wife against the appellants, Lloyd L. Hays and his wife to enforce restrictive covenants contained in a bill of assurance, and for an injunction against the use of a septic tank sewage disposal system installed by Hays on lots purchased from Watson. The chancellor granted the relief prayed and we agree with the chancellor.
The facts are briefly these: In 1960 Ottis Watson and his wife, Helen, subdivided some land they owned in Washington County and platted it into 105 residential building lots dedicated to the public as Bird Haven Terrace Addition to the City of Fayetteville. On June 23, 1960, they filed for record a bill of assurance for Bird Haven Terrace Addition, the pertinent provisions of which, as applied to the case at bar, are as follows:
“2. No lot shall be used except for residential purposes, no building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars.
7. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance nuisance to the neighborhood.
11. No lot shall be used or maintained as a dumping ground for rubbish, trash, garbage or other waste shall not be kept except in sanitary containers. All incinerators or other equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition.
12. No individual sewage-disposal system shall be permitted on any lot unless such system is designed, located and constructed in accordance with the requirements, standards and recommendations of State Approval of such system as installed shall be obtained from such authority.
14. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded for successive periods of 10 years unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.
15. Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenants either to restrain, violation or to recover damages.”
The above provisions are obviously deficient in punctuation and sentence structure but their meaning, as relates to this case, is clear.
Block “F” of Bird Haven Terrace Addition consists of 14 lots consecutively numbered from south to north along the east boundary line of the Addition. Lloyd L. Hays and his wife, Joan, own land immediately east of Bird Haven Terrace Addition and their west boundary line coincides with the east boundary line of Block “F” in Bird Haven Terrace Addition. Mr. and Mrs. Hays maintain a trailer park on their property and as of the date of trial, they had 52 trailers in the park. About June 3, 1969, Mr. and Mrs. Hays purchased from Mr. and Mrs. Watson, through a Mrs. Elizabeth Beaty, Lots 3 and 4 in Block “F” of Bird Haven Terrace Addition. Prior to the purchase of the lots Hays had plans and specifications prepared for a septic tank sewage disposal system designed for the lots and to accommodate or service 45 of his trailer spaces. Immediately following the purchase of the lots, Mr. and Mrs. Hays started construction of their sewage disposal plant, thereon, resulting in the decree as already stated and as hereafter more specifically set out. Mr. and Mrs. Hays have designated the following points on which they rely for reversal:
“That the appellees did not sustain their burden of proof in presenting clear, cogent, and decisive evidence as to the alleged violation of the covenants in the bill of assurance.
It was error for the court to overrule the appellants’ demurrer to the evidence.
That the appellees did not present clear, cogent and decisive evidence of any irrepairable damage.
That the court did not give sufficient weight to the appellants’ compliance with all State and local building requirements for a sewage disposal system.”
None of the testimony is abstracted in this case, nor is the bill of assurance abstracted. It is rather difficult for any one of the seven members of this court to whom has been assigned the transcript along with a set of briefs, to circulate the transcript among the other six members of the court for a determination of whether the appellee has sustained his burden of proof by the evidence, or whether the court erred in overruling a demurrer to the evidence, or whether evidence is clear as to damage, or for any other purpose necessary to a clear understanding of the case. It is even more difficult and time consuming for the six members of the court to whom the case has not been assigned, to review the evidence from a single, and in many instances, a voluminous record. See Hurley v. Owens, 238 Ark. 874, 385 S. W. 2d 636.
In the case at bar, however, the excellent memorandum opinion with which the chancellor has favored us enables us to avoid the unpleasant duty of applying our Rule 9 (d). As a matter of fact, we have thoroughly examined the chancellor’s opinion and his application of the law to the evidence recited, so nearly coincides with our own opinion, that we adopt it as the opinion of this court.
Before quoting the chancellor’s opinion, however, we emphasize that this was originally an action for the enforcement of restrictive covenants in a bill of assurance and was not, as might be interpreted from the appellants’ argument, a suit to enjoin or restrain the creation of a prospective nuisance. After stating some of the facts as above set out, the chancellor continues:
“Hays commenced preparations for construction of his sewage disposal system in April, 1969, before he acquired title to lots 3 and 4 (Stp. Ex. No. 8), and by June 9, 1969, or shortly thereafter construction had commenced. At some time, not certainly fixed by Watson, he observed excavation on lots 3 and 4, and upon inquiry of Hays, learned its purpose, and upon voicing his objections was told by Hays that the latter had authority from the city, and Hays may have told him he had authority from the state, as well. It is not shown that plaintiff had any knowledge of the projected construction before he saw the excavation. This suit for injunction was filed on August 26, 1969, at which time, according to Hays, the total job was about 2/3 completed, and was completed about two months later.
At the time construction commenced in June, 1969, plaintiff still owned 94 of the original 108 lots. Prior thereto, all of the unsold lots were listed for sale at $850.00 per lot, with The Stanton Company, a licensed real estate brokerage business in Fayetteville. No lots have been sold since construction started; The Stanton Company, by letter to Watson, October 16, 1969, (Plf. Ex. 1) advised that persons theretofore prospectively interested in buying all of Bird Haven Terrace were no longer interested, in view of completion of the sewer system on lots 3 and 4. Plaintiff, on his own account, has made no lot sales when the fact of the sewer system was discovered by prospects. It is shown that one residence was under construction on a lot diagonally across the street from lots 3 and 4, after the sewer system construction was commenced, but the only evidence in the record (Watson’s) is that this lot was sold before Hays started his construction.
There is no evidence that the sewer system has thus far caused any noxious or offensive odors, no manifestation of surface percolation of sewage effluent, nor that the surface of lots 3 and 4 presents other than a generally grassy and green appearance. Evidence by the city plumbing inspector indicates that the field was properly laid out and should function properly.
Watson contends in essence, that Hays’ actions are a clear violation of the covenants in the Bill of Assurances; that the existence of the sewer system has inhibited his sale of lots, and that he is entitled to protection and enforcement of the Bill of Assurances.
Hays contends that no nuisance condition has in fact been created or made manifest, no damage has been suffered by Watson; and that it would be inequitable to enforce the covenants against him under these harmless conditions, and after he has expended substantial sums in construction.
The general rule governing the interpretation, application and enforcement of restrictive convenants of the kind here considered is that the intention of the parties as shown by the covenant governs. 20 Am. Jur. 2d 755, ‘Covenants, Conditions, etc.,’ Sec. 186. The rule of strict construction against itself limited by the basic doctrine of taking the plain meaning of language employed.
The latest reported Arkansas case squarely in point is Casebeer v. Beacon Realty, 248 Ark. 22, where, after stating the strict construction rule, it is said, at page 26:
‘This doctrine was recognized by this court in Faust v. Little Rock School Dist., 224 Ark. 761, 276 S. W. 2d 59, wherein we said that where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint would be decreed. We have also held that when the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed and that it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction.’
This latter language is consonant with general authority, as stated in Am. Jur. 2d (supra) Sec. 187:
‘. . . but such strict rule of construction shall not be applied in such a way as to defeat the plain and obvious purpose of the restriction.’
The plain purpose of the restrictions in this case, particularly set out in item 2 of the Bill of Assurances, above quoted, is to limit the use of each lot in Bird Haven Terrace to single family, residential purposes. Item 12 of the Bill of Assurances prohibits an ‘individual sewage disposal system’ on any lot unless it meets with ‘State approval.’
These two items must be read together, and can mean nothing other than that a single family residence on each lot (no more permitted) can have only a single disposal system. * * * The covenants mean,..quite clearly, one dwelling house, one septic tank sewage disposal system.
The conclusion is inescapable that the construction of numerous septic tank sewage disposal systems on and under lots 3 and 4, even without dwelling houses, is a plain violation of the plain, unambiguous restrictions of the covenants. It is equally plain that the purpose of the restriction is to prevent such multiple systems, as a matter of general assurance and protection to all lot owners in the addition, whether a demonstrable nuisance condition exists or not.
On the question of damages to Watson, as a requisite to injunctive relief, it is true that the loss of lot sales by Watson is only speculative. But the general rule does not require a showing of damages. Again referring to Am. Jur. 2d (supra) Sec. 350:
‘As a general rule, it is not necessary to show damages in order to obtain equitable relief against violations of a restrictive covenant.’
The fact remains that no lots have been sold, and the only evidence of record as to why is the existence of the large sewage disposal field. Defendant Hays’ cited case of Ryall v. Waterworks, 247 Ark. 431, is riot in point. That case dealt with attempted injunction against a prospective nuisance, not the enjoining of violation of a restrictive covenant.
On the related point of Watson’s right to have mandatory cessation and/or removal of Hays’ sewage disposal network, as against Hays’ money investment, the text writer in Am. Jur. 2d, Sec. 313 says:
‘Mere pecuniary loss to the defendant, as a result of the enforcement of a restriction will not prevent a court of equity from enforcing it.’ Cited as footnote support for this statement is Storthz v. Midland Hills Land Co., 192 Ark. 273. In that case, this language appears:
‘It has been held . . . that the fact that the restricted property is of less value for residential purposes than it would be for some other purpose is no valid reason to ignore the restriction.’
Thus, here, while lots 3 and 4 may be of little or no value to Hays for residential purposes, and the fact that he has chosen to render them less valuable by expending his money for purposes violative of the restrictions, is no valid reason for denying Watson the right of enforcement, even though it be costly to Hays. To the same general effect, see the con- eluding paragraph in the opinion of Robertson v. Berry, 248 Ark. 267.
The court concludes that plaintiffs are entitled to the relief sought, insofar as continuation of use of the entire sewage disposal system on lots 3 and 4 is concerned. Defendants will be enjoined from such use henceforth.
Because the restrictive covenant is addressed to the limitation of only one system per lot, no harm is seen to plaintiffs, nor any violation of covenant effected, if Hays desires to use his existing system as a sewage outlet for a single residence only, on each lot; in this case, one of his mobile home units. Or, if he should build a dwelling on either lot, that dwelling is entitled to be served, as a single unit, by such system as is now in place.
No further protection would be afforded Watson by requiring Hays to dig up and remove all of the existing system; Hays may do so if he wishes as, for example, to cut his losses, but he will not be required to do so.
It is therefore, ordered, adjudged and decreed that the defendants, Lloyd L. Hays and Joan C Hays, be, and they are hereby enjoined from using and operating their private sewage disposal system installed underground on Lots 3 and 4, Block F, Bird Haven Terrace, a subdivision in the City of Fayetteville, Arkansas, and said defendants be, and they are hereby ordered, to disconnect the discharge lines running from their' mobile home park upon their adjoining property to said sewage disposal system within sixty days after this date, and in disconnecting said lines running from their mobile home park to the septic tank or tanks located on said Lots 3 and 4, Block F, Bird Haven Terrace it shall be done in such a manner that they cannot be reconnected.
It is further ordered, adjudged and decreed that the said defendants, Lloyd L. Hays and Joan C. Hays, husband and wife, be, and they are hereby permanently enjoined from using their sewage disposal system located on Lots 3 and 4, Block F, Bird Haven Terrace to serve any portion of their said mobile home park and said sewage system may be used only to serve not more than two single family residence units, only one of which may be located on each of said lots.
The costs of this action are assessed against the defendants.”
The decree is affirmed. | [
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Conley Byrd, Justice.
Cleta Moore, wife of D. C. Moore, deceased, and appellee Betty Hansen, wife of appellee Larry Hansen, jointly purchased some beauty shop equipment for the purpose of operating a beauty shop. D. C. Moore arranged for a loan for the two wives at the Citizens Bank of Jonesboro. Larry Hansen and D. C. Moore signed the note as accommodation makers for their wives. D. C. Moore requested a credit life insurance policy in the amount of the indebtedness. The premium therefor was included in the note on which the wives were primarily liable. After two installments were made, D. C. Moore was killed in an auto collision. After some litigation, the credit life insurance company paid the bank the policy amount, which after payment of counsel fees left a balance due on the note of $359.49. Cleta,Moore paid this amount to the bank, received the note and assigned it to appellant. Appellant brought this action against Larry Hansen and Betty Hansen to recover one half of the balance due on ..the note before the insurance proceeds were applied. The trial court, upon stipulated facts, denied appellant any right of subrogation to the $5,132.48 paid by the insurance proceeds but did award him a judgment for one half of the $359.49 paid by Mrs. Cleta Moore. The latter portion of the judgment has been - satisfied.
For reversal appellant contends that D. C. Moore was an accommodation maker and that appellant as Moore’s administrator is entitled to recover from the Hansens one half of the proceeds of the credit life insurance policy that were paid on the debt. A further contention is that he is entitled to recover under Ark. Stat. Ann. § 66-3204(2) (Repl. 1966). We find both contentions without merit.
Appellant cannot recover as an accommodation maker unless he is subrogated to the rights of the creditor. The cases dealing with the issue make a distinction where the credit life insurance premiums are paid by the decedent and where the premiums are paid by another. See Miller v. Potter, 210 N. C. 268, 186 S. E. 350 (1936) and Hatley v. Johnson, 265 N. C. 73, 143 S. E. 2d 260 (1965). We think the distinction is valid. Neither appellant nor his decedent has paid anything and before he can become subrogated to the rights of the bank as a creditor he must have paid the debt, Haley v. Brewer, 220 Ark. 637, 249 S. W. 2d 128 (1952). It was stipulated that “D. C. Moore, Sr. and Larry Hansen were accommodation endorsers on the said note, receiving no direct benefits therefrom.”
When it is considered that the credit life insurance policy here involved stood only as additional security for the loan, it becomes even more logical and practical that appellant should not be subrogated to the rights of the creditor—i. e., the debt in effect was paid by security that the principal obligors had already paid for.
It is true that Ark. Stat. Ann. § 66-3204(2) permits a recovery by a decedent’s estate of proceeds of life insurance paid to an unauthorized party in violation of Ark. Stat. Ann. § 66-3204. Here, however, there was no violation of the statute which provides:
“(1) 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. But no person shall procure or cause to be procured any insurance contract upon the life or body of another individual unless the benefits under such contract are payable to the individual insured or his personal representatives, or to a person having, at the time when such contract was made, an insurable interest in the individual insured.
* * *
“(3) ‘Insurable interest’ with reference to personal insurance includes only interests as follows: . . .
“(b) In the case of other persons, a lawful and substantial economic interest in having the life, health, or bodily safety of the individual insured continue, as distinguished from an interest which would arise only by, or would be enhanced in value by, the death, disablement or injury of the individual insured.”
Obviously the bank as creditor had an insurable interest. Furthermore the decedent himself asked for the insurance.
Appellees contend that the appeal should be dismissed because appellant accepted the benefits of the judgment entered. We disagree but because of the holding above the issue becomes moot.
Affirmed.
Harris, C. J. and Fogleman, J., dissent. | [
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Frank Holt, Justice.
Appellees petitioned the appellant’s planning commission to rezone their lot from Residential (R-B) to Neighborhood Commercial (N-C). The commission refused to change the classification, and appellant’s city council approved the commission’s action. The appellees then proceeded in chancery court. This appeal results from the chancellor’s finding that the action of the city council was arbitrary, and from his order directing appellees’ property to be changed to the requested “Neighborhood Commercial Zone.” In its first two points for reversal, appellant asserts that the chancellor erred by substituting his judgment for that of the zoning authorities and that the chancellor’s findings are contrary to the preponderence of the evidence. We do not agree.
The facts in the case appear to be undisputed with reference to the nature of the realty surrounding the subject property. This vacant lot is being purchased by the Davidsons, appellees, from appellee Katz with the intention of constructing a drug store thereon. It is located on the north side of Oakland Avenue (U. S. Highway No. 49), which is the main thoroughfare between Helena and West Helena and one of the most heavily traveled roads in the State, accommodating approximately 15,000 vehicles a day. The lot is situated about one block inside the east central corporate boundary of appellant city and the contiguous boundary of the western most jaortion of the City of Helena. The lot constitutes the far eastern parcel of a residential (R-B) district. Immediately adjoining it to the west is a church with a complex of buildings. Next are two vacant lots, then a 50-foot-wide street or avenue which is not open at the highway entrance. Then, continuing to the west on the north or same side of the highway (Oakland Avenue), are found residences in a different classification, Residential (R-A), leading up to an elementary school. Across the street from the church and a small portion of appellees’ property is a residence; then, continuing on further west on this south side of the highway are two vacant lots, the Helena Country Club, and residences in R-A. classification, except for a service station. This appears to accurately describe the type of property which is on both sides of the highway to the west of appellees’ vacant lot.
Immediately to the east of appellees’ property on the north side of the highway there is a bowling alley. Adjacent to this commercial business is a high school and junior high school complex of the Consolidated Helena-West Helena School System. Next to the schools it appears that appellant recently rezoned some land to the east for commercial purposes to permit construction of a shopping center. Directly across the highway from appellees’ property is located the Arkansas Power & Light Company’s main office, storage and maintenance building, and east of this property there is a drive-in food and drink establishment. On the eastern line of this drive-in is found the corporate boundary of West Helena and Helena. Further eastward on both sides of the highway, there are various business establishments located on commercially zoned property extending for almost a mile into the City of Helena.
Appellee Mr. Davidson, a pharmacist, rents a building in Helena where he owns and operates a drug store about one block east of that city’s corporate line, or approximately two blocks from the vacant lot he seeks to have rezoned in order to construct a drug store building thereon.
Appellant’s witnesses, which included members of the city council and of the planning commission and four property owners, testified that the rezoning of appellees’ property from Residential (R-B) to Neighborhood Commercial (N-C) would disturb the planning program and not be in the best interest of the City; that rezoning would depreciate or adversely affect the value of residential property to the west which is in the classification Residential (R-A); and that the church should not be considered a buffer zone between appellees’ property and the area to the west. There was evidence that in the past several efforts to rezone this property were unsuccessful. Evidence was also adduced that the proposed rezoning would increase already existing traffic problems which, as one witness testified, was the basic reason the people in the area were objecting. It was admitted by appellant that the character of appellees’ property is "low residential” which is described as suitable for multi-dwelling houses, such as duplexes. One of appellant’s witnesses testified that he would not build a home there. It appears that a multiple dwelling sould be restricted to a height of 35 feet, whereas a building zoned for Neighborhood Commercial (N-C) use could be no more than 26 feet in height. As previously indicated, it is admitted that the whole area east of appellees’ property on both sides of Highway No. 49 consists of commercial establishments for a considerable distance.
The church, which is adjacent to appellees’ property, found it necessary to purchase a part of appellees’ property in order to provide a better driveway and access to the highway to accommodate its 350 members. The church now has an Education Building consisting of thirteen classrooms, three offices, two restrooms, an equipment room and a kitchen.
An expert city planner, associated with the University of Arkansas, who assisted appellant’s planning commission and whose contract was completed in 1962, recommended that appellees’ property be zoned Residential (R-B) and the property west of the church be classified as Residential (R-A). He testified that there appears to have been a number of changes since 1962 and that from his observation, the tract of property adjacent to the subject property appears to be commercial in nature. The church has been built since the completion of his contract in 1962 and the nearby school has grown. He stated that he did not consider the church as a buffer zone and that a residential classification, duplex type, is still appropriate for appellees’ property and consistent with city planning. He finally stated that he did not have an opinion whether the subject property would be commercial in nature. He observed that Neighborhood Commercial is a very limited classification and is restricted to one-story buildings.
Among appellees’ witnesses was a local licensed realtor and real estate broker who lives in West Helena and has had many years experience in his profession. He was for several years a member and . official of the City’s Planning Commission, beginning in the early 1960’s, and is familiar with appellees’ property and the city’s planning and zoning ordinances. It was his opinion that appellees’ property was not suitable for residential uses, nor could ever be used for that purpose; that the highest and most compatible use of the property was for Neighborhood Commercial purposes for a retail store; that this type of use would not adversely affect or depreciate the value of property to the west; and that the residence diagonally across the highway from appellees’ property is “sitting back” about 250—BOO feet from the highway and is within 50—75 feet of the Arkansas Power & Light Company’s property. According to him, it would not be spot zoning to permit the requested neighborhood commercial use. He also testified that the church, in addition to being a buffer zone, could be considered merely as “an extension of a commercial zone.” Another well-known realtor and an expert who is experienced in zoning and planning programs was of the view that the property was definitely commercial in character inasmuch as it is located in and adjacent to an established commercial business area; that good planning required the use of this property for neighborhood commercial purposes; and that such usage would not depreciate the value of any residential property in the area. In his view, the proposed use of the property as a drug store would not increase the traffic hazard on this heavily traveled highway (15,000 vehicles per day). According to him, a Neighborhood Commercial (N-C) classification or a commercial use of a low character would conform to. the highest compatible use of the subject property and would fit into the city’s planning program. Also, the church is a perfect buffer between the residential district (R-A) and the subject property. Because of the proximity of the subject peoperty to the boundary line of Helena-West Helena, it was his opinion that good planning required zoning by area rather than by political boundaries and that the use of the property in both cities in proximity to appellees’ property should be considered for zoning purposes.
In City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883 (1925) we said:
“*■** any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.”
We think this language is applicable to the case at bar in view of the fact that appellees’ property is practically surrounded by established commercial activities which border on both sides of a major highway having a traffic count of approximately 15,000 vehicles per day. Furthermore, appellees have specified the intended use of the property, cf. City of Little Rock v. Parker, et al, 241 Ark. 381, 407 S. W. 2d 921 (1966).
As stated previously, the facts are not disputed as to the present uses of the properties in the area. The dispute presented to the chancellor largely pivoted around the opinions of the witnesses representing opposing views as to the highest compatible use of the subject property. In such a situation we aptly said in City of Helena v. Barrow, 241 Ark. 654, 408 S. W. 2d 867 (1966):
“In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence.”
In the case at bar, the chancellor heard the witnesses and evaluated their conflicting testimony and other evidence; we are unwilling to say that his findings are against the preponderance of the evidence. Nor do we find any merit in appellant’s contention that the chancellor erred in considering evidence of commercial uses of nearby property within the corporate limits of the adjacent City of Helena. Appellees’ property is within one block of this bordering city, and certainly it must be said that the commercial use of other property situated within one block of their property would have an effect upon its highest compatible usage. In fact, appellant’s expert, who by contract assisted in the planning program, testified that the planning project as to land use was conducted in conjunction with the planning commissions of both cities and that there is a very close correlation between land use planning and zoning ordinances.
The decree is affirmed.
Harris, C. J., and Fogleman, J., dissent. | [
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John A. Fogleman, Justice.
This is an appeal by Burks Motors, Inc., from that part of the judgment involved in International Harvester Company v. Pike, 249 Ark. 1026, 466 S. W. 2d 901, relating to contribution by International to Burks. This judgment in favor of Pike was against appellant and appellee, jointly and severally, for $87,000. Burks was granted judgment against International for contribution of 91% of the judgment. Burks appealed from this judgment, contending that it was entitled to a greater contribution by International. Burks does not question the issues of liability or the amount of the judgment, but seeks only to modify the judgment in respect to contribution. It asserts that it was liable to Pike for negligence only, that the jury found that Burks’ negligence and that of International Harvester contributed only 10% to the cause of Pike’s damages, and that Burks’ only responsibility was limited to 9% of the negligence involved as a concurring cause. We do not agree with appellant’s construction of the jury verdict.
Pike’s cause of action against both Burks and International was based upon both breach of warranty and negligence. Burks prayed for determination of relative fault between it and International, and judgment over against International under the Uni orm Contribution Among Tortfeasors Act [Ark. Stat. Ann. §' 34-1001, et. seq. (Repl. 1962)] for its propordonate liability. Burks also asked judgment over against International for any recovery for breach of warranty.
The case was submitted to the jury upon interrogatories. No interrogatory was submitted as to whether Burks was liable for breach of warranty, because it was clearly entitled to judgment over against International for any breach of implied warranty. The circuit judge stated that he would be willing to submit further interrogatories to the jury after it had answered those submitted, if any were necessary to have further information from it to avoid any confusion.
Before any interrogatory was submitted, it was agreed by all parties that, if the jury found that International was guilty of negligence which was a proximate cause of Pike’s damages, and answered other interrogatories submitted, the court would then submit a final interrogatory requiring allocation of International’s liability be veen negligence in design on the one hand and neghgence in assembly and repair on the other for the purpose of an action by International against Hendricks Manufacturing Company, the alleged supplier of t torque rod assembly. When the jury first retired, the only interrogatories submitted were directed to findings whether International Harvester was guilty of negligence constituting a proximate cause, whether Burks was guilty of such negligence, whether International was guilty of a breach of warranty which was a proximate cause, and whether Pike assumed the risk of his own injury. After these interrogatories were answered, the circuit judge submitted an interrogatory calling for apportionment of responsibility between.International and Burks. The interrogatory and the answer are as follows:
Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.
ANSWER: International Harvester Co. - 91%
Burks Motors, Inc. 9%
Total , 100%
s/C. O. Shuffield, Foreman
This interrogatory was requested by Pike. Objection was made by Burks only on the ground that, it failed to submit the issue of negligence on the part of Pike.
The circuit judge then submitted interrogatories as to damages. After answers to these were returned into court, he then submitted the interrogatory as to apportionment of negligence of International between negligence in design and negligence in assembly and repair.
This interrogatory to which no one objected, either as to form or substance, was answered as follows:
INTERROGATORYNO.il
Having answered Interrogatory Nó. 1 in the affirmative finding International Harvester negligent, you will now again using 100 as a percentage figure apportion the degree of fault as between negligence in design and negligence in assembly or repair.
90% Design 10% Assembly or repair 100%
s/C. O. Shuffield Foreman
Judgment was then entered. In it, Burks was given judgment against International for 91% contribution.
Appellant argues that because the jury attributed 90% of International’s negligence to negligence in design, appellant could only be liable to Pike for its pro rata part (9%) of the negligence in assembly and repair and was entitled to contribution for all of the judgment over and above that percentage (0.9%).
There is no question but what Burks was entitled to judgment over against International for any liability for breach of warranty and no objection was made by anyone to the circuit judge’s statement that, upon a finding that there was such a breach which was a proximate cause, he would enter judgment against International in Burks’ favor.
We do not agree with appellant’s construction of the interrogatories and their answers. Liability for breach of warranty could be said to overlap or include negligence in both design and assembly, but not negligence in repair. Thus, International’s breach of warranty could have contributed more than 90% to the cause of the occurrence. But this is consistent with the jury’s finding that 91% of the responsibility for the occurrence lay upon International and 9% on Burks. That finding of responsibility must have included both liability for breach of warranty and negligence on the part of International, but as to Burks’ responsibility, only negligence could have been considered by the jury. The plain language of the. interrogatory, when considered along with the answers to the interrogatories, can lead to no other conclusion. If this was not clear, Burks had the opportunity to request further interrogatories, even after in terrogatory 11 was answered. The record does not indicate that any such request was made.
Appellant’s prayer for modification of the judgment is denied.
International filed a third party complaint against Hendrickson. Quashing of the service thereon by the trial court was reversed in International Harvester v. Hendrickson Mfg., 249 Ark. 298, 459 S. W. 2d 62. | [
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Lyle Brown, Justice.
This is an unusual child support case. The parties, divorced in 1965, had three minor children. Kenneth, age fourteen years at the time, was retarded. The father was directed to pay $400 a month child support. In 1967 the mother asked that the father take custody of the retarded son. That was done and the child support payment was reduced to $200 a month. In 1970 the mother asked that Kenneth be placed in a school in Louisiana for retarded children and that the father be directed to pay the cost amounting to $300 a month. The chancellor denied the request and the mother appeals, contending that the trial court’s denial of her petition was contrary to a preponderance of the evidence.
Appellant Jean McNichol testified that she resides in Whittier, California, where she is a public health nurse. She stated that Kenneth had an I. Q. of sixty-seven which indicated to her that the boy was trainable for some type of employment. On her trip back to Arkansas for the hearing Jean McNichol went to the Easter seal day care center where Kenneth is enrolled. She said she found Kenneth in “a sheltered workshop not learning a trade, doing work there in a simple setting, stuffing envelopes and putting little nuts and bolts and things” together. She found nothing which in her opinion would lead to job placement for Kenneth. She introduced a brochure published by Evergreen Presbyterian School in Louisiana. The brochure described substantial facilities for the training of retarded children. The school had been recommended by a former pastor of the family. The total maintenance costs were estimated to be $300 monthly.
Elizabeth McNichol Worsley testified on behalf of her mother. She has a college degree in sociology and resides in San Antonio, Texas. She had lived in the home with Kenneth until she went away to college. From that experience and from her training in sociology she believed that Kenneth had considerably more potential than the training that the Easter seal school afforded him. She visited the school on the day before the trial. She said Kenneth’s supervisor had the boy putting nuts and bolts together and pasting labels on magazines.
Don Wilkerson was called by the mother as an adverse witness. He is a vocational counselor and was Kenneth’s supervisor at the rehabilitation center in Conway. It was his opinion, that Kenneth made some progress at Conway but that the staff there “had exhausted every means to get him suitably trained and placed.” Mr. Wilkerson said he had no idea as to when the boy would be capable of entering competitive labor, if ever.
Dr. McNichol testified in his own behalf and rather extensively. He is a medical school graduate and specializes in psychiatry. He holds the position of clinical director in charge of the alcoholic rehabilitation service under the State program. His credentials in the field of mental health are quite impressive. He related that when he took custody of Kenneth in 1967 the boy was placed in the Benton unit of the State Hospital and shortly was placed in the rehabilitation service at the same unit. (Kenneth had been a patient in the California State Hospital.) Dr. McNichol was working at the Benton unit. Kenneth remained there from September 1967 until January 1968, and was then transferred to Children’s Colony at Conway for further evaluation and training. When the boy was terminated at Conway, the father succeeded in placing him in training with the Easter seal service in Little Rock, as an out-patient. Dr. McNichol obtained lodging for his son at a boarding house specializing in housing mentally retarded men and boys. It is operated by an experienced psychiatric technician. The housing was recommended to Dr. McNichol by the rehabilitation service. It is walking distance of the Easter seal day care center. Kenneth regularly attends a nearby church. The father pays all expenses except spending money, which Kenneth earns by part-time work at the day care center.
It was Dr. McNichol’s opinion that it would serve no useful purpose to send Kenneth to Evergreen School, considering his low potential rating. He said Kenneth is making as much progress in his present situation as could be made at any institution. He said the norm of the average boy in Kenneth’s condition is sixty-seven per cent and that Kenneth’s capacity is only seventeen per cent of the norm. He thought it would be upsetting to Kenneth to remove him from his present surroundings in Little Rock, where he has made friends and found a limited outlet for recreation. The witness conceded that if he were ordered to place the boy in Evergreen he could afford it financially. However, the doctor is afflicted with multiple sclerosis. The ailment has increased to the point where he cannot get up and down stairs without the use of a wheelchair. He walks with the aid of two canes. Therefore, he reasoned that his ability to earn could well be seriously affected at any time.
We conclude from the chancellor’s remarks at the close of the evidence that he was more impressed by the professional evidence given by Don Wilkerson and Dr. McNichol. That testimony warranted the conclusion that Kenneth’s chances for improvement were negligible and that to disburb the boy in his present situation would cause a serious setback. The chancellor expressed admiration for the mother in her desire to move Kenneth to what she considered to be a better environment, but said her sincere hopes were not enough to justify a change. If the boy were sent to the school near Minden, Louisiana, he would be far removed from both his parents. Presently the father is only a thirty minute drive away from Kenneth. They correspond and the father occasionally pays Kenneth a visit and keeps in touch with the boy’s supervisors, with whom the father is personally acquainted. We are unable to say that the findings of the chancellor are against the preponderance of the evidence.
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John A. Fogleman, Justice.
This condemnation proceeding involves the taking of certain lots in Little Rock. Appellee Gussie Alman questioned the right of appellant to exercise the power of eminent domain and caused the transfer of the case to chancery court. That contention has now become unimportant. The chancellor heard four qualified expert witnesses called by appellee and two called by appellant on the value of the lands taken. The court found that the testimony of Lewis Block, one of appellee’s witnesses, was rather clear and specific on all points and that this appraisal fixed the value of the property at $114,335.08, and awarded that amount as compensation.
Appellant contends that the decision of the chancellor is against the preponderance of the evidence and is not supported by substantial evidence, that the value fixed by the chancellor was excessive and that Block erroneously added the value of certain improvements to the land value in arriving at his valuation of the property taken. We agree on the latter two points, but we are unable to say that the chancellor’s finding as to the land value fixed by Block is clearly against the preponderance of the evidence.
There is no substantial dispute as to the physical condition of the property, its size, location and the uses to which it was being put or might be put. The area of the property was 31,900 square feet.
Mr. Block has been engaged in the real estate business in Little Rock for about 46 years. In spite of a long familiarity with the property, he testified that he went all over it when appellee asked for an appraisal. He testified that the highest and best use of the property was for commercial and industrial purposes for a warehouse, wholesale business or manufacturing. For that use he fixed a land value of $3 per square foot or $95,700. He added to this land value $18,635.08 for improvements, consisting of residential rental property. As comparable sales, he considered sales made by his company, and did not check others because these seemed sufficient to him to establish market value and because of his knowledge and experience in real estate values in Little Rock. It was his opinion that one could not arrive at a fair market value of commercial and industrial property without considering the improvements on it.
Appellant questioned the comparability of the sales considered by Block, because they were located either on Broadway or east of it. Block testified, however, that the subject property was only one block off Broadway, which he said was one of the busiest streets in Little Rock, and one block off West Ninth, on which he said there was a tremendous amount of traffic. Jack Farris, another of appellee’s expert witnesses, testified that the highest and best use of the property was for purposes other than residential, mentioning distribution warehouses, retail business and garages as specific potential uses. He also found sales on Broadway to be fairly comparable, although he found no directly comparable sale in which the Housing Authority had not been involved.
Ralph Sprigg, retired real estate manager for the Kroger Company, now engaged as a real estate broker and property manager, valued the property at $103,675. Morris High, another real estate broker, who also bought and sold property for himself, valued the land at $110,000. He considered that the highest and best use of the property would be as an annex to Mount Holly Cemetery, across the street, and the next best for warehousing. These witnesses did not consider sales that appellant’s experts considered comparable. All of appellee’s expert witnesses, other than Block, stated that the present improvements on the property added nothing to its value for its highest and best use.
No useful purpose would be served by outlining the testimony of appellant’s expert witnesses, both of whom are under contract with the Housing Authority to perform specific appraisal duties. One of them fixed the value of the property at $51,000 and the other at $54,000. They considered the highest and best use to be for commercial purposes. They found no market value in the improvements in addition to the land value except for whatever salvage value there might be. One of them did not consider sales on Broadway comparable because of the heavier traffic concentration there.
We cannot say that the sales considered by appellant’s witnesses were more nearly comparable to the condemned property than those considered by appellee’s experts as a matter of law. Neither can we say that the chancellor’s finding Block’s testimony to carry the greatest weight is clearly against the preponderance of the evidence. We do find that Block included an impermissible item in his total value. The practice of intermingling of present values of residential improvements with land values based on a present highest and best use for commercial uses to arrive at present market value was condemned in Arkansas State Highway Commission v. Toffelmire, 247 Ark. 74, 444 S. W. 2d 241. In Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495, we said that a jury verdict based partly on commercial value of land taken and partially on testimony relating to the land’s value for residential púrposes would not be proper. Yet this is exactly the basis of the chancellor’s award. We do not mean to say that testimony as to the value of residential improvements on land should not be admitted when there is a fact question as to the highest and best use of the property or when the improvements are such that they enhance the market value of the property. See Arkansas State Highway Commission v. Brewer, 240 Ark. 390, 400 S. W. 2d 276; Arkansas State Highway Commission v. Wallace, 249 Ark. 303, 459 S. W. 2d 812; Arkansas State Highway Commission v. Richards, 229 Ark. 783, 318 S. W. 2d 605. But no witness, not even Block, testified that the buildings on this property would affect its market value for the agreed highest and best use.
Since the trial here is de novo and the error in the chancery court can be accurately evaluated in dollars and cents, we can correct that error by reducing the judgment awarded in the court’s decree. We modify the decree by reducing the award to $95,700, and affirm the decree as thus modified. | [
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Frank Holt, Justice.
This action was brought by appellant to recover a real estate brokerage commission from appellees. After presentation of oral and documentary evidence by both parties, the trial court, sitting as a jury, found that appellant was not entitled to a commission. From the judgment of the court dismissing the complaint, appellant brings this appeal.
On April 10, 1969, appellees entered into a written “exclusive listing” contract with appellant. Under the terms of this contract, appellant was to have the exclusive right from April 10, 1969, through September 10, 1969, to sell appellees’ house. If the house were sold within that period, whether by appellant or by any other party including appellees, appellant would be entitled, under the contract, to a broker’s commission of 6% of the gross amount of the sale price. Since appellees insisted upon a net receipt of no less than $14,000, it was agreed that appellant should set the selling price at $15,000 in order to accommodate its commission and still allow appellees their desired return. The contract further provided that appellant would also be entitled to a commission if the house were sold after the 150-day listing period as a result of information given by or obtained through appellant.
Sometime in July 1969, Malón D. Harris contacted appellant as a prospective purchaser, and appellant en deavored to sell him appellees’ house. Harris declined to purchase the house, and no other buyer was obtained by appellant during the listing period. Appellees advised appellant on September 8, 1969, that they did not intend to renew the listing contract and, on September 26, 1969, transferred the listed property to Harris for $14,000. Upon learning of this sale, appellant demanded its commission. Appellees’ refusal to pay resulted in the present litigation.
In its first point for reversal, appellant contends that the trial court erred by not finding that appellees effectively sold their house during the listing period, thereby incurring liability for the commission. In accordance with our well established rule, on appeal we review the evidence in the light most favorable to appellees to ascertain if there is any substantial evidence to support the finding of the trial court, and, if so, then we must affirm. Pearrow v. Huntsman, 248 Ark. 1146, 455 S. W. 2d 128 (1970); Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S. W. 2d 188 (1964). There is testimony that Harris first approached appellees about purchasing their house without any knowledge of the listing with appellant; appellees then referred Harris to appellant and advised him he would have to buy the house through appellant. On a later occasion, Harris asked appellees if he could buy the house for $14,000. Appellee Elbert Lisemby testified: “I told him I could not sell it to him for any price as long as [appellant] had it.” Lisemby acknowledged that he told Harris he would sell him the house for $14,000 if appellant did not sell it.
Appellant now argues that this was an agreement which constituted a binding condition contract. However, according to Harris, this conversation was not understood to be a binding agreement. He stated that appellee Lisemby “said he couldn’t hold it for me, but, of course, if [appellant] hadn’t sold it before they were out of it that he would sell it to me.” Likewise, Lisemby did not consider this as a binding contract. He testified that he was uncertain as of September 10, 1969 (the date of expiration of the listing contract) whether Harris would buy the house. It was not until September 26, 1969, that Lisemby knew for certain that Harris could or would buy his house because it was only then that Harris was able to make the $500 down payment. According to Lisemby and Harris, there was no enforceable agreement until that date. We cannot say there was no substantial evidence to support the finding that this asserted agreement was not intended as a binding sales contract.
Next it is asserted for reversal that appellees’ conduct during the listing period was intended to, and did, improperly deprive appellant of the sale to Harris. Appellant contends there is evidence that appellees and Harris secretly negotiated with a federal loan agency during the listing period to secure financing; that when Lisemby did not renew the listing he made misleading statements to the effect that he had decided to retain the property and rent it; and that the transfer of the property after the listing period constituted a breach of the listing contract. But, once again there is substantial evidence controverting these contentions. Appellee Lisemby testified that he wanted appellant to sell the property and did not discourage anyone from buying it; that he never suggested to Harris that by waiting he could beat appellant out of its commission; that although he had told Harris, whom he had sent to appellant, that he would sell to him for $14,000, he would not do so until appellant had his full time; that Harris indicated that he was unable to finance the house at $15,000; and that they agreed to sell the house to Harris only after he was convinced that Harris would not buy it at $15,000. Although other evidence may be construed to indicate that appellees did not act in good faith toward appellant, nonetheless, when we view the evidence in the light most favorable to the appellees, we cannot say there is no substantial evidence to support an opposite conclusion by the trial court.
In its third and final point for reversal, appellant argues that the sale to Harris, even assuming it occurred after the listing period, resulted from the efforts of appellant during the listing period. Appellant points out that “there was substantial proof during the trial that the sale made to Harris was the product of [appellant’s] advertisements and efforts.” Even though this proof does exist, it is not controlling here on appeal. As previously indicated, on appeal we must affirm if there is any substantial evidence to support the findings of the trial court, although there is also substantial evidence to the contrary.
The president of appellant company, Jerry Cantrell, testified that: He ran ads concerning the property in a local newspaper; he placed a “for sale” sign in appellees’ yard; he had met with Harris on three occasions in an effort to sell him the house, but that Harris stated that he had decided not to buy the house and preferred to rent; Harris had referred to the ads when he contacted him; he had suggested methods of financing to Harris when he said that he was unable to “raise the money;” and after that, appellant did not consider Harris “a good prospect.” Harris testified that he first learned of the house being for sale from appellee Elbert Lisemby, an acquaintance, who told him that he would have to biiy from Cantrell; that he only met twice with Cantrell and that the other contacts were by telephone; that he did not mention any ad to Cantrell; and that he did not buy the house as a result of any efforts of appellant. The testimony is conflicting and reconciling conflicts in the testimony and weighing the evidence are within the exclusive province of the trial court. We cannot say there is no substantial evidence that the sale was made independent of appellant’s efforts.
Affirmed.
Byrd, J., dissents. | [
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George Rose Smith, Justice.
The two appellants, James Dailey, Jr., and Ralph William Erwin, were charged with having unlawfully dynamited a building in Fort Smith. Ark. Stat. Ann. § 41-4237 (Repl. 1964). The jury found both men guilty and assessed the same punishment for each of them: A fine of $2,000 and imprisonment for 15 years. Each appellant argues a single point for reversal.
Dailey contends that the trial court erred in refusing to suppress part of the testimony of Officer Eddie Brooks, who was allowed to testify that Dailey had orally admitted his guilt. After studying the record we are unable to say that the trial court was in error.
Dailey was arrested on July 24, 1970, and, according to the State’s evidence, was then fully informed of his constitutional rights. He understood the explanation and did not then make any statement to the officers. While Dailey was still in jail his attorney filed a motion for an examination to determine Dailey’s sanity. The motion was granted, the examination being set for 9:30 a.m. on September 1.
Early that morning Dailey sent word that he wanted to talk to Officer Brooks. Brooks’s testimony about the occurrences during the day was to this effect: Brooks went to the jail to see Dailey. Dailey mentioned the psychiatric examination, which Brooks had not known about, and went on to say that “they” had stated that he (Dailey) was crazy and were trying to sent him to the nut house. Brooks explained that he could not talk to Dailey while he was represented by an attorney. Brooks did not urge Dailey to discharge his attorney, Bill Wiggins, but Brooks admitted that he did suggest that course to Dailey. Dailey said that he had not paid the attorney anything and also that he did not need an attorney if the best they could do was to send him to Little Rock (presumably meaning to the State Hospital).
Officer Brooks then left the jail and came back about an hour and a half later. Dailey indicated that he had seen his attorney, Wiggins, during the interval and had fired him. Dailey was taken to the office of a deputy prosecuting attorney, where he was told that he still had the right to have an attorney present. Dailey stated that he did not want a jury trial, that he knew he was guilty, that he had done wrong, and that he wanted to get it over with. Dailey refused to make a written statement but indicated that he would do so later on.
The foregoing testimony of Officer Brooks is almost uncontradicted. Dailey did not elect to testify, even at the in-chambers hearing on the motion to suppress the evidence. Attorney Wiggins testified positively that he was not discharged by Dailey on the day in question; but he had no way of knowing, and of course did not attempt to say, whether Dailey had represented to Officer Brooks that Wiggins had been discharged. We are impressed by the fact that both Officer Brooks and the prosecuting attorney immediately made written records of what happened on the day in question. Their notes support their testimony. On the other hand, Wiggins apparently did not make any notes and admitted with candor that in some respects he had no basis for admitting or denying the prosecutor’s statements. Upon the record as a whole we are unable to say that the trial court erred in refusing to suppress the challenged testimony of Officer Brooks.
The question presented by Erwin’s appeal is comparatively free from difficulty. In effect he complains of three questions that were put to him on cross examination. First, he was asked about a threat that he had supposedly made. He denied having made the threat. Secondly, he was asked if he had thrown a brick through the vehicle of a guard at the plant where certain disturbances (in connection with a labor dispute) were taking place. Erwin’s answer was “No, sir.” Thirdly, he was asked if he had brandished weapons at Mexican laborers who were working at the plant during the dispute. Counsel objected at that point, and the question was not answered. Thus none of the three questions was answered in the affirmative and consequently no information whatever, much less any prejudicial information, reached the ears of the jury. In the circumstances there was clearly no reversible error.
Affirmed. | [
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Carleton Harris, Chief Justice.
Appellants, Ernest Glover and Thelma E. Glover, instituted suit against appellee, Fred R. Stotts, seeking damages for personal injuries and property damage, allegedly sustained in an automobile accident occurring at an uncontrolled intersection of two county roads. Stotts filed a cross-complaint for damage to his pick-up truck. On trial, the court instructed as to comparative negligence, but no interrogatories were submitted, and a general verdict was returned, the jury finding, “We, the jury, find for the plaintiffs, Ernest Glover and Thelma Glover, on the counterclaim of the defendant, Fred Stotts, and find in favor of Fred Stotts on the complaint of plaintiffs, Ernest Glover and Thelma Glover”.
It is thus not clear whether the jury found both parties equally negligent, or whether they found no negligence on the part of either, the jury having been instructed that in either of these instances, there could be no recovery. From the judgment entered denying recovery to either party, appellants bring this appeal.
In oral argument, counsel for appellants first contended that his clients were free from negligence, but subsequently admitted that he did not ask for a directed verdict, and, in fact, he stated that he did not think that he was entitled to a directed verdict; this would seem to indicate that appellant’s contention is simply that Stotts was much more negligent than Mrs. Glover.
In determining this litigation, it is not necessary to set out all of the evidence that was offered; it is only necessary that it be shown that there was evidence from which the jury could have found Mrs. Glover, driver of appellants’ vehicle, guilty of some degree of negligence. The proof reflects that Mrs. Glover was driving east on County Road 84 and came to the point where this road intersects County Road 1275, the location being known as Catfish Lane Road. According to her testimony, this appellant intended to turn left for the purpose of traveling to Lake City, and she had used the road many times previously. Mrs. Glover stated that to the left of the intersection, there was a considerable growth of underbrush that interfered with one’s vision, and she could not see to the left until pulling out into Road 1275. Appellant testified that she first stopped at the intersection, and, as stated, could not see to the left toward Lake City due to the brush and weeds, but did not hear any traffic coming, and accordingly shifted into low gear and eased forward three or four feet. She said that she then observed Stott’s vehicle approaching from the north, some 75 or 100 feet away, traveling at 50 or more miles per hour. “He was flying.” Upon observing the approaching car, she slammed on her brakes, and her vehicle was stopped at the time she was struck. Mrs. Glover testified that on some previous trips, she had sounded her horn when reaching this blind spot, and before entering into the intersection, though she did not do so on this particular occasion. Testimony was given by a police officer indicating that she was nearer to seven or eight feet into the north-south country road than the three or four feet to which she had testified, and the officer stated that the position of her car denoted that she was in the act of making a left turn at the time of the collision.
Actually, we need not discuss further any of the evidence, for it is apparent that the jury could have found that Mrs. Glover was negligent in proceeding “blindly” into the intersection. Certainly, she was not entitled to a directed verdict, even had she made such a motion. In Spink v. Mourton, 235 Ark. 919, 362 S. W. 2d 665, this court said:
“Owing to the fact that the plaintiff has the burden of proof— that is, the burden of persuading the jury that he is entitled to win the case—a directed verdict for the plaintiff is a rarity. As we said in Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S. W. 2d 708: ‘A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.’
The problem is especially acute in negligence cases, for the standard of care—that of a reasonably careful person—is apt in almost every case to become an issue of fact for the jury. In one of the few cases that have discussed this exact point the Court of Appeals for our circuit had this to say: ‘Negligence and proximate cause will become transformed from questions of fact into questions of law rather on probative deficiency than on probative abundance. Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise. (Citing case)”
Though there was evidence from which the jury could have found that Stotts was not keeping a proper lookout, and was perhaps driving too fast, and though we might feel that appellee was the more negligent of the two parties, these were fact questions, and as such, were questions for jury determination. We are not permitted to determine percentages of negligence. On this appeal, there is no relief that this court could grant other than to find there was no substantial evidence to support the jury verdict; from what has been said, it is obvious that we could not make such a determination.
Affirmed.
The original complaint reflected that Mr. Glover was the owner of the truck, and he sought recovery for property damage. Subsequently, the pleadings were amended to reflect that he was a joint owner with Mrs. Glover. | [
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Conley Byrd, Justice.
Appellant H. C. Ahrens, Jr., the owner of lands in sections 30, 31 and 32, T. 6 N., R. 12 W., brought this action against appellees Monnie Ruth Harris and Jim and Peggy Harris, husband and wife, to lay off a private road pursuant to Ark. Stat. Ann. § 76-110 (Repl. 1957), across a seven acre tract owned by Jim Harris, subject to the homestead and dower rights of his mother. The county court denied appellant’s application for lack of necessity. A circuit court jury also found adversely to appellant on the issue of necessity. For reversal appellant here contends that the trial court erred in permitting the introduction of evidence showing a unity of use between the 7 acre tract and a 172 acre adjoining tract owned only by Jim Harris and his wife Peggy, and that there was no substantial evidence to support the verdict.
Appellant purchased his property in 1959. At that time the access across Palarm Creek to his property from Highway No. 36 was by way of a low-water bridge which is still in existence. There is also a public mail route road along the western half of his south property line. In 1959 there was a three-way trade of some property between Ahrens and Jim Harris’ father and grandfather whereby appellant acquired some right-of-way out to Highway No. 36. In 1961 the Highway No. 36 bridge across Palarm Creek washed out. When the bridge was rebuilt the highway dump was raised approximately 3 feet and the bridge reconstructed so as to permit a greater flow of water.
Mr. Ahrens testified about the difficulty in crossing the low-water bridge following heavy rains. With reference to the access available along the public mail road along the western part of his southern boundary, he stated that to build a private road from his house back to where the public road leaves his property would require the building of a road approximately three-quarters of a mile or more. There being a steep grade in the area, he rejected this possibility because of the cost of the initial construction of the road plus maintenance problems. Another alternative would be to move down Palarm Creek a short distance from the low-water bridge and construct an all-weather bridge at an estimated cost of $11,000.00. The third alternate, which he asked the court to lay out, would be to cross 600 feet of the seven acre tract to intersect Highway No. 36 at a point north of where the highway crosses Palarm Creek. This latter alternative would only require a bridge across the West-fork of Palarm Creek and according to appellant’s estimate would cost around $4,000.00 plus the cost for acquisition of the easement. On cross-examination appellant testified that there was no roadway on the south and west portion of his property which is passable with a vehicle but admitted that there had been a logging road in that area.
Monnie Ruth Harris testified about the title to the 7 acre tract and the title to the 172 acre tract owned by her son and his wife, both of which are used in a part nership cattle operation. All of the improvements relating to the cattle operation, consisting of a barn, silage pits and feeders, are located on the 7 acre tract. According to her, appellant’s proposed route across her property would create great inconveience to their cattle operation and also possible damage to the silage pit. In addition she pointed out that there was a mail route that touched appellant’s property on the west which is frequently used. She testified that when Willis Smith, one of the appellant’s tenants, lived on the property, he used the so-called logroad to get in and out of the property when water would not permit crossing the low-water bridge to Highway No. 36.
Jim Harris testified about the difficulty that appellant’s proposed road would have with their cattle operation and also that it would run water into their silage pits. He too testified that there was a road across appellant’s farm going toward the south and that appellant’s tenant Willis Smith had used it when Palarm Creek was up.
Both parties recognize that the applicable law is well stated in Pippin v. May, 78 Ark. 18, 93 S. W. 64 (1906), wherein it is said:
“In determining whether such a road is necessary, the court must, of course, take into consideration not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend. After considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not.”
From a review of the record we find that there is substantial evidence to support the jury’s finding that there was no necessity for a private roadway on the property of the appellees.
Furthermore, we think that the evidence with reference to the inconvenience that the roadway would cause the appellees was properly admissible. The record title to the 7 acre tract stood in the name of Jim Harris subject to the homestead and dower rights of his mother, Monnie Ruth Harris. The record also shows that this 7 acre tract was used through a partnership arrangement between Jim Harris and his mother with an additional 172 acre tract owned by Jim Harris and his wife Peggy. Of course the issue here was the inconvenience that it would cause the landowners and not necessarily the unity of use for condemnation purposes. However, the authorities do no necessarily support appellant’s contention that such evidence is not admissible for condemnation purposes. See I. I. & I. R. R. Company v. Conness, 184 Ill. 178, 56 N. E. 402 (1900).
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Frank Holt, Justice.
Appellants instituted suit to establish their claimed interest in, and for partition of, the 40-acre tract of land here in issue. The present appeal is a sequel to Wilson v. McDaniel, 247 Ark. 1036, 449 S. W. 2d 944, wherein the pertinent facts of this extended litigation are comprehensively detailed. There we reversed a summary judgment for appellees because several material issues of fact were unresolved. The case was remanded, and a trial on the merits resulted in a decree once again favorable to appellees. Hence this appeal.
The land in issue is part of a 240-acre tract owned by H. U. Hancock when he died intestate in 1905. Surviving him were his wife, Eunice, two sons, two daughters, and the five children of a predeceased daughter, Palestine Scott, as his heirs. The two sons, the two daughters, and two of the five Scott children (Henry and B. C.) conveyed to Eunice whatever interests they had in 80 acres which included the 40 acres now in litigation. The deed was dated November 18, 1905, but not recorded until 1930. Eunice died in 1907 and, by a will probated in 1908, devised “all of [her] property” (without enumerating or in any way specifying what constituted that property) to J. H. Hancock, one of her sons, for life and then to his daughters, Myrtle and Bertha, to share and share alike and, at their deaths, to their children. Her will predated by several months the 1905 deed to her.
By an exchange of in. ixuments in 1913 Bertha (who is still alive and without issue) received whatever interests J. H. and Myrtle had in the contested 40-acre tract which she conveyed the same year to A. S. Frazier through whom appellees now claim title by mesne conveyances. Appellees’ predecessors in title entered into possession of the lands in 1913, and appellees and predecessors have held possession and paid all taxes since that time. Myrtle died in 1965, and her two daughters and a son and his wife, appellants herein, now claim an undivided 22/50 interest in fee in the 40 acres, exclusive of a 3/35 interest never conveyed to Eunice since three of the Scott children did not sign the deed. Also claimed is an undivided 22/50 interest as remaindermen of Bertha’s life interest. (As previously indicated, she had conveyed her interest in 1913 to appellees’ predecessors in title.)
The chancellor found that the 1905 deed purportedly conveying 22/25 interests in the lands to Eunice was not delivered during her lifetime and, therefore, was ineffective. He also found that appellees’ predecessor in title, J. R. McDaniel, took possession of this 40 acres in 1913 and that he and his successors in title have had continuous possession with payment of taxes on the land from 1913 to date. Appellants’ complaint was dismissed for want of equity, and title was quieted and confirmed in appellees. For reversal, appellants assert two contentions: (1) The chancellor’s finding that the dead was not delivered is against the preponderance of the evidence; and (2) the statute of limitations in adverse possession does not run against remaindermen until the death of the life tenant.
Appellants argue that a presumption of delivery exists since the deed, duly executed and acknowledged, was properly recorded, and also since it was in the possession of Myrtle, a successor to the grantee’s title. Smith v. Scarbrough, 61 Ark. 104, 32 S. W. 382 (1895). They further assert that this presumption of delivery of the deed is buttressed by other facts such as: The tax records reflect that the 1906 taxes on the purportedly conveyed 80 acres (which included this 40 acres) were assessed to and paid by Eunice; she continued to live on this land with her grandchildren, Myrtle and Bertha, until her death in 1907; her son, J. H. Hancock and his two children, Myrtle and Bertha, continued to live on the land until approximately 1913; the taxes for 1907 through 1911 were assessed to and paid by J. H. Hancock; the 1912 taxes were paid in 1913 by Bertha and her husband; a suit for partition instituted in 1908 by the heirs of H. U. Hancock did not include contestation of those 80 acres, but was restricted to the remaining 160 acres of H. U.’s original 240-acre tract; the exchange of deeds in 1913 between Myrtle and Bertha dividing the lands and Bertha’s conveyance of her interest in 1913 to her uncle, A. S. Frazier, who in the same year conveyed his interest to appellees’ predecessor in title; in an action brought in 1914 by the five Scott children involving this property, J. H. Hancock and Bertha claimed title under the 1905 will and deed, which were exhibits in that litigation; and Bertha, in the present action, testified to some of the occurrences which she could recall surrounding the execution of the deed.
While the recording of a duly executed and acknowledged deed, as well as its being found in the possession of the grantee (in 1958), will raise a presumption of delivery, the other factors enumerated by appellants do not conclusively establish that presumption. The taxes may well have been assessed to Eunice simply because she, thinking the 80 acres were hers irrespective of delivery of the deed, requested that they be charged to her. A partition suit need not involve all lands in which ownership is claimed. Furthermore, proof that the heirs simply considered Eunice to be the owner of those 80 acres does not establish delivery of the deed. Similarly, the fact that J. H. Hancock and Bertha made prior claim under the deed or that Bertha could recall and testify to its execution does not conclusively amount to proof of its delivery.
Upon first appeal of this case, we enumerated certain factors which raised the possibility or factual issue that the children and grandchildren of Eunice individually agreed to convey their interests to her; that such agreement was conditioned upon the premise that everyone would join in executing the deed; and that since this did not occur, the deed was not delivered. Wilson v. McDaniel, supra. This position certainly appears to be supported by the fact that the grantors are designated in the deed as “The heirs and legatees of H. U. Hancock now deceased.”
In our former opinion we reviewed the litigation instituted in 1914 by the five Scott children, including the two who signed the 1905 deed, against J. H. Hancock, Myrtle Hancock, Bertha Hancock Bethany and her husband. In that action they asserted that Eunice Hancock owned no interest in this 40 acres (and also other lands) except dower and homestead, or a life estate which expired at her death. These five heirs asserted that the defendants were denying the plaintiffs’ title and interest in the lands. The three defendants answered and admitted that three of the five Scott children held a 3/5 of a 1/5 interest, however, that the two who signed the 1905 deed had no interest. The deed was thus put in issue. In a substituted complaint these five Scott children again alleged that Eunice Hancock, their grandmother, had only a life estate in the lands and, therefore, could not convey the lands by her will. In a 1916 decree the trial court agreed with the plaintiffs, the Scott children, and held all five of them to be owners of an undivided 1/5 interest in the lands.
After reciting these proceedings in Wilson v. McDaniel, supra, we said:
“* * * 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 acknowledgments 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.”
We then indicated that a delivery is incomplete where made by 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 by its covenants. Consolidation Coal Co. v. Yonts, 25 F. 2d 404 (6th Cir. 1928). See also Annot., 140 A. L. R. 265 (1942); 26 C. J. S., Deeds, § 49.
This rule of law is now the law of the case and is certainly sufficient to rebut the presumption of delivery; and, when applied to the facts of the case at bar, we think this rule controls the issue of delivery. We therefore cannot say that the chancellor’s finding that the 1905 deed was not delivered is against the preponderance of the evidence. It follows that appellants were not remaindermen to a life estate in the lands here in issue; consequently, their second point for reversal—i. e., as remaindermen they are not barred by limitations—need not be discussed.
Affirmed.
B. C. and H. F. (Henry) | [
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Conley Byrd, Justice.
Appellant Frank Nall appeals from a circuit court order denying his petition for relief under our Criminal Procedure Rule 1. Nall was tried by the court on one of several charges for receiving stolen property and was found guilty. The other charges were not pursued. In his petition and his testimony, Nall alleged that he requested, in fact demanded, a jury trial, which demand was ignored in violation of his constitutional rights. No record was made at the trial. In addition to his testimony, the court heard the contrary testimony of his then counsel and the special judge, and found that appellant had intelligently waived his right to a jury trial. We find fhat the record fully supports the action of the circuit court.
Affirmed. | [
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J. Fred Jones, Justice.
Mid-State Homes, Inc. filed suit against Etheene Peterson in the Lafayette County Chancery Court to foreclose a mortgage on a house previously damaged by fire. The Employer’s Liability Assurance Corporation, Ltd. intervened and paid $2,-647.04 into the registry of the court as the total amount it owed under a fire insurance policy issued to Etheene Peterson.
This is an appeal by The Employer’s Liability Assurance Corporation, Ltd., hereinafter called “Employer’s”, from a decree in favor of Etheene Peterson for the amount of $7,100 plus statutory penalties and attorney’s fee. On appeal to this court Employer’s has designated the following point on which it relies for reversal:
“The court erred in allowing, over appellant’s continuous objection, testimony regarding total loss, the testimony relating to whether or not the insured premises was a total loss at the time of the trial, rather than immediately following the fire.”
The facts, as near as we can determine from the récord, appear as follows: Etheene Peterson owned a lot in the town of Lewisville in Lafayette County, Arkan sas, and contracted with the Jim Walter Corporation to construct a residential building on the lot. She paid $500 down on the building and on March 2, 1962,. she executed her promissory note secured by a mortgage to Jim Walter Corporation in the amount of $7,027.20, payable in 144 monthly installments of $48.80 each, commencing oh May 5, 1962. Of this amount $4,095 represented principal balance of the purchase price, and $2,932.20 represented interest over the life of the note. The house was completed within about two or three weeks and Miss Peterson started renting it to her sister for $40 per month. On March 12, 1962, the note and mortgage were assigned to Mid-State Homes, Inc.
On March 30, 1965, Employer’s insured the property against loss by fire under a policy in the face amount of $7,100, with Etheene Peterson as the primary beneficiary and with a loss payable clause in favor of Mid-State Homes, Inc. or its assignee, as their interest might appear. The record is not clear as to insurance on the property prior to 1965 but it appears that there was additional insurance not germane to the issues in this case.
Etheene Peterson collected the rents from her sister and made the regular monthly payments on the mortgage indebtedness until the house was severely damaged by fire on April 6, 1966. All payments were made to Mid-State through June, 1966, but no payments were made on the note after that date. On July 12, 1967, Etheene Peterson signed a proof of loss directed to Employer’s setting out that the actual cash value of the property at the time of the loss was $7,100; that the whole loss and damage amounted to $3,392.68, and that the amount of the claim (apparently because of other insurance) was $2,647.04.
The record is very vague as to the cause for the delays in the collection and payment of the insurance which is the primary subject of this litigation, but it would appear from the overall record that negotiations were going on between Mid-State Homes, Inc. and Jim Walter Corporation on the one side, and Employer’s on the other side, and that Etheene Peterson knew very little about what was going on between the companies. The record indicates that $1,000 or $2,000 in insurance was paid on the fire loss by a company not involved in this litigation, but the record is not clear as to whom the amount was paid, or whether any of it was credited on the note. In any event, according to computation of balance due, filed as exhibit by Mid-State Homes, Inc., Miss Peterson had paid $2,342.40 on the mortgage indebtedness as of July 5, 1966, and still owed as of February 17, 1969, accrued payments in the amount of $1,561.60 and unaccrued principal in the amount of $3,123.20, all of which, together with an insurance premium advanced by Mid-State on July 5, 1965, amounted to a total balance of $4,214.63.
The record indicates that sometime after July 12, 1967, when the proof of loss was signed by Miss Peterson, Employer’s sent its draft in the amount of $2,647.04 to the attorney for Mid-State Homes, Inc. By letter dated September 8, 1967, the draft was returned to Employer’s with demand for additional amount, two paragraphs of the letter being as follows:
"Even though the house was covered by more than one (1) policy, under the Mann case, 196 F. Supp. 604, where a home was covered by two (2) policies, the Court in construing the statute found that the total recoverable is the aggregate of the face value of both policies.
We therefore request that you forward your check for $3,606.87, representing the amount of the mortgagee’s interest in the property, to us as attorneys for Mid-State Homes, Inc., the mortgagee of the property.”
In any event, Employer’s refused to pay any additional amount above the $2,647.04 indicated in the original proof of loss, and this was the amount they subsequently paid into the registry of the court.
On October 23, 1967, Mid-State Homes, Inc. filed its suit against Etheene Peterson for the amount of $4,006.87 it alleged was due and owing on the aforesaid note and prayed a foreclosure of the mortgage against the property. On November 10, 1967, Etheene Peterson filed her answer admitting nonpayment as alleged and setting up usury as a defense. On December 7, 1967, Employer’s filed its intervention setting out its receipt of proof of loss signed on July 12, 1967, and alleging that it stood ready, willing and able to pay according to the proof of loss and it tendered into the registry of the court the sum of $2,647.04. On January 10, 1968, Etheene Peterson filed an answer to the intervention and a cross-complaint against Employer’s. She admitted that she signed the proof of loss as alleged by Employer’s, but alleged that the actual cash value of the property at the time of the fire was $7,000, and that the total damage because of the fire was $6,000. She alleged that the total amount of insurance in effect on the property was $9,000, $7,000 of which was the obligation of Employer’s. She prayed judgment against Employer’s for 7/9 of $7,000 or $5,444.44, together with interest, penalties and attorney’s fee.
The only testimony offered at the trial was that of Etheene Peterson, Mary Lee Peterson, Casey Jones, Bob Bums, Tom Roberts and Jim Fuller. Etheene Peterson testified that she is unable to read and write except that she is able to sign her name. She testified that she purchased a lot for $550 and had a house erected thereon by Jim Walter Corporation paying $500 down on the house. She testified that the house was completed in two or three weeks and that her sister lived in the house. She testified that the house was damaged by fire on April 6, 1966, and had not been lived in since that date. She admitted the execution of the note and mortgage and that she made no further payments after the one she made in June, 1966. She testified that she reported the fire to the “Jim Walter people” the next morning after the fire occurred, and that some of the “Jim Walter people” came out from Texarkana in about a month. She says that some insurance adjusters came to see her about three months after the fire. She says that the “Jim Walter people” made several trips and that men she thought to be insurance adjusters came with them. This witness testified that she assumed that she had insurance on the property because she was paying premiums along with her regular monthly payments. She says that the “Jim Walter people” finally insisted that she pay up the arrears on her note and that if she did not do so, “they would foreclose me out if I don’t pay up.” This witness then testified on direct examination as follows:
“Q. Did you understand about the foreclosure?
A. I reckon they meant they wouldn’t pay me anything. I thought they would pay off if I would send in the payments but I didn’t have anything to pay.
Q. The insurance company hadn’t paid you anything and you had no money to pay Mid-State Homes, is that correct?
A. Yes sir, that’s right.
Q. When you sent this paper off, when if ever have you been advised or offered any money?
A. They never have offered me any money.
Q. I want you to be clear on this. The Employer’s Liability Assurance Corporation was carrying your insurance. After you signed the Proof Of Loss there, when if ever have you been tendered any money on that?
A. I never have been.
Q. When is the first time that you know they had deposited some money in the Court here.
A. I never have known.
Q. Do you remember when I talked with you? They served papers on you when they filed the foreclosure suit. The Sheriff served papers on you and you brought that to me and you don’t know what happened since then in the proceedings in Court?
A. No sir, I don’t know.
Q. How far did you go in school, Etheene?
A. Fourth grade.
Q. Can you read and write?
A. No sir.
Q. Can you sign your name?
A. Yes sir, I can sign my name.”
On cross-examination this witness testified that she signed the proof of loss in her attorney’s office and that it was witnessed by her attorney. She says that she did not know how much she owed on her home at the time of the fire, and that she does not know how much longer she would be required to pay on her house before it was paid out. Under questioning by the attorney for Employer’s, this witness testified as follows:
“Q. Did you ever talk to Mr. Robinson about this fire loss?
A. Yes sir, I talked to him about it.
Q. After the fire, did you ever have anyone to go look at the house to deterimine how badly it was damaged?
A. Yes sir.
Q. Did you hire him yourself?
A. No sir.
Q. You never did hire anyone to go down and determine the damage?
A. No sir, but you asked someone else to come.
Q. Did you know how much you owed Mid-State Homes when this fire occurred?
A. No sir.
Q. Did you have a payment book?
A. No sir, I had some cards and I mailed them in.
Q. And you didn’t know how much you owed on the house when the fire took place?
A. No sir.
Q. Did you know how much longer it was to go, before the house was paid for?
A. No sir.
Q. You are claiming you signed this piece of paper because they threatened to foreclose your mortgage, is that right?
A. Yes sir.
Q. On your Insurance Policy, do you know first whether or not you had any fire insurance?
A. When I signed it, it was supposed to be so much insurance on it.
Q. And you were to pay so much by the month, is that right?
A. He said it was included in my payments.
Q. So you assumed you had fire insurance on this house, didn’t you?
A. Yes sir.
Q. Did you know the company that held the mortgage on your house, Mid-State, was also on the Policy?
A. I didn’t know who was on there.
Q. Do you know on the policy that any loss was to be sent or mailed to the person on the mortgage?
A. No sir.
# # *
Q. This paper you signed was signed in your attorney’s office, isn’t that correct?
A. Yes sir.
Q. Did you talk to Mr. Robinson about it, or to Miss Patsy Robinson?
A. Yes sir, I talked to them about the fire.
Q. You did sign the Proof Of Loss in their office, did you not?
A. Yes sir, I signed it.
Q. You are claiming the only reason you signed it is that you were afraid they would foreclose, is that correct?
A. Yes sir.”
Mary Lee Peterson only testified that she lived in her sister’s house and paid $40 per month rent; that she lived there until the fire on April 6, 1966.
Casey Jones testified that he is 50 years of age and in the construction and builder’s supply business in Lewisville; that he has been engaged in the construction business for 31 years. He testified that he looked at the property involved on three different occasions. The first time being 1967, the second time being October, 1968, and then again a few days before the trial. He testified that a new house could be built on the lot cheaper than the damaged one could be repaired, and that he would consider the house a total loss. He testified that the first time he looked at the house it would have cost $5,300 to repair it.
On cross-examination this witness testified that the first time he looked at the house was in August, 1967, over a year after the fire had occurred. He testified that the windows were out and that rain had blown in during the intervening time and that there was some apparent water damage which occurred in putting out the fire. He testified, however, that while the roof looked good from outside, it was charred on the inside and the shingles were brittle. This witness then testified as follows:
“Q. If the house had been repaired shortly after the fire, it could hgve been done for somewhat less than $5,300.00. Isn’t that true?
A. Very little less.
Q. Had building costs gone up in 1967, Mr. Jones?
A. Yes, building costs go up every year. It goes up about fifteen percent.
Q. Would that have knocked fifteen percent off the cost, if the house had been repaired right after the fire?
A. Yes, about that.”
Bob Burns testified that he is captain of the local fire department and is also in the business of remodeling and building homes. He testified that he saw the build ing involved in this case the morning after the fire; that he had inspected the house during the year prior to trial and that in his opinion at that time, the house was a total loss. On cross-examination this witness testified that he thought the house could have been repaired the morning after the fire but that he does not think it could be now.
Tom Roberts, a building contractor, testified that he looked at the house two different times within the past week and that in his opinion the house is a total loss.
Jim Fuller testified that he is connected with “Homestead Homes, Inc.” and that his company constructs, builds, sells and assigns new residences in Arkansas, Louisiana and Texas, and that the homes he deals in are very similar to the Jim Walter homes. He testified that he inspected the damaged property about two or three weeks after the fire and again four days prior to the date of trial. He testified that he first looked at the house in early May, 1966, and made a thorough inspection of it as his company was involved in a comparable lawsuit at that time. He testified that at that time, it was his opinion the house could have been repaired for between $2,500 and $5,000.
On recross-examination this witness testified that he spent about 15 minutes examining the house and did not make an itemized list of the necessary repairs.
The chancellor found that on the 6th day of April, 1966, the home located on the property involved was destroyed by fire to such extent that no part of the house was capable of being utilized in restoring the building to the condition to which it was before the fire and therefore was a total loss; that there is due Mid-State Homes, Inc. the sum of $4,339.50, together with an attorney’s fee of 10% on the past due note owed by Etheene Peterson. The chancellor awarded judgment for Mid-State Homes, Inc. against the defendant, Etheene Peterson, and Employer’s in the amount of $4,773.45, together with interest from date with all cost in the action to be paid by Employer’s. The chancellor decreed a foreclosure of the mortgage on the property involved and ordered sale thereof if the judgment be not paid within 60 days. The chancellor further decreed judgment for Etheene Peterson against Employer’s in the amount of $7,100 plus 12% statutory penalties in the amount of $852, together with attorney’s fee in the amount of $1,000, to bear interest at the legal rate until paid, with a proviso that the $4,775.45 should first be paid by the insurance company to Mid-State Homes, Inc. with balance together with penalties and attorney’s fee to Etheene Peterson.
On trial de novo we are of the opinion that the chancellor’s findings and decree are against the preponderance of the evidence. Proofs of loss are primarily intended for securing an adjustment between the insured and the insurer, and the statements contained in a proof of loss as to the amount and circumstances of the loss do not, as a matter of law, preclude the insured from proving and recovering the actual amount of his loss. The proof of loss is merely an estimate of the party, and where a settlement is not made upon it, it is not conclusive of the amount due by the insurance company to the insured, but the insured may recover in a suit upon the policy the amount established by the evidence as the true amount of his loss. Fidelity-Phenix Fire Ins. Co. v. Friedman, 117 Ark. 71, 174 S. W. 215.
The policy issued by Employer’s insured the property against loss by fire “to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss.” The policy further provided: “This Company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.” The policy then provided for immediate notice of any loss and provided that the insured protect the property from further damage.
Approximately 15 months elapsed between the date of the fire and the proof of loss. There was an additional delay of approximately 14 months between the date of Employer’s intervention and the trial, and there was a total delay of three years four months between the date of the fire and the entry of the decree. The evidence seems clear to us that there was only a partial loss at the time of the fire, but the evidence is equally clear that the loss was total by the time of the trial. It is Employer’s contention that it is only liable for damage immediately following the fire, and it is the insured’s contention that Employer’s is liable for the damage at the time of trial.
In Connecticut Fire Ins. Co. v. Boydston, 173 Ark. 437, 293 S. W. 730, we stated:
“It is elementary that any competent evidence is admissible to prove the extent or amount of the loss for which the defendant is liable which tends to prove that fact.”
We conclude, therefore, that the chancellor did not err in admitting evidence of damage from the date of the fire to the date of the trial. See also Nat. Union Fire Ins. Co. v. Sch. Dist No. 60, 131 Ark. 547 (at page 554), 199 S. W. 924.
There is no evidence in the record that the insured took any steps whatever to protect the property against additional damage for a period of three years following the fire, and there was ample evidence that additional damage was sustained following the fire. We conclude, therefore, that Employer’s was not liable for the total loss of the building at the time of trial, but was only liable, under its contract, for the amount it would cost to repair the building within a reasonable time after the fire as provided in the insurance contract.
Aside from the proof of loss, we only haT e the testimony of contractor Casey Jones and Jim Fuller as to the cost of repairing the fire damage. Fuller was employed by a competitor of the Jim Walter Corporation and only looked at the house some 15 minutes because his employer was involved in a similar lawsuit. He testified that the house could have been repaired for $2,500 to $3,000. We are of the opinion, therefore, that the preponderance of the evidence lies in the testimony of Casey Jones. While he saw the house for the first time more than a year after the fire, he estimated that at that time the cost of repair would amount to $5,300, and that it would have cost very near that much to have repaired it immediately following the fire.
It is obvious from the record before us that this house was overinsured; that the named beneficiary insureds, Etheene Peterson as well as Mid-State Homes, Inc., were negligent in not reporting and following up on their claim against Employer’s, and that Employer’s was also negligent in its failure to ascertain the amount of damage to the building and in its handling of the claim even after it had notice of the loss. We conclude, therefore, that the equities are evenly balanced between the parties and that the preponderance of the evidence as to the cost of repairs within a reásonable time following the damage caused by the fire, rested in the testimony of Casey Jones and that the insureds are only entitled to judgment for his maximum estimate of $5,300. As a matter of fact Etheene Peterson only prayed judgment for $5,444.44, and the chancellor’s decree in favor of Mid-State against Etheene Peterson and Employer’s included interest as well as premium advanced on the insurance policy. Etheene Peterson has not appealed from that part of the decree.
This cause is reversed and remanded to the chancery court for the entry of a decree against Employer’s in favor of Etheene Peterson and Mid-State Homes, Inc. as their interest may appear, in the total sum of $5,300 without penalty or attorney’s fee.
Reversed and remanded.
Byrd, J., would affirm.
This letter would indicate that the proceeds of other insurance were credited to the mortgage indebtedness. | [
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Ben Core, Special Justice.
Appellee, Southern Development Corporation, hereinafter called Southern, prior to this suit, was the owner of an 8.3 acres tract of land lying north and east of the Arkansas River upstream from the City of Pine Bluff. The tract fronts 940 feet on the River. The Arkansas State Highway Commission, hereinafter called Commission, filed this condemnation suit for the purpose of taking 1.60 acres of the tract in fee and a temporary easement on a smaller piece measuring 110 feet by 151.5 feet for a total of 2.01 acres. After the taking two tracts remained, one lying northwest of the bridge containing 3.31 acres and the other lying south of the bridge containing 2.98 acres. Preliminary to the order of possession the Commission deposited $2,500.00 with the Court as estimated just compensation. In its answer Southern contended that the land was adapted as a bridge site, commercial site or industrial site for motel, marina and recreational facilities or for other use considering its river frontage, elevation and accessibility to the urban area of Pine Bluff. Southern’s answer as finally amended claimed $634,-000.00. The jury awarded $35,000.00. The Commission has appealed and Southern has cross-appealed.
Points relied upon by the Commission, with some slight renumbering from the brief, are:
1. The Court erred in permitting the jury to consider the question of whether or not the highest and best use of the land was that of a bridge site.
2. The Court erred in permitting the jury to consider the testimony of Jim Hood as to the value of the land as a bridge site.
3. The verdict is excessive in that there is no substantial evidence to support it.
On its cross-appeal Southern contends that the trial court erred in the following particulars:
1. In excluding the testimony of L. P. Carlson and Leo Tyra as to the amount of savings on cost of construction of the bridge at this particular site over that of the next most feasible site;
2. The exclusion of the testimony of Jim Hood as to the basis of his opinion on the value of the land as a bridge site;
3. In the givirijg of the plaintiff’s instruction number 12 which told the jury that it should consider the value of the land the landowner place on the property for tax purposes as evidence of its true value.
Southern contends that this court has the authority to and should increase the jury verdict to the sum of $207,500.00 upon Southern’s consenting that the temporary construction easement be made permanent for highway and bridge purposes. The Commission contends that this court has the authority to and should reduce the verdict to $3,500.00, which is the market value figure established by the Commission’s appraiser. Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S. W. 2d 728 (1960).
The Commission’s points 1 and 2 can be rephrased into one contention which is that there was no testimony as to the special adaptability of this property as a bridge site and for that reason the jury should have been directed to disregard any valuation opinion based upon such adaptability. We think that just the reverse is true, which is that there was no competent testimony as to the value of the property as a bridge site and therefore its adaptability as such should not have been submitted to the jury. We, therefore, reverse on direct appeal.
Before demonstrating this result from the record, it will be helpful to set out the governing rules from prior decisions of this court. It is interesting to note that both parties cite substantially the same decisions of this court, with a few exceptions, to sustain their respective positions. There is apparent agreement as to the establishment of the following rules concerning the taking of private property for public use.
Private property shall not be taken, appropriated or damaged for public use without just compensation therefor. Arkansas Constitution, Article 2, Section 22. The title to land is always held upon the implied condition that it will be surrendered to the government when the public necessities demand and when full compensation has been tendered. L. R. Junction Ry. v. Woodruff, 49 Ark. 381 (1887). The true measure of just compensation is the “market value of the property”. L. R. Junction Ry. v. Woodruff, ibid.
“The owner in parting with his property to the State is entitled to receive just such an amount as he could obtain if he were to go upon the market and offer the property for sale. To give him more than this would be to give him more than the market value and to give him less would not be full compensation.”
In arriving at this market value the approach is to consider what has been taken from the owner, in other words, what the owner has lost, disregarding its value to the condemnor. The objective is to arrive at the market value, or the value in the market, of the property taken. It is thus opposed to the subjective consideration of what the condemnor has gained or what is the value of the property to the person or entity taking the same. Nichols on Eminent Domain, Volume 3, Section 8.61, page 49.
“As a general guide to the range which the testimony should be allowed to assume, . . . the landowner should be allowed to state, and have his witnesses to state, every fact concerning the property which he would naturally be disposed to adduce in order to place it in an advantageous light if he were attempting to negotiate a sale of it to a private individual. . . .In offering testimony on this issue the owner was not limited to any pre-existing use of the land. If it was1 of little value as a farm, or for common uses, and was of great value as mineral land or as a townsite, that fact might be shown, though it had never been so used.” St. L. I. M. & S. R. Co. v. Theo. Maxfield Co., 94 Ark. 135, 126 S. W. 2d 83 ( ).”
“. . . the owner had the right to obtain the market value of the land, based upon its availability for the most valuable purposes for which it can be used, whether so used or not.” Yonts v. Public Service Company of Arkansas, 179 Ark. 695, 17 S. W. 2d 886 (1925).”
Market value is a factual issue peculiarly within the province of the jury and to be proved by the owner as a fact.
“. . . we are asked to review the verdict upon the testimony. This is a delicate duty in any case, and especially so in a case where the sole issue is one as to value. This is so peculiarly within the province of the jury; . . . nothing but an extreme case would justify our interference. L. R. Junction Ry. v. Woodruff, ibid.
In addition to the principal issue of fact, which is the market value, sub-issues of fact can develop on the question of adaptability of the parcel to the various uses urged by the owner. The ultimate issue is the market value but other dependent factual issues can develop in the process of proving the ultimate issue.
In this case Southern pleaded the issue of the peculiar adaptability of this property as a bridge site. We think this is one of those possible characteristics which could be urged by a landowner as a contributing factor to the market value of his parcel. Further, we think that in this case there was proof introduced as to the existence of that characteristic of such substantial nature that reasonable minds could draw different conclusions therefrom as to such adaptability and, therefore, that a jury question was made on the issue of adaptability. However, more is required before the issue can be submitted to the jury. Proof of a market value for the parcel for that use must be made. Mere proof of adaptability, without more, does not establish such market value. There must be such demand for the property for that use.
The only proof offered here as to such value as a bridge site was the testimony of Jim Hood establishing a difference in before and after value of $640,000.00. Jim Hood is president of Southern. He testified to training and experience sufficient to qualify himself as an expert in real estate management, development and appraisement. He testified on direct examination that, in his opinion, the highest and best use of the property was as a bridge site. He further testified that, in his opinion, for that use, the difference in the fair market value of the 8.3 acres before and after the taking was $640,000.00. If that were all that was in the record we think that no reversible error would be present because an expert is entitled to state his opinion as to market value on direct examination without further explanation and the same constitutes substantial evidence sufficient to support a jury verdict unless additional information is brought out demonstrating that such expert has no fair and reasonable basis for his opinion. In other words, the opinion of an expert is given the weight of evidence prima facie and, unless thereafter exposed as having no fair and reasonable basis, constitutes substantial evidence upon which a jury verdict can be based. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436; Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S. W. 2d 794 (1963).
However, in the direct examination Southern’s attorney attempted to bring out the basis for his opinion. Counsel for the Commission anticipated the basis and objected to the same being brought out. The trial court sustained the objection. Even at that point we think that no reversible error had been committed. However, Southern’s counsel then made an offer of proof on the basis of the opinion. The basis thus brought out was revealed to be that the witness had acquired bridge cost information from the report made by the consulting engineers to the State Highway Department on the proposed bridge construction for which condemnation was brought. This is referred to by the witness and other witnesses as the Brighton Engineering Report. This report showed, according to the witness, that construction of the bridge on this site as opposed to the next most feasible site, would cost an estimated $831,500.00 less. The witness testified.
“And. from that I determined that this particular site, in my estimation this particular site, attributed $640,000.00, a $640,000.00 advantage to the bridge.”
This testimony exposed the opinion on value to be without “a fair and reasonable basis” without which even the opinion of an expert fails as substantial evidence and must be stricken. Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S. W. 2d 794 (1963). It is true as pointed out by Southern that no motion to strike this testimony was made by Commission’s counsel. However, counsel did seek to exclude from the jury the adaptability question by motion for directed verdict and by a requested instruction, both of which were denied by the court. This was sufficient to raise the question as to the presence in the record of adequate proof to raise a jury question on the market value of the land as a bridge site. The Jim Hood opinion, having been exposed as having no “fair and reasonable basis”, was inadequate as such proof. The incompetency of this testimony was referred to by the commission’s attorney in arguing his motion for directed verdict to the court. There was no other proof; therefore, the issue of the value as a bridge site should not have been submitted to the jury.
We feel, therefore, that the motion for directed verdict on the issue of peculiar adaptability as a bridge site should have been granted for failure of proof on value even though there was substantial proof on adaptability. When the landowner exposed the basis of his value figure as not being a fair or reasonable basis, the effect was to leave the bridge site adaptability without proof of value. Without such proof of value there was no way the jury could have arrived at a figure for the market value of the land by reason of its adaptability as a bridge site. Therefore, the question of its value as a bridge site should not have been submitted to the jury.
We do not intend by this to say that the trial court should have excluded proof offered on the adaptability of the parcel as a bridge site until after some proof was offered on its market value for that use. In other words, we do not mean to say that proof of its market value for that use must come in as a condition precedent to proof as to adaptability for that use. We do not intend to set up any priorities as to the sequence of the admission of proof. What we do intend to say is that after all of the proof is in and instructions to the jury are being considered, no instruction should be given permitting the jury to consider the question of the market value of the property for any use on which there has been no proof as to such market value for that use even though there may have been proof as to its adaptability for that use. Further, if an instruction is requested admonishing the jury that it should not consider the question of the value of the property for that use such instruction should be given.
On retrial if proof can be made of its value as a bridge site along with the proof of its adaptability, the jury should be permitted to consider it.
We hold that the opinion on value of $640,000.00 was not proper because it violates the rule that the value of the site to the condemnor is not the measure of damages. Mr. Hood was simply taking the dollar amount of money saved in construction costs by the condemnor in placing his structure on this parcel as opposed to the next most feasible parcel. True the savings were discounted some in arriving at the market value figure, approximately 25%, but the market value figure is still obviously part and parcel of the “savings” in construction costs at the selected' site over the next most feasible site. No more direct violation of the rule against con sidering the subjective value of the site to the taker could be imagined. He is required to divide his savings with the landowner on a one-fourth-three-fourths basis. Since that is the basis of the value figuré given by Jim Hood, and since it is in direct conflict with a cardinal rule of condemnation law, the opinion figure simply cannot stand. Without it there is no guide for the jury as to the market value of the property as a bridge site.
We have not overlooked the case of Gurdon and Fort Smith Railroad Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019 (1911), cited by Southern. Southern has done well to call our attention to that case because at first blush it appears to sustain the position of Southern on this issue. That case involved the condemnation of a right-of-way for railroad purposes through the mountainous terrain of Montgomery County near Caddo Gap. The landowner introduced testimony of a number of civil Engineers who, according to the language of the opinion:
Page 241:
“testified to facts tending to show a demand for railroad construction in that section of the country, and that this Gap or Pass . . . was practically the only feasible route through this mountainous country. . . . Counsel for defendant urged that the Court erred in permitting these witnesses to testify that the land taken by defendant had a pecuniary advantage for a railroad site over all other lands in this vicinity. . . because of the great cost in making any other site feasible for the location of a railroad through these mountains; . . . the witnesses gave an estimate of the great expense and cost in preparing another site for railroad purposes in comparison with this site, ... It is urged that this testimony in effect based the value of the site taken upon the benefit that it might be to defendant and of its necessities to acquire that particular property rather than on the actual market value thereof and the loss to the plaintiff by the defendant’s appropriation thereof.”
Thus a violation of the rule against basing value proof on the benefit to the condemnor was urged there and rejected by this Court. This Court said:
“In order to show the adaptability of the land taken for the purpose desired, it is competent to show the cost and expense that would be necessary to put other land in the condition of the land taken, which condition gives it a peculiar value for the purpose for which it is appropriated.....The cost and expense of placing any other site in that section of the country in a condition available or adaptable for railroad purposes which the site in controversy possessed would tend to prove the peculiar advantages of this location for such object and its adaptability for such purposes. It was not error to admit such testimony for that purpose.”
The “purpose” for which the testimony there was admitted was to show adaptability and “special pecuniary value”. Admittedly, this gets awfully close to violating the rule against considering value to the taker rather than loss to the owner. There may have been more of the former in this approach in the Vaught case than we had appreciation for at the time and we feel that it should be limited to its special facts.
The prime point, however, is that the costs and differences in costs treated in the Vaught case were those required to reshape the ground as, for example, the making of fills, cuts and tunnels. Money spent on the ground is far different from money spent on structural improvements. There is a basic and built in limitation upon costs of reshaping the mother earth to suit man’s needs. On the other hand, when one leaves the earth and commences to consider the differences in costs of structures to be stationed upon the earth, there is no limit. The condemnor could be intending to locate an improvement costing one thousand dollars or ten billion dollars and the costs savings could vary in like extremes from one possible site to the next.
Southern contended in the trial court and contends here that the inquiry on costs savings of construction at one site over the next most feasible site was introduced with approval by language used in the opinion of this court in L. R. Junction Ry. v. Woodruff, 49 Ark. 381, 395, 396 (1887). That language is preceded by the following:
“One or more witnesses for appellees were asked to give the comparative cost of building bridges at different points along the river front above and below the Point of Rocks, or rather to state the difference in such cost. The witnesses were also asked, ‘What is the value of the property for bridge purposes?’ ”
That objection was taken to this line of questioning by appellant’s counsel is shown by later language of the court:
“It is very apparent however from the argument that the objection taken by counsel is not the objection which we take to this interrogatory.”
This reflects that the court also considered the line of inquiry improper, but for a different reason than did opposing counsel. The court then suggested, and this is the language relied upon by Southern:
“It would have been less misleading to have asked “What would be saved by building a bridge at this point as compared with other points below or above?’ or, ‘What were the pecuniary advantages offered by this point for building a bridge?’ ”
To say that one question is less misleading than another leaves the implication that both are misleading to some degree. We think this falls short of submitting the “less misleading” question as a guide for future use or its line of inquiry as permissible in proof of market value on a parcel of ground adapted as a bridge site.
We recognize that Southern is going to have a problem on retrial of proving any market value for a bridge site. Demand is an essential element of market value. If there is no demand there is no market value for that use of the property. It is easy to find property in remote and unpopulated areas that would be readymade for some intensive use that would give it tremendous value if only it were located somewhere else. If there is no demand for that use at that location the property does not have value for that use in the market. This is a necessary risk of ownership. The owner, in proving his market value, must prove a demand. This demand must be one other than that of the taker. The taker’s need must be disregarded. If this landowner cannot prove a sufficient demand for bridge sites in this area, other than that of the Commission, to establish a market value on bridge sites, then he has no market for bridge sites and is not entitled to have its value as a bridge site considered.
In the Woodruff case, previously cited herein, this Court stressed the necessity of a showing of demand as a component of market value.
Page 393:
“Of course it does not follow that because a particular spot of ground constitutes a good bridge site, that it therefore has great market value. There may be no reasonable probability that anyone will ever want to build a bridge at that point. This probability is an essential condition of value in such cases.”
For purposes of retrial, we feel it necessary to pass on the three points made by Southern on cross-appeal.
As to the exclusion of Jim Hood’s testimony as to the basis of his opinion, this ruling came about in an unusual manher. Ordinarily the basis of the opinion of an expert is gone into much more thoroughly on cross-examination than on direct, and thus there is no objection to the evidence on the basis. But here the attorney for the Commission was already aware of what the basis was going to be and objected to the jury hearing it. On the other hand the landowner’s attorney wanted the jury to hear it. Since it had a direct bearing on whether the basis was “fair and reasonable” it should have been admitted. But, of course, when it is admitted it reveals the fact that the opinion of the witness as to market value of the land as a bridge site has no “fair and reasonable basis” and is subject to a motion to strike. Thus, the Commission, instead of objecting to this proof, should have been attempting to develop it, and the landowner, instead of attempting to develop it, should have been leaving it untouched. But the fact that the parties, by mutual misconception, got switched on sides of the issue should not obscure the fact that it is proper to show the basis of an expert’s opinion. The proof should have been admitted for that purpose and then the directed verdict should have been granted. The costs proof would not have been admissible except to show the basis of the expert’s opinion. It would not have been admissible as direct proof on market value.
What we have just said also covers the trial court’s ruling excluding the costs savings testimony of the witnesses L. P. Carlson and Leo Tyra.
We hold that the third point of Southern is well taken. The record is identical to the situation found in Arkansas Highway Commission v. McMillan, 247 Ark. 419, 445 S. W. 2d 717 (1969) in that there is no proof that the landowner made the assessment revealed by the public records but only that it was shown “by the courthouse records”. Instruction number 12 should have been refused for lack of proof to support it.
Reversal on both direct and cross-appeal and remanded for a new trial.
Byrd, J., not participating.
Harris, C. J., and Fogleman and Holt, JJ., dissent. | [
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John A. Fogleman, Justice.
Appellee is the mother of appellant Guy R. Griffith. Appellant Charlene Griffith is his wife and cotenant by the entirety in a tract of land in Stone County. Their appeal comes from a decree holding that the mother was the assignee of a note executed by her son and daughter-in-law in favor of one P. S. Hunt. The chancery court, however, refused to declare appellants delinquent on their payments and refused acceleration, judgment and foreclosure. Appellee appealed from that part of the decree denying foreclosure. Appellants urge two points for reversal, namely: that the chancery court erred in holding that appellee held the note as assignee of Hunt, and that there is no legal basis upon which appellee can be said to have a lien on appellants’ lands. We find no merit in either contention.
The note for $2,163.92, payable to the order of P. S. Hunt, was dated July 16, 1969. It was payable in quarter ly installments of $200 beginning October 16, 1969, and continuing until the entire principal and interest at 10% per annum had been paid. Appellants paid the first installment. The debt was secured by a mortgage on the lands. Appellants, appellee and a daughter of appellee went to the home of Hunt on February 3, 1970. They did not find Hunt at home, but his wife was there. Appellee wrote a check payable to Hunt for the balance then due him. Mrs. Hunt marked the note paid in full, signing her husband’s name.
Appellee’s complaint contained allegations that she was a holder in due course of the note, that the transaction amounted to an equitable assignment of the note and mortgage to her and that Hunt inadvertently failed to formally assign them to her. Appellants defended on the ground that the payment of the debt by appellee was a voluntary gift to them by her. The chancellor made a finding of fact that the transaction was, in effect, an assignment to appellee and that the “paid in full” endorsement was in reality an assignment of the debt carrying with it the lien of the mortgage. We agree.
There was the usual and expected conflict in the testimony of the parties. Appellee testified that she paid Hunt at the request of her son, who had told her on the day before they went to Hunt’s home that he would lose the place if he did not pay Hunt within two days. She said that appellants promised her, before she went to Hunt’s to pay the debt, that they would start paying her in monthly payments as soon as Mrs. Charlene Griffith went to work, but that they had failed to make any payment. Appellee testified that “they gave me all those papers.” She presented the note, mortgage and an abstract of title, and when she testified upon being examined as to whether her son promised to secure her by mortgage, she said that her son reiterated on the way home from Hunt’s that appellants would pay her as soon as his wife went to work, and she added that she had “everything else they had on it” naming the mortgage and abstract specifically. When asked if Mrs. Hunt did not turn the note and mortgage over to “you all,” appellee responded that she had every paper that the Hunts had possessed. She said that they were turned over to her the day she paid the debt and that Mr. Hunt had not complained about his wife delivering the note and mortgage to her. She denied that she made a gift to appellants by this transaction.
A 16-year-old son of appellee, brother of Guy, testified that Guy tried to borrow $500 from him to apply on the mortgage to Hunt and that he was present on one occasion when Guy asked their mother for money to pay Hunt. A daughter of appellee, sister of Guy, testified that she knew that Guy came and asked their mother to pay the debt to keep Hunt from taking the land and promised that appellants would repay her in monthly payments as soon as Charlene Griffith went back to work. This witness was present when the payment was made, and her car was used to transport the family to Hunt’s house. She quoted appellant Guy Griffith as having said that if he lost the place,, he would prefer his mother would get it rather than Hunt.
Guy Griffith testified that he had the money to make the second payment when his mother got some insurance money and volunteered to pay off the debt, without any agreement on the part of appellants to repay her. He also said that his mother never indicated that she expected repayment until other difficulties arose between them, after which she filed the present action. He denied that he had been having any financial difficulties. He also denied any attempt to borrow from his younger brother. He said that his wife was not working at the time of the payment but was employed at the time of the trial. He claimed that Mrs. Hunt had given him the note and mortgage and that he had left them on the dashboard of his mother’s car. He stated that he asked his mother for the instruments on the following Saturday night, but that she refused to give them to him, saying that they were in a safety deposit box in Louisiana. She responded to a later demand on his part, he said, by saying that a Little Rock attorney was holding the papers.
Charlene Griffith testified that she never agreed to pay any money to appellee on this debt. She said that her mother-in-law refused to let Guy have the papers when he decided to go into the hog business and wanted to borrow more money from Hunt. Another child of appellee testified that she went along when the payment was made but stayed in the car. She said that her mother had given her $825 of the insurance money and had said that she wanted to help her children pay their bills. One Lela Rushing testified that appellee told the witness that she had helped the children to the extent of $3,000 and was very sorry for Guy because he was so much in debt.
We are unable to say that the chancellor’s holding as to the agreement between the parties here was clearly against the preponderance of the evidence. That being the case, we agree with appellee that Ark. Stat. Ann. § 85-3-603 (2) (Add. 1961) controls. That section reads:
Payment or satisfaction may be made with the consent of the holder by any person including a stranger to the instrument. Surrender of the instrument to such a person gives him the rights of a transferee (Section 3-201 [§ 85-3-201]). [Acts 1961, No. 185, § 3-603.]
The committee comment on this subsection of the UCC makes its application to the facts here quite clear. See comments 4 and 5. Under Ark. Stat. Ann. § 85-3-201 (Add. 1961), appellee, as a transferee, became vested with all rights of Hunt in the note. She had accounted for her possession of the unendorsed note by proving the transaction through which she acquired it. Rights of the transferor (Hunt) which passed to appellee included the mortgage securing the note. Ragge v. Bryan, 249 Ark. 164, 458 S. W. 2d 403.
The chancellor refused to find appellants delinquent and extended their time for payment, giving them until October 16, 1970, to pay an installment of $200 with interest and requiring subsequent payments to be made as they came due under the note. This action was taken in spite of the fact that the chancellor found that at least two payments were past due. We feel the chancellor erred in denying foreclosure under the circumstances.
The decree is affirmed on appeal and reversed on cross-appeal. The cause is remanded with directions to enter a decree in favor of appellee giving judgment for all unpaid principal and interest on the debt and foreclosing the lien of the mortgage but allowing appellants a reasonable time to pay the judgment before sale of the lands may be had. | [
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George Rose Smith, Justice.
In this action by the appellees to recover seven separate loans made by one or more of the appellees to the appellant in 1962, 1964, and 1965, the defendant pleaded the three-year statute of limitations applicable to oral promises. Ark. Stat. Ann. § 57-206 (Repl. 1962). The trial court, sitting without a jury, sustained the plea with respect to only two of the loans. For reversal the appellant contends that the other five loans were also barred when suit was filed on November 22, 1968.
The four oldest loans were made in 1962 and were already barred by the statute when Camp made, in 1967, what the trial court found to have been a part payment of $350. Mrs. Nokes, who had made all those loans, testified that she had applied $100 of the payment to each of three loans and $50 to the fourth. The trial court held that those payments interrupted the running of the statute.
The court’s finding cannot be sustained, for either of two reasons. First, the applications of the payment were apparently made only in Mrs. Nokes’s mind, for there is no testimony that she made any notation upon her canceled checks to Camp, which she had kept, or took any other outward action to indicate how the payment was being applied. Effect cannot be given to a mere secret intent to apply a payment in a certain way. Schoonover v. Osborne, 117 Iowa 427, 90 N. W. 844 (1902). Although the asserted applications were set forth in the complaint, that was too late, for the controversy had already arisen. Lazarus v. Freidheim, 51 Ark. 371, 11 S. W. 518 (1888). Secondly, when a creditor has two or more claims, one of which is barred by the statute, he may apply a payment to the older debt, but his action does not revive that debt. The reason is that a new promise to pay may be inferred from the debtor’s direction that a payment be applied to an outlawed obligation, but that inference cannot be drawn from the creditor’s decision to apply the payment to a debt already barred. Armistead v. Brooke, 18 Ark. 521 (1857); Williston, Contracts, § 178 (3d ed., 1957). Here there is no indication that Camp directed any application of the payment. To the contrary, Mrs. Nokes testified that “There was not anything said between Camp and I what it was to be applied on.”
The fifth loan in controversy was made on May 20, 1965, by all three of the appellees—Mrs. Nokes and her son and daughter-in-law. Mrs. Nokes and her son raised the money by borrowing it from a Missouri bank. Their note to the bank bore interest at 8% per annum and was payable on November 20, 1965, which proved to be three years and two days before the filing of this action. Mrs. Nokes was not able to repay the bank until November 19, 1966. The trial court fixed that date as the beginning point for the running of the statute of limitations. The court reasoned that since Camp had promised to repay whatever interest Mrs. Nokes might pay the bank, the statute was not set in motion until the amount of that interest payment was known.
We are unable to approve that conclusion. Camp was not a party to the bank loan. There is no testimony that he promised to repay the loan to him only when the appellees had repaid the bank. The only testimony upon the point is David Nokes’s statement that Camp said that “he would have the money in approximately thirty days” after the loan to Camp was made. Moreover, 8% interest upon the note to the bank could readily have been calculated to the penny at any time. We find no substantial evidence in the record to support the conclusion that the statute had not run upon the fifth loan when this action was filed.
It is with reluctance that we hold these loans to be uncollectible, for it is clear from the record that Mrs. Nokes was shamefully duped by Camp. Upon the proof, however, the statutes leave us with no choice in the matter.
Reversed and dismissed. | [
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Lyle Brown, Justice.
Prior to her demise Mrs. Janet Hesson, mother of appellant Barbara Williams, entered into a conditional sales contract with appellee Poole Trailer Sales, Inc. of West Memphis, Arkansas, for the purchase of a mobile home. The contract was assigned to appellee Westinghouse Credit Corporation. Mrs. Hes-son paid each monthly installment until her death in April 1967. After her death the administrator of her estate paid the monthly installments until the mobile home was transferred to appellant in November 1968 in the course of the administration of the estate. Appellant has made no payments on the contract since the transfer and a balance remains due of $3,155.90.
Appellee Westinghouse as assignee of the conditional sales contract filed suit in circuit court praying for judgment against appellant in the sum of $3,155.90 and for sale by the court of the mobile home or surrender to Westinghouse for sale by it pursuant to the Uniform Commercial Code whereby the proceeds would be applied to the payment of the judgment. In the alternative appellee Westinghouse prayed judgment for the recovery of the mobile home, for damages for detention thereof, and for all other proper relief.
Appellant answered the complaint, alleging that the contract entered into by Mrs. Hesson and appellee Poole Trailer Sales was usurious and alleging that Poole Trailer Sales agreed to purchase credit life insurance payable to appellee for the benefit of Mrs. Hesson and failed to do so, all to appellant’s damage in the amount of the remainder due upon the contract. Appellant further denied that appellee Westinghouse was entitled to possession of the mobile home and alleged that the institution of a suit for a money judgment waived the retention of title to the subject property and thereby relegated Westinghouse to its alleged right to a personal judgment. By way of amendment appellant alleged that the sales contract did not reflect the correct purchase price. Appellant prayed, the above premises considered, that appellee Westinghouse take nothing and for all other general and equitable relief to which she was entitled.
On motion of both appellee Westinghouse and appellant Barbara Williams the cause was transferred to chancery court on February 12, 1970, for the reason that certain defenses asserted in the answer and amended answer were equitable in nature. Thereafter, on May 8, 1970, appellant filed a written motion asking that the cause be transferred back to circuit court, alleging that the pleadings did not disclose any equitable grounds for determination of the issues and, therefore, chancery was without jurisdiction. The chancellor denied the motion.
Appellant filed an amended and substituted answer in chancery on May 26, 1970, which made essentially the same allegations as previously made and additionally alleged that Poole Trailer Sales and Westinghouse were jointly and severally liable to the estate of Mrs. Hesson and/or appellant as successor to the rights of the estate.' Appellant then prayed that Poole Trailer Sales be made a party to the suit and in the alternative that if Westinghouse be awarded judgment in its favor, appellant Barbara Williams have and recover of and from Poole Trailer Sales a sum equal to the amount awarded. Appellant further prayed for all other general relief to which she might be entitled:
At the opening of the trial on November 2, 1971, appellant again objected to the jurisdiction of chancery to try the cause due to the fact that appellee Westinghouse had filed a suit originally in circuit court in which a personal judgment was sought against appellant and the impounding of the mobile home and that such a suit was exclusively within the jurisdiction of a court of law. Appellant contended that such an action constituted a waiver of the security interest which Westinghouse had by virtue of the title retaining contract and constituted an election of a remedy inconsistent with a proceeding to foreclose a security interest lien. Appellant further contended that the fact that Westinghouse had admitted to the court at the beginning of the trial that it did not plan to produce any evidence which would subject appellant to a personal judgment but was merely seeking to realize upon the security interest in the mobile home pursuant to the Uniform Commercial Code, affected its right to further proceedings in chancery.
The chancellor overruled the objections to jurisdiction and proceeded with the trial. The chancellor reached the following conclusions of law: That the chancery court had jurisdiction of the parties and subject matter; that the seeking of a personal judgment and sale of the property by the court or by the plaintiff pursuant to the Uniform Commercial Code or alternatively, of a judgment for possession, did not constitute an election of an inconsistent remedy and a waiver or abandonment of its security interest in the collateral; that the dismissal of the cause against appellant for a personal judgment with the consent of Westinghouse at the opening of the trial did not oust chancery of jurisdiction to determine the right of possession of the mobile home; that the evidence was not sufficient to show that Poole Trailer Sales contracted to furnish credit life insurance; that appellant had failed to establish her defense of usury; that payments under the contract were in default; and that Westinghouse was entitled to judgment for possession of the mobile home. The chancellor ordered that Westinghouse be given possession of the mobile home to dispose of it pursuant to the Uniform Commercial Code and apply the proceeds as provided in Ark. Stat. Ann. § 85-9-504 (Add. 1961). The cross-complaint of appellant against Poole Trailer Sales was denied and dismissed.
Now as to the points at issue on appeal. Appellant contends:
(1) That the complaint discloses a cause of action exclusively within the jurisdiction of the circuit court and it was error for the chancellor to refuse to remand;
(2) That if the chancery court had any jurisdiction it was lost when Westinghouse waived its prayer for personal judgment against appellant; and,
(3) That Westinghouse elected to seek judgment and sale of the property, which election precluded it from thereafter trying to shift to another remedy, namely, to enforce a contractual lien.
The first two points are without merit and can be disposed of in one answer. We have heretofore detailed the pleadings of the parties and the findings of the chancellor and they show beyond question that these issues were before the chancellor át all times:
(1) The request by Westinghouse that the trailer be sold pursuant to the terms of the Uniform Commercial Code;
(2) Appellant’s contention that the contract was usurious;
(3) Appellant’s assertion that Poole Trailer Sales agreed to purchase credit life insurance on the debtor, Mrs. Hesson, and its failure to do so entitled appellant to judgment over against Poole for any balance due; and,
(4) Appellant’s contention that Poole Trailer Sales filled in the signed, blank contract showing the purchase price to be $5010 instead of $4885.
With those multiple issues (some of which were equitable) before the chancellor we simply cannot say that he had no jurisdiction. It seems to be appellant’s contention that when Westinghouse waived its prayer for personal judgment against appellant, only a prayer for possession and sale remained, which was cognizable only in a law court; consequently, a transfer back to law court was mandatory. Appellant is in error. Even if the complaint did not state a proper ground for relief in equity, the answer of appellant supplied the defect. Spikes v. Hibbard, 225 Ark. 959, 286 S. W. 2d 477 (1956); Nottingham v. Knight, 238 Ark. 307, 379 S. W. 2d 260 (1964). Appellant’s answer alleged that the written contract which was attached to Westinghouse’s complaint was not the true contract between Poole and Mrs. Hes-son. That answer was, it would appear to us, a request for reformation. Reformation of a contract lies exclusively in chancery court. Washington Standard Life Ins. Co. v. Agee, 231 Ark. 594, 331 S. W. 2d 261 (1960). Appellant’s answer further pleaded usury, an action cognizable in equity which permits the cancellation of the usurious contract. Bailey v. Commerce Union Bank, 223 Ark. 686, 269 S. W. 2d 314 (1954). Thus appellant invoked the jurisdiction of chancery by pleading equitable defenses in her answer. Having invoked the aid of chancery in matters not wholly beyond equitable cognizance, appellant cannot object to the jurisdiction of that court. Spikes v. Hibbard, supra; Ark. State Highway Comm’n. v. Gladden, 238 Ark. 988, 385 S. W. 2d 934 (1965); and Nottingham v. Knight, supra. We have in many instances upheld the right of chancery to retain jurisdiction to decide all the issues of both law and equity when there are essential equitable matters to be litigated. Gregory v. Oklahoma Mississippi River Lines, Inc., 223 Ark. 668, 267 S. W. 2d 953 (1954).
Appellant relies on Spitzer v. Barnhill, 237 Ark. 525, 374 S. W. 2d 811 (1964), for the proposition that the case should have been transferred back to circuit court when Westinghouse dropped its pursuit of a personal judgment against appellant. In Spitzer, however, all equitable issues were resolved by the chancellor and he then transferred the remaining issue as to tort liability to circuit court. But in the case at hand the parties were in chancery because they requested a transfer of the entire case to equity. Later the appellant requested that the entire case, which of course' included equitable issues, be retransferred to law court. We agree with the chancellor that equity had the right, in those circumstances, to retain jurisdiction.
As to appellant’s final point, election of remedies, we agree with appellees that the argument fails for two reasons. First, as noted by Professor Eugene F. Mooney in his article, The Old and the New: Article IX, 16 Ark. L. Rev. 145, 151 (1961-62):
The most significant change in the law of conditional sales contracts is the final and conclusive eradication of the doctrine of election of remedies which has dogged conditional sellers and overjoyed conditional buyers almost since the founding of the State of Arkansas. This was the tricky legacy of the common law: The seller could either sue for damages on the contract or rescind and repossess; but not both. It was all keyed to title passage. The conditional seller (secured party) could not repossess, sell and get a deficiency judgment for the remainder of the sale price. The article by Robert Anderson and Jim Hale in 4 Ark. L. Rev. 19 (1949-50) at page 27 details this once-flowering branch of the law. With the following language from § 85-9-504(2) the whole limb is lopped off: “If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for any deficiency.”
The fact that Westinghouse asked for a judgment and sale as provided by the UCC and in the alternative for possession is not an election of inconsistent remedies. The Code provides specifically that, “The rights and remedies referred to in this subsection are cumulative.” Ark. Stat. Ann. § 85-9-501(1) (Add. 1961).
Second, even if the UCC were not involved, Westinghouse cannot be said to have elected an available remedy. An essential element to an election of remedies is that both remedies are available. Eastburn v. Galyen, 229 Ark. 70, 313 S. W. 2d 794 (1958). In Sharpp v. Stodghill, 191 Ark. 500, 86 S. W. 2d 934 (1935), we held that the pursuit of a remedy which does not in fact exist is not an election but a mistake as to which remedy is available. The mistake may be one of fact or of law. In the case at bar, appellee Westinghouse sought a personal judgment against appellant without knowing that she had not assumed the obligations of the contract between Poole Trailer Sales and her mother, Mrs. Hesson. The remedy of a personal judgment against appellant never being available, Westinghouse did not make an election of an inconsistent remedy.
Affirmed.
Fogleman, J., not participating. | [
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George Rose Smith, Justice.
This workmen’s compensation claim was denied by the referee, the commission, and the circuit court on the ground that the claimant’s injuries did not arise out of and in the course of his employment. Whether that finding was correct is the principal question now before us.
The ultimate controlling facts may be stated quickly, for the commission quite properly gave the claimant the benefit of the doubt upon disputed issues. Wright was employed as a concrete worker upon the Eighth Street Expressway construction job in Little Rock. He came to work in his own pickup truck and voluntarily used it in hauling a spraying rig and other company-owned equipment from place to place on the job site. Wright’s foreman did not require him to use his own truck, but he did allow Wright to take gasoline from the company’s tank. Wright was never told that he could use company gasoline for traveling to and from his home.
Wright lived with his wife at Lamar, almost 100 miles from Little Rock. He went home on weekends, but during the week he stayed at a motel in North Little Rock, just across the river from the job site. On a certain Wednesday in 1968 a rainstorm halted all concrete work at midafternoon. Wright decided to drive to Lamar and spend the night with his wife. The next morning he arose early and started for Little Rock in his truck. At Lamar he entered a long stretch of interstate highway not yet open to the public. After having traveled that route for about 20 miles he ran into a pile of gravel on the pavement and sustained the injuries for which compensation is sought.
The going and coming rule ordinarily denies compensation coverage to an employee while he is traveling from his home to his job. A familiar exception to the rule recognizes coverage when the employer furnishes home-to-work transportation as an incident to the em ployment. Ark. Power & Light Co. v. Cox, 229 Ark. 20, 315 S. W. 2d 91 (1958). In comparatively recent years some courts have approved a related exception by which home-to-work coverage is sustained if the employer requires the worker to bring his own vehicle to work and use it on the job. Larson, Workmen’s Compensation, § 17.50 (1968); Smith v. Workmen’s Comp. Appeals Board, 73 Cal. Rptr. 253, 447 P. 2d 365 (1969); Marshall v. Tribune-Star Pub. Co., 251 Ind. 557, 243 N. E. 2d 761 (1969); Borak v. H. E. Westerman Lbr. Co., 239 Minn. 327, 58 N. W. 2d 567 (1953).
In the case at bar the commission expressed its approval of the more recent exception but went on to say:
We think that claimant would have been within the exception had he been en route to and from his motel in North Little Rock. However in the instant case claimant had made a trip to his home in Lamar, Arkansas, for the purpose of spending the night with his wife. This brings in focus the purpose of the trip which determines this case.
The Arkansas Supreme Court, in Martin v. Lavender Radio & Supply, 228 Ark. 85, 305 S. W. 2d 845 (1957), quoted with approval the test as stated by Chief Judge Cardozo in the case of Marks Dependents v. Gray, 251 N. Y. 90, 167 N. E. 181 (1929): “Unquestionably injury through collision is a risk of travel on a highway. What concerns us here is whether the risks of travel are also risks of the employment. In that view, the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils.”
This is commonly known as the dominant purpose rule, which Arkansas apparently adopted in the Martin case, supra. Claimant testified that the job was rained out on September 4, 1968, and he decided to go to Lamar to spend the night with his wife. This was the dominant purpose of his trip. Therefore . . . the Opinion of the Referee ... is hereby affirmed.
Assuming, without so deciding, that the exception in question should be added to our going and coming rule, we are nonetheless of the opinion that the distinction drawn by the commission was soundly grounded in the facts. Evidently Wright did not think it practical to travel back and forth between Lamar and Little Rock every day. Hence the commission was justified in treating the North Little Rock motel as Wright’s work-connected home during the week. There is nothing in the rule in question that logically or reasonably demands that the workman be allowed to maintain two homes as a matter of right, expecially when one of them is so inconveniently placed that he gives it up temporarily to maintain his job. We accordingly conclude that the commission was supported by substantial evidence in finding that Wright’s excursion to Lamar was a personal mission that took him out of the exception to the going and coming rule, just as if he had been a permanent resident of North Little Rock and had driven to Lamar to go fishing or to achieve some other purely personal purpose.
The claimant also argues two other possible theories for an award of compensation in the case at hand. Neither theory was mentioned in the commission’s opinion, which indicates either that the points were not raised below or that the commission did not think them sufficiently meritorious to call for a discussion. We would affirm in any event.
One, in the course of the testimony it was casually mentioned now and then that Wright had also worked for the appellee Hogan on other highway construcdon jobs in Arkansas, there being references to Malvern, Fort Smith, and Clarksville. It is now suggested that Wright was therefore required to travel about the state and was entitled to the broad compensation coverage granted to traveling salesmen. The short answer to this argument is that the traveling salesman’s work requires him to travel away from his employer’s premises while he is on duty. Larson, supra, § 25.10. Wright’s travels, by contrast, were merely between his home and various job sites.
Two, Hogan was the paving contractor for the unopened interstate highway upon which Wright was injured. It is now argued that Wright was therefore upon his employer’s premises and is entitled to invoke the premises exception to the going and coming rule. As Larson points out, however, the basis for the premises rule is the existence of a causal connection between the employment and the particular risk, as when the employees must cross railroad tracks near the plant entrance. Larson, § 15.15. There is patently no causal connection between Wright’s employment in Little Rock and the risk involved in his election to travel an unfinished highway some eighty miles away.
Affirmed.
Fogleman, J., not participating. | [
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John A. Fogleman, Justice.
Burks Motors, Inc. in a petition for rehearing in 5-5425 asks that we amplify and clarify our opinion of March 1, 1971, to state that the judgment of contribution is binding between it and International Harvester Company, by reason of the judgment of the trial court and International’s failure to seek contribution from Burks or ask reversal of the judgment for contribution here. International’s petition in this case is for amplification only and asks that we declare that the judgment rendered against it is reversed and remanded in its entirety so that the determination of proportionate fault between it and Burks is nullified. International also filed a petition for rehearing in 5-5427, on its successful appeal, asking amplification or supplementation of the opinion as asked by it in 5-5425, asserting that until and unless there is an adjudication of liability against International on retrial, it cannot possibly be a joint tort-feasor, from whom contribution may be obtained. Burks filed a petition for rehearing in 5-5427, as a party to the appeal, asking that our opinion in that case be amplified and supplemented to state that the judgment against both it and International was reversed and remanded, so that Pike has no judgment against Burks, or, alternatively, that the opinion in 5-5425 entitles it to a 91% contribution from International. None of the parties cites any authority for its position.
While most of the questions raised by the parties are prematurely posed, the basic one is the status of the judgment against Burks. As pointed out in our opinion in 5-5425, that judgment was joint and several. Reversal as to one tort-feasor or defendant does not necessarily call for a reversal of a several judgment against another. A. S. Barboto & Co. v. James, 205 Ark. 53, 168 S. W. 2d 202. Any benefit to which Burks might have been entitled because of the points asserted by International have been waived. On International’s appeal (No. 5-5427) Burks was specifically designated as an appellee. Burks then gave notice of appeal and filed a designation of the record on its appeal. This designation specifically named only the judgment, the interrogatories posed to the jury and the jury’s answers as the record on appeal. Burks filed this record (No. 5-5425) on August 3, 1970, one day before International filed the entire record designated by it on its appeal (No. 5-5427). The filing of the partial record limited the scope of our review on Burks’ appeal to those assignments of error appearing upon that record. Hanson v. Anderson, 91 Ark. 443, 121 S. W. 736; Little Rock Road Machinery Co. v. Jackson County, 233 Ark., 53, 342 S. W. 2d 407. Burks filed an abstract and brief in 5-5425 on September 14, 1970, 15 days before any brief was filed by International in either appeal. Burks abstracted only the record designated by it and thereby limited the scope of our review on its appeal to the sole question raised by it—the proposed modification of the percentage of fault to reduce that attributable to Burks from 9% to 0.9%. Arkansas State Highway Commission v. Lewis, 243 Ark. 943, 422 S. W. 2d 866; Rural Single School District v. Lake City Special Sch. Dist., 144 Ark. 362, 223 S. W. 381. Burks’ statement of the points to be relied upon also limited the scope of our review as to it as it only assigned error in the court’s application of the jury’s answer to interrogatories relating to allocation of responsibility between it and International. Arkansas Power & Light Co. v. City of L. R., 243 Ark. 290, 420 S. W. 2d 85. See also Eveland v. State, 189 Ark. 517, 74 S. W. 2d 221.
Burks expressly waived any other point or argument in its brief in its statement of the case which includes the following:
This appeal does not question the issue or issues of liability nor the amount of damages but only seeks to correct the Judgment of the Court to require it to conform to the Jury’s findings in the Interrogatories.
The conclusion of the brief reads as follows:
The Judgment of the trial court should be modified to provide for contribution in favor of Appellant Burks and against Appellee International for any amounts Appellant Burks pays in excess of $783.00, together with its pro rata share of any interest and costs.
Limitation of its attack on appeal to one ground constituted an abandonment of all others. Stevens v. Shull, 179 Ark. 766, 19 S. W. 2d 1018, 64 A. L. R. 1258. Furthermore, the failure of Burks to argue any other point asserted by it in the only brief filed by it constituted a waiver or abandonment of such other points. Gordon v. Street Improvement District, 242 Ark. 599, 414 S. W. 2d 628; Commercial Standard Ins. Co. v. Coffman, 245 Ark. 1005, 436 S. W. 2d 83; Cummings v. Boyles, 242 Ark. 923, 415 S. W. 2d 571; Commonwealth Public Service Co. v. Lindsay, 139 Ark. 283, 214 S. W. 9; Purifoy v. Lester Mill Co., 99 Ark. 490, 138 S. W. 995; Bowling v. Stough, 101 Ark. 398, 142 S. W. 512.
Present assertions that International’s appeal should redound to the benefit of Burks are not supported by the record. As an appellee on that appeal, Burks is not entitled to a new trial on the judgment against it as a result of the reversal of the judgment against Interna tional. A. S. Barboto & Co. v. James, 205 Ark. 53, 168 S. W. 2d 202. The issues argued by International were not all applicable to Burks, as suggested by the latter. As a matter of fact, one of International’s principal arguments was directly adverse to Burks. This was the contention that Burks’ negligence was an efficient intervening proximate cause and relieved International of any liability to Pike. One of the points on which the International judgment was reversed had to do with closing argument by Pike’s counsel. Burks neither objected nor moved for mistrial, so this issue was not applicable to Burks. There was never the remotest suggestion that International’s arguments, either in its brief filed September 29, 1970, or in oral argument, were advanced on behalf of Burks. Nothing in the motion to consolidate, made only by International the next day after filing its brief in 5-5427, made any such suggestion. International expressly limited the application of its point to itself in its statement of points to be relied upon. Burks never filed any brief except its brief as appellant in 5-5425. This brief strictly limited Burks’ position and Burks did not indicate in any manner whatever that it adopted any of International’s arguments. Its attorney did not participate in the oral argument in any way. International did not, on appeal, press the point that there was error in the assessment of liability between it and Burks, which it asserted in its motion for new trial in the circuit court. Burks would have been an appellee on this point. In its brief in response to Burks’ in 5-5425, filed after consolidation, International only resisted a modification of the judgment for contribution to decrease the proportionate liability of Burks or to increase its own contribution to Burks, and did not mention or suggest reversal or remand of this judgment. These actions and omissions, of course, constituted a waiver of the point.
The judgment as to Burks must be affirmed as no error has been asserted against it by Burks. Price v. Price, 217 Ark. 6, 228 S. W. 2d 478. Arguments not asserted or points not argued in the briefs of the parties cannot be considered by this court. Smith v. Snider, 247 Ark. 342, 445 S. W. 2d 502; Tumlinson v. Harville, 237 Ark. 113, 372 S. W. 2d 385; Groves v. Keene, 105 Ark. 40, 150 S. W. 575. While there was a reversal on International’s appeal for failure of the court to give an instruction requested by International submitting the question of Pike’s negligence, Burks entered a general objection to that instruction even though it did request a similar one later. Still, Burks did not complain on appeal about any of the instructions given or requested, so it waived any error in regard thereto. Firemen’s Insurance Co. v. Jones, 245 Ark. 179, 431 S. W. 2d 728, 33 A. L. R. 3d 1059; Harrell v. Davis, 210 Ark. 939, 198 S. W. 2d 180. In their original briefs neither Burks nor .International made the contentions they are now asserting, so they cannot be considered on petition for rehearing. Berry v. Gordon, 237 Ark. 547, 865, 376 S. W. 2d 279, 289; Bost v. Masters, 235 Ark. 393, 361 S. W. 2d 272, 277; Midland Valley R. Co. v. LeMoyne, 104 Ark. 327, 148 S. W. 654.
Except for the question of finality of the judgment against Burks, other points raised by Burks and International depend upon future developments and must be litigated in the trial court in the light of those developments. It is certain, however, that Burks cannot be entitled to a money judgment against International under any set of circumstances until Burks has either paid the judgment or discharged more than its pro rata share. Ark. Stat. Ann. § 34-1002 (Repl. 1962). The eventual determination of the question of Burks’ right to recover from International depends to some extent upon whatever rights it has to indemnity as well as contribution. International conceded, in the trial court, that if Burks should be held liable as a vendor because of improper design or breach of warranty, it was entitled to indemnity against International.
Except for our statements as to the finality of the judgment against Burks and as to Burks’ entitlement to a money judgment against International the petitions for rehearing are denied.
Harris, C. J., and Byrd and Holt, JJ., dissent. | [
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J. Fred Jones, Justice.
This is an appeal by the City of Fort Smith from an adverse decree of the Crawford County Chancery Court in an action brought by the city to quiet its title to part of a 40 acre tract of land in Crawford County. Charley France was the pri mary defendant in the trial court. He had conveyed small parcels of the land in controversy to the other appellee-defendants and they all claim title by adverse possession. The chancellor confirmed title in Charley France and his wife and in their grantees. On appeal to this court the city relies on the following points for reversal:
“The trial court erred in finding that appellees had acquired title by adverse possession.
The trial court erred in overruling appellant’s motion objecting to entry of judgment and for a new trial.”
Without benefit of abstract of any of the exhibits, the facts of record appear as follows: On May 18, 1935, the City of Fort Smith purchased from Andrew France and Lula France, his wife, several tracts of land in Crawford County in connection with the creation of Lake Fort Smith and Shepherd Spring Lake as a source of water supply for the city. The city acquired, by purchase and by eminent domain, some 10,000 acres for the entire project, but that portion of the land in controversy lies along Clear Creek between the two lakes and is described in the warranty deed of conveyance as follows:
“The Fractional Southwest Quarter of the Northwest Quarter of Sec. 30, Twp. 12 N., R. 29 W., except that part of said tract lying West of a bluff crossing said tract in a Northeasterly and Southwesterly direction.”
While not germane to the issue here, but to emphasize the vagueness of description, this deed also conveyed the fractional west half of the southwest quarter of the same section with certain exceptions; one of which is as follows:
“Beginning at the Southeast corner of Southwest Quarter of Southwest Quarter of Sec. 30, Twp. 12 N., R. 29 W., thence West to Frog Bayou (Clear Creek) thence along said stream in a Northerly direction to a certain slough, thence along said slough crossing another slough and cornering at a certain Box Elder Tree, thence in an easterly direction passing a certain Elm Tree to East line of said SWA of SWA, thence south to place of beginning, containing 20 acres, more or less-.” (Emphasis added).
The deed also contains language as follows:
“And because there are indefinite descriptions in our chain of title we hereby grant and quit claim to the City of Fort Smith, its successors and assigns, but without warranty of any kind all our right, title and interest in and to the following: * * * all that part of Southwest Quarter of Northwest Quarter # # # lyfng East of a bluff which crosses said Southwest Quarter of Northwest Quarter * * * in a Northeasterly and Southwesterly direction.”
After the City of Fort Smith purchased the property in 1955, it caused to be erected, through a W.P.A. project, a fence more or less parallel with the bluff referred to in its deed. The face of the bluff apparently deviates to some extent from vertical inaccessible rock cliffs to steep areas where a person or an animal could go up or down but a vehicle of conveyance could not. Apparently an old road at one time ran along the foot of the bluff. The bluff did not run in a straight line; it jutted out at some places more than at others, but it was apparently well defined across the 40 acre tract here involved. The fence erected by the W.P.A. for the City of Fort Smith was erected in more or less a straight line east of the bluff and averaging about 150 feet from the face of the bluff.
On April 2, 1956, Lula France, as an unmarried person, conveyed by warranty deed to Charley France and Nellie France, his wife, land described as follows:
“All that part of the Southwest Quarter of the Northwest Quarter of Section 30, Township 12 North of Range 29 West, which lies East of the Shepherd Springs Road as now located over and across said forty and North of that part of said forty owned by the City of Fort Smith, Arkansas and that part of the said forty owned by Joe C. Bennet and others. Said deed to Joe C. Bennet as described in records office of the Recorder of Crawford County in deed record Book 178 at page 52. This deed conveys to the Grantee all interest in the above described land not already owned by her.”
In 1966 Charley France and wife conveyed by warranty deeds to Smith and to Morris two small plots 50 by 100 feet in dimension and apparently lying within the area between the fence and the bluff claimed by the city. About this same time Charley France bulldozed a road from the top of one end of the bluff down into the old road near the foot of the bluff, whereupon the City of Fort Smith filed a suit in ejectment but dismissed it without prejudice and brought the present action to quiet its title. Charley France, Smith and Morris pleaded adverse possession for more than seven years. The chancellor found in favor of France, Smith and Morris and decreed title in them by adverse possession. The chancellor who heard the testimony, made his findings of fact and conclusions of law but died before the decree was actually entered thereon. The city’s motion for a rehearing was denied and the decree was entered by the newly elected chancellor on the findings and conclusions of the chancellor who heard the case.
THE APPELLEES’ EVIDENCE
Logan France, a brother of the appellee, Charley France, testified that he actually made the deal for the sale of the land from his parents to the City of Fort Smith and that his father and mother sold approximately 100 acres of land to the city out of the 160 acre tract they owned. He says that at the time of the sale the City of Fort Smith simply wanted 100 acres *)f the bottom land, and that in 1936 the city established its fence on what was supposed to be its west boundary line. He testified that none of the land was ever surveyed prior to the erection of the fence and that his mother and father, while living in a house on top of the bluff, continued to use the property between the bluff and the fence for cow and calf lots and to impound their other livestock. He testified that his brother, Charley, lived on the same property with his mother and father and that after his father’s death in 1952, Charley continued to use the property in the same manner as used by his father and mother and had continued to so use it until the present time. He testified that when the fence was built, the city fenced in the county road which was rerouted along the top of the bluff, and that his father connected fences across the old county road for the city, and so he could have fences connected from the bluff to the city fence on the south end and also on the north end of the property involved. He testified that some bulldozing was done by Charley on a road under the bluff about seven or eight years ago. He testified that Charley lives approximately 300 feet from the north line of the property in question; that his brother, Charley, used the property even before his father passed away in 1952, and that he has continued to use it for livestock pens ever since. He testified that his mother lived in a little house by the side of Charley’s house on the top of the bluff, and that there was a trail leading down from Charley’s house to the property between the bluff and the fence where the livestock was kept. He testified that the trail had been in use for more than 40 years, and that he traveled it in going to school when he was a child. He testified that a part of the property in question was planted in corn in 1935 and that the city built the fence diagonally through the field where the corn was planted.
Mr. W. F. Wright testified that he had lived in the area of this property for 62 years; that he farms, raises chickens and cattle, and does some veterinary type work at times. He testified that about in 1960 he was requested to administer a milk fever shot to one of Charley France’s milk cows and that he did so. He testified that the cow was penned in a lot between the bluff near Charley’s house and the city reservoir fence, and he believes Charley had some other livestock in the lot. He testified that he was familiar with the area between the bluff and the city fence and that it has been in constant use by Charley France and his family through the years.
On cross-examination this witness testified that he had rented land for a period of five or six years from the city for cow pastures inside the fence, but not between the fence and. the bluff. He testified that he knew there had been some bulldozing work done on the property in the past years; that his nephew, Lee Wright, did some dozing work for Charley France on the property several years ago.
Mr. Burton Vaught testified that he lives in Mountainburg, is 49 years of age, grows broilers and is president of the school-board in Mountainburg. He testified that he is well acquainted with the property involved, and that the fence built by the city runs 100 to 150 feet from the bluff, depending on the way the bluff “winds down through there.” He testified that Charley France kept livestock in a lot below his house between the bluff and the fence; that he kept milk cows in the lot; that Charley had a mule in the lot at one time; that he purchased a horse from Charley in 1960 or 1961, maybe 1959, and that the horse was in the lot between the bluff and the fence. He testified that the lot was enclosed by fences across each end of the strip between the bluff and the fence the city built. This witness testified that he purchased the horse for the purpose of skidding logs; that his brother purchased all of the timber on the reservoir area from the City of Fort Smith, and that he did the logging of the timber his brother had purchased. He testified that the city caretaker for the reservoir property showed him the property lines where he was to cut timber. He says that the fence along the lake under the hill was pointed out to him as the property line; that he was told he could cut anything inside the fence for that belonged to the city, but that he was to cut nothing outside the fence.
On cross-examination this witness testified that he was fairly familiar with all the 10,500 acres the city owns around the lakes and that at one time all the city land was either fenced or had posts around it. He testified that the caretaker told him that,
“Anything inside that fence was city property. * * * said just cut inside the fence—its all city property. I said—‘is there any danger getting on anybody elses up there?’ And he said, ‘Not so long as you stay under the ience.’ ”
One of the appellees, Charley France, testified that he lives on the bluff overlooking the property involved; that there is a road as. well as a footpath, or trail, from where he lives down through the property. He testified that the property was deeded to him by his mother in April, 1956. He testified that his father and mother kept cattle, horses, goats and hogs on the property involved, and that he had continued to maintain the corral, or lot fences, as his father and mother had done; and had continued to keep his mules, calves and hogs enclosed on the property. He testified that he had a Mr. Lee Wright do some bulldozing on the property several years ago, and that he would estimate that it was about 12 or 15 years 'ago. He testified that the road came up from around the' end of the bluff and extended through the distance of the 40 acre tract. He testified that he had this entire road worked with a bulldozer by Mr. Wright; that Mr. Wright “just brought the bulldozer down the hill and through the land to the end and fixed the road better than it was.” He testified that after Mr. Wright did the bulldozing work he had the road worked with a bulldozer two other times; once by Bobby Joe Centers and once by Buck Fath. He testified that after the bulldozing work was done he planted some crops on one end of the area, and that he has used the property constantly since his mother deeded it to him.
On cross-examination Charley France testified that Bobby Centers worked the road about three years ago. He testified that his mother and father put fences in from the bluff to the fence built by the W.P.A. on each end of the land involved; that he continued to maintain the fences and use the property between the bluff and the W.P.A. fence. He testified that in maintaining the road Mr. Centers may have pushed out big rocks and some trees with the bulldozer and that Mr. Wright, some 12 or 14 years ago, did the same with his bulldozer. He says that the road has remained open and passable ever since Mr. Wright did the bulldozing work some 12 or 14 years ago. He testified that he does not know whether his father and mother had permission from the city to use the land or not, but that they continued to use it after they sold the land to the city.
Mr. Claude Morris testified that he purchased a team of mules from Charley France; that he is familiar with the property involved and that when he purchased the mules, Mr. France had them, as well as other livestock, enclosed on the area involved. He testified that he had bought a lot from Charley in the area and had a well drilled on it. On cross-examination he testified that he had known Charley all of his life and had spent 29 days in the penitentiary with Charley for cattle rustling.
THE CITY’S EVIDENCE
Dominic Leraris, a civil engineer, testified that he surveyed the land involved at the request of the city in 1967; that he was first on the land June 27, 1967, and that a bulldozer was working a road on the land when he was there.
Mr. Roy E. McCann, Jr., a commercial photographer, identified a number of pictures he took of the area and both he and Mr. Leraris testified that in walking over the property they encountered no fences connecting the city fence line with the bluff.
Mr. Bob Suit testified that he had been superintendent of the reservoir for the City of Fort Smith and had been in almost daily contact with the area involved since December, 1962. He testified that when he first assumed supervision of the reservoir area, it was his understanding that the property involved between the bluff and the fence line belonged to the city. He testified that it was in the Spring of 1965 when he first learned that Charley France was claiming adverse to the city. He says that on that occasion Charley advised him that he was going to cut a road down under the bluff and he advised Charley it was city property. He says Charley responded that if anyone stopped him it would be the sheriff (this was denied by Charley who testified that he and Suit did not get along and that Suit does not adyise him on anything). Suit testified that he is pretty sure it was in 1965 when Mr. Centers was on the property with a bulldozer. He says that he had a work crew place barricades across the road but they were removed. He says that they then drilled holes across the road and set steel pipes in concrete and that the pipes were removed before the concrete set up. He testified that he did not know whether Charley France moved the barricades or not, but he does know Charley had him arrested for blocking a public road.
Mr. Suit testified that he noticed an old fence running out from the bluff but that he does not believe it connects with the city fence. He testified that when he first went up into the area in 1962, Mr. Cole (a former superintendent) went with him and that Mr. Cole pointed out to him that the land between the fence and the bluff belonged to the city. This witness testified that up until this present lawsuit was started, no cattle were on the property involved during the time he had been superintendent in so far as he knows. Mr. Suit testified that Lake Fort Smith had a fence all the way around it when it was first built and that Lake Fort Smith takes in the property in question. He testified that the fence has. fallen in bad repair and that he attempts to keep all the old roads leading into the area blocked and the cattle run out of the area.
Mr. John Luce testified that he had worked for the City of Fort Smith for a period of 41 years; that he was familiar with the area when Lake Fort Smith and Lake Shepherd Springs were formed, and remembers when the property in question was acquired. He testified that it was his understanding, that the city was to get all of the 40 acre tract involved in this case east of the bluff. He testified that it had been his impression that the city owned this property to the bluff until the dispute arose a few years ago with Mr. Charley France, and that he first learned of the adverse claim about 1966. He testified that it was his impression all along, as superintendent of the property involved, that the city owned and controlled the land between the bluff and the fence line. He testified that the land along the very foot of the bluff was pretty rugged; that in many instances the fences were erected along the boundary lines of the city acquisition, but that in most instances the city was not particularly interested in property boundary lines and placed its fences in the most convenient location to keep cattle and livestock out of the water supply. He testified that he first learned of the adverse claim of Charley France when the obstructions he had placed in the old Shepherd Springs Road were removed and he sent some men to the area to replace the obstructions. He testified that there was no roadway from the top of the bluff to the old road where he erected the barricades until Charley France had a roadway cut around the bluff. He testified that this was done in 1965 or 1966 (he thinks it was 1966), and that when steel pipes were put in the road they were removed. He testified that livestock should not have been permitted to run on the city property between the bluff and the fence, and that there was not supposed to be any livestock in that area. He testified that there was a caretaker already hired when he became superintendent in 1945, and that he employed two caretakers in succession. He testified that as far as he knows the caretakers knew where the city boundary lines were; that some of the fence posts burned out, and the fences fell into disrepair over the years for lack of money or personnel to replace or repair them. He testified that the area surrounding the lakes was open range area when the lakes were impounded, and that the main object of fences was to keep cattle out.
On cross-examination this witness testified that he was not superintendent at the time the fence was built; that he simply knows that a fence was built and that he surmises that the fence was to keep the cattle out of the water. He testified that he did not know how long the old road had been between the bluff and the fence. He stated an opinion that livestock could get down from the bluff but that a wagon. or automobile could not. He testified that from 1935 when the city acquired the property, until 1965 or 1966 when he saw a bulldozer on the property, that the city had caretakers in the area and that they attempted to keep cattle out of the area. He testified that he did not know that cattle were running in this area from 1935 until 1965.
Charley France on recall identified the deed from his mother to himself and wife and testified that the description contained in the deed was intended to describe all of the property owned by her in the 40 acre tract.
The discovery deposition of Mrs. Helen Sax was submitted in evidence and she testified that her husband, who is incapacitated, was the first caretaker of the reservoir area. She testified that the W.P.A. built the fence soon after the property was acquired by the city, and that there was no fence built from the bluff to the W.P.A. constructed fence.
On cross-examination Mrs. Sax testified that it had been 30 years, or a little better, since she had been to the property. She testified that the fence went around the city property and that was the purpose of the fence. She testified that it was too difficult to build a fence up against the bluff and that the property between the bluff and where the fence was built belonged to the city and was not fenced in. She testified that Charley France stole some cattle and accused her husband of stealing them.
OPINION
In 1937 Mr. and Mrs. Andrew France conveyed two small tracts by warranty deeds to H. N. Pollock and to Dr. J. S. Gregg. The descriptions in both of these deeds are by metes and bounds beginning at the northwest corner of the “Elsenrath tract” and running to “bottom of bluff joining Fort Smith Lake property, thence South along bottom of bluff. . .” In October, 1949, Mr. and Mrs. France conveyed by warranty deed to John B. Dahin et al, a tract of land in this same 40 acre tract described, in part, as follows:
“Starting at the North East corner of the forty for a place of beginning, thence South to bottom of bluff and then following said bottom of bluff line in a- Southwesterly direction 215 yards to hollow branch this line being the dividing line between the A. J. France and the Ft. Smith lake property.”
There is no evidence in the record that the city ever had its lands surveyed, or ever marked its boundary lines, prior to the institution of this litigation. It is obvious from the descriptions in the 1937 deeds to Pollock and Dr. Gregg that Andrew and Lula France recognized the “bottom of the bluff” as the division line between the property they retained and the property they sold to the city. Andrew died in 1952 and there is considerable evidence that Charley continued to use the land for livestock pens and corrals from 1952 until this suit was instigated. Mr. Suit and Mr. Luce testified that no one was supposed to keep cattle or livestock on the city land between the bluff and the fence, and that the caretakers attempted to keep cattle out of the area. Charley France testified that the words “west of the bluff” as described in the deed to the city, could be construed to mean anywhere between the vertical rock cliffs shown in some of the photo exhibits and the creek at the foot of the hill. In other words, it is his contention that the “bluff” is not a vertical wall across the 40 acre tract, but in some places is a steep hill rather than a sheer wall; and that the terms “west of the bluff” and “bottom of the bluff” as used in the deeds, are ambiguous terms in defining the land boundary line.
In any event, we conclude that the chancellor’s findings are not against the preponderance of the evidence that Charley France and his grantees held and used the property openly, notoriously and adversely to the city for more than the statutory period of seven years. Ark. Stat. Ann. § 37-101 (Repl. 1962); Montgomery v. Wallace, 216 Ark. 525, 226 S. W. 2d 551.
We find no merit in the city’s second point. It appears that the case was fully developed before Chancellor Dunn, prior to his death, as evidenced by his findings of fact and conclusions of law. Chancellor Kimbrough had authority to enter the decree and we find no abuse of his discretion in doing so and in his refusal to reopen the case for a new trial. Hyder v. Newcomb, 234 Ark. 486, 352 S. W. 2d 826.
The decree is affirmed.
Fogleman, J., concurs.
Harris, C. J., dissents. | [
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John A. Fogleman, Justice.
The parties to this appeal separated after 27 years of marriage. They had two children at home—a daughter, Sandra, 18 years of age at the time of the trial, and a son, Billy, 20 years of age at that time. Both of the children were attending college at the time of the separation and the trial and residing at the family home on an 80-acre farm, which was held by the parties as a tenancy by the entirety.
The wife, appellee herein, sued for an absolute divorce on the ground of indignities to the person. By amendment to her original complaint, she prayed, in the alternative, for separate maintenance. At the time of the final hearing, she abandoned her prayer for absolute divorce, and a decree was entered granting her $350 per month support money, sole possession of the farm and the residence that contained all personalty, and an attorney’s fee of $100 and requiring the husband to pay all debts incurred by the parties up to the date of the separation in the amount of $7,096.95. Appellee’s complaint had asked that appellant be required to account for the proceeds of cattle sold by him. The final decree relieved him of making an accounting, and allowed him to retain the net proceeds of this sale.
The first point relied upon by appellant for reversal is his contention that appellee should not have been granted relief because she did not come into court with clean hands. He argues that her conduct in abandoning her prayer for absolute divorce and seeking separate maintenance constituted a failure to do equity because it resulted in her being permitted to retain the home and farm in her sole possession, along with the personalty of the parties, rendering it impossible for die court to order a sale of the realty for the discharge of the joint obligations of the parties. Appellant makes this argument in spite of the fact that he filed no counterclaim, failed to answer or otherwise respond to the amendment to appellee’s complaint, and made no objection when she abandoned her claim for absolute divorce and proceeded on her suit for separate maintenance. We do not understand appellant’s argument in this respect, and find no basis for saying that appellee should not have been granted relief because she came into court with unclean hands or because she failed to do equity. The doctrine of unclean hands means no more than that one, who has defrauded his adversary in the subject matter of the action, will not be heard to assert a right in equity. Batesville Truck Line v. Martin, 219 Ark. 603, 243 S. W. 2d 729. The practical meaning of the maxim that “he who seeks equity must do equity” is that, whatever the nature of the remedy sought, the court will not give equitable relief to one seeking it unless he will admit and provide for all of the equitable rights, claims and demands of his adversary growing out of, or necessarily involved in, the subject matter of the controversy. McMillan v. Brookfield, 150 Ark. 518, 234 S. W. 621. Appellant also asserts that the court abused its discretion in the award of alimony, division of personalty and award of possession of realty. Appellant is totally disabled, and received $726 per month from social security, the Veterans’ Administration and disability insurance. Each of the two children receives an additional $126 per month from social security and the Veterans’ Administration because of their father’s disability. Both children were in the first year of college. Appellee testified that appellant sold 13 head of cattle for $1,000 on the day of the separation. She claimed an interest in the cattle, and testified that they were worth more than twice as much as the purchase price he received. There is an FHA loan of $5,200 on the farm, payable in installments of $40 a month, which Mrs. Sample claims to have been making in the past. She testified that she had worked during most of their married life and received exceptionally high earnings, which she said she applied to payment of bills and the family living cost. Each of the parties now has one of the two family automobiles. Appellant testified that the parties owned their furniture, had four horses, 10 or 12 saddles and equipment, all valued at a minimum of $700, in addition to farm and garden tools, a tractor and wagon, which he valued at $500. He valued sporting goods equipment at $550, tools at $300, antique glassware at $1,000. He also valued a demolished Dodge truck at $300, and testified that there were 500 bales of hay in the barn. Mrs. Sample testified that appellant’s income was nontaxable. She listed monthly financial needs of $600. She stated that the minimum she could live on was between $350 and $400. She has income of $60 per month as pay for caring for two houses on Eden Isle. Although she testified that she was physically unable to work, it seems that her children assist her in this employment. Mrs. Sample testified that she had undergone chronic mastitis surgery on her breast and was under the care of the University Medical Center where she received outpatient treatment for which she paid $7.50 per call. She was scheduled to return for a checkup in May, 1971. She had also consulted Dr. Mc-Clanahan of Heber Springs, and had seen four other doctors.
Dr. McClanahan examined Mrs. Sample on October 16, 1969, and found a tumor of the right breast, a rupture and a tumor of the uterus. He referred her to the University of Arkansas Medical Center at her request. He examined her again on June 6, 1970, and found the same condition. He stated that Mrs. Sample had a fibroma or rupture of the birth canal, technically called a cystocele and rectocele, which he said would cause discomfort in the pelvis and difficulty in controlling urination and bowel movements. Dr. Mc-Clanahan said this was a condition that would develop over a period of years. Mr. Sample testified that Mrs. Sample had had her same physical condition for 23 years of their married life.
Sample claims that he cannot live on the balance of his income. He pays $80 rent for an apartment and $85 as a monthly car payment. He is unable to prepare his meals and eats out a great deal of the time. He stated that he did not claim any of the property to be wholly his except for six guns, various hand tools, some personal things and 14 liquor bottles. He testified that the residence is in need of maintenance and upkeep, and the barn is in bad condition. Mrs. Sample had been allowed $250 per month temporary alimony. She, her daughter and Mr. Sample’s mother all testified that this amount proved inadequate and that Mrs. Sample had to borrow money to pay living expenses and even then some bills went unpaid. On the other hand, Sample testified that appellee was extravagant and indulged her children’s wants extravagantly.
In view of the testimony as to appellee’s physical condition, her needs and the necessity for maintaining a home for the children of the parties while they are attending school, together with evidence as to Mrs. Sample’s contributions to the acquisition of property by the parties, the absence of any testimony as to income to be anticipated from the farm, one-half of which is woodland, and admitted needs for maintenance on the residence and barn, we are unable to say that the chancellor abused his discretion or that the seemingly liberal allowances made were excessive under existing conditions.
The decree is affirmed. | [
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Carleton Harris, Chief Justice.
Appellee, Bank of America National Trust & Savings Association is a national banking association located and established in San Francisco, California. Appellants, James E. Holst and Charlotte C. Holst, financed a Buick automobile in California by security agreement which was assigned to appellee. With permission from appellee, appellants brought the automobile to Hot Spring County, Arkansas. Approximately a year later, appellants became de linquent in their monthly payments and the bank employed Arkansas Automobile Recovery of Pulaski County to repossess the Buick from appellants. According to a complaint subsequently filed by the Holsts, they entered into an agreement with Arkansas Automobile Recovery that that company would take the car and store it until appellants could “redeem” it. According to a further allegation, they received a notice of intent to sell the vehicle from the Bank of America National Trust and Savings Association, and thereupon contacted H. G. Kelley, the General Manager of Arkansas Automobile Recovery, who assured them that the automobile would be held for twenty days in this state. It is asserted that within that period of time, appellants obtained the money but were told by Kelley that the car was on its way to California. The complaint then asserted that the bank assured appellants that the vehicle would be returned if the Holsts would deliver the total balance to Arkansas Automobile Recovery. It is then alleged that this was done but there was a refusal to return the Buick and the check given by appellants was returned. Following this act, the suit, allegations of which have just been set forth, was filed in the Hot Spring Circuit Court. Judgment was sought against the Bank of America National Trust and Savings Association, Arkansas Automobile Recovery and H. G. Kelley jointly and severally for their conversion of the vehicle in the amount of $4,964 plus attorney fees and court costs. Thereafter the Bank of America National Trust and Savings Association appeared specially and exclusively for the purpose of seeking an order quashing the summons issued against it for the reason that it is a national banking corporation located in San Francisco, California, and has no location or establishment in Hot Spring County, Arkansas. This appellee asserted that the court had no jurisdiction of the cause of action because of the fact that 12 U. S. C. Sec. 94 provides the proper venue for the action against a national bank and is the sole, exclusive, and applicable provision of law in that regard. The other defendant, Arkansas Automobile Recovery, and H. G. Kelley, likewise appeared specially and exclusively for the purpose of moving that service be quashed against them, asserting that they were not served in the proper county under the provisions of Ark. Stat. Ann. §§ 27-605 and 27-613 (Repl. 1962). The court sustained the motion of appellee, quashed the service and dismissed the bank as a party defendant, but the record does not reflect what action was taken on the other two motions. From the judgment entered dismissing the bank as a party, appellants bring this appeal. For reversal, it is simply asserted that the appellee is subject to suit in Arkansas.
Of course, a national banking association is a creature of federal law, and the question of where it can be sued is governed by federal law. Proper venue against such an association is determined by 12 U. S. C. Sec. 94, which provides:
“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”
Appellants say this section is permissive, calling attention to the use of the word “may”, but it has been flatly held that the requirements of Section 94 are mandatory. In Mercantile National Bank at Dallas v. Langdeau, 371 U. S. 555, 83 S. Ct. 520, 9 L. Ed. 2d 523, the United States Supreme Court, in an opinion by Justice White, stated that the court found “nothing in the statute, its history or the cases in this court to support appellee’s construction of this statute. On the contrary, all these sources convince us that the statute must be given a mandatory reading.” The opinion cited that the phrase “may be had” [referring to service on defendant national banks] was, “in every respect, appropriate language for the purpose of specifying the precise courts in which Congress consented to have national banks subject to suit and we believe Congress intended that in those courts alone could a national bank be sued against its will”. This holding was reaffirmed in the case of Michigan National Bank v. Robertson, 372 U. S. 591, 9 L. Ed. 2d 961, 83 S. Ct. 914, in a Per Curiam opinion. It might be mentioned in connection with the latter case that the strongest authority cited by appellants is the concurring opinion of Mr. Justice Black— but, of course, it was just a concurring opinion, and not the opinion of the court. In addition, the original transaction there had originated in Nebraska, the home of the debtors to the bank. In the 1969 case of Ebeling v. Continental Illinois Nat. B. & T. Co. of Chicago, etc. et al, 77 Cal. Rptr. 612, the California court rendered the same holding, citing a number of cases including Langdeau and Robertson.
We are somewhat inclined to agree with appellants that simply because a bank is nationally chartered, it should not be immune from this type of litigation, but this is a matter that should be directed to the attention of the Congress. Under the holdings cited, we have no choice but to affirm.
It is so ordered. | [
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Lyle Brown, Justice.
The appellant and the two appellees constitute the Searcy County Board of Election Commissioners. The commissioners met twenty days prior to the March 9, 1971, school election, to select judges and clerks. Appellant, a Republican and the minority member of the commission, insisted that he was entitled to select one judge and one clerk for each voting precinct. Appellees contended that such a provision in the general election laws does not apply to school elections, those elections being nonpartisan. The circuit court agreed with appellees and denied appellant’s petition for a writ of mandamus, which was heard on February 22. Appellant’s only issue is that, as the representative of the minority party in Searcy County, he was entitled to appoint one judge and one clerk in the St. Joe School District 69 election. Appellees suggest that the appeal should be dismissed. That is on the ground that the election was held on March 9 and the issue is therefore moot.
The only explicit provision in our law for the selection of election judges and clerks on a partisan basis is found in Act 465 of 1969. Section 6(d) of that Act provides that for a general election three judges and two clerks shall be selected for each ballot box. It provides that two judges and one clerk shall be chosen by those two members of the County Board of Election Commissioners who represent the majority party, and that the other judge and clerk shall be chosen by the third member of the board who represents the minority party. See Ark. Stat. Ann. § 3-506(d) (Supp. 1969).
To sustain his contention that § 3-506(d) applies to school elections, appellant cites us to Ark. Stat. Ann. §80-317 (Repl. 1960):
Hereafter the County Board of Election Commissioners shall be charged with the responsibility of selecting judges and clerks of all school elections held in the several counties of this State. Said County Board of Election Commissioners shall also be authorized and empowered to make all necessary arrangements for conducting school elections and the general election laws, insofar as applicable, shall apply to school elections. (Emphasis added.)
Section 80-317 comes from Acts 1949, No. 56. Section 80-318 also provides that the election commissioners shall provide the election supplies and appoint the judges and clerks. That section was enacted in 1951.
Appellant points up the clause in § 80-317, “the general election laws, insofar as applicable, shall apply to school elections.” Hence, appellant says, the selection of judges and clerks on a partisan basis, as provided in Section 6(d) of Act 465, is applicable. But there is another provision in Act 465 which runs contrary to appellant’s argument. That provision is codified in Ark. Stat. Ann. § 3-101(c) as follows:
“General or special election” shall mean the regular biennial or annual elections for election of United States, State, District, County, Township, and Municipal officials, and the special elections to fill vacancies therein. Such term, as used in this Act, shall not apply to school elections or officials of school districts. (Emphasis added.)
We therefore conclude that when Act 465 provides for partisan judges and clerks it refers only to “general or special elections” as the term is defined in the Act and that its application to school elections is specifically excluded in the section just cited. That conclusion is still more plausible when we consider the fact that school elections are nonpartisan; candidates run as independents, their names being placed on the ballot by the requisite number of signatures on a petition. Furthermore, in providing for the selection of judges and clerks in §§ 80-317 and 318, the Legislature could have easily inserted the partisan selection provision had it so desired.
Appellees’ argument that this case is moot and should therefore be dismissed is without merit. We have many times decided election cases that actually had become moot because “controversies about the election laws present issues of public interest that ought to be set at rest.” Rockefeller v. Purcell, 245 Ark. 536, 434 S. W. 2d 72 (1968).
Affirmed. | [
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J. Fred Jones, Justice.
This appeal involves a widow’s rights in the homestead of her deceased husband and the question is whether she has abandoned it.
Sleetie Monroe lived with her husband, W. E. Monroe, on his rural homestead near Hope, in Hempstead County, Arkansas, until his death in November, 1952. Mr. Monroe left as his sole surviving heir Bryan Monroe, who was an only son by a previous marriage. Mrs. Monroe continued to live on the homestead until June, 1953, when she rented out the house on the homestead and moved to Hope where she has resided in different houses purchased by her since moving from the homestead. Bryan Monroe instituted the present action in the Hemp-stead County Chancery Court alleging that Mrs. Monroe has abandoned the homestead and he prayed for an accounting and award of damages for waste in the cutting and sale of timber from the homestead land. The chancellor found that Mrs. Monroe had not abandoned the homestead and entered a decree accordingly. On appeal to this court Bryan Monroe relies on the following points for reversal:
“That the appellee has in fact abandoned her homestead in the subject land, by living elsewhere for these many years, allowing the house and out building to deteriorate, by acquiring three other homes during her absence.
That appellee has in law abandoned her homestead in the subject land by leaving said land without a fixed intention to return to same, without maintaining a fixed intention to return to same and without possessing a fixed intention to return to same at the time of trial.”
We are of the opinion that the chancellor’s decree is not against the preponderance of the evidence and should be affirmed.
Article 9, § 3 of the Constitution of 1874 reads as follows:
“The homestead of any resident of this State who is married or the head of a family shall not be subject to the lien of any judgment, or decree of any court, or to sale under execution or other process thereon, except such as may be rendered for the purchase money or for specific liens, laborers’ or mechanics’ liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.”
This section of the constitution applies to either the wife or husband when married, and to either of them, or to anyone else who is the head of a family, whether married or not. Consequently, any resident of this state of either sex, who is married, or who is the head of a family, is entitled to the exemption of a homestead under the constitution. Thompson v. King, 54 Ark. 9, 14 S. W. 925.
In addition to a married woman’s right to homestead exemption, she has certain constitutional rights as a widow in the homestead of her deceased husband as set out in § 6 of Article 9 of the constitution, which is as follows:
“If the owner of a. homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents ánd profits thereof shall vest in her during her natural life, provided that if the owner leaves children, one or more, said child or children shall share with said widow and be entitled to half the rents and profits till each of them arrives at twenty-one years of age—each child’s right to cease at twenty-one years of age—and the shares to go to the younger children, and then all to go to the widow, and provided that said widow or children may reside on the homestead or not; and in case of the death of the widow all of said homestead shall be vested in the minor children of the testator or intestate.”
The case of Butler v. Butler, 176 Ark. 126, 2 S. W. 2d 63, involved the question of abandonment of a homestead; first by the husband, and then by the widow after her husband’s death. In that case, as in the case at bar, the litigation was between children of the deceased husband by a first marriage and their stepmother. In the Butler case John Butler had established a rural homestead in Logan County on which there was located a coal mine. In 1916 he moved with his family to Crawford County where he continued to reside until his death in 1918. After Mr. Butler’s death, his widow went to Fort Smith to live where she purchased a home for herself and minor children in order to obtain the advantage of better schools for the children and employment for herself. One of the children by the previous marriage administered his father’s estate and after winding up the administration, he turned the possession of the Logan County lands back to his stepmother and she continued to receive the rents and proceeds from both the farming operations and the mining of coal.
The husband of one of the Butler heirs by the first marriage brought the abandonment of the homestead into issue and the chancellor found that John Butler had not abandoned his homestead in Logan County by his removal to Crawford County, and that neither had the widow abandoned the Butler homestead in Logan County. The Butler decision distinguishes between an acquired homestead and the rights of a widow in her deceased husband’s homestead; and the Butler case so clearly sets out the law applicable to the case at bar, we feel justified in quoting at length from Butler as follows:
“The next question to be determined is whether John Butler abandoned his homestead in his lifetime. It is conceded by all parties that the land in controversy was his homestead until the fall of 1916, when he removed to Crawford County, but it is contended by appellants that, by such removal, he abandoned his homestead. It is not contended that he acquired a new homestead after his removal to Crawford County, and before his death. It is the rule of law in this State, announced by many decisions of this court, that the question of whether there has been an abandonment of a homestead once established, is almost entirely a question of intent on the part of the homestead owner so to do. In other words, in order to constitute an abandonment of a homestead, the owner must leave it with the intention of renouncing and forsaking it, or leaving it never to return. The law does not require continuous occupation of the homestead to continue it as such. As was said in one of the earlier cases before this court, Euper v. Alkire & Co., 37 Ark. 283: ‘When a homestead right has once attached, a continuous actual occupation is not indispensable for its preservation. It is well settled by the authorities that a removal from the homestead for a temporary purpose, or with the intention of returning and again occupying it, is not such an abandonment as will forfeit the homestead right.’ And in that case the court quoted with approval from McMillan v. Warner, 38 Tex. 410, as follows: ‘The question of abandonment is almost exclusively a question of intent, since no legal abandonment can occur without a fixed intent to renounce and forsake, or to leave never to return; and to abandon a homestead, a party must forsake and leave it with the intent never to return to it again as a homestead.’
In the more recent case of Gillis v. Gillis, 164 Ark. 532, 262 S. W. 307, this court said: ‘The question of whether one who removes from his homestead has abandoned same is one of intention, which must be determined from the facts and circumstances attending each case.’
A temporary removal from a homestead for business purposes does not constitute an abandonment. In this case it is shown that Mr. Butler, when he removed to Crawford County, went there to cultivate bottom lands, by which he thought he could earn sufficient money to pay off the mortgage on his homestead; that he rented his homestead for one year only for farming purposes; that he refused to sell same to persons who offered to purchase. It is also shown by a number of witnesses that he expressed, on many occasions, his intention of returning to his home in Logan County, and these expressions of intention in this regard continued up to the very day of his death. While there is some conflict in the evidence regarding the question of his intention, we do not find that the chancellor’s finding is against the preponderance thereof, and we therefore hold with the chancellor, that John Butler did not abandon his home in his lifetime.
The next question for determination is whether his widow, the appellee, Mrs. A. V. Butler, abandoned same. Section 6 of article 9 of the Constitution of 1874 reads as follows: * * #
The widow did not have a separate homestead in her own right at the time of her husband’s death, and she also had minor children. Therefore, under the plain provision of the Constitution, the homestead, of her husband became hers for life, exempt from any debts, except the mortgage indebtedness, together with the rents and profits therefrom, to be shared by her and her minor children until they reach the age of twenty-one years. She could not abandon the homestead so as to be effectual against the minor children, and her act in purchasing a home in Fort Smith for the purpose of supporting and educating her children there, does not constitute an abandonment. The only qualification of her right to enjoy the rents and profits of the homestead during her natural life, contained in this section of the Constitution, is, ‘if the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right.’ Here there are children, and she had no separate homestead in her own right at the time of the death of her husband. In such a case the acquisition of a homestead in her own right, after the death of her husband, does not constitute an abandonment of her husband’s homestead so as to deprive her of the rents and profits thereof during her natural life. As was said in the case of Davis v. Neal, 100 Ark. 399, 140 S. W. 278, L. R. A. 19.16A, 999: ‘It is the settled policy of this court that homestead acts are remedial, and should be liberally construed to effectuate the beneficent purposes for which they are in tended.’ And in the case of Colum v. Thornton, 122 Ark. 287, 185 S. W. 205, this court said:
‘Our Constitution gives the homestead to the widow for life, without any restrictions. It is the settled policy in this State that laws pertaining to the homestead right of the widow and minor children shall be construed liberally in favor of the homestead claimants.’ In this same case the court further said: ‘Upon the death of her first husband, a life estate vests in her in his homestead, and she has the right to lease it and receive the rents from it, subject, of course, to the rights of her minor children to share same with her until each of them arrives at the age of twenty-one years; and we do not think she forfeits her homestead by a second marriage and removal to the homestead of her second husband.’
Again, in the same case, it is said: ‘The general rule is that a remarriage by a widow will not operate to destroy the homestead character of a home left to her and her children by a former husband. Our Constitution does not require a widow to occupy the homestead. There is nothing in it to indicate that the framers intended that the marriage of a widow and her going to her second husband’s homestead and occupying it with him should work a forfeiture of her previously existing legal rights. In short, there is nothing in our Constitution to indicate that the right of homestead of a widow should terminate, should she remarry and go to live with her husband on his homestead; and we do not think such an act on her part destroys the homestead character of a then existing homestead of herself and her children by her former husband.’
The effect of this holding is that a widow does not destroy her homestead right in her husband’s estate by the acquisition of another home in her own right, for her own conveniences and purposes and that of her minor children. We therefore hold against the contention of appellants in this regard. The final contention of appellants for a reversal of the case is that there had been an abandonment of the mining operations at and after the death of John Butler, that constitute the leasing thereof by Mrs. Butler practically the same as opening a new mine. This contention must also be decided against appellants. It has been held by this court that coal underlying a homestead is a part thereof, and cannot be sold for the payment of the debts of the decedent’s estate, but is protected therefrom the same as the homestead is protected. Russell v. Berry, 70 Ark. 317, 67 S. W. 864.”
In the case at bar Mrs. Monroe testified that at the time of her husband’s death, the cultivable land on the homestead had been permitted to grow up in brush, and that after his death she had the brush removed and the land planted to pine seedlings. She testified that she had harvested timber twice from the land through selective cutting, and the chancellor found that the truth of this evidence was borne out by previous orders of the Hemp-stead County Probate Court authorizing such procedure.
Mrs. Monroe further testified that she left the homestead soon after her husband’s death and went to live with her sister and her sister’s husband in Hope because they feared for her safety living alone on the homestead, and because she desired and obtained self-employment as a practical nurse in Hope. She testified that it has been, and still is, her intention to return and live on the homestead when she is no longer able to work in Hope. This avowed intention is borne out in the testimony of Mrs. Monroe’s sister, who lives with her, and there is no evidence in the record to the contrary.
In the chancellor’s findings of fact he recites that after the hearing Mrs. Monroe, through her solicitor, announced her intention of applying the money she had received through the harvest and sale of timber from the homestead, to the making of specified improvements to the residential buildings still on the homestead, The chancellor included in his decree orders pertaining to the carrying out of these announced intentions and Mrs. Monroe has not appealed from this portion of the decree.
We are of the opinion that the decree of the chancellor is not against the preponderance of the evidence in this case, and that it should be affirmed.
Affirmed. | [
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Frank Holt, Justice.
This is an appeal from an order setting aside a judgment during term time.
Pine Bluff National Bank, appellant-garnisher, sued appellee Billy Parker on a debt and secured a writ of garnishment against appellee-garnishee First Federal Savings & Loan Association of Pine Bluff. The garnishee’s answer disclosed that Billy Parker had $11,-231.53 on deposit. Subsequently, a consent judgment in favor of the appellant and against Parker was entered December 1, 1969. This consent judgment recited that Parker owed appellant $24,600 for which he had executed three notes payable in installments. The garnishee was furnished a copy of the judgment which ordered it to hold the $11,231.53 (except for interest and dividends) until the further order of the court. The judgment provided that upon 61 days default by Parker in payment of any installment, the court would then enter an order requiring the garnishee to pay over the $11,231.53 to appellant. Billy Parker approved and signed the judgment.
When Parker defaulted, the court rendered a judgment on April 17, 1970, ordering the garnishee to pay the impounded funds to appellant. On July 2, 1970, the garnishee filed a motion to set aside this judgment, alleging that its original answer mistakenly stated that Parker had $11,231.53 on deposit when in fact, the deposit was a joint account in the name of Frank or Billy Parker; that the mistake was discovered after the April judgment against the garnishee; that the judgment should be set aside and the garnishee be permitted to file an amended answer stating that the joint account existed and making both Parkers parties to the action.
In resisting the motion, the appellant asserted that in negotiating the December consent judgment with Billy Parker it had relied upon the truth of garnishee’s answer that Parker had a $11,231.53 deposit with it; that appellant had extended credit to Billy Parker based upon his signed financial statement that he had a $10,000 savings account with the garnishee in July 1967; that the garnishee was served with a copy of the December 1969 consent judgment; that the garnishee acknowledged by letter the receipt of the December order and in the letter stated that it would comply with the terms of the order; that Frank Parker had knowledge that the joint account was impounded by the court’s order and he had not intervened in the action.
On September 18, 1970, during term time, the trial court, finding that sufficient cause was shown, set aside the judgment entered on April 17, 1970. From that order, which also granted appellee-garnishee leave to file an amended answer, appellant-garnisher appeals. Appellant contends that the trial court erred in failing to show good cause or reasonable diligence to justify setting aside the judgment. We find no merit in this contention. Our long-established rule recognizes the inherent right of a court of record to set aside its judgment during term time, without assigning a cause. Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797 (1949); Stinson v. Stinson, 203 Ark. 888, 159 S. W. 2d 446 (1942); Browning v. Berg, 196 Ark. 595, 118 S. W. 2d 1017 (1938); Union Sawmill Co. v. Langley, 188 Ark. 316, 66 S. W. 2d 300 (1933); Ashley v. Hyde, 6 Ark. 92 (1845).
Nor can we agree with appellant that Robbins v. Guy, 244 Ark. 590, 426 S. W. 2d 393 (1968) supports its contention. In Robbins we were concerned not only with the policy of allowing the trial judge to set aside a judgment rendered during term time but also with the public policy of enforcing the stability of a judicial sale. In that situation we said the court did not possess unlimited discretion. No similar situation exists in the case at bar. In Hill v. Wilson, supra, we recognized that: “We have repeatedly held that, during the term of court at which a judgment is rendered, the court has the inherent power to set aside the judgment, and it may do so without stating any cause.” This well-established recognition of the inherent power of our courts is applicable in the case at bar. This is in accord with the general rule that during term time a judgment is “within the breast of the court” and the judgment can be set aside during that term. Hawkeye Tire & Rubber Co. v. McFarlin, 146 Ark. 491, 225 S. W. 632 (1920); 8 ALR 3d § 4, p. 1291.
Appellant-garnisher also submits that the consent judgment created contractual duties between it and the appellee-garnishee which could not be dissolved by the motion to set aside the judgment; thus, the setting aside of the judgment against the appellee-garnishee was error. Appellant argues that the December consent judgment, which Billy Parker approved and signed, operated as an assignment or pledge of the Parker savings account, which judgment garnishee accepted. Appellant asserts that Billy Parker, by the terms of the signature card, had the right to “first act” and by doing so had released the garnishee loan company of a depositor’s claim. Thereupon, the garnishee owed duties to the appellant independent of the writ of garnishment. We do not reach the merits of this contention as to contractual rights because in our view the order setting aside the judgment was not a final or an appealable order within the meaning of Ark. Stat. Ann. § 27-2101 (Supp. 1969). The order merely permitted appellee-garnishee leave to amend its answer. It did not release the funds. The garnishee was ordered, as in the December consent judgment against Billy Parker, to hold the funds pending further proceedings. The trial court’s order setting aside the judgment was based upon the pleadings and one exhibit (depositor’s card). It did not purport to determine the rights of the parties in respect to the impounded funds. See Hawkeye Tire & Rubber Co. v. McFarlin, supra. As we said in McPherson v. Consolidated Cas. Co., 105 Ark. 324, 151 S. W. 283 (1912): “Cases cannot be tried by piecemeal, and one cannot delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may then be taken, but not before.” See, also, 8 ALR 3d § 3, p. 1287 and Hicks v. Light, 229 Ark. 306, 314 S. W. 2d 479 (1958). Appellant’s assertion that contractual rights resulted from the December and April judgments pertains to the rights and liabilities of the parties and should be adjudicated at a trial on the merits.
Being prematurely taken, the appeal is dismissed.
Harris, C. J., not participating. | [
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Conley Byrd, Justice.
Appellant William H. Moore appeals from a Pulaski Chancery divorce decree awarding appellee Alma M. Moore possession of virtually all of the parties’ jointly owned real property. A prior action, in which appellee was awarded a divorce a mensa et thoro and possession of the parties’ 137 acre farm in Madison County, was before this court in Moore v. Moore, 241 Ark. 675, 409 S. W. 2d 830 (1966). Appellant thereafter moved to Little Rock and in due time filed suit for absolute divorce based on a three-year separation. For reversal of the Chancellor’s adjudication of property rights, appellant urges that “The court erred in awarding appellee exclusive use and possession of the parties’ jointly owned 137 acre farm together with all personal property located thereon while awarding appellant only the jointly owned two unimproved lots in New Mexico because of the grossly disparate value of the respective properties awarded each party.”
Reviewing the record, as we do on trial de novo, we find the evidence is sufficient to support the chancellor’s award.
When the parties married in 1949, appellee owned a home worth $9,000 and a bank account of $8,000. Appellant had no assets at that time. After their marriage, the parties moved several times, each time and place buying property and then selling when they moved elsewhere. Both parties worked steadily with substantially equal earnings until appellant suddenly retired in 1958, with a very small pension. Appellant has not worked since. After about 6 months, appellant prevailed on appellee to quit her job and they traveled for about two years. During that time they bought the two lots in New Mexico awarded appellant. Then they moved to Denver where appellee worked for two years while appellant drank to excess. Property they bought there was sold when appellant wanted to move to Florida in 1962. They got as far as St. Paul (Madison County), Arkansas, where they purchased the 137 acre farm on which appellee now lives. The parties assumed one mortgage when they purchased the property and obtained another mortgage with which they built a home on the property. Since 1965 appellee had made the mortgage and tax payments and maintained and improved the farm, either from farm earnings or outside employment when farming was. not profitable. All in all, we find nothing in the record to require us to disturb the chancellor’s decree.
Affirmed. | [
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Carleton Harris, Chief Justice.
This is the second appeal of an eminent domain proceeding instituted by the Arkansas State Highway Commission, appellant herein, against Judge Russell C. Roberts and Violet Lee Roberts, his wife, for the acquisition of a 9.63 acre tract of land in Conway needed for right-of-way purposes for the construction of Interstate Highway No. 40 and its facilities in Faulkner County, Arkansas. Judge Roberts and two expert witnesses testified on his behalf, the landowner testifying that just compensation for the taking of the the 9.65 acres was $129,750.00, Lloyd Pearce testifying that just compensation amounted to $105,750.00, and James Larrison, the second expert, testifying that just compensation was $114,500.00. According to these witnesses, the Roberts acreage was valuable for two purposes, the highest and best use for the front 200 feet (3.05 acres) being for commercial property, and the highest and best use of the remaining 6.37 acres being multifamily residential. The land said to be suitable for commercial use had a value, according to Pearce of $67,100, or $22,145 per acre. Pearce said that the property had 660 feet of frontage 200 feet deep on Highway 65 which was zoned for commercial use. He described a usable frontage of 610 feet, leaving a 50 foot right-of-way as access to the rear of the property, and he estimated that the frontage had a value of $110.00 per front foot. The land said to be suitable for multi-family residential, according to Pearce was .worth $37,650 or $5,910 per acre. This part of the property, the back 460 feet, was zoned for residential use, and Pearce said that it would support 135 units for multi-family residential purposes. The witness stated that in 1966, the traffic count along the highway was 5,000 vehicles per day, and that this constituted an increase of 600 per day over the year 1965. According to Larrison, the acreage commercially valued (the witnesses agree4 on the amount of land that was best suited for each purpose) was worth $75,900 or $25,050 per acre, and the multi-family residential was valued at $34,445, or $6,035 per acre. As to the commercial value, Larrison valued the front 200 foot depth at $115.00 a front foot, and, as to residential, he said there was a need in Conway for 360 additional family units.
Two experts on behalf of the state testified that, in their view, just compensation would amount to $24,000.00 and $27,500.00 respectively. On trial, the jury returned a verdict in the amount of $113,300.00, and from the judgment so entered, appellant brings this appeal. For reversal, five points are asserted by the department, but under1- the view that we take, it is not necessary that all of these points be discussed.
Background of the litigation is set out in the second and third paragraphs of the first opinion, Arkansas State Highway Commission v. Russell C. Roberts, et ux, 246 Ark. (June 9, 1969), 441 S. W. 2d 808, as follows:
“Some description of the property and its location is essential to an understanding of the case. On the date of the taking, June 6, 1966, the Roberts tract, approximately square, lay about a mile north of the Conway central business district. The tract was bounded on the south by U. S. Highway 65. At the back of the property, away from the highway, it sloped upward steeply to a ridge 60 feet higher than the front of the tract. The improvements consisted of a four-room house, a barn, and three stock ponds, but no witness attributed any value to the improvements in arriving at an estimate of just compensation for the land, [ ]
U. S. Highways 64 and 65 are of critical importance throughout all the testimony. The two routes run northward together from downtown Conway to a point about a quarter of a mile southwest of the Roberts tract. At that point there is a “Y” by which No. 65 diverges in an easterly direction and No. 64 diverges in a Westerly direction.”
As stated in the earlier case, the principal issue is the substantiality of the testimony offered on behalf of appellees; there are many similarities in the testimony in both cases, and a great deal of what we have said in Arkansas State Highway Commission v. Russell C. Roberts, et ux, Supra, is likewise applicable here. As in the first case, all of the appellees’ witnesses used only one method of reaching their conclusions—that of comparable sales, and the first requirement in .using this method is that the sales must be comparable before they are even admissible in evidence. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30. In Arkansas State Hwv. Comm. v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309, it was pointed out that important factors in determining whether a sale is comparable are location, size, sale price, conditions surrounding the sale of the property,, business and residential advantages or disadvantages, and whether the land is unimproved, improved, or developed land. At the first trial, appellees’ experts only mentioned one sale involving land on Highway 65 said to be comparable to the Roberts property, and we quickly disagreed that this sale was indeed comparable. We disagreed also that four other sales offered by appellee as to commercial value, were comparable, and the language used in rejecting those sales is applicable to some of the sales used in the present case. For instance, in addition to pointing out that all parcels were on Highway 64 rather than Highway 65, we pointed out that the sales “were in a small area that had already been developed to commercial use.” That is true of three of the sales offered by appellee in the present litigation. Draught to Kerr McGee, about Vz acre, Rogers to Farmer’s Fire Insurance Company, about .14 of an acre, and Threshing to Central Arkansas Production Credit Assn., about an acre, were all sales in a small area, within the city limits, that had already been developed for commercial use. Three other sales, all outside the city limits, in an undeveloped area, were also used. The largest tract involved was a sale from Carter to Burford, and it only contained approximately an acre. The other two only contained approximately Vz acre and 1/3 acre respectively. All three were vacant at the time they were sold, except that one contained a small residence, which was considered of no value. Pearce and Larrison testified that they made adjustments in the differences between the lands covered in the sales mentioned, and the land owned by Judge and Mrs. Roberts, in finding the properties to be comparable. These adjustments included such factors as topography, utilities, size and shape, access, surrounding area, etc. It is at once evident that comparing all of these factors, finding the Roberts property better in some respects, and not as good in others, is rather a complicated process, particularly when some of the comparable sales used differ substantially from some of the other sales used, i. e., some were in the city limits, (3) in highly developed commercial districts, while others were out of town, (3) with no zoning, sewer, police, or fire protection. Apparently the witnesses then averaged the sales to reach their figures. This seems to us to be a matter, on the one hand, of using sales that were dissimilar to the Roberts property, because the lands (used for comparison) sold were more valuable, and on the other hand, using sales which were dissimilar because the lands were not as valuable, bringing the one group down, and the other group up, in order to reach a comparable figure. That this was done is evident from the testimony. Mr. Larrison testified “By taking the six sales which we have considered and striking an average, we come up with $125 a front foot. Now in applying this to the subject property, I considered we already had 610 feet of effective property, 200 feet deep, so in placing my value on this property I said 660 feet at $115 which is the same thing as saying 610 feet at $120.” This explained the figure that he had reached on the property valued for commercial use, $75,900. Of course, it is entirely proper for an expert to reconcile differences in the sales used and the principal property, particularly if there is no property in the vicinity actually comparable in nearly all respects, but one noticeable, and somewhat confusing fact here, is that some of the properties used as comparable were not at all comparable with each other, and the points of dissimilarity, between these separate tracts and the Roberts lands greatly varied from one extreme to another. As an example, let us say that the principal property is C. The expert compares C with A, which is in a highly developed area, finding some points of similarity and some dissimilar points. He then uses B, lands in an undeveloped area, which also bear some similarities to C, but of an entirely different nature from A, the dissimilarities also being of a different nature. Using these properties for comparison, he reaches the conclusion that A is worth so much more per land measure than C; likewise he reaches the conclusion that B is worth so much per land measure less than C. He then takes this analysis, hits an average, and uses the average to arrive at a value for C. Bear in mind that the comparison made by appellees’ experts involved going through a similar process in six sales rather than two.
Mr. Pearce added a rather unusual basis in support of the value of the front portion of the lands for commercial purposes. He testified that the back portion of the property would support 110 units of multi-family residential use, and then stated:
"When we are speaking in terms of 110 units of multi-family residential use which could very easily be located on the land we create a need by the erection or construction of those 110 units for commercial facilities such as a barber shop, beauty shop, small sundry shop. [Our emphasis]”
This is what is known as “begging the question”, which is simply basing a conclusion upon a fact not yet proved. Of course, the 110 units are not already there, and filled to capacity, a fact which will be subsequently discussed.
As previously stated, all sales used were on Highway 64.,. Mr. Larrison was questioned about this on cross-examination as follows:
"Q. Are you telling the jury that there were no sales of commercial properties comparable to the Roberts property on Highway 65 and that you had to go clear down to Highway 64 east of Conway to get comparable sales?
A. If there were any sales of comparable size on Highway 65 they were not comparable in location. I couldn’t see them.[ ]
Q. You have any explanation to the jury as to why you had all these sales out on 64 for all these high prices and not one single sale on Highway 65 for four years?
A. There were some sales on Highway 65 right at the “Y” but I have been instructed by our attorney not to consider them.
Q. Why were you instructed not to consider them?
MR. JONES: I think that is a question of law, purely of law. We will object to that question. We think it is an improper question.
THE COURT: Overruled.
A. Because of the Supreme Court ruling in the prior trial of this case. They instructed me in their opinion that the Supreme Court has said these sales were not admissible in evidence.
Q. All right. The sales of the property or these properties were exactly like the property you have used on Highway 64 are they not, in size, in development and in what they are being used for?
A. Well, I won’t split hairs.”
Of course, one cannot help but wonder, if property on 65 was so valuable for commercial purposes, why there were no sales.
Four sales were used by witnesses in reaching the values testified about for the 6.37 acres considered for multi-family residential. Three of these sales were in a developed residential area, one being located on Clifton Street, one on Cleveland Street, and the other on Independence Avenue. All were on paved streets, all had utilities, and were zoned multi-family use. Two of these were within 500 feet of Hendrix College, one being right across the street. Two of the three are less than Vz an acre, and the other is less than an acre. The fourth sale referred to was that of Western Bell Motel, located at the intersection of Highway 64 West and Washington Street, a well developed area. Less than Vz an acre was involved, and the property had sixteen units when it was sold. In stating that these properties were comparable, the same procedure was used as with the commercial property, already outlined. Appellees did make a better case in this phase of the litigation than in Arkansas State Highway Commission v. Russell C. Roberts, et ux, Supra, in that testimony was offered relative to a need for rental housing units. Dr. Harold Love, Chairman of Special Vocations at State College of Arkansas, testified that in 1966 there was a very strong demand for rental housing units near the college, not only for graduate students, but for faculty members as well. He stated that although there had been many apartments built in the last few years, the rental charge was too high for graduate students. He said that since 1966, there had been one large multi-housing unit built by the college, and that a small one had also been constructed; however, he said that the large unit was not always full and, as a matter of fact, probably was about only 60% full, the reason being that the unit was too expensive. He added that he thought $1,000.00 per acre was a rather high price for land upon which multi-housing units would be built, and that he was not testifying that rental housing could be built on the Roberts land, only that there was a need in 1966 that was not met. Mr. Wilburn Smith, business manager for Hendrix College, testified that since 1963, he had not found it easy to find proper rental quarters for new faculty members, and he agreed that in early 1966, there was a strong demand for rental housing units in the city of Conway. He said that the student enrollment increased by approximately 100 to 150 from 1963 to 1966, and had increased from 1966 to the present by approximately 250 students; that during the three year period between 1963 and 1966, there would have been an increase of 18 faculty members. As to the last group, Mr. Smith admitted that no one had failed to find a place to live, and he also said that Hendrix student housing was not full; that he was not saying that there was a demand for student housing. The witness said he knew nothing about the Roberts property.
Judge Roberts used the same sales as his two experts. His evaluation of $129,750.00 was the same as that in the first case. The. Roberts property is already zoned for multi-family units, and has a 660 foot frontage on the highway; however, 50 feet will have to be used for a private service drive into the proposed complex. Judge Roberts said that the property was purchased in 1945 for the sum of $1,750 or $175.00 per acre. The three ponds on the Roberts property occupy about an acre, the largest of these being about six feet deep. All of the ponds are located in the “commercial area” of the property. As previously stated, the witness did not go into detail in explaining the valuations he had reached, but he did say that he was not familiar with any piece of property in the area that was zoned commercial on the front and residential on the back that could be used for multi-family structures; subsequently he stated that the property was the only piece of property in the city limits of the city of Conway, relative to size, topography, location and utilities, that could be developed on June 6, 1966 (date of the taking) in the manner testified about. Judge Roberts, strictly speaking, was correct, in this statement, but the evidence reflects that there are two other pieces of property on Highway 65 which are almost in the same category. One of these is a ten acre tract adjoining the Roberts property on the west, the distinctive difference being that this latter tract is,not rigfit on the highway. The other is a sale from Berry to McCracken and Wilson which took place on November 30, 1961; this tract is composed of 16 acres, fronts along the same highway, and has the same zoning as the Roberts property, with commercial on the highway frontage and residential on the back part.
While it appears that in the instant case appellees’ experts have gone into more detail in endeavoring to show comparability of the subject property with the properties used in comparison, we cannot agree that this effort was entirely successful. The reason can be stated in one simple sentence, viz, there are too many differences to support the award given. In Vol. 5, Nichols on Eminent Domain, 3rd Edition, Sec. 21.31 (1), it is said:
“The location of the property sold must be considered, and evidence of the price paid at sales of other land, to be admissible in a land damage case, must be confined to land similarly situated and of the same character as that taken; and, as a general proposition, to land in the same neighborhood. It cannot be said, however, as a matter of law how large an area, in feet or blocks, constitutes a neighborhood, and no hard and fast rule can be laid down on the subject. In large cities ‘neighborhood’ is a relative term, and the field which a witness may take into consideration in forming an opinion of the selling price of land in the vicinity of a particular property, should not only be reasonably adjacent thereto, but it should be of the same general character as the immediate locality in which such property is situated. In sections of a city devoted to residences, or to retail trade, proximity to some desirable or undesirable point may affect values so greatly that one piece of land may be worth twice as much as another a hundred feet away. In determining the value of land in such sections the court should be very strict in its requirements of proximity as well as of similarity.”
It is obvious from what has been said, that we consider the proof offered as to both commercial value and value as a multi-family apartment to be completély inadequate to support the amount of the judgment.
It is asserted that the trial court erred in overruling the motions of appellant to quash the special jury panel selected to try this cause. It was first contended by the department that two jury commissioners did not have the qualifications prescribed by law since they were county officers, and accordingly, could not possess the same qualifications as petit jurors, a necessary requirement for jury commissioners under Ark. Stat. Ann. § 39-201 (1969 Supp.). Appellant’s complaint is based on the fact that the two were Democratic Central Committeemen for Faulkner County. Appellant is in error. We have held that County Central Committeemen are not officers in any sense except to be answerable to mandamus proceedings. Park v. Kincannon, Judge, 214 Ark. 398, 216 S. W. 2d 376.
It is also contended that Act 568 of 1969 was applicable to this cause and that the jury should have been selected under the provisions of that act. Since any further trial would unquestionably come under the provisions of the act, there is no need to discuss the point further.
As pointed out at the outset, this is the second appeal of this case. This type of litigation is expensive, as well as time consuming, and we recognize that it may be difficult to locate many tracts of land that are really comparable. As earlier mentioned, the evidence offered relative to the multi-family unit use is stronger than at the first trial. Accordingly we have carefully examined the evidence and are of the view that it properly supports approximately 50% of the judgment entered. Hence, we think that an award of $57,000.00 is proper under the evidence, and that the judgment should be reduced from $113,300 to $57,000. See Arkansas State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791; Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86.
The judgment is affirmed on the condition that remittitur is entered as indicated within seventeen calendar days; otherwise, the judgment will be reversed and the case remanded for a new trial.
Fogleman, J., concurs.
Likewise, in the instant litigation, no witness on- behalf of appellees attributed any value to these improvements.
The Roberts ■ property was found to be more valuable than four tracts and less valuable than two.
Also defined as “founding a conclusion on a basis that needs to be proved as much as the conclusion itself.” Johnson v. Hall, Secy. of State, 229 Ark. 400, 316 S. W. 2d 194.
There is an incongruity in this testimony for Mr. Larrison stated that if there were any sales of comparable size on Highway 65, they were not comparable in location. Yet, along with Mr. Pearce, the sales actually used were neither comparable in size or location.
These would of course, have to be filled in.
This property was sold in 1963, in a sale of DuVall to Meadow-wood Builders for a consideration of $15,500, reflected by cash, and the trade of a house. Mr. Larrison stated that he did not consider this sale because it was not "an arm’s length market transaction”, although testimony on the part of the state indicated to the contrary.
This property sold for |875.00 per acre, but Mr. Larrison testified that he did not consider this sale, because he considered no sales before 1962, as they were too remote.
It is interesting to note that, though entirely different sales were used in this case for comparison with the Roberts property, Pearce reached the same identical value figures reached in the first trial. | [
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John A. Fogleman, Justice.
Appellant filed a suit for injunction seeking to restrain appellees from constructing allegedly substandard homes in the Delta Lawn Subdivision in violation of an amendment made on March 30, 1970, to a bill of assurance dated January 12, 1970. There was an alternative prayer for damages of $750,000. Appellant states that an amendment to a plat of the subdivision and the bill of assurance pertaining thereto are exhibited with the complaint.
Appellees, by answer, generally denied the allegations of the complaint and the standing of appellant to sue. Appellees directed a request for admissions and an interrogatory to appellant, attaching a plat and bill of assurance filed on January 12, 1970. Appellant answered.
Appellees moved for summary judgment on the pleadings, exhibits and admissions filed. The chancery court decree granting the motion recited that it was based upon the pleadings and exhibits thereto, the motion for summary judgment and response, appellees’ request for admissions with its exhibits and appellant’s answer to this request.
. Appellant’s points for reversal are that genuine issues of material facts existed and that appellees were estopped to deny an implied dedication of ownership to appellant’s members or easement in the entire subdivision by plats, replats and additional plats to the subdivision.
As appellees point out, the question for decision is wholly dependent upon the plats,, documents and admissions contained in the record before the chancellor. None of these, not even the bills of assurance upon which appellant’s action is apparently based, is abstracted. It is always with extreme reluctance that we affirm a case for noncompliance with the abstracting requirements clearly set out in Rule 9. In this case we have no choice in the matter, because the issues and appellant’s arguments thereon are wholly incomprehensible without abstracts of these important parts of the record.
The decree is affirmed. | [
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Donald L. Corbin, Justice.
Appellant Adrian Reed appeals the judgment of the Pope County Circuit Court convicting him of driving while intoxicated (DWI), second offense, and sentencing him to nine months in jail, suspending his driver’s hcense for twelve months, and assessing a fine of $2,500. This appeal was certified to us from the court of appeals on the basis that it presents a question requiring statutory interpretation; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(d). Appellant’s sole point for reversal is that the trial court erred in failing to suppress the evidence obtained as a result of an illegal stop and arrest. We find no error and affirm.
Appellant was arrested for DWI on June 15, 1996. He was initially stopped and detained by Constable Bill Parks in Pope County near Pea Ridge, which is outside the constable’s jurisdiction of Jackson Township. Appellant moved to suppress the evidence that resulted from his arrest on the ground that the constable lacked the authority to pursue a criminal suspect beyond his jurisdiction without first having a reasonable behef that the suspect had committed a felony. The trial court concluded that Constable Parks was a peace officer and that Ark. Code Ann. § 16-81-301 (1987) authorized him to stop and detain Appellant under the circumstances, even though the constable admittedly did not suspect that Appellant had committed a felony. The trial court accordingly denied Appellant’s motion to suppress, and he was found guilty of the charge by a jury.
On appeal, Appellant challenges Constable Parks’s authority to arrest him outside the constable’s jurisdiction. He contends that pursuant to Ark. Code Ann. § 16-19-301 (Repl. 1994) a constable is not permitted to arrest a person for a misdemeanor offense outside the jurisdiction of his township. He asserts that such an arrest is only permitted if the constable reasonably believes that a felony has been committed within his jurisdiction.
Section 16-19-301, titled “Peacekeeping duties and authority — Neglect of duty,” provides in pertinent part:
(a) Each constable shall be a conservator of the peace in his township and shall suppress all riots, affrays, fights, and unlawful assemblies, and shall keep the peace and cause offenders to be arrested and dealt with according to law.
(d) Nothing in this section shall prevent the fresh pursuit by a constable of a person suspected of having committed a supposed felony in his township, though no felony has actually been committed, if there are reasonable grounds for so believing. “Fresh pursuit” as used in this section shall not necessarily imply instant pursuit, but pursuit without unreasonable delay. [Emphasis added.]
Appellant asserts that the language in subsection (d) prohibits a constable from engaging in the fresh pursuit of any person unless that person is suspected of having committed a felony.
The State argues that the trial court correctly ruled that a constable’s authority to freshly pursue a suspect beyond his jurisdiction is derived from section 16-81-301. The State argues that because section 16-81-301 was passed subsequent to the passage of section 16-19-301, this court should conclude that the later act controls.
Section 16-81-301, which is part of the Uniform Act on Intrastate Fresh Pursuit, provides:
Any peace officer of this state in fresh pursuit of a person who is reasonably believed to have committed a felony in this state or has committed, or attempted to commit, any criminal offense in this state in the presence of such officer, or for whom the officer holds a warrant of arrest for a criminal offense, shall have the authority to arrest and hold in custody such person anywhere in this state.
The State contends that a constable is included within the definition of the term “peace officer” as used in section 16-81-301. As such, the State asserts that Constable Parks had the authority to pursue Appellant beyond the jurisdiction of his township for a misdemeanor offense that was committed in the officer’s presence.
The sole issue for our resolution is whether a constable’s authority to engage in the fresh pursuit of a person suspected of committing a misdemeanor beyond the limits of the constable’s jurisdiction originates from section 16-19-301 or from section 16-81-301. Both statutes were passed during the same legislative session; the act containing section 16-81-301 was passed one day after the act containing section 16-19-301. Appellant contends that because section 16-19-301 specifically addresses the powers and duties of constables, it should prevail over section 16-81-301, which, Appellant asserts, only generally addresses the authority of “peace officers” to engage in fresh pursuit. We disagree.
Statutes relating to the same subject should be read in a harmonious manner if possible. City of Ft. Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993). All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. Id. We adhere to the basic rule of statutory construction, which gives effect to the intent of the legislature, making use of common sense and giving the words their usual and ordinary meaning. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993). In attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the subject. Tate, 311 Ark. 405, 844 S.W.2d 356. The commentary to a statute is a highly persuasive aid to construction, although it is not controlling over the clear language of the statute. Kyle, 312 Ark. 274, 849 S.W.2d 935.
In construing two acts on the same subject, we first must presume that when the General Assembly passed the later act, it was well aware of the prior act. Salley v. Central Arkansas Transit Auth., 326 Ark. 804, 934 S.W.2d 510 (1996). We must also presume that the General Assembly did not intend to pass an act without purpose. See Clark v. State, 308 Ark. 84, 824 S.W.2d 345 (1992). Furthermore, the General Assembly is presumed to have enacted a law with the full knowledge of court decisions on the subject and with reference to those decisions. See, e.g., Scarbrough v. Cherokee Enter., 306 Ark. 641, 816 S.W.2d 876 (1991); Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991); J.L. McEntire & Sons, Inc. v. Hart Cotton Co., Inc., 256 Ark. 937, 511 S.W.2d 179 (1974).
Section 16-81-301 does not contain a definition of “peace officer.” Nor is that term defined within the other provisions of the Uniform Act on Intrastate Fresh Pursuit. Be that as it may, Arkansas has long recognized that constables are peace officers. See Winkler v. State, 32 Ark. 539 (1877). Additionally, Ark. Code Ann. § 16-81-104 (1987), which establishes the procedures for issuing and executing arrest warrants, refers to constables as peace officers. Specifically, section 16-81-104(a)(l) provides in pertinent part that “[a] warrant of arrest may be executed by the following officers, who are called peace officers in this code: Sheriffs, constables, coroners, jailers, marshals, and police officers.” (Emphasis added.) Hence, we can discern from this provision that the legislature was aware of our previous holding and intended to include constables within the definition of “peace officer.”
Moreover, we are not convinced by Appellant’s contention that these two provisions are necessarily in conflict with one another. Instead, we view the two statutory provisions as complementary of one another, with section 16-81-301 merely broadening or enhancing the authority described in section 16-19-301(d). The plain language of section 16-19-301(d) demonstrates that this provision is not an affirmative grant of the power of fresh pursuit to constables. Rather, that section is written in the negative — that nothing in that section shall be viewed as preventing a constable’s authority to engage in the fresh pursuit of suspected felons. Section 16-81-301, on the other hand, specifically provides to all peace officers in this state the authority to engage in the fresh pursuit of suspects beyond their particular jurisdictions. The legislative commentary on the Uniform Act on Intrastate Fresh Pursuit demonstrates that the General Assembly intended this Act to be a comprehensive statement of the law on fresh pursuit within the geographical boundaries of this state. The prefatory note to the Act reflects:
A great need was filled by the Interstate Fresh Pursuit Act, drafted by the Interstate Commission on Crime, to prevent criminals from utilizing state lines to handicap the police. This is proven by its almost instant enactment in some two thirds of the states. Furthermore, there have been repeated requests from the police to extend the principles of the interstate act to permit fresh pursuit of criminals across county and municipal lines.
The Act on Interstate Fresh Pursuit is the result. This act follows the sovereignty into another, it applies not only to felonies, but to any criminal offense committed in the presence of the officer, or to a person for whom an officer holds a criminal warrant. Simple provisions, as in the case of the interstate act, are made to safeguard the rights of the person arrested. The requests of law enforcement authorities themselves prove the need for this new, simple, and sensible law.
Considering the language of both statutes, the respective subject matters, and the objectives sought to be accomplished by the legislature in passing them, we conclude that although a constable’s general powers and duties are established by section 16-19-301, a constable’s authority to engage in the fresh pursuit of criminal suspects, whether suspected of committing felonies or misdemeanors, is derived from section 16-81-301. Were we to hold that a constable is not included within the definition of the term “peace officer” found in section 16-81-301, the Act’s clearly expressed purpose of preventing criminal suspects from taking advantage of jurisdictional boundaries would surely be thwarted. Given that section 16-19-301 does not affirmatively establish a constable’s authority to engage in fresh pursuit, but merely provides that the authority to pursue suspected felons should not be taken from such officers, these two related statutes are capable of being reconciled and, therefore, both should stand.
Accordingly, we conclude that the trial court did not err in determining that, under the circumstances of this case, Constable Parks was acting as a peace officer and, as such, had the authority to pursue Appellant beyond the limits of his township on the ground that Appellant had committed an offense in the constable’s presence.
Affirmed. | [
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Per Curiam.
Steve Criswell, by his attorney, has filed a motion for a rule on the clerk.
The Pulaski County Chancery Court entered an order on July 3, 1997, regarding appellant’s visitation with the minor child. Pursuant to Ark. R. Civ. P. 60, appellant filed a motion to set aside that order on July 8, 1997. Before the trial court ruled upon appellant’s motion to set aside, he filed a first notice of appeal on August 6, 1997, and an amended first notice of appeal on August 7, 1997. The first notice of appeal and amended first notice of appeal reflected that appellant was appealing from the July 3, 1997 order.
On August 26, 1997, the Pulaski County Chancery Court denied appellant’s motion to set aside the July 3, 1997 order. Appellant filed a second notice of appeal on August 29, 1997, which reflected that he was appealing from the August 26, 1997 order and the July 3, 1997 order.
Pursuant to Ark. R. App. P. — Civ. 4(a), a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. The deadline for filing a notice of appeal is not extended by the filing of a motion under Ark. R. Civ. P. 60. See, Ark. R. App. P. — Civ. 4(b). Therefore, the first notice of appeal and first amended notice of appeal, filed by appellant on August 6 and August 7, 1997, were not timely with regard to an appeal from the July 3, 1997 order.
However, the second notice of appeal filed by appellant on August 29, 1997, was timely with regard to an appeal from the August 26, 1997 order. Smart v. Biggs, 26 Ark. App. 141, 760 S.W.2d 882 (1988). Notwithstanding the fact that (a) appellant has not filed a timely appeal from the July 3, 1997 order and (b) the July 3, 1997 order is not an “intermediate order” under Ark. R. App. P. — Civ. 2(b), his timely appeal from the August 26, 1997 order will necessarily involve a review of the trial court’s references to the July 3, 1997 order, in the August 26, 1997 order.
The motion for rule on the clerk is, therefore, granted with regard to appellant’s appeal from the August 26, 1997 order. | [
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Per Curiam.
The appellant, Larry Darnell Ingram, has previously filed a motion for belated appeal. See Ingram v. State, 330 Ark. 218, 951 S.W.2d 314 (1997). We denied the motion because Ingram’s attorney, D. Kirk Joyce, had not admitted fault for failing to file the record in a timely manner. Mr. Joyce has since submitted an affidavit accepting responsibility for failing to timely file the transcript.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to treat the motion as one for rule on the clerk and grant the motion. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Robert L. Brown, Justice.
Appellants SEECO, Inc. (SEECO), and Arkansas Western Gas Company (AWG) are wholly owned subsidiaries of appellant Southwestern Electric Company (Southwestern). Appellees Allen Hales, et al. (the royalty owners), are lessors under various oil and gas leases possessed by SEECO who brought a class action suit to claim royalties that were allegedly due but not paid. The trial court certified the royalty owners as a class after considering the criteria set out in Rule 23(a) and (b) of the Arkansas Rules of Civil Procedure. The class is estimated to consist of more than 3,000 members. SEECO, AWG, and Southwestern have appealed the class certification and specifically contest the trial court’s findings that common questions of law and fact predominate over questions affecting individual class members. The appellants further reject the claim that the royalty owners’ class action is the superior method for the fair and efficient adjudication of this controversy. As a corollary issue, the appellants contend that the constitutional right to trial by jury will be skewed by having bifurcated trials with one jury deciding common questions for the royalty owners and a second jury determining individual questions. We affirm.
In their complaint, the royalty owners claim that SEECO failed to enforce the provisions of a gas-sales contract, known as Contract 59, against AWG and further failed to pay the royalty-owners the proper proceeds from the gas produced under the numerous SEECO leases affected by the contract. The complaint states that Contract 59 was entered into between SEECO and AWG on July 24, 1978. It alleges that under Contract 59 SEECO dedicated acreage in Franklin, Johnson, Washington, Crawford, and Logan Counties for oil and gas production, and that AWG obligated itself for 20 years to purchase volumes of gas under a “take-or-pay” arrangement at a guaranteed price. That arrangement provided that the purchaser (AWG, in this instance) would either buy a volume of gas at the contract price or pay a specified price without taking the gas. The royalty owners allege that throughout the term of Contract 59, SEECO did not require AWG to pay the guaranteed prices or take the required volumes of gas per the terms of the agreement.
The royalty owners further allege: (1) that SEECO allowed AWG to freeze gas prices below the contract price for the period between December 1984 and July 1, 1994; (2) that SEECO imprudently and arbitrarily released wells, acreage, and production from Contract 59 throughout the term of the contract, which resulted in the sale of gas for less than the contract price; (3) that SEECO failed to drill additional wells and fully develop a plan for increased production on the royalty owners’ acreage; and (4) that SEECO continuously provided gas storage to AWG without compensation. Other misdeeds by SEECO were set out in the complaint which, according to the royalty owners, resulted in lower prices for gas and, thus, less proceeds for them.
The royalty owners also allege that SEECO fraudulently concealed its failures under Contract 59 by intentionally refusing to document the pricing and other deficiencies under Contract 59. They state that SEECO engaged in conduct favorable to AWG due to their relationship as affiliate companies wholly owned by Southwestern and that SEECO’s course of conduct resulted in significant losses to the royalty owners.
The complaint specifically alleges that in 1987 SEECO solicited the purchase of mineral interests from the royalty owners and misrepresented the market price for natural gas. In that solicitation letter, SEECO noted that gas prices had been declining in recent years, but, according to the allegation, SEECO failed to disclose that under Contract 59 AWG was obligated to make minimal volume purchases of gas and to pay for that gas at a certain price. The complaint also asserts that in a 1983 letter SEECO advised the royalty owners that it had entered into a gas-sales contract with Natural Gas Pipeline (NGP) which would result in reduced royalties. The royalty owners claim that SEECO failed to disclose that the same gas dedicated under the NGP contract was already dedicated under Contract 59, with its take-or-pay provision, at a significantly higher purchase price.
The royalty owners seek compensatory damages in excess of $58,450,000 and punitive damages against appellants, jointly and severally, on the legal theories of: (1) fraud and constructive fraud; (2) breach of the oil and gas leases; (3) breach of the duty to mar ket the gas reasonably; (4) breach of the duty of good faith and fair dealing; (5) violation of Ark. Code Ann. §§ 15-74-601 & -602 (Repl. 1994), which govern penalties for fraudulently withholding oil and lease payments; (6) unjust enrichment; (7) tortious interference with contractual relations; (8) civil conspiracy; and (9) violation of Ark. Code Ann. § 15-72-305 (Repl. 1994), which requires calculation of royalties on a weighted-average price. The royalty owners also asked for certification of a class pursuant to Rule 23 of the Arkansas Rules of Civil Procedure.
At the class-certification hearing, Dr. David Taylor testified that he was a named plaintiff seeking to become a class representative because of his royalty interests in eleven oil and gas leases dedicated under Contract 59. He testified that his claims concerned the lack of enforcement of Contract 59 regarding the price of gas sold by SEECO to AWG as well as the volume of gas to be purchased. On cross-examination, Dr. Taylor stated that SEECO had voluntarily converted the leases from fixed-price leases to proceeds leases based on its performance over the last number of years. He also contended that the terms of the leases should not control because SEECO and AWG were affiliates which were not dealing at arms’ length; therefore, the royalty-price determination should be dictated by the terms of Contract 59, as opposed to his leases. Dr. Taylor further contended that there was fraud in connection with the 1983 letter and the 1987 solicitation letter sent out by SEECO because neither letter made reference to Contract 59 and AWG’s take-or-pay obligation under that contract.
In rebuttal, SEECO attacked Dr. Taylor’s assertion of fraudulent concealment and showed that Contract 59 had been on file with the Arkansas Public Service Commission (PSC) since 1978 or 1979. SEECO also offered several newspaper articles with information that, it argued, should have put royalty owners on notice about pricing. One was a January 21, 1991 article entitled “Purchasing Practices Defended by Company,” from the Ozark Spectator, which documented challenges from the PSC and the Attorney General’s Office regarding high prices paid by AWG, which were passed on to ratepayers under Contract 59. A second article was a January 15, 1993 story entitled “Gas Company Left Prices High, PSC Told” from the Arkansas Democrat-Gazette, which also indicated that AWG was paying too much under Contract 59. Finally, a November 1, 1994 article entitled “Settlement Reached After 3 Years” in the Northwest Arkansas Times documented a settlement between the Attorney General’s Office, PSC staff, SEECO, and AWG, causing a reduction for AWG ratepayers because Contract 59 violated Arkansas’s least-cost purchasing law. Dr. Taylor testified that he was unaware of these articles.
Allen Franklin Hales, another named plaintiff and potential class representative, testified that he was asking for certification as a royalty owner under two leases with SEECO which were dedicated to Contract 59. In his deposition, Hales echoed Dr. Taylor’s concerns about the fact that the 1983 and 1987 letters were silent about Contract 59. Dr. Robert Gordon Jeffers also testified by deposition that SEECO should have enforced Contract 59.
Brooks Clower, an attorney employed by Southwestern, testified that he perused the oil and gas leases of Dr. Taylor, Dr. Jeffers, and Mr. Hales, and concluded that some leases contained a fixed-price royalty and a disclaimer of implied covenants, while other leases provided for royalties to be paid on a proceeds basis and did not contain a disclaimer clause. He also testified that the various leases differed with respect to government-regulation clauses, which would make some leases subject to certain defenses that would be unavailable in connection with other leases. The leases also differed in form, with Dr. Taylor, for example, having three different types of leases. Clower testified that the leases may or may not be subject to pooling agreements made for the purpose of forming a drilling unit, which would also vary the terms of the lease agreements.
The trial court entered an order certifying the class of royalty owners affected by the alleged acts and omissions of SEECO, AWG, and Southwestern. Two subclasses were created based on whether the subclass leases were leased to SEECO and dedicated under Contract 59, or leased to third parties and affected by Contract 59. The trial court’s order found that the following common and predominating issues existed:
The evidence produced by the plaintiffs indicates: an alleged overall scheme and course of conduct by the defendants designed to defraud the members of the proposed class as a group irrespective of the type of oil and gas lease or the volume of production from the leases; that SEECO in deference to Arkansas Western Gas Company’s interest allegedly failed to enforce the take, price and other provisions of Contract 59 almost since the contract’s inception and actively concealed such conduct from the proposed class; that the defendants failed to state material facts in correspondence which appears to have been sent to members of the potential class including citizens and residents of this judicial district; the defendants intentionally failed to keep documentary records of the deficiencies under Contract 59 for fear of discovery of such deficiencies by the members of the proposed class; and the defendants allegedly engaged in actions before the Arkansas Public Service Commission designed to conceal their actions from the members of the proposed class.
I. Predominance
The appellants urge that the trial court erred in its predominance finding. We observe initially that trial courts are given broad discretion in matters of class certification. Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Union Nat’l Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992); First Nat’l Bank v. Mercantile Bank, 304 Ark. 196, 801 S.W.2d 38 (1990). Appellants claim, however, that the following issues, which can only be resolved individually, illustrate that the trial court abused its discretion in certifying the class: (1) differences in the leases with respect to their form, (2) differing bases for determining royalties, (3) the presence or absence of waivers of implied covenants, (4) the presence or absence of government-regulation clauses; (5) the effect of pooling agreements on the leases; (6) the difficulty of determining damages, especially with respect to Subclass II, which involves contracts between third-party producers or operators and purchasers affected by Contract 59; (7) proof of reliance in support of the claims for fraud; and (8) proof of reasonable diligence with respect to claims of fraudulent concealment. The royalty owners respond with the argument that the one issue that permeates every claim is appellants’ fraudulent and wrongful course of action taken against the royalty owners in light of Contract 59.
Five cases provide a compendium of this court’s recent statements and holdings on predominance. In Arkansas La. Gas Co. v. Morris, 294 Ark. 496, 744 S.W.2d 709 (1988), the trial court certified a class action brought by fixed-price lessors owning mineral tracts in the Cecil Field against the appellants, collectively referred to as ArkLa. The class sought royalties on a proceeds basis under ten different theories with respect to new wells that were drilled, including estoppel, waiver, and reformation. ArkLa challenged the class under the requirements of Rule 23(b) of the Arkansas Rules of Civil Procedure and asserted that the case would require individual proof of detrimental reliance for each class member under the estoppel theory and also either proof of mutual or unilateral mistake or proof of fraud or inequitable conduct for success on the reformation theory. We affirmed the trial court and noted that even if ArkLa’s arguments were correct, the class presented alternative theories for recovery that presented common questions. We stated that a common question existed as to whether appellants’ course of conduct, which included ignoring the fixed prices contained in the leases, gave rise to a cause of action in favor of the fixed-price lessors. We then concluded that if the trial court found that the evidence presented individual questions of reliance or mistake, it could defer those individual questions until after it disposed of the questions common to the class. Accordingly, this court established a procedure of handling the common issues first, recognizing that the trial court, in its discretion, could later resolve the individual questions.
This approach was embraced in International Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988). There, the trial court certified a class of non-union salaried and hourly employees who sued a labor union and its local chapter for loss of wages, personal injury, and property damage that occurred during a three-day period while the class attempted to work through a strike. Specifically, the trial court certified two subclasses: one containing those appellees who were deprived of the opportunity to work over the three-day period; and those appellees who suffered personal or motor-vehicle damages or both while attempting to cross the picket line.
In affirming the trial court’s decision, this court determined that the common question of the unions’ liability for the actions of their members predominated. We again advocated an approach of deciding the merits of the common issue first:
The central question of the unions’ liability will be the focus of the class action. That can be decided with respect to the subclasses even though the alleged mass action was not an instantaneous event. Again, if they are held liable in general, the unions will be able to present any defenses they may have as the claims of the individual class members are presented thereafter, the only effect of the decision being that the individual class members will not have to prove, and the court will not have to decide, the general question of liability in each case.
International Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. at 120, 747 S.W.2d at 88.
To the same effect was this court’s decision in Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991). In Lemarco, a class was certified which consisted of persons who entered into retail installment membership contracts with Lemarco, a private buyers club. We estimated the potential size of the class at about 800 members. Appellees asserted that Lemarco defrauded them of membership fees by promising free gifts for attending sales presentations and misrepresenting the value of membership. This court affirmed the trial court’s decision on the basis that predominance was satisfied because there were common issues of fact arising out ofLemarco’s sales training, solicitation mailing, sales presentations, installment contracts, and its intentions with regard to all of them. We concluded by discussing the predominance and superiority questions in tandem. We followed Hudson and held that common issues should be resolved first to attain real efficiency. We then stated:
Even if the trial court eventually determines that the cases have to splinter with respect to some individual claims, efficiency would still have been achieved by resolving those common questions which predominate over individual questions. Finally, pursuing this case as a class action is fair to both sides. Lemarco can offer evidence concerning its sales training, solicitation mailings, sales presentations, installment contracts, and its intentions regarding all of them. It can also present individual defenses to the claims of individual class members, if necessary, once the common questions have been determined. A class action approach is also fair to the class members in that they probably would not sue if they could not do so as a class since it would not be economically feasible to do so.
Lemarco, Inc. v. Wood, 305 Ark. at 4, 804 S.W.2d at 726.
This rationale continued to hold sway in Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991). In that case, the trial court refused to certify a class of about 5,000 North Little Rock residents and business people who were forced to evacuate the area when a railroad accident caused a chemical tank car to overturn. The residents sought a recovery against the railroad and Union Carbide under theories of negligence and strict liability for expenditures on food, clothing, shelter, medical treatment, and damages for pain and mental anguish. This court determined that the trial court abused its discretion in not certifying the class because the questions regarding liability for negligence and strict liability predominated over any individual issues, and because a class action was a superior method for handling the numerous claims. We concluded that the repeated litigation of the liability question and the possibility of inconsistent results outweighed the fact that each claimant would have different damage evidence. We reversed the trial court and approved the class certification even though this court recognized that each claimant would have the burden of proving that the railroad’s conduct was the proximate cause of his damages.
The case of Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995) followed. In that case, this court determined that the trial court abused its discretion in certifying a class of plaintiffs who brought claims for medical negligence, battery, fraud, outrage, strict liability, and breach of warranty arising out of the implantation of Orthoblock into their spines. Appellants, who were the manufacturer of Orthoblock and the doctors and medical facilities responsible for the surgical procedures, argued that the issue of informed consent was a predicate to the individual claims and could not be tried on a class basis. This court agreed, as it was clear that each plaintiff would be required to testify about oral communications with his physician and that the issue of informed consent was woven throughout the claims for negligence, battery, outrage, and fraud or fraudulent concealment. This court also concluded that the issue of causation would require focus on individual claims, as each person who received the Orthoblock treatment would be required to place his or her medical condition into evidence. Although this court acknowledged the presence of common issues, it determined that the large number of individual questions rendered individual actions the superior means for obtaining efficiency and fairness.
SEECO now asserts in the present appeal that Arthur v. Zearley, supra, essentially changed our caselaw on class actions because we renounced the certification of a class of plaintiffs with individual claims as opposed to upholding certification to resolve common issues and deferring individual issues until later in the proceeding. We disagree with that characterization of the Zearley decision. What is alleged in the case at hand is a single course of fraudulent conduct perpetrated by the appellants and directed at the royalty owners, with each plaintiff depending on the same facts and legal arguments for recovery. The issue of a fraudulent scheme is central to the instant case and a common starting point for all class members. Arthur v. Zearley, supra, simply had no common issue, and we recognized in that case that individual issues of informed consent and causation were the essence of the claims of each separate plaintiff.
In support of their argument that individual issues predominate, SEECO, AWG, and Southwestern point to the fact that the royalty owners seek recovery based on a fraud theory that requires proof of reliance by each plaintiff. The appellants are correct that to prove actual fraud, evidence of justifiable reliance must be offered. Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 948 S.W.2d 388 (1997); Calandro v. Parkerson, 327 Ark. 131, 936 S.W.2d 755 (1997); Clark v. Ridgeway, 326 Ark. 378, 914 S.W.2d 745 (1996). Moreover, under Arkansas law, fraud is never presumed, and clear and convincing testimony must exist to prove its elements. Nicholson v. Simmons First Nat’l Corp., 312 Ark. 291, 849 S.W.2d 483 (1993); Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992). In the same vein, appellants assert that there are individual issues with respect to the assertion of fraudulent concealment, particularly surrounding the requirement that the royalty owners exercise reasonable diligence to discover any fraudulent concealment. See Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); Norris v. Baker, 320 Ark. 629, 899 S.W.2d 70 (1995); First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992).
It is clear from our caselaw that individual questions relating to a class member’s reliance for an estoppel claim (Arkansas La. Gas Co. v. Morris, supra) or reliance for a misrepresentation claim (Lemarco, Inc. v. Wood, supra) will not defeat class certification. Moreover, one distinguished treatise, Newberg on Class Actions, supports this position:
Challenges based on the statute of Hmitations, fraudulent concealment, releases, causation, or rehance have usually been rejected and will not bar predominance satisfaction because those issues go to the right of a class member to recover, in contrast to underlying common issues of the defendant’s liability.
1 Herbert B. Newberg, Newberg on Class Actions § 4.26, at 4-104 (3d ed. 1992).
Other courts have reached the same conclusion in common-law fraud claims despite the reliance requirement. See, e.g., Walco Investments, Inc. v. Thenen, 168 F.R.D. 315 (S.D. Fla. 1996)(certi-fying global class of investors who brought several claims, including common-law fraud, against promoters allegedly involved in a Ponzi scheme; numerous common questions of law and fact connected to the fraud allegations predominated over individual issues); Murray v. Sevier, 156 F.R.D. 235 (D. Kan. 1994)(stating that common issues are found under a common-law fraud claim that involves written misrepresentations and/or omissions; reliance might be shown by proving that the misrepresentations were material to a person who would have read it); Smith v. MCI Telecommunications Corp, 124 F.R.D. 665 (D. Kan. 1989)(certifying a claim for common-law fraud arising from misrepresentations relative to the payment of commissions; reliance on the terms of written documents given to all salespersons could be established by proving their employment with MCI); Alexander v. Centrafarm Group, N.V., 124 F.R.D. 178 (N.D. Ill. 1988)(allowing pendent common-law fraud claim in a securities action; holding there was no indication that reliance would create significant individual issues because the alleged misrepresentations were contained in a proxy statement uniform to all class members). But see, e.g., Kelley v. Mid-America Racing Stables, Inc., 139 F.R.D. 405 (W.D. Okl. 1990) (denying certification for pendent common-law fraud claim in a securities action; stating that every member of the proposed class would have to testify as to his reliance on the prospectus).
As to appellants’ contention of lack of reasonable diligence in discovering fraudulent concealment, the majority view appears to be that this lapse does not operate as a bar to a finding of predominance in the common issue. See, e.g., In Re Indus. Diamonds Antitrust Litigation, 167 F.R.D. 374 (S.D. N.Y. 1996); In Re Catfish Antitrust Litigation, 826 F. Supp. 1019 (N.D. Miss. 1993); Town of New Castle v. Yonkers Contracting Co., 131 F.R.D. 38 (S.D. N.Y. 1990).
We hold that although the fact that lack of reliance and diligence may be arguments raised by the appellants, these challenges will not override the common question relating to the allegation of a scheme perpetrated by the appellants. The overarching issue which must be the starting point in the resolution of this matter relates to the existence of the alleged scheme. There was no abuse of discretion by the trial court.
Appellants also raise a challenge to the constitutionality of bifurcated trials under Article 2, section 7, of the Arkansas Constitution. They assert that a bifurcated procedure could infringe upon their jury-trial right, if the matter began with one jury deciding common issues but concluded with a second jury determining individual issues. We do not know at this juncture whether the trial court will use multiple juries. Thus, any opinion on the subject would be advisory in nature. See, e.g., Baker Car & Truck Rental, Inc. v. City of Little Rock, 325 Ark. 357, 925 S.W.2d 780 (1996). We decline to address this issue.
II. Superiority
Rule 23(b) further requires that a class action be superior to other available methods for the fair and efficient adjudica tion of the controversy. As noted, this court has held repeatedly that real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. See, e.g., Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996); Summons v. Missouri Pac. R.R., supra; Lemarco, Inc. v. Wood, supra; International Union of Elec., Radio & Mach. Workers v. Hudson, supra.
Moreover, to repeat in part what we said in Lemarco, Inc. v. Wood, supra, a class action is fair to both sides. The appellants can present evidence of fair dealing with the royalty owners and may prevail on this core issue. They can also present individual defenses subsequendy, should this prove to be necessary. This procedure is fair to the royalty owners because to sue as individuals may not be economically feasible. We hold that a class action is the superior method for adjudicating this controversy. Again, there was no abuse of discretion by the trial court in certifying the class.
Affirmed.
Thornton, J., dissents. | [
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W.H. “Dub” Arnold, Chief Justice.
The appellant, Gary Bodiford, M.D., appeals an order dismissing, without prejudice, the medical malpractice complaint of appellee Ronald Keith Bess. Dr. Bodiford’s sole argument on appeal is that the dismissal should have been with prejudice. We agree and affirm the trial court’s judgment as modified.
On June 13, 1996, Mr. Bess filed a pro se complaint against Dr. Bodiford in the Fort Smith District of the Sebastian County-Circuit Court to recover damages for medical injury arising from radial keratotomies that Dr. Bodiford performed on him on or about July 23, 1993, and October 28, 1994. Particularly, Mr. Bess alleged that, during these eye surgeries, Dr. Bodiford carelessly and negligently placed the cuts too close together on his eye, resulting in diminished vision. After filing the complaint, Mr. Bess did not perfect service upon Dr. Bodiford within 120 days as required by Ark. R. Civ. P. 4(i), nor did he file a motion to extend his time to obtain service within the 120-day period as required by the rule.
Upon learning of the lawsuit informally, Dr. Bodiford filed a motion to dismiss the case with prejudice on January 2, 1997. According to Dr. Bodiford, he was entitled to a dismissal with prejudice because the malpractice alleged in the complaint occurred on or before October 28, 1994. Because Mr. Bess had not obtained service on him and had not sought an extension within 120 days after filing the complaint, Dr. Bodiford maintained that the complaint had not been legally commenced. It was Dr. Bodiford’s contention that, since the complaint had not been legally commenced, Mr. Bess was not entitled to the one-year saving statute, codified at Ark. Code Ann. § 16-56-126 (1987). He asserted that the two-year statute of limitations for medical injury actions under Ark. Code Ann.§ 16-114-203 (1987), expired no later than October 28, 1996, thus barring the action. After considering Dr. Bodiford’s motion, the trial court agreed to dismiss Mr. Bess’s complaint, but entered an order of dismissal without prejudice.
Arkansas Civil Procedure Rule 3 provides that an action is commenced by filing a complaint with the clerk of the proper court. Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997), citing Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993), and Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). However, effectiveness of the commencement date is dependent upon meeting the requirements of Rule 4(i), which provides in pertinent part:
(i) Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause . . .
(Emphasis added.) Rule 4(i) must be read in light of other procedural rules, such as the statute of limitations. Green v. Wiggins, supra. For example, the “dismissal without prejudice language [in Rule 4(i)] does not apply if the plaintiffs action is otherwise barred by the running of a statute of limitations.” Id. at 489. “The touchstone for a limitations defense to a tort action is when the cause of action was commenced.” Sublett v. Hipps, supra.
In the Sublett case, Ms. Sublett filed a complaint on January 3, 1995, against two defendants to recover damages for personal injury arising from a January 8, 1992, automobile accident. She did not obtain service against one of the defendants, Mr. Berry, within 120 days after filing the complaint and failed to request an extension within that same period. Mr. Berry moved for summary judgment, claiming that the complaint was barred by the three-year statute of limitations for negligence actions under Ark. Code Ann.§ 16-56-105 (1987), since Ms. Sublett had not commenced her cause of action within the three years due to her failure to obtain service or seek an extension within 120 days of filing the complaint. The trial court granted summary judgment, and we affirmed.
In the present case, because the medical injury occurred on or before October 28, 1994, and service on Dr. Bodiford was not obtained and no extension sought within 120 days after Mr. Bess filed his complaint on June 13, 1996, the statute of limitations ran on his cause of action. Because the dismissal-without-prejudice language in Rule 4(i) does not apply if a plaintiff s action is otherwise barred by the running of a statute of limitations, the trial court should have dismissed Mr. Bess’s complaint with prejudice. Thus, for the foregoing reasons, we modify the trial court’s judgment to reflect that the dismissal of the complaint is with prejudice.
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Robert L. Brown, Justice.
Appellant Billy Edward Welch was convicted of possession of a controlled substance with intent to deliver, felon in possession of a firearm, simultaneous possession of a controlled substance and a firearm, and possession of drug paraphernalia. He was sentenced as a habitual offender to two terms of life in prison for the possession-with-intent charge and the simultaneous possession charge, six years for being a felon in possession of a firearm, and ten years for the drug paraphernalia. All of Welch’s convictions arise out of a traffic stop and the subsequent impoundment and search of his vehicle. On appeal, he raises the issues of sufficiency of the evidence, speedy trial, and suppression of the evidence seized from his vehicle. We affirm.
On the evening ofjuly 28, 1995, the Dallas County Sheriffs Department conducted a safety inspection at the intersection of State Highways 8 and 9 in Dallas County. Deputy sheriffs stopped all vehicles and checked the drivers’ licenses and other documentation relating to ownership of the vehicle and insurance. Welch came upon the deputies while driving his Chevrolet El Camino with a friend. He was approached by Deputy Bill Still, an Auxiliary Deputy Sheriff for Dallas County.
Deputy Still later testified that Welch was unable to provide a legible driver’s license, proof of insurance, or proof of ownership of the vehicle. Deputy Still reported this situation to his supervisor on the scene, Deputy Sheriff Kenneth Seale. The deputies then checked Welch’s license plate and found that it was registered to another vehicle. Both deputies also testified at the suppression hearing that the initial computer report on Welch indicated that there was a warrant out for his arrest for failure to appear in court in a different county.
Welch was asked if he had any weapons, drugs, or alcohol in his vehicle. According to the deputies, he initially denied having any drugs or weapons. Later, however, he surrendered a nine millimeter handgun from behind the seat of his El Camino. The deputies then asked if they could search the vehicle, whereupon Welch became angry and refused to allow them to do a search and insisted that he be allowed to go home. Welch was then arrested for the traffic violations, and his car was impounded.
Before impounding the vehicle, the deputies took an inventory of its contents. At trial, the law enforcement officers, including Auxiliary Deputy Still, Deputy Seale, and Arkansas Game and Fish Wildlife Officer Mike Knoedl, testified about their involvement in the search. Officer Knoedl testified that he occasionally assisted the Dallas County Sheriffs Department in investigations. On this occasion, Deputy Seale asked Officer Knoedl to assist in the search of Welch’s vehicle because the El Camino was extremely cluttered. Deputies Still and Seale testified that other law enforcement officers brought them items from the car, and they recorded on a log sheet everything that was found in the vehicle and where it was found. Both of the deputies testified that the purpose of the search was to keep Welch from later claiming that something was missing from his vehicle. Deputy Still also stated that he was searching the vehicle to determine if there were more guns.
While conducting the inventory search, the law enforcement officers found several syringes, a bag containing more than thirty- three grams of methamphetamine, a set of scales, and several spoons. Most of these items were found in an ammunition box that was located in the bed of the El Camino. The officers also found Welch’s proof of insurance and proof of ownership of the vehicle in the ammunition box with the drugs. Prior to trial, Welch moved to have all of the items found in the search suppressed. The motion was denied, and Welch was tried by jury, convicted, and sentenced as set out above.
I. Sufficiency of the Evidence
We first consider Welch’s argument regarding sufficiency of the evidence because the double jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficiency of the evidence. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996).
After the State rested its case, the following exchange took place:
COUNSEL FOR DEFENSE: Your Honor, the State has rested and at this point the defense would move for a directed verdict.
THE COURT: Is that all you’ve got to say?
COUNSEL FOR DEFENSE: Yes, sir, that’s all I’m saying. (The court then gave the State a chance to comment after which the following took place.)
THE COURT: The motion for dire&ted verdict is denied.
COUNSEL FOR DEFENSE: Your Honor, then the defense would now rest and we renew our motion for a directed verdict and I would like to say that the defense is resting without calling the defendant, or a witness, after discussing that with my client and he is in agreement, is that right, Mr. Welch?
The court then denied the renewed motion. At no time did defense counsel state any grounds for his motion, which violates Rule 33.1 of the Arkansas Rules of Criminal Procedure. See also Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). Thus, the trial judge had no opportunity to rule on specific grounds with respect to any of the charges. We hold that Welch is procedurally barred from raising this issue on appeal.
II. Suppression of the Evidence
Welch’s next point concerns the items seized by the Dallas County Sheriffs Department while conducting a warrant-less search prior to impoundment of his vehicle. When reviewing the denial of a suppression motion, this court makes an independent examination of the evidence based on the totality of the circumstances, and we will not reverse the trial judge’s decision unless it is clearly against the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), reh’g denied, 327 Ark. 576-A, 940 S.W.2d 440 (1997).
We initially examine the general law relating to inventory searches. Inventory or administrative searches are excepted from the requirement of probable cause and a search warrant. Florida v. Wells, 495, U.S. 1 (1990). The purpose of an inventory search is to protect the property, the police, and the public. Id. The rationale is that police officers can better account for the property if they have an accurate record of what is contained in a vehicle when it is impounded. Moreover, the police and the public are protected by ensuring that the vehicle does not contain explosives or other harmful items. As part of an inventory search, the police are permitted not only to search the vehicle, but also the containers within the vehicle. Id. Colorado v. Bertine, 479 U.S. 367 (1987); Snell v. State, 290 Ark. 503, 721 S.W.2d. 628 (1986), cert. denied, 484 U.S. 872 (1987).
In order for a search of a properly detained vehicle to fall within the inventory search exception to the search warrant requirement, there must be standard operating procedures established by the law enforcement agency conducting the search. Florida v. Wells, supra; Colorado v. Bertine, supra; Snell v. State, supra. The procedures must be followed and the inventory search must not be conducted solely for investigative purposes. Id. There is no requirement that the procedures for the inventory search be in writing. United States v. Lowe, 9 F.3d 43 (8th Cir. 1993). See also United States v. Skillern, 947 F.2d 1268 (5th Cir. 1991), cert. denied, 503 U.S. 949 (1992); Snell v. State, supra.
Absent a showing that the true intent of the police officers was to conduct an evidentiary search, the testimony of police officers that they always take inventory of impounded vehicles and that they always search containers is sufficient. Id. The fact that police officers have some idea or expectation of what they might find does not invalidate the purpose of the search. Indeed, the police are not required to weigh the individual’s privacy interest against the probability of finding hazardous materials before opening a container in the vehicle. Colorado v. Bertine, 479 U.S. at 374.
a. Standard Procedures
Turning to the case at hand, Welch argues that the Dallas County Sheriffs Department did not follow normal procedures for an inventory search because the Department did not have written procedures and the deputy sheriffs could not be specific as to what the procedures were. In Snell v. State, supra, this court relied on the testimony of law enforcement officers to prove the inventory search, which included opening a container, was standard procedure. Accordingly, we turn to the testimony of the law enforcement officers to determine whether standard operating procedures were in place. Deputy Sheriff Seale testified that he always searches vehicles that are impounded:
Q. — as far as the Dallas County Sheriffs Department is concerned what does inventory mean?
A. Well, it’s part of our policy, as far as I know, that in case, you know, if we impound a vehicle we got everything listed and documented then the subject can’t come back later on and say that such-and-such is missing —
Q. Okay. Do you — Mr. Seale, have you participated in other inventory searches?
A. I have.
Q. Yes, sir. Is this the — the way y’all did this any different than your normal procedure?
A. No.
Q. Now, what were you looking for when you were searching the vehicle?
A. Weren’t looking for any certain thing, we was just documenting each and every item that was in the vehicle before we impounded it.
In addition, Game and Fish Officer Knoedl testified at trial:
Q. And is that your standard procedure to open a box like that?
A. Yes, sir.
Q. Who told you to do that, Mike?
A. Well, basically I work under the same procedure that the Game and Fish follows, which we have a written policy that says, “All containers locked, or unlocked, will be searched,” you know, “or inventoried when a vehicle is stored.”
Q. Okay. Does the Dallas County Sheriff’s Office have a written policy like that?
A. Sir, I couldn’t say for sure. I know that there is supposed to be a verbal policy. I know from being here seven years and working with the Dallas County Sheriff s Department, that that’s normal operating procedure that is done.
The trial court cited the Eighth Circuit’s decision in United States v. Lowe, supra, for the proposition that standard procedures do not have to be in writing and made the following findings in its order:
The Courts have ruled that an inventory search must be based upon standardized procedures to prevent rummaging. The officers testified at the hearing that upon impounding the vehicle it would be taken to the Sheriff s Office so that a written inventory of the contents of the vehicle could be made in accordance with their policy. They acknowledged that they had not seen a written policy but do this all the time.
The Courts have not required that for inventory searches to be valid they must be based on written standardized procedures or written standard police policy. These procedures may be written, but established unwritten procedures are also sufficient. The officers in this case were following what they had been trained to do when the vehicle was impounded after a valid arrest, perform an inventory for the protection of the owner, the police and the public.
These findings are a proper statement of the law and the facts. While we have no doubt that written procedures are preferable to oral procedures, neither our caselaw nor federal caselaw requires that the standard policy be in writing for the inventory search to pass constitutional muster. The essential points appear to be that the practice be uniform and that no discretion be left to the police officers to decide the boundaries of the inventory search. See Colorado v. Bertine, supra.
Welch makes a specific argument that doing an inventory of the ammunition box was clearly violative of the Fourth Amendment. We disagree. Though Game and Fish Officer Mike Knoedl was not a member of the Sheriffs Department, he testified that he knew the department’s procedures on opening containers, having worked in conjunction with the Department for seven years. Deputy Kenneth Seale further testified that the inventory search, which would include search of the ammunition box, was according to normal procedure. Thus, there was evidence of a standard policy, unlike the case of Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992), where the Court of Appeals concluded there was no evidence of a policy regarding closed containers.
Certainly, the circumstances surrounding the search were suspicious with no proof of ownership of the vehicle, a warrant outstanding for Welch’s arrest, and a weapon in the vehicle. We are further persuaded by the Supreme Court’s reasoning in Colorado v. Bertine, supra:
Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit.
Bertine, 479 U.S. at 375, quoting Illinois v. Lafayette, 462 U.S. 640, 648 (1983). There was no abuse of discretion by the trial court in refusing to suppress this evidence.
b. Pretextual Search
Other than the testimony of Deputy Still that he was also looking for guns, there was no evidence that the search was anything other than an inventory search. Deputy Still and Deputy Seale both testified that they were doing an inventory search. The United States Supreme Court has observed that the fact that a police officer is also aware that he might come upon pertinent evidence in the course of an inventory search is not fatal to that search. Colorado v. Bertine, supra.
To suppress an inventory search, a defendant must show that the police officers were conducting the inventory search in bad faith for the sole purpose of collecting evidence. Id. See also South Dakota v. Opperman, 428 U.S. 364 (1976) (plurality opinion). Here, the trial court did not find that there was an ulterior motive on the part of the Dallas County Sheriffs Department. We decline to superimpose our view of the testimony over that of the trial court’s when the law enforcement officers are following standard procedure and in the absence of proof that the sole motivation for the search was to collect evidence. See Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990).
III. Speedy Trial
Welch next claims that the trial court erred because it did not dismiss the charges against him after the time for speedy trial had expired. The State answers that Welch waived his right to a speedy trial because he failed to raise the issue in the trial court.
Welch was arrested on July 28, 1995. The defense requested and was granted a motion for a continuance on August 19, 1996. The attorney requesting the continuance explained that he would not be ready for trial on that day because Welch failed to attend any of their scheduled meetings and he had not met with the defendant until August 13, 1996. The continuance was granted and time was charged to the defendant. The defense later made a motion to suppress and a hearing was held on November 25, 1996. At the end of the hearing, the court, the prosecutor, and defense counsel attempted to set a trial date, and the foEowing exchange took place:
THE COURT: Is there reaEy a speedy trial problem? If I remember correctly I think Mr. Welch walked out of this courtroom and left and we were trying to resolve this matter and he was gone a good long time, was he not?
PROSECUTOR: Yes, sir. I would ask, so as to avoid any further problem, I’d ask that we go ahead and try this case this year, depending, of course, on what the Court rules. If the Court rules —
THE COURT: WeH, I’m not going to do anything untñ I rule on this [suppression] motion —
PROSECUTOR: Yes, sir.
THE COURT: — and if you get me that in a week then I will set it and right now I told you I would set it preferably on the 12, that day’s open —
PROSECUTOR: Yes, sir.
THE COURT: — do either of you have any problem with the 12 th?
DEFENSE COUNSEL: No, sir, that’d just give me time to drive back from St. Louis and rest a day before I try a jury trial.
This is the only time that speedy trial was discussed at the trial court level before the current appeal.
In criminal cases, even constitutional issues must be presented to the trial court to preserve them for appeal. Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992). A defendant’s faEure to move for a dismissal of charges for a lack of speedy trial constitutes a waiver of his rights under the rules. Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987). The defense had plenty of opportunity to object to the trial date, but instead consented to it even after the trial court referred to a potential speedy-trial problem. The trial court is not required to make the motion for him. This issue has no merit.
IV. Cumulative Error
For his final point, Welch contends that all of the rulings against him, when considered together, constitute reversible error. In response, the State correctly points out that the cumulative-error argument was not raised to the trial court. This court has specifically held that not only must each of the negative rulings be objected to individually, a defendant must also raise the cumulative-error objection to the trial court and obtain a ruling in order to argue the point on appeal. Witherspoon v. State, 319 Ark. 313, 891 S.W.2d. 371 (1995). Because Welch did not raise the cumulative-error objection in the trial court, he is barred from raising it on appeal. Id.
The individual objections by Welch and the record on appeal have been reviewed for prejudicial error in accordance with Supreme Court. Rule 4-3 (h), and none has been found.
Affirmed. | [
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Per Curiam.
Henderson Brown was found guilty by a jury of aggravated robbery and theft of property, charges which arose from a hold-up of a branch office of a savings and loan association in January 1978. He was sentenced as a habitual offender to an aggregate sentence of thirty years’ imprisonment. We affirmed. Brown v. State, CR 79-5 (April 16, 1979). Brown subsequently filed in this court a petition pursuant to Criminal Procedure Rule 37, which resulted in his being granted leave to file a petition for postconviction relief in the trial court. Brown v. State, CR 79-5 (December 10, 1979). The Rule 37 petition in the trial court was denied after a hearing, and we affirmed the order. Brown v. State, 274 Ark. 205, 623 S.W.2d 186 (1981).
Brown now petitions this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).
A writ of error coram nobis is an exceedingly narrow remedy, appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A presumption of regularity attaches to the criminal conviction being challenged, Larimore, supra, (citing United States v. Morgan, 346 U.S. 502, 512 (1954)), and the petition must be brought in a timely manner. Penn, supra. Newly discovered evidence in itself is not a basis for relief under coram nobis. Larimore, supra; Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). A claim of newly discovered evidence must be addressed to the trial court in a motion for new trial made within the time in which a notice of appeal must be filed. See A.R.Cr.P. 33.3; Penn, supra.
Petitioner claims that jurisdiction should be reinvested in the trial court to consider an error coram nobis petition because another person confessed to the crime for which he was convicted. He states that he learned of the confession while the appeal of the denial of his Rule 37 petition was in progress, which would have been some time before the order was affirmed in November 1981. He explains that he has not previously raised the issue because he was unaware that there was a state remedy avail able to bring the issue to the court, presumably until Larimore, supra, was recently rendered.
It appears that petitioner has misconstrued Larimore. In Larimore, we cited Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996), in which we explained that the writ was available to address certain errors of the most fundamental nature which are most commonly to be found in one of four categories:
Error coram nobis is a rare remedy. It is available only where there is an error of fact extrinsic to the record, such as insanity at the time of trial, a coerced guilty plea or material evidence withheld by the prosecutor, that might have resulted in a different verdict. Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). The writ has also been used in cases in which a third party confessed to the crime during the time between conviction and appeal. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990).
Id. at 109.
Larimore concerned a claim that material evidence had been withheld by the prosecutor, an allegation which can be made after a judgment has been affirmed because evidence of such misconduct on the part of the prosecutor may have remained hidden for some time from even the most diligent petitioner. Larimore did not broaden the remedy set out in Penn for advancing an allegation that a third party had confessed to the crime of which the petitioner was convicted, an allegation which must be raised before affirmance of the judgment. The petition in Penn, which alleged that another person had issued a sworn affidavit admitting to the crime for which Penn was found guilty, was filed in the period between trial and the conclusion of this court’s appellate review of the judgment and was thus timely filed. We emphasized that the ruling in Penn did not open the door to other petitions beyond those which qualified under the facts of that case and which were brought within that narrow window of time in which the judicial system is best in a position to weigh with accuracy the merit of the petitioner’s claim. Id. at 577.
While there are circumstances in which a petition to reinvest the trial court with jurisdiction to hear a petition for writ of error coram nobis can be considered timely if filed after affirm anee of a judgment, such as prosecutorial misconduct in concealing exculpatory evidence from the defense, the questions of fact which invariably accompany an allegation of a third-party confession demand prompt scrutiny. The mere fact that another person has confessed to a crime cannot, alone, be grounds for relief for such confessions are not uncommon and must be approached with some skepticism. The trial court must carefully scrutinize the complete circumstances surrounding the confession and all the available evidence. Assessing the merits of the third-party confession requires that all of the evidence be available and unimpaired by the passage of time so that the trial court’s examination can be exhaustive and decisive. Our requirement that such a claim be raised before affirmance serves to limit such claims to the time frame in which it is most likely that the trial court can determine with certainty whether the writ should issue. Assertions of a third-party confession after a judgment is affirmed may be addressed to the executive branch in a clemency proceeding. See Penn, supra.
The concurrence questions whether a petition based on a third-party confession should be limited to the time before a judgment is affirmed while other grounds are permitted to be raised after affirmance, but the limitation is one clearly mandated by the holding in Penn. Penn, which for the first time allowed a writ based upon an allegation of a third-party confession, requires that the allegation be raised before affirmance and that precedent is followed here. We made clear in Penn that the time limitation was integral to our recognition of this new ground for a writ of error coram nobis. The concurrence argues that the traditional grounds listed in Davis v. State, 325 Ark. 96, 109, 925 S.W.2d 768, 775 (1996), i.e. insanity at the time of trial, a coerced guilty plea, and material evidence withheld by the prosecutor, are equally in need of prompt attention and are as likely as a third-party confession to need addressing before affirmance. These traditional grounds for a writ are not subject to the time limitation established in Penn for a third-party confession. This is not to say that, in a particular case, it might not be concluded that any one of these grounds should have been raised before affirmance if it can be determined that the petitioner could have raised the issue before affirmance had he been diligent. We have before us in the instant case only a claim of a third-party confession, and we look to Penn as precedent for when such a claim should be raised.
Petition denied.
Newbern and Glaze, JJ., concurring. | [
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Per Curiam.
Appellant Robin K. Schlesier, by his attorney, Wayne A. Gruber, has filed a motion for remand to the trial court.
On May 27, 1997, appellant filed a Petition for Writ of Certiorari to complete the record. By Per Curiam Order dated June 16, 1997, appellant’s Petition for Writ of Certiorari was granted. The Writ of Certiorari was issued to the Monroe County Circuit Clerk and to the Court Reporter, Nila J. Keels, returnable on July 16, 1997.
On July 16, 1997, appellant filed a motion for extension of time and for further instruction. By Per Curiam Order dated September 11, 1997, appellant’s motion for extension of time to file the record of testimony was granted and Nila J. Keels, court reporter, was cited to appear before this court on September 25, 1997, to show cause why she should not be held in contempt of this court for her failure to comply in a timely manner with the command of the Writ of Certiorari issued on June 16, 1997.
Nila J. Keels appeared on September 25, 1997, entered a plea of not guilty, and requested a hearing. By Per Curiam Order dated October 9, 1997, this court appointed the Honorable Steele Hays as a master to conduct a hearing, make his findings of fact, and file them with the court. A decision regarding whether Nila J. Keels should be held in contempt will not be made by this court until the master files his findings of fact with the court.
As a result of appellant’s inability to obtain a record of testimony from the court reporter, appellant seeks to remand this matter to the Monroe County Circuit Court to allow counsel to prepare a statement of the evidence or proceedings and to allow the trial court to settle the record, pursuant to Ark. R. App. P.— Crim. 4 and Ark. R. App. P. — Civ. 6(d) & (e). In support of his motion, appellant submits the unsworn affidavit of Nila J. Keels, in which she avers that the record of testimony in appellant’s case on appeal has been lost since December, 1996, and that she has been unable to locate the record as of the date of the affidavit, March 21, 1997.
We find that the court reporter’s inability to submit the record of testimony is good cause to grant Appellant’s motion for remand to the trial court, pursuant to Ark. R. App. P. — Crim. 4 and Ark. R. App. P. — Civ. 6(d) & (e).
The motion is, therefore, granted. | [
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Robert L. Brown, Justice.
AppeEant Larry Joe Kidd was convicted of raping a fourteen-year-old girl and sentenced to forty years in prison. He appeals on two grounds: (1) trial court error in aEowing into evidence Kidd’s comments which were unduly prejudicial and concerned other bad acts; and (2) trial court error in permitting privEeged confidential communications between Kidd and his wife into evidence. The two points are meritless, and we affirm.
The facts in this case are assembled from trial testimony. The fourteen-year-old victim testified that the events occurred in her mobile home in Searcy. On April 28, 1996, she went to bed at about 11:00 p.m. During the night, she heard a person enter her room but assumed it was her mother. A man wearing a ski mask put a piEow over her face and told her to keep quiet. She fought and scratched at the man’s face underneath the mask. The man began to choke her and told her that if she fought any more, he would cut her ear off. He bound her wrists and covered her rnouth with duct tape. After doing that, he removed the bottoms of her pajamas and underwear and had sexual intercourse with her against her wiE. She testified that during the rape, the man raised the mask over his eyes, which aEowed her to see that he had a fairly close-cut beard. She also testified that the man wore surgical gloves and removed one of them so he could scrape underneath her fingernails with his fingernail. He said at the time: “I got to get this out from under you so they don’t know who I am.” The victim said that she struggled with the man throughout the rape.
Once the man left, the victim removed the duct tape from her mouth and called 911 for police assistance though her hands were still bound. The call was forwarded to Deputy Sheriff Randy Still at 3:43 a.m. on the morning of April 29, 1996. The victim waited in the living room of her mobile home until Deputy Still arrived. According to Deputy Still, the victim’s hands were bound in front, and she was bleeding from the vaginal area. He first checked on the condition of the victim’s mother, who had not been harmed. The victim later told the deputy sheriff that her attacker was a heavy-set man with a close-cropped beard who had bad body odor. She added that he was wearing work boots, a pair of dark pants, and a black ski mask.
The victim was taken to the White County Medical Center for a sexual-assault examination. Dr. Christopher Melton, who performed the examination, testified that there were signs of trauma to the victim’s neck and that the presence and location of blood were consistent with the victim’s hymen being torn. In his opinion, she had been subjected to a sexual assault.
After the victim returned from the hospital but on the same day, Kidd, who was a neighbor, came to the front door of the mobile home and told the mother of the victim that he was “all doped up” and that he needed medical attention because he had just fallen through a window. Although she could not see Kidd standing outside of her mobile home, the victim testified that she recognized his voice as that of the man who had raped her.
At the crime scene, Deputy Still found tool marks on the front door of the mobile home, indicating that it had been pried open. He further found a footprint outside of the victim’s window. Later that day, Detectives Curtis Goodrich and Bill Lindsey of the White County Sheriffs Department went to Kidd’s home, where they found him leaving his garage. He had scratches on his face. Kidd agreed to go to the sheriffs department to answer questions, and he did so, accompanied by his wife, Paula Kidd. Once there, he waived his right to counsel and gave a statement. He also gave the detectives permission to search his residence and allowed them to take samples of his hair, blood, and saliva.
In the first statement Kidd gave on April 29, 1996, he denied any culpability for the rape. He told the detectives that he was taking Prozac and Buzbar for an anxiety condition and was under the care of a physician. He stated: “About two years ago, I was having problems. I hated women, and I thought about rape.” Upon searching Kidd’s home, the detectives discovered a broken window, which Kidd said caused the scratches on his face because he slammed his head through it that morning. Detective Goodrich testified that he saw no evidence of blood on the broken glass. The detectives later were given dark work pants and work boots by Paula Kidd. A black ski mask was subsequently recovered from Kidd’s residence.
On June 19, 1996, Detective Goodrich and Detective Lindsey questioned Kidd a second time. Kidd again denied having raped the victim and stated that he hardly knew her. When told by Detective Goodrich that the victim had said her attacker had a bad problem with body odor, he admitted that he had such a problem. Detective Goodrich then related to the jury: “I asked him while he was standing by the victim’s bed, did he have an erection or did he have to have foreplay to get an erection, and he stated he couldn’t remember.” When asked by the detective whether he told anybody about raping the girl, Kidd said that he had told his preacher that he could have done it. He also stated that he thought about rape and killing in the past and that he had followed people home after work. He added that he had previously been accused of rape in the 1980s on a North Dakota Indian Reservation. He stated that he had had sexual relations with the girl on the reservation but later found out that she was a prostitute and wanted nothing further to do with her. According to Kidd, she accused him of rape as a result. He stated that he was arrested and questioned by police officers but later released.
Edward Valman, chief forensic serologist at the Arkansas State Crime Laboratory, testified that he received the victim’s rape kit and found semen, but not sperm, on the vaginal swab. Kermit Channell, section chief of the State’s DNA Laboratory, stated that he tested the vaginal swab but found only DNA consistent with the victim because there were no sperm cells. He testified that the finding of semen without the presence of sperm cells was consistent with the semen’s having been deposited by a person who had had a vasectomy.
Paula Kidd, Kidd’s former wife, testified that Kidd had had a vasectomy soon after they were married approximately seven years earlier. She further testified that during the early morning hours of April 29, 1996, she was awakened at about 1:30 a.m. by a storm. Kidd was in bed at that time. She said that she woke up again at 3:00 a.m. but noticed that he was not in bed and was nowhere in the house. At 5:00 a.m., Kidd had returned to bed, when she received a telephone call from her sister. Her sister, who was also a neighbor, told her about the rape. Hours later, she noticed that Kidd’s face had several scratches that were not there at 1:30 a.m. She also testified that Kidd took a shower that day at 6:00 a.m., which was very unusual because he typically did not get out of bed until 10:00 a.m. She stated that she found his blue work pants and work shirt and a wash cloth in the clothes washer, which was unusual, too, because she normally did the laundry and because he had plenty of clean clothes to wear to work.
I. Prejudicial Statements
Kidd first contends that the trial court erred in denying his motion for declaration of a mistrial because certain portions of his two statements to the detectives were highly prejudicial, irrelevant, and constituted proof of prior bad acts, all of which violated Rules 402, 403, and 404(b) of the Arkansas Rules of Evidence. Specifically, he refers to the assertion taken from his April 29, 1996 statement: “About two years ago, I was having problems. I hated women and I thought about rape.” In addition, he contests two references in his June 19, 1996 statement: (1) that he had thought about rape and killing in the past and followed people home from work; and (2) that he had been accused of rape on a North Dakota Indian Reservation during the 1980s.
The procedural history of Kidd’s objections and motions in the trial court in regard to these comments is necessary to decide this first point. Although the abstract of the mistrial motion makes only a cryptic reference to the fact that Kidd’s counsel had previously made an objection on this point, the record discloses that immediately prior to trial, Kidd objected to any statements he made about having thoughts of rape and killing and of following people home from work. The basis for defense counsel’s objection was that these comments were more prejudicial than relevant under Rule 403 of the Arkansas Rules of Evidence. The trial court overruled the objection.
At trial, the trial court took a recess at the end of the first day of testimony after the conclusion of Detective Goodrich’s direct examination, which included testimony about Kidd’s two statements given on April 29, 1996, and June 19, 1996. The following day before cross-examination began, defense counsel moved for a declaration of a mistrial because the comments by Kidd in the two statements which are contested in this appeal were admitted into evidence in violation of Rules 402 and 403 of the Arkansas Rules of Evidence. The trial court ruled that the comments were made by Kidd after a valid waiver of his rights and should not be deleted from his statements under Rule 402 or Rule 403.
We first conclude that Kidd made no argument to the trial court that his comments in his two statements in contention in this appeal constituted proof of prior bad acts under Rule 404(b). That argument, accordingly, is procedurally barred. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997); Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996); Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995).
Next, we address whether Kidd’s motion for declaration of a mistrial the following day after Detective Goodrich’s direct examination was timely. We do not think that it was because the motion was not made at the first opportunity to do so. See Smallwood v. State, 326 Ark. 813, 935 S.W.2d 350 (1996). See also Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996); Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Had defense counsel objected or made the motion for declaration of a mistrial at the first opportunity during Detective Goodrich’s direct examination, steps might have been taken by the trial court to admonish the jury or strike the testimony. We hold that defense counsel simply failed to move in timely fashion for a remedy and, therefore, ran afoul of our rule requiring objections or motions to be made at the time the objectionable matter is brought to the jury’s attention. See, e.g., Smallwood v. State, supra. The failure to object at the first opportunity disposes of the allegedly prejudicial comments made in Kidd’s April 29, 1996 statement and the rape allegation on the Indian reservation contained in his June 19, 1996 statement.
This leaves the question of Kidd’s comments about his having thoughts of rape and killing, and following people home from work, which were also contained in his June 19, 1996 statement and which formed the basis for his Rule 403 objection just prior to trial. Before trial, the trial court overruled his objection. Because the objection was in the nature of a motion in limine, we deem the issue to be preserved for our review. See Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995).
Again, Kidd’s abstract only makes a glancing reference to the fact that this issue had been previously raised to the trial court. Nevertheless, we choose to address it. On the merits Kidd cannot prevail on this point. Even assuming that these comments were not relevant and were unduly prejudicial under Rule 403, the evidence presented of Kidd’s guilt at trial, albeit circumstantial, was overwhelming. This court has stated in the past that when the evidence of guilt is overwhelming, slight errors in the introduction of evidence do not constitute reversible error. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997); Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996); Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).
Here, the evidence of Kidd’s guilt is significant enough to render any error harmless. There was the victim’s physical description of her attacker as a large man with a close-cropped beard and with pronounced body odor. There was the victim’s identification of Kidd’s voice. There were the scratches on Kidd’s face that had not been there at 1:30 a.m., according to his former wife, but were there later that same day. There were the work boots, dark pants, and ski mask which the attacker wore and which belonged to Kidd. There was the footprint outside the victim’s window which matched Kidd’s work boot. There was the absence of sperm in the vaginal swab which corresponded with Kidd’s vasectomy. And there was Kidd’s unusual behavior during the early morning hours of April 29, 1996, when he showered and washed his clothes.
We conclude that there was no reversible error on this point.
II. Confidential Communications
During the investigation which led to Kidd’s arrest and subsequent prosecution, his then wife, Paula Kidd, cooperated extensively with the sheriffs detectives. All told, she gave five statements to the detectives that included communications between her husband and her, such as his revelation that he had been having dreams about doing “bad things” to women. Paula Kidd provided the detectives with a significant amount of evidence, including the black ski mask and his dark pants and work boots, that tended to prove her former husband’s guilt. In the words of Detective Goodrich, the assistance provided by Paula Kidd was “instrumental.”
Prior to trial, Kidd made several motions regarding marital privilege in connection with Paula Kidd’s statements to the detectives. The trial court denied the motions. On appeal, Kidd’s argument does not focus on Paula Kidd’s testimony at trial because she did not testify as to any confidential communications with him. Rather, his argument is premised on the fact that Detective Goodrich succeeded in having him admit to having had thoughts of rape and killing because Paula Kidd told Detective Goodrich that he had been having these disturbing dreams. Otherwise, the detective would not have known to broach this subject to him, according to Kidd’s theory. In sum, Kidd con tends that Detective Goodrich testified that Kidd told him certain things due to information gleaned from Paula Kidd when she herself could not have testified at trial.
This issue is resolved by Rule 504(b) of the Arkansas Rules of Evidence, which provides that “[a]n accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.” As this court stated in Halfacre v. State, 292 Ark. 331, 334, 731 S.W.2d 179, 180 (1987), “Rule 504 is a rule of evidence providing a testimonial privilege to an accused in a criminal proceeding.” Id. (emphasis in original). In Halfacre, which involved the appellant’s conviction for aggravated robbery, we held that the marital privilege did not render the appellant’s arrest illegal, when his wife contacted police officers and told them that the appellant had just stated to her that he robbed a local hotel. This court noted that the protections of Rule 504 did not attach because the criminal proceedings had not begun when the wife reported her husband’s statement to police officers and because she did not testify at trial regarding the confidential communication. Id.
In the instant case, as in Halfacre, Paula Kidd did not testify at trial about any confidential communications made by Kidd. Thus, Rule 504(b), on its face, does not apply.
Affirmed.
She admitted that she previously told detectives that Kidd was in bed at 3:00 a.m. in order to protect her husband, who she assumed was innocent at the time. They divorced on October 3, 1996, and she recanted her previous statement. | [
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Robert L. Brown, Justice.
This case raises two issues: (1) whether the trial court erred in shifting the burden of proof to appellants Jerry G. Noland, Anita Delores Shaver, and Helen Lorraine Hooton in an undue-influence case for the reason that they were beneficiaries of a trust and procured its creation; and (2) if so, whether the appellants proved beyond a reasonable doubt that the settlor of the trust, Wesley E. Noland, was of sound mind and free of undue influence when he created the trust. The trial court found that Wesley Noland was of unsound mind and not a free agent when he executed the trust. Because we conclude that the trial court clearly erred in its finding, we reverse the court’s order and remand for appropriate orders to be entered.
On January 21, 1974, Wesley E. Noland, and his wife, Elsie Noland, established by deed a joint tenancy with right of survivor-ship in eighty-five acres of farmland (the farm) located in Benton County. Under the joint tenancy, Wesley Noland, Elsie Noland, Jerry Noland, and Claude Noland each held an undivided interest in the farm. Subsequent to Elsie Noland’s death in June 1990, Wesley Noland, Jerry Noland, and Claude Noland each held an undivided one-third interest in the remaining eighty-two-and-one-half acres.
On September 27, 1991, at the age of 86, Wesley Noland created the Wesley E. Noland Irrevocable Trust and named Jerry Noland and one of his two daughters, appellant Anita Shaver, as trustees. Wesley Noland funded the trust by deeding his undivided one-third interest in the farm to the trust and by conveying all of his personal property located in his residence on the farm to the trust. That same day, Jerry Noland also deeded his undivided one-third interest in the farm to the trust. The trust instrument provided that the trust would care for Wesley Noland for the balance of his life, and upon his death, the remainder of the trust property was to be distributed, in equal shares, to Jerry Noland, Anita Shaver, and his remaining daughter, appellant Helen Hooton subject to Claude Noland’s life estate in part of the property. The trust provided that in the event Wesley Noland predeceased Claude Noland, Claude Noland would receive a life estate in the residence, barn, and corral located on the farm. The effect of the trust’s creation and the two deeds on Jerry Noland was that his undivided one-third interest in the farm with right of survivorship to the whole was converted into a two-ninths interest in fee, as a beneficiary of the trust. Anita Shaver and the remaining daughter, Helen Hooton, would also be beneficiaries of a two-ninths interest in the farm, subject to the two fife estates. Wesley Noland died on August 12, 1992.
On January 29, 1993, Claude Noland filed a petition to set aside the trust and warranty deed executed by his father. The petition alleged that Wesley Noland lacked the mental capacity to execute the trust and warranty deed and that he was unduly influenced by Jerry Noland and Anita Shaver because they caused the trust and warranty deed to be prepared and took their father to an attorney for the purpose of signing the documents. The petition also alleged that the conveyance was invalid because his father only owned an undivided one-third interest in the farm as a joint tenant with right of survivorship and that he could not destroy the joint tenancy.
On September 20, 1994, after hearing a considerable amount of conflicting testimony on the subject of undue influence and Wesley Noland’s mental capacity, the trial court issued its order. The court found that Jerry Noland caused the irrevocable trust and deed to be prepared and, because of this, the burden shifted to the appellants to prove beyond a reasonable doubt that Wesley Noland had the mental capacity and free will to execute the trust and warranty deed. The court then stated:
Though the testimony is in considerable dispute, there is certainly evidence to indicate that Wesley’s physical strength and mental condition were such as to put folks who knew him on notice that he had some problems both mentally and physically.
The Court is of the opinion that the defendants Jerry Noland and Anita Shaver are fine people, fine citizens and probably did not set out to procure the making of the trust and warranty deed, but in my opinion, in view of the law cited above, it must be found that the defendants did not carry their burden of proof by showing beyond a reasonable doubt that Wesley had both such mental capacity and such freedom of will and action as are requisite to render the trust and warranty deed legally valid.
The court concluded that the trust and warranty deed executed by Wesley Noland should be set aside.
The Court of Appeals affirmed the trial court’s order by a tie vote. Noland v. Noland, 55 Ark. App. 232, 934 S.W.2d 940 (1996). We granted appellants’ petition to review pursuant to Ark. Sup. Ct. R. l-2(e)(i).
I. Mental Capacity
Because we reverse this case on the basis of Wesley Noland’s mental capacity and free agency, we need not address the issue of whether the burden of proof was improperly shifted to the appellants. We assume for purposes of this analysis, as the trial court found, that at least one of the appellants, Jerry Noland, procured the Wesley E. Noland Trust and that the appellants all benefitted from this procurement. With this assumption, a presumption that the trust was the result of undue influence arises under our caselaw and the burden of proof then shifts to the proponents of the trust to prove beyond a reasonable doubt that Wesley Noland had both the mental capacity and freedom of will to render the trust legally valid. See Looney v. Estate of Wade; 310 Ark. 708, 839 S.W.2d 531 (1992); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Park v. George, 282 Ark. 155, 667 S.W.2d 644 (1984); Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971); Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965); Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955); McDaniel v. Crosby, 19 Ark. 533 (1858).
The trial court concluded that the appellants did not meet their burden and specifically found that Wesley Noland “had some problems both mentally and physically.” Thus, the issue for this court to decide on de novo review is whether the trial court’s finding on mental capacity and undue influence was clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996); Welchman v. Norman, 311 Ark. 52, 841 S.W.2d 614 (1992). We note in this connection that deference is generally accorded to the superior position of the chancellor to judge the credibility of the witnesses. Holaday v. Fraker, supra; Riddick v. Street, 313 Ark. 706, 858 S.W.2d 62 (1993).
We turn first to the proof offered by the appellants that Wesley Noland was mentally competent for purposes of executing the trust on September 27, 1991. In Daley v. Boroughs, 310 Ark. 274, 283-84, 835 S.W.2d 858, 864 (1992), this court discussed at length the test for determining mental capacity:
The rule has been generally expressed that sound mind and disposing memory, constituting testamentary capacity, is (a) the ability on the part of the testator to retain in memory without prompting the extent and condition of property to be disposed of; (b) to comprehend to whom he is giving it; and (c) to realize the deserts and relations to him of those whom he excludes from his will.
Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty.
Id. (citations omitted), quoting Hiler v. Cude, 248 Ark. 1065, 1076, 455 S.W.2d 891, 897-98 (1970).
Complete sanity in the medical sense is not required if the power to think rationally existed at the time the will was made. Daley v. Boroughs, supra; Abel v. Dickinson, supra; Hiler v. Cude, supra. Furthermore, our own law is clear that despite any mental impairment, the testator may execute a will if he is experiencing a lucid interval. Daley v. Boroughs, supra; Hiler v. Cude, supra. The time to look at a testator’s mental capacity is at the time the will is executed. However, proof may be taken as to the testator’s condition both before and after the will’s execution as being relevant to his condition at the time the will was executed. Daley v. Boroughs; Rogers v. Crisp, 241 Ark. 68, 406 S.W.2d 329 (1966).
This court has upheld mental competency at the time of the execution of a will even in the wake of evidence of some mental deterioration. See, e.g., Daley v. Boroughs, supra (affirming trial court’s finding of capacity despite medical records providing that testator was confused, disoriented, and needed to be restrained during the three days prior to the execution of the will); Abel v. Dickinson, supra (affirming trial court’s decision to probate will made by an elderly testatrix; the attorney and her physician testified as to competence despite the fact her physical condition had been “going downhill” at the same time); Thiel v. Mobley, 223 Ark. 167, 265 S.W.2d 507 (1954) (reversing trial court’s finding of a lack of capacity despite proof that testatrix was often under the influence of opiates that she had been taking in connection with pain from cancer). But see, e.g., Short v. Stephenson, supra, (reversing trial court’s finding of competency when, months prior to execution of the will, testator failed to recognize his only living relative on one occasion and developed problems with his memory).
In reaching our decision in this case, three pieces of evidence seem particularly significant. The first is the deposition testimony of Dr. John Huskins, Wesley Noland’s physician at Rogers Memorial Hospital, who opined that Wesley was mentally competent on September 27, 1991, because he had sufficient mental capacity to know the extent and condition of his property; to know his children; and to know that he was disposing of his property to them. Secondly, on September 7, 1991, Jerry Noland videotaped an interview with his father, during which time Wesley Noland identified his four children and expressed a desire that each child share equally in his farm property. Wesley Noland also stated that he would be willing to sign a new deed that would give his daughters, Anita Shaver and Helen Hooton, an interest in the farm, and that he would not have signed the 1974 deed had he understood that they would never receive any interest. He further stated that he wanted Jerry Noland to disburse the funds taken from his bank account and his certificates of deposit equally among his children after his death.
Finally, Jerry Noland videotaped Wesley Noland’s execution of the trust and deed on September 27, 1991, in the lawyer’s office. Jerry Noland testified that he contacted an attorney, Ernest Lawrence, and that he received a copy of the trust and deed directly from Lawrence’s law office. He then explained the documents to his father before the September 27, 1991 meeting. Ernest Lawrence also testified that he prepared the trust and deed in question and that he had had no contact with Wesley Noland prior to September 27, 1991. However, after interviewing Wesley Noland on that date, he concluded that Wesley Noland possessed the requisite mental competency and free will to execute the documents.
The following colloquy between Ernest Lawrence and Wesley Noland on September 27, 1991, as abstracted by the appellants, is illustrative of Wesley Noland’s mental ability and understanding at the time he executed the trust and deed. After Wesley Noland identified his children for the lawyer, the interview continued:
LAWRENCE: What we’re doing today, Mr. Wesley, is how we can figure out — how we can get the girls included. Now is that what you want to do?
WESLEY: Yes. I want every kid to have its part, whatever is coming to them.
LAWRENCE: What kind of property do you have, Wesley?
WESLEY: I own 82 1/2 acres, I guess. The road over here took out 2 1/2 acres. I had 85 acres. But there was more than that. I borrowed the money off you and somebody else to get that. That’s where I stay.
I told you that I remember signing that deed sometime back but that I really didn’t realize what I was doing. We discussed that the deed placed title to the 82 1/2 acres in the names myself and my two sons. There was 85 whenever I sighed that. That really was not what I wanted to have happen. I want my kids to have equal share after I’m gone from here.
Other questioning by the lawyer emphasized that Claude Noland would keep his undivided one-third interest in the farm and that the remaining two-thirds interest in the trust would be used for the care and benefit of Wesley Noland for life. He further explained that Claude Noland would have a life estate in the home, barn, and corral after his father’s death. Wesley Noland indicated that he understood the basic arrangement and reiterated that he wanted his two daughters to share in the farm.
On the other hand, Claude Noland challenges his father’s competency and points to the fact that Wesley Noland signed the first copy of the trust agreement as “Wesley E. Wesley.” He also testified that on the evening of September 27, 1991, his father told him he had made out a “will” that day. In addition, Wesley Noland apparently told his brother, Austin Noland, during this same time period that he did not know what he had signed.
Much testimony was presented by both parties about Wesley Noland’s actions before and after he signed the trust as bearing on the soundness of his mind. Claude Noland, for example, testified to numerous events that, to his mind, brought his father’s mental capacity into question. A compendium of those events follows: Wesley Noland would leave the water hydrant running.and forget to water the dogs; he once purportedly caught himself on fire while attempting to thaw out a frozen water tank in 1989; he had difficulty dialing telephone numbers properly in connection with the family business for the last five to seven years of his life; he would wander off and be found alone in the woods or sitting by the road; he would forget to turn off the burners on the stove after making oatmeal or coffee; he would do laundry at 2:00 in the morning; he expressed a desire to be with another woman during his wife’s funeral; and he would urinate in the front yard in front of passing vehicles. Claude Noland also testified that he found feces on the bathroom floor in August or September 1991 and that his father had difficulty dressing himself. On cross-examination, Claude admitted that he believed his father spent too much time gambling and playing dominoes in the local pool hall and not working.
Other witnesses, including a home-care nurse, confirmed that Wesley Noland had proposed marriage to them following his wife’s death. Some witnesses confirmed that he would wander off looking for Claude and that he often repeated himself and once told a tale about wild dogs being in the area.
The appellants countered with testimony about Wesley Noland’s sound mind. Neighbors who brought lunch to Wesley Noland after his colon surgery in December 1991 testified to his mental competency and to the fact that Claude verbally abused his father. Appellant Helen Hooton recorded on audiotape one occasion when Claude appeared to be cursing his father. Jerry Noland testified that Wesley Noland was interested in conveying an interest in the farm to his two daughters as early as the mid-eighties. Because of this, he and his two sisters contacted an attorney, John Scott, in 1984. Anita Shaver confirmed this and stated that John Scott told them nothing could be done to sever the joint tenancy created in 1974 without Claude Noland’s involvement.
We begin by focusing on the date of execution of the deed and trust, which was September 27, 1991. On that date, it is clear, as the videotape substantiates, that Wesley Noland knew his property and his heirs and further knew that he was signing documents to treat his children equally. See Daley v. Boroughs, supra. True, he may not have understood the niceties of the operation of a trust versus that of a will or precisely how the trust agreement would be carried out. His formal education was minimal; testimony was that he was not educated beyond the third grade. But we do not view those factors as evidence of an unsound mind. Nor do we consider the fact that he first signed his name in error as bearing on his lucidity. There is no question that at age 86 Wesley Noland was failing in some respects. Still, again, we are convinced that he knew he was taking steps to include his daugh ters as beneficiaries of the farm at the time of his death when he created the trust on September 27, 1991. Indeed, Claude Noland offers nothing to counter this pivotal point, other than to emphasize the laundry list of Wesley Noland’s eccentricities.
We acknowledge that proof of Wesley Noland’s condition before and after the trust’s execution may be relevant to his condition at the time the trust and deed were signed. Daley v. Boroughs, supra; Rogers v. Crisp, supra. Nonetheless, proof of Wesley Noland’s eccentric behavior and deterioration of his bodily functions do not equate to incompetency. Much of what was offered as evidence of incompetency falls more readily into the category of weakened faculties perhaps, but not unsoundness of mind. We are mindful in this regard of commentary in Thompson on Wills, which we have quoted in the past with approval:
Mere age is not necessarily inconsistent with testamentary capacity. “Indeed, the mental faculties may be weakened and impaired by old age without destroying such capacity. The mere fact that an aged testator’s memory is failing, or that his judgment is vacillating, or that he is becoming eccentric, or that his mind is not as active as formerly •— these things do not invalidate his will if it was fairly made and he was free from undue influence. While age is not of itself a disqualification, yet it excites vigilance to see if it is accompanied with capacity.” — Thompson on Wills, § 62, pp. 88-89.
Pernot v. King, 194 Ark. 896, 910, 110 S.W.2d 539, 545 (1937). Again, the videotaped event on September 27, 1991, manifestly depicts a man who essentially knew what he was doing in signing the documents. Daley v. Boroughs, supra; Hiler v. Cude, supra. As in the case of Thiel v. Mobley, supra, here there is a complete absence of proof that Wesley Noland was not lucid at the time he signed the trust and deed. In the Thiel case, as in the instant case, we reversed the trial court and upheld the will on grounds of both soundness of mind and free agency.
We conclude that the trial court clearly erred in finding that the appellants failed to establish soundness of mind beyond a reasonable doubt.
II. Free Will
We turn next to the issue of whether the appellants met their burden of proof concerning Wesley Noland’s free agency on September 27, 1991.
This court has stated that the questions of undue influence and mental capacity are so closely interwoven that they are sometimes considered together. In Re Conservatorship of Kueteman, 309 Ark. 546, 832 S.W.2d 234 (1992); Rose v. Dunn, supra. In Orr v. Love, supra, we described the requisite proof to establish undue influence:
The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property.
Orr v. Love, 225 Ark. at 510, 283 S.W.2d at 670. See also In Re Estate of Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992).
The converse of this is also true. For the appellants to prove free agency, they must show that Wesley Noland executed the trust and deed on September 27, 1991, without fear or coercion or any intimidation that would deprive him of free agency. The videotape of the signing of the instruments in the lawyer’s office lasts approximately 45 minutes. It depicts Ernest Lawrence explaining in detail to Wesley Noland what is transpiring with the trust and deed and his steps to make certain that this is what Wesley Noland wants to do. Also present at the meeting in Lawrence’s office are a staff person who witnessed the signing; Jerry Noland, who videotaped the session; and Anita Shaver. There is no question but that Jerry Noland and Anita Shaver contacted Ernest Lawrence about drafting the instruments, briefed their father on what would occur, and brought him to the lawyer on September 27, 1991. The issue for us to address, however, is not whether there were suggestions made to Wesley Noland by his heirs, but whether there was undue influence.
Viewing the videotape, we can ascertain nothing that denigrates Wesley Noland’s freedom to act in Ernest Lawrence’s office. He appears to know what he wanted to accomplish — equality among his children, which meant including his daughters as heirs to the farm. Steps were taken to prove that everything was done according to Hoyle, with attorney explanations and a visual and audio record of what transpired. Moreover, this is not a case where a new will disinherits one heir and benefits others. Here, Claude Noland maintained an undivided one-third interest in the farm and acquired as well a life interest in the residence, barn, and corral, although his right of survivorship in the farm was lost.
The dissenting opinion makes much of the heavy burden of proof and our standard of review while acknowledging that, in some cases, reversals are appropriate. This is such a case, as was Thiel v. Mobley, supra. While, admittedly, in Thiel the shifting burden of proof was not addressed by this court, we reversed the trial court’s twin findings that the testatrix’s will in favor of her children and not her husband was executed without the requisite capacity and was the result of undue influence. In doing so, we emphasized that despite conflicting proof of her capacity, there was no evidence that she did not sign the will during a lucid moment or that she was the victim of a malign influence. Those are precisely the issues confronting us in the case at hand.
We have stated that a finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). Such is the situation in the case at hand. We conclude that the trial court clearly erred in its finding that Wesley Noland did not act. freely and with sound mind when he signed the deed and trust. We reverse the order of the trial court and remand for orders consistent with this opinion.
Reversed and remanded.
Newbern, Corbin, and Imber, JJ., dissent.
After the original conveyance, two-and-one-half acres were condemned for the construction of a state highway.
We draw no distinction between the mental competency and free will necessary to execute either a will or a trust which takes effect, in part, at date of death. Rose v. Dunn, supra. | [
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Donald L. Corbin, Justice.
Appellant Eloise Turner appeals the judgment of the Miller County Circuit Court in favor of AppeEee Calvin Stewart and his wife Denise Stewart. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(15). AppeEant raises three points on appeal: (1) AppeEee was improperly aEowed to amend his answer without malting a showing of sufficient reasons why he should be aEowed to amend; (2) the trial court erred in submitting a jury instruction on comparative fault; and (3) there was no substantial evidence to support the jury’s finding. We find no merit and affirm.
The record reveals the foEowing relevant facts. On July 29, 1989, AppeEant caEed AppeEee to borrow some card tables. AppeEee agreed to loan her the tables and AppeEant stated she would come by AppeEee’s house to get them. When AppeEant arrived at AppeEee’s home, AppeEee was outside in the side yard with his dog, a male Rottweiler named Thunder. Appellant went to the front porch and rang the bell several times. While on the porch, Appellant saw the dog looking at her from around the side of the house. When no one came to the door, Appellant decided to go around to this same side of the house where she heard water running. When she reached the side of the house, Appellant saw Appellee and his dog.
Appellant testified at trial that after talking briefly with Appellee, Appellee called Thunder’s name and the dog started in her direction. She stated that she turned her back and ran from the dog toward the front of the house. She stated that Thunder jumped on her and bit her left arm and that she fell to the ground. She stated that she received injuries to.her right shoulder and a wound to her left arm. Appellee, on the other hand, stated that he did not see the dog jump on Appellant. He testified that he saw Thunder running in Appellant’s direction, as she was going around the corner. He stated that he then called Thunder and the dog returned to the side of the house. After putting the dog away, Appellee indicated that he took Appellant inside the house to look at her injuries. Appellee asked Appellant if she had seen the dog and inquired as to why she did not stay inside her car and honk for him to come out of the house. Appellee then took Appellant to the hospital, where Appellant stated to hospital personnel that her injuries were a result of falling while running from a dog.
On August 1, 1989, Appellee brought Thunder to Dr. Cynthia Pfluger, the dog’s veterinarian, for shots. At that time, Dr. Pfluger advised that the dog should be castrated or undergo obedience training due to what Dr. Pfluger’s observation of the dog’s aggressive tendencies. Dr. Pfluger also testified that on July 1, 1989, less than one month before the incident in question, Denise Stewart had called and advised that Thunder had bitten her mother, Verneener Stewart. Dr. Pfluger stated that she then recommended to quarantine the dog. At trial, however, Mrs. Stewart denied that Thunder had bit her mother; instead, she stated that the dog had merely scratched her mother’s face while he was chasing a cat. Verneener Stewart testified that she did not remember the incident. At the close of Appellant’s case, the trial court entered a directed verdict in favor of Denise Stewart. After deliberation, the jury returned a verdict in favor of Appellee.
Amended Answer
Appellant asserts that the trial court erred when allowing Appellee to amend his answer to an amended complaint. Appellant relies on ARCP Rules 6(b) and 12(a) in arguing that Appellee failed to set forth sufficient reasons showing the necessity for an extension of time to file his answer. Appellee asserts that ARCP Rule 15 provides that amendment of pleadings should be allowed unless prejudice or undue delay is shown by the party opposing the amendment.
The record reflects that after an amended complaint alleging strict liability was filed by Appellant on January 26, 1990, Appellee did not respond within twenty days as required by Rule 15. Appellant argues that but for the amended answer filed on March 22, 1990, Appellee would have been in default and Appellant would have been entitled to a partial summary judgment. On March 30, 1990, the trial court entered an order granting Appellee’s motion to file the amended answer, stating that Appellant would not be prejudiced by the amended answer. The question before us is whether the trial court abused its discretion in allowing the amended answer to be filed.
Although amendment of pleadings is encouraged, the trial court is vested with broad discretion in allowing or denying amendments. Kay v. Economy Fire & Cas. Co., 284 Ark. 11, 678 S.W.2d 365 (1984). Arkansas Rule of Civil Procedure 15(a) provides in part:
[A] party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 20 days after service of the amended pleading, whichever period is longer, unless the court otherwise orders.
Under Rule 15, a party may amend his pleadings at any time without leave of the court. If, however, the opposing party files a motion objecting to the amendment, the trial court must determine whether prejudice would result to that party or if the case would be unduly delayed by the amendment. Webb v. Workers’ Compensation Comm’n, 286 Ark. 399, 692 S.W.2d 233 (1985). An important consideration in determining prejudice is whether the party opposing the motion will have a fair opportunity to defend after the amendment. Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989). A party should be allowed to amend his pleading absent proof of prejudice, and the failure of the opposing party to seek a continuance is a factor to be considered in determining whether prejudice was shown. Webb, 286 Ark. 399, 692 S.W.2d 233. Where neither a continuance was requested nor a demonstration of any prejudice resulting from an amendment was shown, the amendment should be allowed. Id.
In this case, Appellant did not request a continuance or demonstrate that she would be prejudiced or that undue delay would result if the court should allow the amendment. By applying Rule 15, the trial court did not abuse its discretion in finding that the amended answer did not prejudice Appellant. Accordingly, it was not error for the trial court to allow the amendment.
Comparative Fault
Appellant argues that the trial court erred in submitting to the jury an instruction on comparative fault. Appellant argues that the comparative-negligence instruction should not have been given because there was no showing that Appellant proximately caused the dog’s attack. Appellee replies that the question to be asked is whether Appellant’s actions could have proximately caused her injuries. Comparative fault is an affirmative defense. Arkansas Code Annotated § 16-64-122 (Supp. 1995) provides in pertinent part: '
(a) In all actions for damages for personal injuries ... in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party . . . from whom the claiming party seeks to recover damages.
(c) The word “fault” as used in this section includes any act, omission, . . . which is a proximate cause of any damages sustained by any party.
Under the express language of the statute, there must be a determination of “proximate cause” before any “fault” can be assessed against the claiming party. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Baker v. Morrison, 309 Ark. 457, 829 S.W.2d 421 (1992). Proximate cause is a cause which, in a natural and continued sequence, produces damage, and without which the damage would not have occurred. Id. While the question of proximate cause is usually a question for the jury, when the evidence is such that reasonable minds cannot differ, the issue becomes a question of law to be determined by the trial court. Id. In Ambort v. Nowlin, 289 Ark. 124, 709 S.W.2d 407 (1986), the trial court’s instruction to the jury that it must determine whether appellant was at fault in the incident wherein appellees’ dog bit him, was supported by the evidence. This court held that the judge was correct in submitting the case to the jury on the basis of comparative fault, rather than on the theory of strict liability. There was a fact question as to whether appellant was a trespasser or a licensee when he was bitten by appellees’ dog, since he was on private property and had not been expressly invited there. There was also a fact question as to whether appellant was guilty of negligence in approaching the fenced yard on private property with two dogs, which were barking and causing him apprehension. This court concluded that although an owner can be held strictly liable in such instances, if there is an issue of the plaintiff s negligence or other fault, the plaintiffs recovery may be diminished by the doctrine of comparative fault.
Just as in Ambort, the jury in this case could have concluded that Appellant did not use good judgment, was negligent, and was partly at fault for her injuries. Appellant entered the yard despite the presence of “Beware of the Dog” signs in the front yard, approached the front door, and walked around to the side of the house where she had seen an unfamiliar dog. There was also evidence that could have supported the jury’s finding that Appellant’s injuries were proximately caused by her running from the dog, rather than from the dog’s attack. From the evidence presented, the jury could have disbelieved that Appellant was attacked and determined that her injuries were a result of her fall. Accordingly, it was not error for the trial court to instruct the jury on comparative fault.
Substantial Evidence
Appellant argues that the jury’s verdict in favor of Appellee was not supported by substantial evidence. When reviewing the sufficiency of the evidence, the appellate court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997). The verdict will be affirmed if there is substantial evidence to support it. Id. Substantial evidence is evidence that passes beyond mere suspicion or conjecture and is of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other. Id.
Appellant asserts that Appellee knew that the dog was a vicious animal due to its previous history and the circumstances surrounding the incident in question. She asserts that she was a licensee on Appellee’s property, and that Appellee thus owed a duty to her to exercise ordinary care to avoid injury to her. Appellant additionally points out that there was also a Texarkana city ordinance that she argues Appellee violated by allowing the dog outside the fenced area and that this violation should have also supported a verdict for Appellant.
A “licensee” is one who goes upon the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner. Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995). Appellant was a licensee allowed onto the premises of Appellee to retrieve the card tables. The question of the duty, if any, owed by one person to another is always a question of law and never one for the jury. Id. A landowner owes a licensee the duty to refrain from injuring him or her through willful or wanton conduct. Id. To constitute willful or wanton conduct, there must be a course of action which shows a deliberate intention to harm or utter indifference to, or conscious disregard of, the safety of others. Id. If, however, a landowner discovers a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the licensee. Id. The duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved. Id.
Here, the jury was instructed on the duty owed to a licensee and on the Texarkana ordinance. The pertinent question was whether Appellee knew his dog was vicious prior to the date of this incident. There was substantial evidence that Appellee had no knowledge that the dog was vicious. In fact, Appellee’s wife testified that she had no knowledge of the dog attacking anyone. She stated that the dog had previously scratched her mother when the dog was going towards a cat. Appellee’s mother-in-law Verneener Stewart testified that she had never been bitten by the dog. The veterinarian, while recommending obedience training or castration, only established that the dog was aggressive around the office for shots or checkups. Appellee testified that to his knowledge, the dog had never bitten or attacked anyone prior to this incident. We thus conclude that there was substantial evidence to support the jury’s verdict.
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Tom Glaze, Justice.
This case involves a custody dispute over the two sons of appellant Devolyn Kay Lee and appellee John William Lee. Crawford County Chancery Judge Jim Spears, by ex parte order of protection, initially awarded temporary custody of the boys to Devolyn. However, Chancery Judge Charles Clawson was later assigned to hear Judge Spears’s cases, and after hearing the Lees’ divorce case on December 5, 1996, Judge Clawson granted Devolyn a divorce, but awarded permanent custody of the two boys to John. Judge Spears actually signed the initial divorce decree, which was entered on December 19, 1996, but after Devolyn filed a motion for a new trial on December 20, 1996, Judge Clawson signed a second decree, which was entered on December 27, 1996. Other than reflecting Judge Clawson’s signature, in place of Spears’s, the second decree read the same as the first decree. When the trial court failed to rule on Devolyn’s new-trial motion, Devolyn filed a timely notice of appeal on January 23, 1997. On appeal, Devolyn raises four points for reversal, but none has merit.
In her first argument, Devolyn contends that, immediately after Judge Clawson heard and decided the Lees’ case, she had acquired newly discovered evidence entitling her to a new trial. Devolyn alleged in her motion for new trial that John had informed Devolyn’s father, Donald Love, that he did not have adequate housing for the boys, that it would be impossible for him to keep the boys in their present school district, and that neither Devolyn nor Mr. Love and his wife would see the boys again. Based on these remarks attributed to John, Devolyn asserted John had not been forthright with the court and had shown it was not in the best interest of the boys to be awarded to John. In his response, John denied having made any of the statements.
It is settled law that a new trial based on newly discovered evidence is not a favored remedy, and whether to grant a new-trial motion on such grounds is within the sound discretion of the trial court. Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993). This court has also established that, in a hearing on a motion for new trial based on newly discovered evidence, the burden is on the movant to establish that he or she could not with reasonable diligence have discovered and produced the evidence at the time of the trial, that the evidence is not merely impeaching or cumulative, and that the testimony would have changed the result of the trial. Id.
Here, the statements attributed to John were denied by him, and the trial court was well within its province to disbelieve Donald Love. In addition, the remarks attributed to John could only have been used to impeach his earlier testimony. The fact that new information has been discovered which might merely impeach or otherwise test the credibility of a witness is not suffi dent reason to warrant a new trial. Accordingly, we hold the trial court did not abuse its discretion in denying Devolyn’s motion.
For her second point, Devolyn argues that Judge Clawson’s assignment in this case, made pursuant to Ark. Code Ann. § 16-10-101 (Repl. 1993), violated Art. 7, § 13, of the Arkansas Constitution and Ark. Code Ann. § 16-13-2003 (Repl. 1993). The constitutional provision cited provides for the establishment of judicial circuits and for judges who shall be elected and reside within each circuit. Section 16-13-2003, establishes the number of judges and chancellors to be elected in the Twelfth Judicial Circuit, which includes the Crawford County Chancery Court. In sum, Devolyn submits that, contrary to Art. 7, § 13, Judge Claw-son was never elected to serve in the Twelfth Judicial Circuit, and other judges who had been elected within the circuit could have served if they had been given the opportunity. See Ark. Code Ann. § 16-13-403 (Repl. 1993). Devolyn fhrther argues that Judge Clawson’s appointment or assignment under Ark. Code Ann. § 16-10-101 (Repl. 1993) was not proper because there was no showing his assignment was necessary “for the efficient and proper administration of justice,” as is required by the statute.
The short answer to Devolyn’s argument is that, while Devolyn argues she had no opportunity to object to Judge Claw-son’s appointment on December 4, 1996, the record belies her charge. Judge Clawson was appointed on December 4, 1996, so she could have raised this issue either on December 4 or before trial commenced on December 5, 1996. Thus, Devolyn is procedurally barred from raising this issue for the first time on appeal. See Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995); see also Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995) (court held it is the parties’ or trial court’s responsibility to apprise the supreme court as to whether an assignment is necessary under Act 496 [now codified as § 16-10-101], and once that assignment is made, that responsibility continues).
Devolyn next argues that Judge Clawson’s appointment was limited to the trial on December 5, 1996, and therefore his signing of the parties’ decree and entering it on December 27, 1996, exceeded his authority. Again, Devolyn made no objection to Judge Clawson’s having signed the December 27 decree. Our de novo review of chancery matters does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below and that opportunity was not seized. Jones, 320 Ark. 449, 898 S.W.2d 23.
In her final point, Devolyn suggests Judge Spears committed reversible error when he signed the parties’ initial decree even though he had not heard the case. She cites Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993), and argues that once an order of assignment of another judge has been entered, the assignment deprives any other judge of authority to act in any proceeding related to that case. Of course, we have already upheld the validity of Judge Clawson’s appointment and his signing and entry of the December 27 decree in this case. Consequently, Devolyn’s argument became moot when Judge Clawson entered the December 27 decree.
For the reasons above, we affirm.
The Neal court upheld an assignment under § 16-10-101 even though another judge, who had been elected within the circuit, could have served. See also George v. State, 250 Ark. 968, 470 S.W.2d 93 (1971) (court held selection and assignment of a judge under § 16-10-101 as an alternate method to judges in different circuits serving on exchange). | [
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Per Curiam.
The appellant, Wilbert Muldrew, was convicted on January 28, 1997, in Hempstead County Circuit Court of three counts of delivery of a controlled substance (cocaine) and was sentenced to 120 years’ imprisonment. His attorney, David Mark Gunter, filed a notice of appeal on Muldrew’s behalf on February 3, 1997. The transcript in the case was filed on May 22, 1997. Mr. Gunter requested and received two extensions to file Muldrew’s brief, which was due on September 26, 1997. When the brief had not been filed, the Clerk of the Court wrote to Mr. Gunter inquiring about the status of the case. On October 13, 1997, Mr. Gunter telephoned the Clerk and indicated that he would file a motion for belated brief within ten days. As of this date, no motion has been filed.
In light of the above circumstances, we hereby order David Mark Gunter to appear before this court on December 4, 1997, at 9:00 a.m. to show cause why he should not be held in contempt for his failure to file Muldrew’s brief. | [
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Robert L. Brown, Justice.
This case concerns an appeal bond that was executed on January 5, 1994, on behalf of Gary D. Samples, who had been convicted of sexual' abuse and sentenced. The appeal bond was issued by appellant J & J Bonding, Inc. On September 18, 1995, the Arkansas Court of Appeals issued its mandate following an affirmance of the judgment against Samples. On September 19, 1995, a copy of the mandate was filed with the Pope County Circuit Clerk.
On May 6, 1996, the circuit court entered an order for J & J Bonding to forfeit the appeal bond because Samples had failed to surrender himself to authorities. On July 16, 1996, a summons was issued by the circuit clerk to “James Milburn Houston d/b/a J & J Bonding Inc.” That summons contained notice of a show-cause hearing to be held on August 14, 1996, at which time the court would determine whether the bond should be forfeited.'
Although J & J Bonding was represented by counsel, counsel did not attend the hearing on August 14, 1996, According to statements made by the circuit court at the show-cause hearing, counsel for the bonding company had sent a letter to the circuit court which included his arguments of why the bond should not be forfeited. James Houston, however, did attend the hearing and spoke on behalf of the bonding company. The circuit court remarked that the statutes referred to in counsel’s letter were not applicable to an appeal-bond situation. The letter sent by counsel to the circuit court has not been made part of the record on appeal, and the statutes referred to by the circuit court were unidentified at the show-cause hearing.
Also, at the hearing, Houston advised the court that he had not received notice of the Court of Appeals mandate until July 16, 1996, when he was served with the summons and notice. As a consequence, he requested additional time to apprehend Samples. The circuit court ruled that Rule 6 of the Arkansas Appellate Rules - Criminal applied and that it did not provide for any additional time for the bonding company to apprehend a missing appellant. The court ordered judgment to be entered against J & J Bonding in the amount of $50,000, which was the amount of the bond.
The bonding company now contends on appeal that the circuit court erred in its application of Rule 6 and in failing to apply the procedures in Ark. Code Ann. § 16-84-201 in forfeiting the appeal bond. We conclude that this argument is not preserved for our review because we are unable to determine from the record and abstract whether this argument was made to the circuit court and whether the circuit court ruled on it. See Cosgrove v. City Of West Memphis, 327 Ark. 324, 328, 938 S.W.2d 827 (1997); see also Reeves v. Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996); Hardy Constr. Co. v. Arkansas State Hwy. & Transp. Dept., 324 Ark. 496, 922 S.W.2d 705 (1996). To be more precise, which statutes were brought to the circuit court’s attention cannot be determined from the record. Hence, the issue is procedurally barred.
J & J Bonding next argues that its due-process rights were violated because of insufficient notice of the Court of Appeals mandate, its lack of familiarity with Rule 6, and the absence of time in which to apprehend Samples before forfeiture. This argument has no merit. It is true that Houston raised some of these points at the show-cause hearing, but the arguments were not couched in terms of a constitutional violation. Moreover, on appeal, J & J Bonding adduces no caselaw or other authority for its due-process contention. When an appellant does not cite authority or make a convincing argument and when it is not apparent without further research that the point is well taken, we will affirm. Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997). There is also the fact that Rule 6 was in effect at the time of the show-cause hearing, and its procedures were followed by the circuit court with respect to (1) the order of the circuit court forfeiting the bond due to Samples’s failure to surrender, (2) the summons and notice to J & J Bonding regarding the show cause hearing, (3) the hearing itself, and (4) the judgment of forfeiture. See Appellate Rules - Criminal, Rule 6(c).
In short, because the record does not include counsel’s arguments raised in his letter to the circuit court, or the statutes counsel deemed relevant for the trial court’s consideration, we will not address J & J Bonding’s arguments concerning the retro-activity of Rule 6 or its potential conflict with state statutes. It is incumbent on the appellant to provide this court with an adequate record for review of the points raised on appeal. Cosgrove v. City of West Memphis, supra; King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996).
Affirmed.
The circuit court actually referred to Rule 36.5 of the Arkansas Rules of Criminal Procedure. Rule 36.5 was adopted March 27, 1995. It was replaced by Rule 6 of the Appellate Rules - Criminal, which was effective January 1, 1996. The forfeiture procedures under former Rule 36.5 and Rule 6 are essentially the same. | [
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Annabelle Clinton Imber, Justice.
The appellant, Richard Burris, was convicted of possession of methamphetamine with intent to deliver, possession of amphetamine with intent to deliver, and carrying a weapon. For these crimes, Burris was sentenced to a concurrent term of forty years’ imprisonment. On appeal, Burris challenges the sufficiency of the evidence to sustain his convictions, and the court’s denial of his motion to suppress evidence seized from his vehicle. We affirm.
On July 10, 1996, Captain Dale Best of the Arkansas State Highway Patrol noticed a 1988 Dodge pulling a trailer traveling along Interstate 40. The Florida license plate was fastened to the trailer in such a fashion that the wind caused the plate to flip upwards making it difficult to read. The last letters of the license plate were also obscured by the corner of the trailer. Captain Best testified that he had to follow the vehicle for “some distance” before he was able to read the entire license plate. In addition, the lens covering the left brake light on the trailer was partially broken causing the light to shine white instead of red.
Captain Best stopped the vehicle for the improperly displayed license plate and for the broken brake light. After telling the driver, Richard Burris, why he had been stopped, Captain Best asked Burris for his license, proof of insurance, and registration. While verifying this information, Captain Best learned that Burris had previously been arrested for weapons and drug charges, and convicted of a misdemeanor drug offense. Captain Best then asked Burris to come to the back of the trailer where he explained to him that his license plate was improperly attached and that his brake light was broken. According to Captain Best, Burris appeared to be unusually nervous and would not make eye contact.
On three occasions, Captain Best asked Burris if he had ever been arrested for criminal charges, including drugs, and Burris answered that he had never been arrested for a crime other than speeding. Because Burris appeared nervous and had previously been arrested on weapon charges, Captain Best became concerned for his safety and asked Burris if he had any weapons. Twice, Burris answered in the negative. Captain Best asked Burris for a third time if he had any weapons in the car, and Burris answered that he had a .22 caliber derringer “in the passenger’s compartment, next to the driver’s seat, toward the floorboard, on a console type arrangement.” Burris refused to give consent to search the vehicle but offered to retrieve the gun for Captain Best. Captain Best refused the offer, and asked Burris to show him where the gun was. Burris did so, and Captain Best retrieved the loaded gun from the front seat of the car.
Captain Best placed Burris under arrest, and began an inventory search of the vehicle. Captain Best estimated that Burris was arrested fifteen to twenty minutes after the initial stop. During the inventory of Burris’s vehicle, the officers found in the trunk several plastic bags containing amphetamine and methamphetamine, and a loaded .44 revolver. Burris was subsequently charged with possession of methamphetamine with intent to deliver, possession of amphetamine with intent to deliver, and carrying a weapon
The trial court denied Burris’s motion to suppress the evidence seized from his trunk, found him guilty of all three crimes, and sentenced him to a concurrent term of forty years’ imprisonment. Burris filed a timely notice of appeal from his judgment and commitment order.
I. Sufficiency of the Evidence
For his first argument on appeal, Burris challenges the sufficiency of the evidence to support all three of his convictions. When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others in order to preserve the defendant’s right to freedom from double jeopardy. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support a verdict. Williams, supra; Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). Substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion one way or another and which goes beyond mere speculation or conjecture. Williams, supra; Ladwig, supra. In making this determination, we review the evidence in the light most favorable to the State, and consider only the evidence that supports the verdict. Williams, supra; Ladwig, supra.
Burris’s sole challenge to the sufficiency of the evidence is his argument that his conviction must be reversed if we find that the court erred in denying his motion to suppress the evidence seized from his car. We find no merit to this argument because we have continuously held that when reviewing the sufficiency of the evidence upon appeal we must consider both properly and improperly admitted evidence. Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). Because the police found the drugs and guns in Burris’s vehicle, we find that there was substantial evidence to support his convictions.
II. Motion to Suppress
Burris’s second argument is that the trial court erred when it denied his motion to suppress the evidence that the police seized from his car. Burris contends that the drugs and guns should have been suppressed because the initial stop, detainment, and subsequent search of his vehicle were unlawful under the Fourth Amendment.
In reviewing the trial court’s denial of a suppression motion, we make an independent examination based on the totality of the circumstances, and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996); Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996). In making this determination, we view the evidence in the light most favorable to the State. Norman, supra; Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995).
A. Initial Stop
First, Burris claims that the initial traffic stop was unlawful, and thus, evidence seized thereafter is inadmissible pursuant to the Fruit of the Poisonous Tree doctrine as discussed in Wong Sun v. United States, 371 U.S. 471 (1963). We disagree with this assertion.
In Whren v. United States, 116 S. Ct. 1769 (1996), the United States Supreme Court recently explained that a police officer may stop and detain a motorist where the officer has probable cause to believe that a traffic violation has occurred. For example, in Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994), we held that an officer had probable cause to stop a motorist when he discovered that the vehicle bore a license plate which was issued to a different car in violation of Ark. Code Ann. § 27-14-306 (Repl. 1994). Thus, the relevant inquiry is whether Captain Best had probable cause to believe that Burris was committing a traffic offense at the time of the initial stop.
We have previously explained that probable cause exists when the facts and circumstances within an officer’s knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Johnson v. State, 299 Ark. 223, 772 S.W.2d 322 (1989). In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997).
During the suppression hearing, Captain Best testified that he had difficulty reading Burris’s license plate because it was fastened to the trailer in such a fashion that the license plate flipped upwards in the wind, and because the last digits of the plate were obscured by the corner of the trailer. Based on these facts, we find that Captain Best had probable cause to believe that Burris was violating Ark. Code Ann. § 27-14-716(b) (Repl. 1994), which provides that:
Every license plate shall, at all times, be securely fastened in a horizontal position to the vehicle for which it is issued so as to prevent the plate from swinging and at a height of not less than twelve inches (12“) from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible.
Although a further justification for the initial stop is unnecessary, Captain Best also testified during the suppression hearing that he stopped Burris because the lens of the trailer’s left tail light was partially broken causing it to shine white instead of red. According to Ark. Code Ann. § 27-36-215(a)(l) (Repl. 1994):
Every motor vehicle, trailer, semitrailer, and pole trailer, and any other vehicle which is being drawn at the end of a train of vehicles, shall be equipped with at least one (1) tail lamp mounted on the rear, which, when lighted as required, shall emit a red light plainly visible from a distance of five hundred feet (500’) to the rear.
Because we find that Captain Best had probable cause to believe that Burris was committing two traffic violations, we find that the initial stop was lawful.
In reply, Burris argues that he was not guilty of violating either Section 27-14-716(b) or 27-36-215(a)(l). According to Whren, all that is required is that the officer had probable cause to believe that a traffic violation had occurred. Whren, supra. Whether the defendant is actually guilty of the traffic violation is for a jury or a court to decide, and not an officer on the scene. For example, in State v. Jones, 310 Ark. 585, 589, 839 S.W.2d 184, 186 (1992), we emphasized that “it should be kept in mind that we are not dealing with the guilt or innocence under the [traffic] ordinance, [but] merely with whether there was probable cause to conclude the ordinance had been violated.” Moreover, we have repeatedly held that the degree of proof sufficient to sustain a finding of probable cause is less than that required to sustain a criminal conviction. Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996). Thus, we find no merit to this argument.
B. Detainment
Next, Burris argues that the evidence should have been suppressed because Captain Best had no legal reason to detain him for fifteen to twenty minutes after he was initially stopped for the traffic violations. Although Burris did not raise this argument in his motion to suppress, he clearly developed this argument during the suppression hearing, and the State failed to object. Thus, we find that the issue is properly preserved for appeal.
According to Terry v. Ohio, 392 U.S. 1 (1968), given the lawfulness of the initial stop, the question is whether the resulting detention was “reasonably related in scope to the circumstances which justified the interference in the first place.” Arkansas Rule of Criminal Procedure 3.1 states that an officer may detain a suspect for not more than fifteen minutes or “for such time as reasonable under the circumstances” if the officer has a reasonable suspicion that the person is committing, has committed, or is about to commit either “1) a felony, or 2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property.” A reasonable suspicion has been defined as a suspicion based upon facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997); Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). In making this determination, the trial court may consider several factors, including, but not limited to: (a) the demeanor of the suspect; (b) the gait and manner of the suspect; (c) any knowledge the officer may have of the suspect’s background or character; and (d) any apparent effort of the suspect to avoid identification or confrontation by the police. Ark. Code Ann. § 16-81-203 (1987).
In this case, Captain Best detained Burris for approximately fifteen to twenty minutes to explain to him the traffic violations for which he was stopped and to question him about his possible possession of guns and drugs. Captain Best testified that he detained and questioned Burris because: 1) he was aware that Burris had been previously arrested on drug and gun charges; 2) Burris lied to him about his prior arrests; 3) Burris appeared unusually nervous and avoided eye contact; and 4) he was concerned for his own safety.
Burris argues that Captain Best should not have been able to consider his prior convictions and arrests under Ark. Code Ann. § 16-81-201(1) (1987), which states that the subchapter shall not be construed to:
Permit an officer to stop just any passerby and Search him, nor allow the search of any person merely because he has a criminal record.
(Emphasis added.) We find that this argument fails for two reasons. First, the statute states that an officer may not “stop” a passerby and search him because he has a criminal record. Captain Best stopped Burris for traffic violations, not because of his criminal record. Additionally, the statute says that a person may not be searched “merely” because he or she has a criminal record. Captain Best retrieved a loaded weapon from Burris’s car only after Burris disclosed that he had the weapon in his vehicle, and not merely because he had a criminal record. Furthermore, the inventory search of Burris’s car occurred after Burris’s arrest and not merely because he had a criminal record.
For these reasons, we find that Captain Best had a reasonable suspicion that Burris was in possession of drugs which is a felony under Ark. Code Ann. § 5-64-401 (Supp. 1995). Moreover, Captain Best detained Burris for only fifteen or twenty minutes which we find is “reasonable under the circumstances” as required by Rule 3.1. Thus, we conclude that Captain Best lawfully detained Burris.
C. Warrantless Search of the Vehicle
Finally, Burris contends that the warrantless search of his vehicle violated his rights under the Fourth Amendment. Because Burris failed to raise this argument in his motion to suppress or during the suppression hearing, we refuse to consider it for the first time on appeal. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995); Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994).
For these reasons, we conclude that there was sufficient evidence to support Burris’s convictions, and that the trial court did not err when it denied Burris’s motion to suppress. Accordingly, we affirm Burris’s convictions.
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Ray Thornton, Justice.
This petition for a writ of prohibition was brought by the City of Little Rock to prohibit the Pulaski County Circuit Court from considering an appeal from the Little Rock Municipal Court and from enforcing an order with respect to that appeal, because the notice of appeal was untimely. From the abstract and record provided to us by the City, we are unable to tell when the appeal was perfected. We deny the petition because the abstract is flagrantly deficient and the record is incomplete.
The judgment of the municipal court, the docket entries relating thereto, and the notice of appeal from that order are not reflected in the abstract presented to us for review. We will not belabor the insufficiency of the materials, but note that while some proceedings in the municipal court are described in the abstract, those proceedings are not reflected in the record before this court. In short, we have no clear record of exactly what took place and when.
The standard for a writ of prohibition is well settled. Such a writ is appropriate only when the lower court is wholly without jurisdiction. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). In deciding whether the writ will lie, we confine our review to the pleadings. Id. Here, the record does not contain the necessary pleadings to determine whether the circuit court had jurisdiction.
A petitioner bears the burden of producing a fair and accurate record and abstract that establish an entitlement to a writ. See Ark. Sup. Ct. R. 4-2 & 6-1; Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994); State v. Pulaski County Circuit-Chancery Court, 316 Ark. 473, 872 S.W.2d 854 (1994); Oaklawn Jockey Club v. Jameson, 280 Ark. 150, 655 S.W.2d 417 (1983). An ambiguous record, such as the one presented in the instant case, cannot satisfy the petitioner’s burden. Davis v. State, supra.
The record and abstract provided by the petitioner do not comply with Ark. Sup. Ct. R. 4-2. We deem them flagrantly deficient, and deny the petition. | [
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David Newbern, Justice.
Brian John White appeals from a January 25, 1996 judgment revoking his probation and sentencing him to serve six years concurrently on each of four felony charges to which he pleaded guilty in February of 1993. On February 19, 1993, the Benton County Circuit Court placed Brian John White on supervised probation for five years based on two separate cases. In CR 91-544-1, Mr. White was charged with terroristic threatening, theft of property, and fraudulent use of a credit card. In CR 92-339-1, Mr. White was charged with forgery in the second degree. In White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997) (White I), Mr. White appealed the revocation of his probation in CR 92-339-1, and this Court affirmed the revocation. Mr. White raises the same points on the appeal in this case, CR 91-544-1, and we affirm.
In his first point, Mr. White, citing Ark. Code Ann. § 5-4-310 (Repl. 1993), again argues that because his probation-revocation hearing was not conducted within the requisite sixty-day period after his arrest, the probation revocation petition should have been dismissed. On July 10, 1994, Mr. White was arrested and charged with the June 24, 1994 rape of a twelve-year-old girl. That felony charge resulted in a revocation petition, but the record does not disclose if or when Mr. White was arrested on the revocation petition. Mr. White was ultimately tried on the rape charge and the probation revocation on January 23, 1996.
In White I, this Court, affirming the Trial Court, held that Mr. White waived his argument for dismissal, when at an October 17, 1994 hearing, he agreed to having the revocation hearing with the substantive proceedings. This Court, citing Barnes v. State, 294 Ark. 369, 742 S.W.2d 369 (1988), stated that “[w]hen a defendant prefers that the revocation matter be deferred until disposition of an underlying charge, he cannot then turn around and complain of delay.” White I, 329 Ark. at 489; 951 S.W.2d at 557.
Mr. White argues that his constitutional right to a speedy trial was violated due to a delay in hearing the revocation petition. In White I, we held that we had no basis upon which to address that argument because Mr. White had not received a ruling in the Trial Court on the applicability of Ark. R. Crim. P. 28.1 to a revocation proceeding. We reiterate that ruling here. Additionally, we have recently recognized that the constitutional right to a speedy trial does not apply to probation revocations. Dority v. State, 329 Ark. 631, 951 S.W.2d 559 (1997).
Mr. White also argues that he was not sentenced properly in accordance with Ark. Code Ann. § 16-93-303 (Supp. 1995), which requires that the court enter a judgment and commitment order. As noted in White I, the Trial Court entered such an order on January 25, 1996, on the charges for which Mr. White had been placed on probation.
Affirmed.
Corbin, J., not participating. | [
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David Newbern, Justice.
Stephanie Kay Wofford pleaded nolo contendere to first-degree murder in connection with the death of her five-year-old son Mark. She was convicted pursuant to her plea and sentenced to life imprisonment. In accordance with Ark. R. Crim. P. 24.3(b), Ms. Wofford’s plea was conditional; thus she reserved the right to appeal from the Trial Court’s denial of her motion to suppress evidence. The evidence in question included statements that were either given while she was not in custody or were preceded by an adequate Miranda warning. We hold there was no requirement that the statements be suppressed.
Also in question, however, are items of evidence seized by police officers who entered Ms. Wofford’s home without a warrant sometime after other officers had entered without a warrant but pursuant to circumstances the Trial Court deemed exigent. The question to be answered is whether the officers entering later could properly seize items that could have been seized by the first entering officers because they were inadvertently seen by them in “plain view” while they were there for emergency purposes. As there was no testimony on the point at the suppression hearing, we cannot determine whether the items seized were in plain view of the officers who first entered. We, therefore, must remand the case for the limited purpose of determining the answer to that question. If it is properly determined by the Trial Court that the items seized were seen in plain view by the officers who initially entered Ms. Wofford’s home, the conviction will be affirmed.
Before considering Ms. Wofford’s suppression arguments, we note that she has raised two points of appeal not permitted by Rule 24.3(b) and the conditional plea arrangement. Those arguments concern the Trial Court’s upward departure from the sentencing guideline contained in Ark. Code Ann. §§ 16-90-803 and 16-90-804 (Supp. 1995) and an alleged violation of Ark. Sup. Ct. Admin. Order #6 having to do with cameras in the courtroom. As a general rule, one is not allowed to appeal from a conviction resulting from a plea of guilty or nolo contendere. Ark. R. App. P.—Crim. 1(a). See Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997). Rule 24.3(b) presents an exception to the rule but only for the purpose of determining on appeal whether an appellant should be allowed to withdraw her plea if it is concluded that evidence should have been, but was not, suppressed. We, therefore, decline to consider the two points that do not concern suppression of evidence.
1. The search
From the home where she and her son lived, Ms. Wofford telephoned her parents’ home, which was apparently nearby in Ft. Smith. Ms. Wofford’s sister, Amanda Hutchins, learned of the call and believed “something was wrong.” Ms. Hutchins went to Ms. Wofford’s home where she found Ms. Wofford sitting on a couch with blood on her wrists and clothing. Ms. Wofford’s father and brother, along with family friend Henry McMurtery, then arrived. Ms. Hutchins called 911 and reported that Ms. Wofford had tried to kill herself, that there was blood “all over,” and that Ms. Wofford had said her son would not wake up.
Ft. Smith police officers William Ohm and David C. Boyd, Jr., were on patrol on Ms. Wofford’s block. They heard a dispatch and arrived at Ms. Wofford’s house almost immediately. They understood that a child was “down and bleeding,” and they thought it might have been as the result of a traffic accident. Ms. Wofford’s father, sister, and brother were in the yard along with Mr. McMurtery who waived to the police officers to follow him into the house, saying, “They’re in here.” Mr. McMurtery had not only seen Ms. Wofford as previously described but had been to the rear of the house and had found Mark on a bed in Ms. Wofford’s bedroom with his wrists cut and his eyes open and dilated.
The officers entered the house without a warrant shortly after 3 p.m. and spent ten or fifteen seconds checking Ms. Wofford’s vital signs. Officer Boyd, Jr., remained with Ms. Wofford while Officer Ohm followed Mr. McMurtery to the bedroom to examine Mark. By 3:29 p.m., Officer Ohm had determined that Mark was deceased. He returned to the living room and told Officer Boyd, Jr., to secure the area. In the meantime, Officer Boyd, Jr., had attempted to learn what had happened from Ms. Wofford. She appeared to be dazed and said only, “I can’t die. I cannot die,” and she asked, “Why won’t he wake up?” When asked about her cut wrists she replied that she had cut them with a knife that was in “the back room.”
At around 3:40 p.m., Officer Ohm called for a supervising officer, an additional police unit, and an emergency medical services (“EMS”) unit for Ms. Wofford. The EMS unit arrived around 3:50 p.m. As Officers Ohm and Boyd, Jr., were securing the perimeter of the home, they noticed a door leading from the outside into Ms. Wofford’s bedroom. The door appeared to have been kicked in or struck with a sharp object. There were drops of blood and shattered glass. After securing the area, Officer Boyd, Jr., began keeping a detailed log of entries and exits.
At 4:00 p.m. Ms. Wofford left for a hospital emergency room in an ambulance. Officer Chris Boyd, Sr., had arrived at the scene at 4:05 p.m. At 4:41 p.m. Officer Boyd, Sr., left for the hospital where he was later to question Ms. Wofford. On her way to the hospital Ms. Wofford told an emergency medical technician, “He wouldn’t breathe, so, I cut his wrists to match mine.”
At 4:05 and 4:15 p.m., respectively, Officer Risley and Sergeant Lonetree arrived. Officer Risley entered the home at 4:05 p.m. with other officers but withdrew because of a strong odor of gas or petroleum. Sergeant Lonetree had brought a video camera and equipment to be used to gather evidence. He was, however, initially unable to enter the house on account of safety concerns relating to the gas or oil fumes. After the crime scene had been secured, firemen arrived at 4:32 p.m. and left at 5:20 p.m. Personnel from the gas company arrived at 5:07 p.m., turned off the gas, and left at 5:35 p.m. The coroner left with Mark Wofford’s body at 5:38 p.m.
After receiving assurance that it was safe to enter the premises, Sergeant Lonetree and Officer Risley did so without a warrant. As they walked through the rooms of the house, they took photographs and made a videotape. At 6:10 p.m., they seized the first piece of evidence. By 8:55 p.m., they had seized 29 additional items. Sergeant Lonetree testified that the items seized were in plain view.
In denying Ms. Wofford’s motion to suppress the evidence seized from her home, the Trial Court found that the officers’ initial, warrantless entry was justified by “exigent circumstances.” The Trial Court also found the officers had obtained “some form of consent” to enter the home. The Trial Court further indicated that the seizure of evidence was permissible as it was in plain view. Ms. Wofford contends that none of the established exceptions to the Fourth Amendment’s warrant requirement justified the entry into, and search of, her home.
a. Officers Ohm and Boyd, Jr.
Ms. Wofford correctly states in her brief that, as Officers Ohm and Boyd, Jr., entered her residence without a warrant, their entry must be viewed as illegal unless the State established the availability of an exception to the warrant requirement. Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997); Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989). Ms. Wofford maintains the State failed to satisfy its burden and that the Trial court erred by finding that the officers had consent to enter her home and that their entry was justified by exigent circumstances. In her view, therefore, the evidence obtained by the police as a result of the officers’ initial entry into her home should be suppressed as the fruits of an entry made in violation of the Fourth Amendment. See Wong Sun v. United States, 371 U.S. 471 (1963).
When we review a ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances, viewing the evidence in the light most favorable to the State. We reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).
Applying this standard, we affirm the Trial Court’s ruling that the officers’ initial entry was justified by exigent circumstances. Given the testimony adduced at the suppression hearing, that ruling was correct under Ark. R. Crim. P. 14.3, which establishes the “emergency exception” to the warrant requirement and provides in part as follows:
An officer who has reasonable cause to believe that premises or a vehicle contain:
(a) individuals in imminent danger of death or serious bodily harm . . .
may, without a search warrant, enter and search such premises and vehicles, and the persons therein, to the extent reasonably necessary for the prevention of such death, bodily harm, or destruction.
The United States Supreme Court has repeatedly recognized the emergency exception in its Fourth Amendment jurisprudence. See, e.g., Thompson v. Louisiana, 469 U.S. 17 (1984); Mincey v. Arizona, 437 U.S. 385 (1978). In the Mincey case, the Court said that it does
not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. Michigan v. Tyler, [436 U.S. 499, 509-10 (1978)]. “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Wayne v. United States, 115 U.S. App. D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra, at 509-510; Coolidge v. New Hampshire, [403 U.S. 443, 465-66 (1971)].
But a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation,” Terry v. Ohio, [392 U.S. 1, 25-26 (1968)] ....
Mincey v. Arizona, 437 U.S. at 392-93 (footnotes omitted). See generally 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.6(a), at pp. 390-403 (3d ed. 1996).
It is true that Officer Ohm entered Ms. Wofford’s bedroom in search of Mark Wofford despite Mr. McMurtery’s statement that he believed the child was already dead. This aspect of the search was nonetheless consistent with Rule 14.3(a) because Mr. McMurtery’s assessment of the child’s condition could well have been incorrect. “Frequently, the report of a death proves inaccurate and a spark of life remains, sufficient to respond to emergency police aid.” Patrick v. State, 227 A.2d 486, 489 (Del. 1967). In short, the officer’s entry into the bedroom was clearly related to the objectives of the authorized intrusion into the residence. See generally LaFave, supra, at p. 393-94 and n.19-23.
As the Supreme Court of Wisconsin has noted, the Fourth Amendment’s “reasonableness” requirement is satisfied in the case of an emergency entry into a home “by the compelling need to render immediate assistance to the victim of a crime, or insure the safety of the occupants of a house when the police reasonably believe them to be in distress and in need of protection.” State v. Kraimer, 298 N.W.2d 568, 572 (Wis. 1980). “[T]he purpose of assisting the victim if still alive supplie[s] a compelling reason for immediate entry, quite apart from the purpose of prosecuting for crime.” State v. Hoyt, 128 N.W.2d 645, 651 (Wis. 1964).
Thus, under the emergency exception, a warrantless entry into a home may be upheld if the State shows that the intruding officer had “reasonable cause” to believe that someone inside the home was “in imminent danger of death or serious bodily harm.” Ark. R. Crim. P. 14.3(a). Any search that follows the emergency entry may be upheld under this rule only if the search was “reasonably necessary for the prevention of such death, bodily harm, or destruction,” id., and is “strictly circumscribed by the exigencies” that necessitated the emergency entry in the first place. Mincey v. Arizona, 437 U.S. at 393, quoting Terry v. Ohio, 392 U.S. at 25-26. See People v. Mitchell, 357 N.E.2d 607, 610 (N.Y. 1976)(“There must be a direct relationship between the area to be searched and the emergency.”). However, as the Supreme Court noted in the Mincey case, the police may seize evidence that they observe in plain view while conducting “legitimate emergency activities.” Mincey v. Arizona, 437 U.S. at 393. We applied the exception in Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980).
The record does not indicate that the entry of Officers Ohm and Boyd, Jr., exceeded the scope of the emergency that justified it. Moreover, it is clear that they did not seize any evi dence in the home, although they could have done so had they observed the evidence in plain view “during the course of their legitimate emergency activities.” Mincey v. Arizona, 437 U.S. at 392-93.
We note Ms. Wofford’s suggestion that Rule 14.3(a) cannot apply to the case at bar because Officer Ohm and Boyd, Jr., at the time of entering her home, lacked probable cause to believe that a crime had been, or was being, committed. In support of her suggestion, she cites Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988). In the Mitchell case, we held the officer’s warrantless entry into the appellant’s home was illegal because the officer lacked probable cause to believe a crime had been, or was being, committed and because there were no exigent circumstances. Thus, the entry was not covered by the exception to the warrant requirement discussed in Payton v. New York, 445 U.S. 573 (1980). We also said that the officer’s entry was not justified by the need to render emergency aid. We did not suggest, however, that the exigent-circumstances exception contained in Rule 14.3(a) requires an officer to have probable cause to believe a crime has been, or is being, committed on the premises. Probable cause is, of course, the basis upon which a warrant to search may be granted. See Ark. R. Crim. P. 13.1(d); Century Theaters, Inc., v. State, 274 Ark. 484, 625 S.W.2d 511 (1981).
Finally, in light of our agreement with the conclusion that Officers Ohm and Boyd, Jr., were justified by exigent circumstances in entering Ms. Wofford’s home, we do not resolve the question of whether the officers had consent to enter the residence. The officers conceded at the hearing that they lacked consent to enter the residence.
b. Sergeant Lonetree and Officer Risley
Our holding that Officers Ohm and Boyd, Jr., legally entered Ms. Wofford’s home does not, by itself, answer the question whether the subsequent warrantless intrusion made by Sergeant Lonetree and Officer Risley comports with the Fourth Amendment’s requirement that searches and seizures be reasonable. As with any warrantless search and seizure, the one with which we are concerned here must be viewed as illegal unless the State has established the availability of a warrant-requirement exception. Williams v. State, supra; Willett v. State, supra.
As mentioned, the Trial Court ruled that the evidence seized by Sergeant Lonetree and Officer Risley was admissible because it was in plain view when the officers observed it. Ms. Wofford maintains that the Trial Court erred in relying on the plain-view exception to the warrant requirement because (1) Sergeant Lone-tree and Officer Risley were not lawfully present in the house when they observed the evidence; and (2) their discovery of the evidence was not inadvertent. Viewing the evidence favorably to the State, we cannot say that the Trial Court’s ruling on the admissibility of the evidence seized by Sergeant Lonetree and Officer Risley is clearly against the preponderance of the evidence, Norman v. State, supra, assuming the items seized had been observed in plain view by Officers Ohm and Boyd, Jr.
Ms. Wofford first contends that the plain-view exception does not apply here because Sergeant Lonetree and Officer Risley were not lawfully present in her home when they observed in plain view the thirty items of evidence that they ultimately seized. According to the decisions of this Court and the Supreme Court of the United States, one of the prerequisites for applying the plain-view exception is that “the initial intrusion that brings the police within plain view of such [evidence] is supported,” if not by a warrant, then “by one of the recognized exceptions to the warrant requirement.” Arizona v. Hicks, 480 U.S. 321, 326 (1987) (citations omitted). See Williams v. State, 327 Ark. at 218, 939 S.W.2d at 267 (stating an element of the plain-view exception is that “the initial intrusion was lawful”); Johnson v. State, 291 Ark. 260, 263, 724 S.W.2d 160, 162, cert. denied, 484 U.S. 830 (1987).
Thus, in order to uphold the officers’ search and seizure of evidence in Ms. Wofford’s home pursuant to the plain-view exception, we must find that the officers’ initial warrantless intrusion into the residence was lawful. Ms. Wofford contends that their initial intrusion was not lawful because it was covered by none of the exceptions to the warrant requirement. Because the evidence was obtained as the result of an illegal entry, argues Ms. Wofford, the evidence should be suppressed as the fruits of an illegal entry and search. See Wong Sun v. United States, supra.
At first glance, Ms. Wofford’s argument appears convincing. There is no question that Sergeant Lonetree and Officer Risley lacked consent to enter and conduct a search of the premises. It also is clear that exigent circumstances were no longer extant when Sergeant Lonetree and Officer Risley entered the home and commenced their search.
The emergency that validated the entry of Officers Ohm and Boyd, Jr., at 3:26 p.m. had ceased shortly thereafter when those officers ascertained the condition of Ms. Wofford and her son and secured the crime scene. By 4:00 p.m., the police had concluded that Mark Wofford was dead, the coroner had arrived, and Ms. Wofford had been taken to the emergency room. The exigent circumstances that justified the first two officers’ entry at 3:26 p.m. simply did not exist when Sergeant Lonetree and Officer Risley entered Ms. Wofford’s residence. Thus, those circumstances alone could not have validated the subsequent entry made by Sergeant Lonetree and Officer Risley. See La Fournier v. State, 280 N.W.2d 746, 749 (Wis. 1979)(stating the emergency exception “may not be relied upon where the entry is secured after the emergency is terminated”)(emphasis added).
Moreover, as the crime scene had been secured, there was no emergency concerning “the risk of removal or destruction of evidence,” Humphrey v. State, 327 Ark. 753, 766, 940 S.W.2d 860, 867 (1997), that might have justified Sergeant Lonetree’s and Officer Risley’s entry. Nor were the officers permitted to enter the home simply because they may have suspected that a murder had occurred there. The Supreme Court of the United States has consistently held that a warrantless search of a home cannot be validated under the emergency exception “simply because a homicide recently occurred there.” Mincey v. Arizona, 437 U.S. at 395. The Court in the Mincey case declined “to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search.” Id. at 394. See also Thompson v. Louisiana, 469 U.S. at 21 (stating that, in the Mincey case, the Court “unanimously rejected the contention that one of the exceptions to the Warrant Clause is a ‘murder scene exception’”). We noted the Supreme Court’s rejection of the “murder scene exception” in our opinions in Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), and Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987).
Even if the police collectively had acquired probable cause to arrest Ms. Wofford, probable cause to arrest Ms. Wofford could not have supplied a basis for entering her home without a warrant, at least in the absence of exigent circumstances and Ms. Wofford’s presence in the home. See Payton v. New York, supra. Finally, any emergency arising from the gas or oil fumes could not have justified the officers’ entry given Sergeant Lonetree’s testimony that he and Officer Risley entered the residence after having been assured that the “crisis” was over.
Thus, we cannot say that Sergeant Lonetree’s and Officer Risley’s initial intrusion into Ms. Wofford’s home was lawful because they had consent or because exigent circumstances were prevailing at the time of their initial entry. These exceptions to the warrant requirement simply do not cover their intrusion.
Nonetheless, we conclude that Sergeant Lonetree’s and Officer Risley’s entry into Ms. Wofford’s home was lawful and that their seizure of evidence may have been valid under the plain-view exception. In reaching this conclusion, we rely on the holding in La Fournier v. State, 280 N.W.2d 746, 751 (Wis. 1979), that, where the police enter a private residence in accordance with the emergency exception but are unable to preserve the evidence that they observe in plain view while rendering assistance, a second entry by other officers without a warrant is lawful, even though the emergency has passed, if the search that follows is restricted in nature and scope to securing the evidence observed in plain view by the officers who entered pursuant to the emergency exception.
Other courts have found the rationale of the Wisconsin court persuasive and have relied on it to uphold certain warrantless “second entries” made by the police following the termination of the emergency that justified an initial entry. See, e.g., Hunter v. Commonwealth, 378 S.E.2d 634 (Va.App. 1989); Smith v. State, 419 So.2d 563 (Miss. 1982), cert. denied, 460 U.S. 1047 (1983), overruled on other grounds, Willie v. State, 585 So.2d 660 (Miss. 1991). See also State v. Tidwell, 888 S.W.2d 736 (Mo.App. S.D. 1994); State v. Jolley, 321 S.E.2d 883 (N.C. 1984); State v. Norman, 302 S.2d 254 (Miss. 1974).
The facts in the case at bar are analogous to those in the La Fournier case and the other cases cited above. Officers Ohm and Boyd, Jr., made a valid emergency entry into Ms. Wofford’s home. They secured the crime scene and called for assistance, and Sergeant Lonetree and Officer Risley arrived within a reasonable amount of time to process the crime scene and complete the search begun by Officers Ohm and Boyd, Jr. If Sergeant Lonetree and Officer Risley seized only evidence that was observed by Officers Ohm and Boyd, Jr., in plain view without expanding the scope and nature of the initial entry made by Officers Ohm and Boyd, Jr., then the seizure was proper. The record does not establish that the evidence seized by Sergeant Lonetree and Officer Risley was in fact observed in plain view by Officers Ohm and Boyd, Jr. Thus we must remand for the Trial Court to make that determination. See State v. Spears, 560 So.2d 1145 (Ala. Cr. App. 1989); People v. Reynolds, 672 P.2d 529 (Colo. 1983).
Ms. Wofford next contends that the plain-view exception cannot apply here because Sergeant Lonetree’s and Officer Risley’s discovery of the evidence was not inadvertent. Ms. Wofford points us to Sergeant Lonetree’s testimony that he arrived at the crime scene and entered the house for the very purpose of collecting evidence. Thus, says Ms. Wofford, his discovery of evidence inside the house was intentional rather than inadvertent.
In a different case, Ms. Wofford’s argument might be persuasive. We have said that another of the prerequisites for applying the plain-view exception is that the discovery of the evidence must be inadvertent. See Williams v. State, supra; Johnson v. State, supra. Here, the record clearly supports Ms. Wofford’s contention that Sergeant Lonetree’s and Officer Risley’s discovery of the evidence in question was anything but inadvertent. It is clear to us, however, that the inadvertency requirement applies to the initial officers’ observations and not to those of officers who follow. Again, if the items seized were inadvertently viewed by Officers Ohm and Boyd, Jr., then it does not matter that the later officers entered the house with the purpose of seizing them.
The Supreme Court of the United States has held that “inadvertence” is not a “necessary condition” for application of the plain-view exception in any type of case brought under the Fourth Amendment. Horton v. California, 496 U.S. 128 (1990). Thus, insofar as Ms. Wofford’s “inadvertence” argument concerns the Fourth Amendment, the Horton case supplies a sufficient basis for rejecting the argument. However, Ms. Wofford’s motion to suppress alleged that the seizure of evidence from her home also violated the Arkansas Constitution. We need not decide here whether we will follow the Horton case and dispense with the inadvertence requirement for all cases brought under the Arkansas Constitution. Thus, insofar as Ms. Wofford’s inadvertence argument concerns only the Arkansas Constitution, we reject it because we believe it is unnecessary for an officer who enters a residence for the purpose of continuing another officer’s search and collecting evidence that the other officer observed in plain view to discover the evidence inadvertently.
2. Ms. Wofford’s statements
Ms. Wofford contends her statements should have been suppressed because (1) they were the fruits of the police’s illegal entry into her home; (2) they were not preceded by adequate Miranda warnings; and (3) Ms. Wofford neither voluntarily, nor knowingly and intelligently, waived her constitutional rights before making the statements. Because we cannot say the Trial Court’s ruling on the admissibility of Ms. Wofford’s statements is clearly against the preponderance of the evidence, we affirm the ruling. Norman v. State, supra.
a. Fruit of the poisonous tree
We already have established that the warrantless entry of Officers Ohm and Boyd, Jr., into Ms. Wofford’s home was justified under the emergency exception contained in Ark. R. Crim. P. 14.3(a). Thus, to the extent that Ms. Wofford’s incriminating statements were the result of this entry, they are not inadmissible because the officers’ entry into her home was not unconstitutional. We need not address this point further.
b. Miranda warnings
When Ms. Wofford was taken by ambulance to the hospital emergency room, she was not under arrest. She was neither handcuffed nor told that she was a suspect in the death of her son. She rode in the ambulance unaccompanied by any police officer.
Officer Chitwood followed the ambulance in his patrol unit and arrived at the emergency room behind Ms. Wofford. He had not been instructed to arrest Ms. Wofford. The officer learned from an emergency medical technician that Ms. Wofford had said in the ambulance that she had cut her son’s wrists.
Attendants at the hospital removed Ms. Wofford’s clothes, glasses, and personal effects and changed her into a hospital gown. Although Officer Chitwood did not request them, he received Ms. Wofford’s possessions and placed them in a paper bag next to where he was standing in the treatment room. He later placed the items into the police’s evidence locker.
Officer Boyd, Sr., arrived at the hospital at some point thereafter. He had been asked to go to the hospital and talk with Ms. Wofford. Before he entered Ms. Wofford’s treatment room, Officer Chitwood told him about the statement that Ms. Wofford had made in the ambulance. Nevertheless, Officer Boyd, Sr., testified that, at the time he began to question Ms. Wofford, he did not consider her a suspect in her son’s death. He testified that, in light of the condition of the outside door leading to Ms. Wofford’s bedroom and the area around the door, he had not ruled out the possibility that there had been an intruder. The officer wanted to question Ms. Wofford about who the perpetrator might have been.
Officer Boyd, Sr., confirmed with the attending doctor that Ms. Wofford’s condition would permit a discussion with her. He then entered the treatment room. He was out of uniform, but he was wearing his weapon. Also present in the room were Officers Chitwood, Colter, and Pitts, all of whom were uniformed and wearing their weapons. As Officer Boyd, Sr., entered the room, he heard the nurse ask Ms. Wofford if she was all right and Ms. Wofford respond that she was. The nurse also asked Ms. Wofford if she knew where she was, and Ms. Wofford answered that she was in a hospital. Officer Pitts left the treatment room shortly after Officer Boyd, Sr., arrived there.
Officer Boyd, Sr., began to question Ms. Wofford. He initially asked Ms. Wofford if she was all right and told her that he needed to talk to her about what had happened at her house. Ms. Wofford indicated that would be “okay.” The officer testified that Ms. Wofford did not appear reluctant to speak with him. She answered the questions and provided him with general information about her name, address, date of birth, and the name and age of her son. She told the officer that her son attended kindergarten. Ms. Wofford also told Officer Boyd, Sr., where she worked, how long she had worked there, and that she had worked the day before but was missing a shift on the day in question. Officer Boyd, Sr., then asked Ms. Wofford what had happened to her son. She answered, “I did it. I killed him, that’s why I’m going to prison.” Prior to making this statement, Ms. Wofford had not received Miranda warnings.
Ms. Wofford’s surgeon then entered the treatment room and readied her for surgery. When the surgeon left, Officer Boyd, Sr., resumed his interrogation. He told Ms. Wofford that he needed to discuss what had happened at her house and that he would need to advise her of her rights. He asked Ms. Wofford if she understood that, and she answered that she did. The officer asked Ms. Wofford about her education and verified that she could read and write and that she had a high school diploma. She said she understood what he was saying to her. The officer testified that he then gave Ms. Wofford the following Miranda warnings:
I advised her that she had the right to remain silent. That anything she said can and will be used against her in court. I advised her that she had a right to an attorney present before, during or after questioning, and that if she could not afford one, then the Court would appoint one at no cost to her before any questioning if she wished.
Thereafter, Officer Boyd, Sr., asked Ms. Wofford if she understood the warnings, and she answered affirmatively.
After advising Ms. Wofford of her rights, Officer Boyd, Sr., again asked her what had happened. Ms. Wofford answered that she killed her son and attempted to set fire to the house so that Mark’s father would not get it. She told the officer that she and Mark did not like the fact that Mark’s father had obtained visitation rights. She confessed that she killed her son so that he would not have to see his father. Ms. Wofford explained that she had smothered her son to death by placing her hand over his mouth and nose during the previous night. The surgeons then came to take Ms. Wofford to surgery, and Officer Boyd, Sr., terminated the interrogation without arresting Ms. Wofford.
Ms. Wofford now contends that the Trial Court should have suppressed her initial incriminating statement because it was not preceded by Miranda warnings. Miranda warnings are required only in the context of custodial interrogation. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996); State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). The question here is whether Ms. Wofford was “in custody” at the time she made her initial incriminating statement in response to the officer’s interrogation. We hold that she was not in custody.
A person is “in custody” for purposes of the Miranda case when he or she is
deprived of his freedom of action by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. In resolving the question of whether a suspect was in custody at a particular time, the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation.
Solomon v. State, 323 Ark. at 186, 913 S.W.2d at 292 (citation omitted). “The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being interrogated.” State v. Spencer, 319 Ark. at 457, 892 S.W.2d at 486.
A reasonable person in Ms. Wofford’s situation could not have believed that she was restrained by the police prior to the time she made her initial incriminating statement. Ms. Wofford had been taken to the hospital on account of her injuries and was not escorted there by the police. When the police entered her room, they neither arrested her nor indicated in any manner that she was a suspect. Officer Boyd, Sr., specifically testified that he did not view Ms. Wofford as a suspect during this segment of the interrogation and that he suspected that an intruder might have been responsible. Ms. Wofford suggests that the officer did in fact suspect her from the outset of his questioning. We point out that “an officer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody.” Stansbury v. California, 511 U.S. 318, 319 (1994). See State v. Spencer, supra. Even if Officer Boyd, Sr., did harbor suspicions about Ms. Wofford, nothing in the record suggests such a viewpoint was communicated in any way to Ms. Wofford.
Although three of the officers in the room were in uniform, and although all of the officers wore their weapons, none of them restrained Ms. Wofford or threatened her with the weapons, and only one of them, Officer Boyd, Sr., confronted Ms. Wofford with any questions. The tone of the questions, moreover, does not appear to have been hostile or antagonistic, and the duration of the questioning was brief. In addition, hospital personnel had, and appear to have exercised, access to the treatment room throughout a portion of the interrogation.
Finally, we point out that, while Ms. Wofford’s freedom of movement may have been restrained somewhat during the interrogation, that confinement resulted only from the hospitalization that was necessary in light of her injuries rather than from any conduct on the part of the police. As other courts have recognized, “confinement to a hospital bed is insufficient alone to constitute custody.” People v. Milhollin, 751 P.2d 43, 50 (Colo. 1993)(emphasis added)(citations omitted). We agree with the Supreme Court of Delaware that “there is no per se ‘hospital rule’ in a custody inquiry because each case must be decided on its own facts.” Dejesus v. State, 655 A.2d 1180, 1191 (Del. 1995). In the absence of other indicia of custody, we cannot say that Ms. Wofford’s health-related confinement alone produced a custodial situation because her confinement was not the result of police compulsion. Given the totality of the circumstances, we cannot say that the Trial Court erred in concluding that Ms. Wofford was not in custody at the time she made her first incriminating statement.
Ms. Wofford also contends that the Trial Court should have suppressed her second incriminating statement that she made after receiving Miranda warnings from Officer Boyd, Sr. She maintains that the warnings were deficient because they failed to apprise her that she had the right to terminate the interrogation at any time.
Even if we could assume, and we need not do so, that Ms. Wofford was in custody after she confessed she had killed her son, we cannot say that the warning given to her was deficient. The Miranda case establishes that a defendant has a right to cut off questioning, but it does not require the police to give a warning advising a defendant of this particular right. Although certain passages in the opinions of this Court and the Supreme Court of the United States have suggested that such a warning is required or at least desirable, see Colorado v. Spring, 479 U.S. 564, 574 (1987); Oregon v. Elstad, 470 U.S. 298, 315 n.4 (1985); Mauppin v. State, 309 Ark. 235, 247, 831 S.W.2d 104, 110 (1992), quoting Colorado v. Spring, supra; Bushong v. State, 267 Ark. 113, 122, 589 S.W.2d 559, 564 (1979), neither Ms. Wofford nor our own research has produced a case actually holding that such a warning is required by the Miranda decision. In fact, many courts have considered this question and have held that the police are not required to give the warning proposed by Ms. Wofford. See, e.g., State v. Fecteau, 568 A.2d 1187 (N.H. 1990); Commonwealth v. Lewis, 371 N.E.2d 775 (Mass. 1978); United States v. Davis, 459 F.2d 167 (6th Cir. 1972). But see United States v. DiGiacomo, 579 F.2d 1211, 1214 (10th Cir. 1978) (stating that the warning is not required under Miranda but that the failure to give it could be a factor in determining whether custodial statements are voluntary).
Although we agree with the Supreme Judicial Court of Massachusetts that it is “the better practice” for the police to advise an arrested person that he or she may cut off questioning at any moment, Commonwealth v. Lewis, 371 N.E.2d at 777, we are not prepared to say that Officer Boyd, Sr.’s failure to give it to Ms. Wofford violated the Supreme Court’s holding in the Miranda case.
c. Waiver
Finally, Ms. Wofford contends that the Trial Court should have suppressed her statements because they did not follow a voluntary waiver of her rights or a knowing and intelligent waiver of her rights. The Trial Court ruled that the waiver was voluntary but did not rule on the issue of whether the waiver was also knowing and intelligent. We have recognized that the question of voluntariness and the question of a knowing and intelligent waiver are distinct and separate inquiries. See Mauppin v. State, supra. Thus, the Trial Court’s ruling with respect to the voluntariness issue could not have encompassed Ms. Wofford’s argument that she did not knowingly and intelligently waive her constitutional rights. Because she faded to obtain a ruling on that discrete issue, it is not preserved for appeal, and we do not address it. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555, cert. denied, 116 S. Ct. 1861 (1996).
A statement must be voluntary “in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Mauppin v. State, 309 Ark. at 246-47, 831 S.W.2d at 109 (1992), quoting Moran v. Burbine, 475 U.S. 412, 421 (1986).
When voluntariness of a statement is an issue, we make an independent determination based on the totality of the circumstances surrounding the statement. We will reverse the ruling of the trial court only if that ruling was clearly against the preponderance of the evidence. A custodial statement is presumed involuntary, and the burden is on the state to show that the statement was voluntarily given.....In making a determination of whether a statement was voluntarily made, this court will consider many factors, among which are the age, education and intelligence of the accused; the length of questioning; the advice or lack of advice on constitutional rights; the repeated or prolonged nature of questioning; and the use of mental or physical punishment.
McCoy v. State, 325 Ark. 155, 160, 925 S.W.2d 391, 393-94 (1996) (citations omitted). See also Stephens v. State, 328 Ark. 81, 85, 941 S.W.2d 411, 413-14 (1997).
The testimony at the suppression hearing supports the Trial Court’s ruling finding Ms. Wofford’s statement to be voluntary. There was no testimony of police-sponsored coercion or duress or any other type of misconduct. Although Ms. Wofford may have been in a weakened physical or mental condition at the time of making her statements, that fact would not render the statements involuntary absent a finding of police misconduct. See Stephens v. State, supra. Although Ms. Wofford may have been dazed earlier in the day, and although the medical evidence indicates she suffered from depression, the testimony of Officers Chitwood and Boyd, Sr., shows that Ms. Wofford was alert in the treatment room and able to converse coherently with those around her. The questioning was preceded by adequate Miranda warnings where necessary, and it was not unduly long. Ms. Wofford obtained a high-school education and was holding down a job. In these circumstances, we cannot say that the Trial Court’s ruling that the statements were voluntarily made is clearly against the preponderance of the evidence.
3. Rule 4-3(h)
In closing, we note that, in the typical case involving a life sentence, we would ordinarily examine the record pursuant to Ark. Sup. Ct. R. 4-3(h) to determine whether there were other rulings not briefed by the parties that constituted prejudicial error. We have not done so in this case, as it arises from a conditional plea of nolo contendere. As mentioned above, we have reviewed only the adverse determination of Ms. Wofford’s pretrial motion to suppress evidence. Ark. R. Crim. P. 24.3(b). In appeals from pleas of guilty or nolo contendere, we are not required to undertake the additional review prescribed by Rule 4-3 (h). Smith v. State, 321 Ark. 580, 906 S.W.2d 302 (1995).
We remand the case to the Trial Court to conduct an additional hearing to determine whether Officers Ohm and Boyd, Jr., observed in plain view the items later seized by Sergeant Lone-tree and Officer Risley. The transcript of the hearing shall be forwarded to this Court along with the Trial Court’s written findings.
Remanded. | [
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Annabelle Clinton Imbek, Justice.
This is a juvenile-transfer case. We affirm the trial court’s denial of the appellant’s motion to transfer to juvenile court.
On February 6, 1997, Lynn Toliver was charged in Pulaski County Circuit Court with aggravated robbery, kidnapping, and theft of property. Toliver was sixteen years of age at the time of the alleged offenses, and moved to transfer the charges to juvenile court. At the transfer hearing, Toliver testified that his mother had contacted his high school, which would allow him back in if his case was transferred to juvenile court. Toliver added that if his case was transferred, he was willing to work with the people in juvenile court to rehabilitate himself and turn his life around. When asked why he wanted his case transferred, Toliver answered, “Because I don’t think I could handle it. . . I don’t think I can handle the adults going down there to the big place.” On cross-examination, Toliver explained that he had been “involved in juvenile court” in 1992 and 1993 on a theft of property charge, which resulted in his placement on probation.
The State’s only witness was Jim Potter, a homicide detective with the Pulaski County Sheriffs office who investigated an aggravated robbery perpetrated against a cab driver named Elton White on November 27, 1996. Potter stated that on that date, White was called to pick up a fare when three males entered his cab with firearms, told him to drive to a dead-end street, and robbed him of his money at gunpoint. At the time White had a friend in the front-passenger seat, Amanda Beasley. According to Potter, Beasley said that one of the persons in the back seat held a gun on White, while another held a gun on her. When they arrived at the dead-end street, around $40 and other items were removed from the cab, including its radio. White and Beasley were then forced out of the cab and to the ground at gunpoint, and Beasley was kicked several times.
Potter developed Toliver, Djuane Thompson, and Ytun Butler as suspects, and determined that Toliver and Butler had held guns on the victims. Toliver eventually gave a statement to Potter where he admitted to his presence in the cab with a handgun, but denied that he produced the gun. Instead, Toliver stated that he rolled his jacket sleeve over his hand and made gestures toward Beasley as if he had a handgun. Toliver added that the victims were taken to a dead-end street, money was taken, and he witnessed another person kick Beasley.
Following the presentation of this evidence, without objection, and argument from counsel, the trial court denied the motion to transfer. Toliver brings this interlocutory appeal from the denial of his transfer motion. For his only point on appeal, Toliver argues that no clear and convincing evidence existed warranting that he be tried as an adult in circuit court. Toliver primarily relies on cases such as Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996), Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992), and Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991), which generally hold that seriousness alone is not a sufficient basis for the denial of a transfer motion. Toliver in turn reasons that the State failed to come forward with “countervailing evidence” to reflect negatively on the second and third statutory factors found in Ark. Code Ann. § 9-27-318(e) (Supp. 1995) concerning his history and prospects for rehabilitation. Toliver’s reliance on these cases is misplaced, and his argument reflects a misunderstanding of this court’s interpretation of the juvenile code and our applicable standard of review.
We have repeatedly stated that the trial court does not have to give equal weight to the statutory factors found in Ark. Code Ann. § 9-27-318(e) in ruling on a transfer motion. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997); Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996). Moreover, the State is not required to present proof as to each statutory factor. McClure, supra; Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996). On appellate review, we will not overturn the trial court’s determination unless it was clearly erroneous. Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Carroll v. State, 326 Ark. 602, 932 S.W.2d 339 (1996).
In the present case, Toliver’s argument fails because it ignores the serious nature of the crimes charged, and the evidence of the use of violence in the commission of these serious offenses. Given the presence of these two factors, this court has often declined to find that a trial court was clearly erroneous in denying transfer. See, e.g., Kindle v. State, 326 Ark. 282, 931 S.W.2d 117 (1996) (affirming denial of transfer where the victim testified that the appellant held a loaded pistol to his head and attempted to pull the trigger); Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996) (“It is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion.”); Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996) (affirming denial of transfer of aggravated assault and possession of handgun on school property charges where appellant threatened the victim with a gun). In the present case, Detective Potter presented evidence that at least two of the perpetrators produced firearms. While at gunpoint, the victims were forced to drive to a dead-end street, money was taken from White, and both victims were forced to the ground where Beasley was kicked. Potter determined that Toliver and Butler were the “gun-holding suspects.” According to Potter, Toliver admitted to his presence in the vehicle, with a handgun, while the offenses occurred. Given the serious nature of the crimes charged, and the evidence supporting the employment of violence during the commission of these offenses, the trial court was not clearly erroneous in denying the transfer motion.
Affirmed.
Count two of the information filed against Toliver shows that he was charged with misdemeanor theft of property under Arkansas Code Annotated § 5-36-103 (Supp. 1995). Neither party addresses the jurisdictional issue implicated when a sixteen-year-old juvenile is charged with a misdemeanor in circuit court. See Ark. Code Ann. § 9-27-318(b)(l) (Supp. 1995). However, an April 25, 1997, docket-sheet entry shows that “Misdemeanor Count 2” was dismissed. Thus, we treat this case as an appeal from the denial of transfer on the aggravated robbery and kidnapping charges.
Toliver appears to take the position that the trial court’s failure to make a specific finding that the offenses were “serious and violence was employed” precludes reliance on the first statutory factor, Arkansas Code Annotated § 9-27-318(e)(l). However, specific findings of fact from the trial court in juvenile-transfer cases, while helpful for our review, are not required. Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996); Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996).
While Toliver makes reference to this court’s caveat in Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996), against mere reliance on the criminal information in juvenile-transfer cases, the present case is notably different because the State presented evidence supporting the charges. | [
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Ray Thornton, Justice.
Clarence Manning, appellant, was convicted by bench trial of possession of a controlled substance with intent to deliver, possession of drug paraphernalia with intent to use, and simultaneous possession of drugs and a firearm. He appeals only the simultaneous possession conviction, arguing that, under the statutory defense, the guns found at his home were not “readily accessible for use.” After careful consideration of the meaning of this phrase, we disagree, and affirm.
Manning was arrested and charged with the offenses after four police officers executed a search warrant at 216 East Word, in Jonesboro. When they entered the home, two men were seated in the living room, and four men, including Manning, were in the kitchen. The police searched the house and found two guns wrapped in a black ski mask on the top shelf of the closet in the only bedroom. One gun was a Lorcin 9-millimeter pistol, which was loaded, and the other was an unloaded Smith & Wesson .38-caliber revolver. While in the bedroom, the police also found seventeen grams of rock cocaine in the pocket of a jacket hung in the closet, and about three grams of cocaine powder in the pocket of a pair of jeans in a dresser drawer. The police found drug paraphernalia in the kitchen. All parties concede that the house is very small. After determining that Manning lived in the house by himself, the trial court convicted him.
Under the Arkansas Criminal Gang, Organization, or Enterprise Act, “[n]o person shall unlawfully commit a felony violation of § 5-64-401 [Uniform Controlled Substances Act] . . . while in possession of . . . [a] firearm.” Ark. Code Ann. § 5-74-106(a) (Repl. 1993). A person found guilty of this offense may be sentenced to prison for a term of ten to forty years, or life. Id. §§ 5-4-401(a)(l), 5-74-106(b). At trial, Manning raised the statutory defense that the “defendant was in his home and the firearm was not readily accessible for use.” Id. § 5-74-106(d). The code does not define the phrase, “readily accessible for use.”
The State argued that the accessibility of the guns should not turn on their proximity to the appellant at the moment of the officers’ entry into the residence. The trial court agreed, stating that it should not make a difference in a defendant’s guilt or innocence that he was in the room with the firearm or in another room. The court stated that the term “readily accessible for use” means more than “in close proximity to defendant.” Instead, the court maintained that close proximity is just one factor among the several to be considered. The court noted that “it is inconceivable that the defendant would not be guilty if he was in the kitchen but guilty if he was in the bedroom.”
On appeal, Manning contends that “the location of the guns is key.” He seems to conclude that the firearm must be within the defendant’s reach when he argues that the guns were not readily accessible because they were in a different room, wrapped in a ski mask, and one was unloaded.
Because our case law has not addressed the meaning of “readily accessible for use,” we approach the issue by applying rules of statutory construction. First, we attempt to construe the statute “from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning.” City of North Little Rock v. Montgomery, 261 Ark. 16, 18, 546 S.W.2d 154, 155 (1977). As a rule, criminal statutes are strictly construed with any doubts resolved in favor of the accused. Puckett v. State, 328 Ark. 355, 358, 944 S.W.2d 111, 113 (1997) (citations omitted). We have stated, however, that such statutes shall not be so strictly construed as to defeat the obvious intent of the legislature. Id. Thus, when the language of the statute is capable of two interpretations, its meaning is ambiguous and we are compelled to look to the intent and purpose of the General Assembly in enacting the statute. First State Bank v. Arkansas State Banking Bd., 305 Ark. 220, 223, 806 S.W.2d 624, 626 (1991). Finally, to determine legislative intent, we look to appropriate sources that clarify the matter, including the language of the statute, the subject matter, the object to be accomplished, and the purpose to be served. Bd. of Trustees v. Stodola, 328 Ark. 194, 199, 942 S.W.2d 255, 257 (1997).
Manning’s argument suggests that the plain meaning of the phrase, “readily accessible for use,” is that the firearm must be “in close approximation to the defendant or within defendant’s easy reach.” The State construes the phrase according to dictionary definitions as “available to the defendant without much difficulty.” Both constructions have merit. Neither one can be said to force a construction that limits or extends the meaning of the phrase. In view of this ambiguity, we look to the legislative intent and purpose in enacting the statute to determine whether the construction urged by Manning would be consistent with that legislative intent.
The General Assembly declares its intent and purposes of the Act in Ark. Code Ann. section 5-74-102, which is entitled, “General legislative findings, declarations, and intent.” A fair reading of that section’s provisions suggests that the General Assembly intended to address violence in the drug trade by making laws tougher on drug dealers who use firearms. The following statements are most pertinent to the simultaneous possession provision: (1) It is the right of every person “to be secure and protected from fear, intimidation, and physical harm caused by the activities of groups engaging in random crimes of violence, and committing crimes for profit and violent crimes committed to protect or control market areas or ‘turf”; (2) these groups are becoming “increasingly sophisticated at avoiding arrest and prosecution”; and (3) “one of the primary reasons for the increased homicide rate is the use of firearms by criminal gangs, organizations, or enterprises to control the crack cocaine market within their geographical ‘turf.’” The legislative intent behind the Act is obvious in section 5-74-102(e) where the General Assembly said, “[i]t is furthermore the intent of the General Assembly to focus the state’s law enforcement agencies and prosecutors on investigating and prosecuting all ongoing organized criminal activity and to provide for penalties that will punish and deter organized ongoing criminal activity.” Ark. Code Ann. § 5-74-102(e) (Repl. 1993).
When addressing another issue, we construed the legislative intent of the Act in State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997). In that case, we said that the simultaneous possession statute “not only serves to deter organized gang and criminal activities, but also seeks the broader purpose to curtail any person’s use of a firearm when that person is involved in the illegal trafficking in or possession of controlled substances.” Id. at 182, 946 S.W.2d at 937.
The legislative intent informs us that there must be some link between the firearm and drugs, and that mere possession of a firearm is not enough. Despite this clear expression, the question remains whether the firearm must be proximate and accessible to the defendant, proximate to the drugs or drug proceeds, or some combination of the two. Here, however, we can determine that the Lorcin handgun was readily accessible for use because the facts show that this proximity and accessibility test is met for both situations.
In this case, there was evidence showing more than mere possession of a firearm in Manning’s home. Manning had a loaded handgun, wrapped in a ski mask, near an abundant supply of illegal drugs, all within his easy reach. Given the legislative intent, we conclude that the factual circumstances are such in this case that the trial judge did not err when he determined that the Lorcin handgun was readily accessible for use.
Affirmed.
The dictionary definition of “readily” is “without much difficulty.” Webster’s Ninth New Collegiate Dictionary 980 (1987). “Accessible” means “capable of being reached.” Id. at 48. | [
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Per Curiam.
Appellees Farm Bureau Mutual Insurance Company, Inc., and Southern Farm Bureau Casualty Insurance Company, Inc., have moved to dismiss the appellant’s appeal. The basis of this motion is the contention that Judge Lawrence Dawson did not have the authority to extend the time for filing the record on appeal.
Judge Dawson was assigned this case on April 4, 1994, after the recusal of the other chancellors in Chicot County. The case was tried and Judge Dawson entered a decree on December 31, 1996, finding in favor of appellees and dismissing appellants’ complaint with prejudice. Judge Dawson’s term of office expired on December 31, 1996. On January 23, 1997, Judge Dawson’s assignment was terminated and Judge Jim Gunter was assigned to preside in the case. On January 28, 1997, Judge Gunter notified the administrative office of the courts that he must recuse. On February 12, 1997, the assignment of Judge Gunter was terminated.
Appellants’ motion for new trial was not acted upon and was deemed denied by operation of law on February 10, 1997. On February 21, 1997, appellants timely filed notice of appeal and designation of record. On March 31, 1997, appellants timely moved for an extension of time to lodge the record of appeal; this motion was granted and signed by Judge Dawson on April 7, 1997. The order was filed on April 9, 1997; Judge Dawson extended the time to lodge the record on appeal to September 21, 1997. Appellant filed the record with this court on September 4, 1997.
Appellees contend that Judge Dawson had no authority to enter the order extending time to lodge the record on appeal. Based upon this lack of authority, appellees claim that such filing of the record is outside of time prescribed by Rule 5(a) of the Arkansas Rules of Appellate Procedure — Civil and is untimely.
On February 27, 1997, pursuant to Act 274 of General Assembly, Governor Mike Huckabee appointed Judge Dawson Chancellor of the Fifth Division of the Chancery Court of the Eleventh Judicial Circuit-West for a two-year term expiring on December 31, 1998. Section (d) of the Act provides that said Chancellor “may be assigned to any and all . . . chancery circuits of the State of Arkansas where the local chancellor or chancellors have recused or have been disqualified.”
Judge Dawson was the original trial judge in this case and was a duly qualified chancellor at the time he signed the order of April 7, 1997, despite the fact that the case was not officially assigned to him. Judge Dawson was a defacto judge on that date. American Jurisprudence defines a de facto judge as follows:
A defacto judge may be defined as one who occupies a judicial office under some color of right, who exercises the duties of the judicial office under color of authority pursuant to an appointment or election thereto, and for the time being performs those duties with public acquiescence, though having no right in fact, because the judge’s actual authority suffers from some procedural defect.
46 Am. Jur. 2d Judges § 242 (1994).
The rule governing validation of acts of defacto officials is based upon public policy, and its origin and history show it is founded in comparative necessity. Landthrip v. City of Beebe, 268 Ark. 45, 593 S.W.2d 458 (1980), citing Adams v. Lindell, 5 Mo. App. 197 (1878). The doctrine rest upon principles of protection of the public and third parties, and was engrafted upon the law as a matter of policy and necessity to protect the interest of the public and individuals involved in the acts of persons performing the duties of an official without actually being one in law. Landthrip v. City of Beebe, supra, citations omitted. See also, Chronister v. State, 55 Ark App. 93, 931 S.W.2d 444 (1996). In Landthrip v. City of Beebe, this court extended the doctrine of defacto officials to the courts based upon the fact that such courts are authorized by law, even when defectively done.
In the case before us, a time existed where no judge was formally assigned to this case. Judge Dawson’s jurisdiction would, have continued had his term not expired. Judge Gunter’s recusal left this case without a presiding judicial officer; therefore, as a matter of law, motions were denied by the absence of a timely ruling. We conclude that Judge Dawson was a de facto judge when he ruled upon the motion for an extension of time. Although his authority over the case at hand was defective, he was a duly authorized chancellor. In the interest of public policy, we hold that his ruling is effective, and the appellees motion to dismiss is denied.
Glaze and Corbin, JJ., not participating. | [
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Lyle Brown, Justice.
Appellant instituted this suit under the Unfair Practices Act to prohibit appellee from retailing gasoline at less than cost. Ark. Stat. Ann. § 70-301 et seq. (Repl. 1957). The chancellor granted appellee’s motion for summary judgment. The case must be affirmed under Rule 9 (d).
The documents on file at the time the summary judgment was granted consisted of the complaint, the answer, motion for summary judgment, affidavit of W. F. McGhee for appellee, affidavit of Horace Jones for appellant, request for admissions and answers thereto, and two sets of interrogatories and answers. No- abstract in the first person was made of the contents of the affidavits; appellant merely states its conclusions respecting two items mentioned in the affidavits. Abstracting the affidavits in the first person would permit us to reach our own conclusions. Neither the request for admissions nor the request for interrogatories is mentioned in the abstract. The judgment of the court is referred to only scantily. The purported abridgement of the record is not such as enables us to fairly understand the issues and to rule equitably thereon.
Appellant, in its reply brief, inserted nine pages of abstracting in an effort to cure the dilemma. That procedure has been disapproved. Young v. Farmers Bank & Trust Co., 248 Ark. 613, 453 S. W. 2d 47 (1970); Tenbrook v. Daisy Mfg. Co., 238 Ark. 532, 383 S. W. 2d 101 (1964); and Reeves, v. Miles, 236 Ark. 261, 365 S. W. 2d 460 (1963). In Reeves we said “we do not intimate that an appellant would be penalized for a mere deficiency such as may result from inadvertence or from a failure to anticipate the appellee’s arguments.” The void in the abstract at hand does not fall within the categories mentioned.
Affirmed. | [
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John A. Fogleman, Justice.
This appeal by Robert L. Marshall from his conviction of the attempted burglary of the McSpadden Drug Store in North Little Rock is grounded upon his argument that the evidence was not sufficient to present a jury question. We think that it was.
The drug store was equipped with a burglar alarm system connected by direct line on the telephone system with speakers in the respective bedrooms of the McSpadden brothers, who owned the drug store. David McSpadden testified that he was awakened by sounds from the speaker at about 1:30 a.m,, January 8. His brother called the police. The two then proceeded to the store, arriving about 10 minutes after the sounds were first heard. When they arrived they found three police cars and three or four policemen at the scene. The police had taken into custody two persons, whom the McSpaddens could not identify, and were bringing them, handcuffed, around the building where the drug store was located toward one of the police cars, in which they were then placed and taken to the police station. Inspection revealed that the roof of the drug store had been cut from the outside and some of the decking broken.
The weather was quite cold, and some snow had fallen earlier. As David McSpadden recalled there was quite a bit of snow on the ground around the buildings but not on the streets, and the sidewalks were not covered with snow. There was a marquee on the front of the building over the sidewalk. A barber shop and a washateria were near the drug store building.
Traffic Patrolman Larry Dubose was patrolling about two blocks from the drug store when the incident was reported to him at about 1:30 a.m. He testified that he arrived at the drug store a minute or so later and proceeded to check the doors of the building and walked around to the back of it. By this time, three other police officers had arrived. He said he noticed more than one set of footprints in the snow leading up on the back of the store via a roof or a shed. According to him there was about one-half inch of snow in this area, and the footprints were clearly visible and freshly made. Dubose followed the footsteps up on top of the store building. He testified that he found three crowbars, a hammer, a small chisel, a screwdriver, an open knife, two saws and some rope. He observed footprints on the roof leading over to the side of the building. He turned the tools he found over to Officer McFarlin when he came down. At that time McFarlin and Officer Lange had appellant Marshall and a man named Tommy Lawson in their custody.
Officer Lange was only two or three minutes’ travel away when he received the call from the police department. He testified that, upon arrival, he saw Marshall and Lawson about 50 feet from the building walking westwardly away from it. Patrolman McFarlin received the call at about 1:58 a.m., and arrived shortly thereafter. He testified that he started checking the drug store doors, but that Dubose came to the front of the building and reported that this had already been done. According to McFarland, Dubose then went to the rear of the building and hollered that he had found footprints. McFarlin testified that he then proceeded around the building and observed Marshall and Lawson walking away in a westerly direction. They stopped when this officer commanded them to do so. He and Lange then took them into custody. They searched both suspects. Both officers testified that they found no knife or any weapon on either. McFarlin testified that they backtracked the footprints from the place these suspects were standing when arrested to the building and found that they terminated a few feet from the edge of the building. Lange testified that he saw Dubose with a knife. McFarlin said that Dubose handed him the knife and that he took it to police headquarters, where Marshall claimed it when he placed it between two piles of property of the two suspects. Lange corroborated the testimony that Marshall claimed the knife. Both these officers testified that an official report that Officer Mc-Farlin found the knife on top of the building was erroneous.
Marshall claimed that he had left his girl friend’s house about 2Zi blocks from the drug store only a few minutes before he was arrested, and stopped at the washateria to use a telephone. He testified that he was en route to the ice house to telephone for a cab when the officers called for him and Lawson to stop. His version was that no officers came to them, but that upon command they proceeded to the officers at the front corner of the drug store. He said that Officer McFarlin then searched him and took the knife from his person. He admitted previous convictions of larceny and possession of burglar tools.
This testimony, considered in the light most favorable to the state, was certainly sufficient circumstantial evidence to present a question of appellant’s guilt for jury determination. Appellant points out certain incon sistencies in the testimony (such as Lange’s statement that the footprints extended about 35 feet from the wall of the building and his statement that appellant and Lawson were apprehended about 50 feet from the building) and conflict of the officers’ testimony with the police department report with respect to the knife and alleged conflicts in their testimony about when, where and by whom it was found. Resolution of conflicts in the testimony was a jury function, which it has performed, so that we are bound. Boyette v. State, 250 Ark. 536, 465 S. W. 2d 901; Murchison v. State, 249 Ark. 861, 462 S. W. 2d 853.
Appellant argues that the circuit court erred in permitting the state to introduce circumstantial evidence of footprints in the snow without their being identified as those of appellant. We take the circumstantial evidence that appellant made one set of the footprints to be rather strong.
We find no error. The judgment is affirmed. | [
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Frank Holt, Justice.
Appellee, Carter Construction Company, filed an action for a declaratory judgment against appellant, Arkansas Aviation Sales, Inc., to determine the ownership of a Piper Cherokee Aircraft. Appellee asserts ownership by the provisions of a writ ten lease-purchase agreement. Appellant claims that this written agreement provides for a lease only and that it, therefore, retains ownership of the plane following completion of the agreed monthly rental payments.
The trial court found that appellant agreed to sell the aircraft to appellee under a lease-purchase agreement, and that the option to purchase was deleted from the contract “by agreement of the parties thereto and was not done with the intention of making said instrument a lease only of said aircraft * * For reversal appellant contends that the chancellor erred in admitting parol testimony which contradicted a prior written “Aircraft Lease” executed between the appellant and appellee. There is no appeal from that part of the decree finding a balance due on the contract and a note which were assigned to a local bank.
On May 1, 196£, the parties executed a five-year “Aircraft Lease” which contained an option to purchase clause. Appellee had the right to apply its monthly rental payments on the purchase price of $19,055.00 (whiclf included sales tax) plus any accrued interest. There was evidence that about two weeks later the parties, by mutual agreement, deleted the lease-purchase option. Several months after the written agreement was made the corporate ownership of appellant was transferred to the present owners.
Appellant does not dispute “that the parties mutually agreed on having the language in the contract relating to the option to purchase stricken.” Even so, appellant objects to the chancellor permitting the original parties to the transaction to testify that, at appellee’s accountant’s suggestion, the option to purchase was deleted for tax benefits to appellee and that this deletion was with the mutual understanding that the written agreement would remain a lease-purchase transaction.
In Ferguson v. C. H. Triplett Co., 199 Ark. 546, 134 S. W. 2d 538 (1939) we reiterated that: “It is well settled in this state that parties to a written contract may, subsequent to its execution, modify it and substitute a valid oral agreement therefor.”
In the case at bar we think the chancellor was correct in permitting these original parties to this written contract to testify about their “side agreement.” In Restatement, Contracts § 240 we find:
“(1) An oral agreement is not superseded or invalidated by a subsequent or contemporaneous integration, nor a written agreement by a subsequent integration relating to the same subject-matter, if the agreement is not inconsistent with the integrated contract, and
* # *
(b) is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.”
The Committee Comment on Subsection (1) (b) reads:
“d. The justification of the Parol Evidence Rule is that when parties incorporate an agreement in a writing it is a reasonable assumption that everything included in the bargain is set down in the writing. Though this assumption in most cases conforms to the facts, and the certainty attained by making the rule a general one affords grounds for its existence, there are cases where it is so natural to make a separate agreement, frequently oral, in regard to the same subject-matter, that the Parol Evidence Rule does not deny effect to the collateral agreement. This situation is especially likely to arise when the writing is of a formal character and does not so readily lend itself to the inclusion of the whole agreement as a writing which is not limited by law or custom to a particular form. Thus, agreements collateral to a negotiable instrument if incorporated in it might destroy its negotiability, and in any event would deprive it of the simplicity of form characteristic of negotiable paper. So in connection with leases and other conveyances, collateral agreements relating to the same subject-matter have been held enforceable. These illustrations of what agreements ‘might naturally be made’ without inclusion in an integrated contract are not exclusive. It is not essential that a particular provision would always or even usually be made in a separate collateral agreement. It is enough that making such a provision in that way is not so exceptional as to be odd or unnatural.”
In Magee v. Robinson, 218 Ark. 54, 234 S. W. 2d 27 (1950) we approved this section of the Restatement and permitted parol evidence to establish a contemporaneous oral agreement relating to a deed. There we said:
“* * * the separate agreement as to possession of the lands is neither odd nor exceptional, but is one that might naturally be made by parties situated as were appellees and appellant at the time the deed was executed.”
Also, in Bourque v. Edwards, 232 Ark. 665, 339 S. W. 2d 436 (1960) we again recognized the validity of § 240 in holding that although parol evidence is not admissible to vary a written instrument, it was there admissible to prove a “side agreement” with respect to whether a conveyance of real property included a butane tank.
We think this section is likewise applicable in the case at bar. There was evidence, adduced that the customary and popular method of acquiring an aircraft by a business enterprise was by the lease-purchase contract and, as previously indicated, this provision was eliminated only for tax purposes. Further, the transaction was entered on appellant’s books as a sale with the sales tax added and paid. In the circumstances, we are of the view that the deletion of the lease purchase paragraph from the written contract, for tax purposes, was a proper subject for a “side agreement;” that this deletion would not affect the original agreement between the parties and is consistent with their contract; and that it is an oral or collateral agreement which “might naturally be made as a separate agreement by parties situated as were the parties to the written contract.” Therefore, the trial court did not err in admitting parol testimony by the original parties to establish their “side agreement” made subsequent to the parties’ written contract, and to show the scope and effect of this oral agreement.
There being no contention that the findings of the chancellor are against the preponderance of the evidence should the parol evidence be admissible, the decree is affirmed.
Affirmed.
Byrd, J., not participating.
Fogleman, J., dissents. | [
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Conley Byrd, Justice.
Appellant H. Gordon Gregson brought suit pursuant to Ark. Stat. Ann. § 66-3240 (Repl. 1966) directly against appellee Great American Ins. Co. to recover damages for bodily injuries sustained on April 20, 1968, when he slipped and fell in a completed portion of the Rebsamen Park Golf Club House owned by the City of Little Rock. After our mandate in the previous appeal, Gregson v. Great American Ins. Co., (May 4, 1970), 453 S. W. 2d 28, the trial court sustained appellee’s motion to dismiss appellant’s complaint as to it because its policy did not cover any bodily injury arising out of the operation of the premises when the portion of the work out of which the injury arose had been put to its intended use.
The policy here issued, number 1-25-36-02, is entitled “GENERAL-AUTOMOBILE LIABILITY POLICY”. Under item No. 1, the NAMED INSURED is designated as “City of Little Rock, Ark. and Horace A. Piazza, Architect, 1515 Building, Little Rock, Ark.” The policy period is from 8/24/67 to 8/24/68. Under item No. 3 on insurance afforded, the blocks on the form are not checked but typed in on the form is the notation “See Endorsement 6153b attached.”
Endorsement 6153b is entitled “OWNERS’, LANDLORDS’ AND TENANTS’ LIABILITY INSURANCE COVERAGE FOR DESIGNATED PREMISES AND RELATED OPERATIONS IN PROGRESS INCLUDING STRUCTURAL ALTERATIONS, NEW CONSTRUCTION AND DEMOLITION.” In the blank portion of the form entitled “Premises-Operations” appears the typed notation: “Coverage operations: Construction of Club House and remodeling at Rebsamen Park in accordance with the plans and specifications of Horace A. Piazza, Architect.” Under “Coverage” form 6153b provides:
“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of. . . bodily injury. . . to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto. . . .”
Under “Exclusions” the endorsement provides:
“This insurance does not apply: (a) . . . (m) to bodily injury . . . included within the COMPLETED OPERATIONS HAZARD....”
The policy, as distinguished from the endorsement, provides under the heading “Definitions” as follows:
“When used in this policy . . . “COMPLETED OPERATIONS HAZARD” includes bodily injury . . . arising out of operations. . . , but only if the bodily injury . . . occurs after such operations have been completed . . . and occurs away from premises owned by . . . the NAMED INSURED. . . . Operations shall be deemed completed at the earliest of the following times:
“(B) When the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.”
To sustain the dismissal by the trial court, Great American only relies upon the exclusion that: “This insurance does not apply (a) . . . (m) to bodily injury . . . included within the COMPLETED OPERATIONS HAZARD. . It then points out that under the definition of “COMPLETED OPERATIONS HAZARD” an operation is deemed to be completed when the portion of the work out of which the injury arises has been put to its intended use.
We disagree with Great American’s argument because, as we understand the Exclusion, the “Owners’, Landlords’ and Tenants’ Liability Coverage” applies unless the injury is one that is included in the definition “Completed Operations Hazard”. The injury here admittedly occurred upon the policy-designated premises owned by the City of Little Rock, the NAMED INSURED. As we read the definition of “Completed Operations Hazard”, it is required that the injury must occur away from the premises of the City of Little Rock, as well as occur after the operations have been completed. As thus read the definition provides: “Completed Operations Hazard includes bodily injury . . . arising out of operations . . . but only if the bodily injury ... (1) occurs after such operations have been completed . . . and (2) occurs away from premises owned by the City of Little Rock (the named insured).”
Since the injury here admittedly occurred upon premises owned by the named insured, it follows that the trial court improperly ruled that the coverage provided under the “Owners’, Landlords’ and Tenants’ Liability Insurance Coverage” was excluded.
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Lyle Brown, Justice.
Charles Sanders and Leola Sanders, his wife, obtained judgments as a result of a traffic mishap which resulted in serious injuries. The judgments were against appellants, Charles Hunt and The Yellow Cab Company. Yellow Cab insists there was no substantial evidence of negligence on the part of its driver which contributed to plaintiffs’ injuries. Charles Hunt made Yellow Cab a third-party defendant but the jury awarded Hunt no damages against Yellow Cab, from which Hunt appeals. He contends (a) that the verdict was inconsistent, (b) that Charles Sanders was con tribu tor ily negligent and the jury did not consider that fact, and (c) that the court should have granted Hunt’s motion for a mistrial.
The accident occurred at the intersection of Roosevelt Road and Center Street in Little Rock. Roosevelt Road runs east and west and is a four-lane boulevard. Center is a narrow street and there are stop signs which command traffic crossing Roosevelt from Center to stop before entering. As the Sanderses traveled east on Roosevelt and approached the intersection a yellow cab was stopped at the north entrance of Center to Roosevelt; on the south side of Roosevelt, Hunt had pulled up and stopped. The cab driver intended to turn east (to his left) and Hunt intended to turn west (to his left) on Roosevelt. Those two drivers were not directly facing each other as they were parked on their respective sides of Center Street. That is because there is an offset or jog which would place Hunt some twelve feet east of the cab on the opposite side of the street. Hunt testified that as he pulled out he intended to go directly across the south half of Roosevelt (Sanders’ lane of travel) and then turn left; that he was prevented from doing so because the yellow cab moved about the same time as did Hunt and forced Hunt to cut sharply to his left to avoid the cab; and that as he made that movement he hit Sanders’ car almost head-on. The cab driver insisted that he never moved from his position at the stop sign and that the impact of the two cars caused the Hunt car to slide backward and to make very slight contact with Yellow Cab’s bumper.
Charles Sanders testified that he was driving east on Roosevelt, about 30-35 miles per hour; and that just before he reached the Center Street crossing Hunt “just pulled out in front of me.” Sanders said he did not see the yellow cab, that he was looking, straight ahead and at the Hunt car.
Maggie Hunt, who lives near the Center Street crossing, heard the crash. She is Charles Hunt’s wife. She said she looked out and saw the cab and her husband’s car in proximity of each other. She went back into the house to cut off the gas on the kitchen stove, and started toward the wreck. When she got back out on her porch she said the cab was backing away from the scene.
Officer E. J. Ethridge arrived minutes after the accident. He found the impact to have originated near the center of Roosevelt Road. The accident occurred on a dry day and at about 5:00 p.m. The officer said he observed the cab parked some thirty to forty feet back from the intersection. The cab driver reported to the officer that he saw the accident. Officer Ethridge said that the cab driver never mentioned that contact was made with the cab.
The cab driver was M. W. Poole, Jr. He testified that he was still parked at the stop sign on Center Street and south of Roosevelt when the accident occurred. He insisted that his cab was parked with the front end of the cab behind the curb line. He said the impact, which occurred west of him, caused the cars to slide toward him and “one of the vehicles slid down into the intersection on my side of the street and it touched against my car. I felt it touch my bumper and it slid away from it and when I got out I checked to see if there had been any damage and there hadn’t been any.” He said he called his dispatcher and was instructed to stay at the scene until the policeman approved his leaving. He said he did not move his car until he left the scene.
On cross-examination the witness conceded that in trying to get out into the traffic he probably moved his cab slightly forward to get a better view. He said his cab was struck a slight and glancing blow on the bumper. He testified that he did not report the contact to the investigating officer because there was no damage. He recalled that either his boss (who came to the scene) or the officer asked him to move the cab backward because traffic was being blocked.
Whether Yellow Cab was negligent and whether any such negligence was a proximate cause presents the first question to be decided. Yellow Cab argues that it was, as a matter of law, entitled to a directed verdict. In testing the correctness of Yellow Cab’s position we view the evidence and all reasonable inferences in the light most favorable to the other parties. Home Mutual Fire Ins. Co. v. Cartmell, 245 Ark. 45, 430 S. W. 2d 849 (1968). The fact that the evidence is contradicted by Yellow Cab, “or the fact that we might think it was against the preponderance of the evidence, does not justify us in setting aside the verdict.” Arkansas Motor Coaches v. Williams, 196 Ark. 48, 116 S. W. 2d 585 (1938). Of course we look for substantial evidence and if it is insubstantial Yellow Cab is entitled to prevail.
Hunt testified positively that as he pulled out from Center Street he started directly across the south lane of Roosevelt Road (Sanders’ lane of traffic); that he was prevented from following that course of travel by the cab, which suddenly moved out and blocked the north lane of Roosevelt; and that the collision with Sanders was inevitable. If the jury believed Maggie Hunt’s testimony they could have concluded that the cab was well out in Roosevelt when the crash occurred and that the cab immediately thereafter backed away from the wreck and for a considerable distance. The cab driver insisted that he was inside the curb line on his side when the collision occurred; yet on cross-examination he admitted that he may have moved forward somewhat in order to get a better view of the traffic. For reasons known only to the cab driver, he did not report to the officer that the Hunt car came in contact with the bumper of the cab. The jury may have attached some significance to the fact that the cab driver was instructed by radio to remain at the scene, notwithstanding he claims not to have been involved in the wreck. The owner of the cab company came to the scene of the accident, yet his driver claims to have been a mere witness to the collision. Also, we can tell from the record that the collision was recon- strutted on some type of blackboard and witnesses explained their versions of the occurrence on the board. The jury had the benefit of those reproductions while we do not. Then of course the jury had the advantage of seeing and hearing the. witnesses, which is often a crucial factor in passing upon credibility. We are unable to say that fair-minded men would draw but one conclusion from the highly controverted evidence. Therefore we agree with the trial court that the facts and circumstances made a question for the jury.
The jury was given a general verdict form, which read: “We the jury find for the plaintiffs Charles Sanders and Leola Sanders against Charles Hunt and Yellow Cab Company and assess their damages as follows: Leola Sanders _, Charles Sanders,__” The jury returned that form of verdict but they amended it to apportion damages between Charles Hunt and Yellow Cab Company:
Charles Hunt
Charles Sanders $46,665.00
Leola Sanders 5,721.00
Yellow Cab Co.
Charles Sanders 3,335.00
Leola Sanders 409.00
Yellow Cab argues that it was within the discretion of the trial court to reject the verdict as not being in conformity with the court’s instructions to return a general verdict. Since the court accepted the verdict, says Yellow Cab, it should be entered as apportioned, which would mean that there could be no recovery greater than the smallest amount fixed by the jury. Woodward v. Blythe, 249 Ark. 793, 462 S. W. 2d 205. The court entered a joint and several judgment for the combined total damages, having concluded that the jury actually intended to apportion the negligence. The apportionment of damages was not made an issue by Yellow Cab in its original brief. It was raised as a point of error for the first time in its reply brief. Since it was not timely advanced in order that appellees could rebut it in their brief, we cannot consider it. Ryall v. Water works Improvement District, 247 Ark. 739, 447 S. W. 2d 341.
Now as to the appeal of Charles Hunt. He never filed a notice of appeal. The timely filing of such a notice is jurisdictional, 'both on appeal and cross-appeal. Pinnacle Old Line Ins. Co. v. Ellis, 228 Ark. 458, 307 S. W. 2d 882 (1957); General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40 (1954). Nevertheless we have examined Hunt’s points for reversal and a majority of the court finds no merit.
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John A. Fogleman, Justice.
Appellants, who are the County Judge and Tax Assessor of Miller County, assert that the chancery court erred in refusing to dismiss appellee’s suit to require them to remove all of its property from the county tax rolls, claiming exemption from taxation under Article XVI, Section 5, of the Arkansas Constitution. Appellants raised no jurisdictional questions, and the matter proceeded to trial on the merits. The chancellor, after hearing all the evidence, found that one building once used as a nursing home and another built on the premises by appellee, together with the lands upon which they are located, were not exempt from taxes because appellee received rental income from this property and did not use it exclusively for public charity. He found that all other property of appellee qualified for the exemption, but held that he had no jurisdiction to relieve appellee from 1969 taxes.
Appellee, Four States Memorial Hospital, is a nonprofit Arkansas corporation. Its articles of incorporation prohibit the payment of any net earnings, dividends or other distributions to any officer, director, member or private individual, except as compensation for services rendered or reimbursement of expenses incurred in connection with the corporation’s affairs. Its stated general purpose is scientific, educational and charitable, particularly for ownership and operation of hospitals and other facilities for the care and treatment of sick, injured and disabled persons and incidentally for the education and training of medical students, interns, physicians, nurses, technicians, pathologists and other hospital personnel and for carrying on scientific research for alleviation of human suffering. The corporation has no shares or capital stock, but is composed of one class of members with voting rights. On dissolution or liquidation, all its net assets are to be distributed to one or more scientific, religious, charitable or educational organizations exempt from Federal Income Tax under Section 501(c)(3) of the Internal Revenue Code of 1954 (or the corresponding section of future law). Any such assets not disposed of by the corporation may be distributed for such purposes or to such organizations as may be directed by the circuit court of the county in which the principal office of the corporation is then located.
While appellants refer to their motion as one for a directed verdict, we take it to be a motion challenging the sufficiency of the evidence to warrant the granting of the relief sought pursuant to Ark. Stat. Ann. § 27-1729 (Repl. 1962). In order for the court to have granted such a motion, there must have been no substantial evidence which, when given its strongest probative force in favor of appellee, would have made a prima facie case for appellee. Nowlin v. Spakes, 250 Ark. 26, 463 S. W. 2d 650. We find ample evidence to justify the denial of the motion. As a matter of fact, we could not say that the chancellor’s findings on the merits were not supported by a preponderance of the evidence.
Appellants’ argument is that appellee failed to meet its burden of showing that its buildings, grounds and materials were used exclusively for public charity as required by the pertinent constitutional provision. Its basic premises are:
1. Appellee accepted the property as a gift from St. Louis Southwestern Railroad Company, commonly called the Cotton Belt.
2. The administrator employed by appellee was, at the time his services were engaged, Inspector of Flospital Services in the employment of the railroad.
3. Appellee accepted from the Cotton Belt Employees Hospital Trust Association an unsecured, interest-free loan of $127,000 of which $7,000 was used to improve income-producing property not used by appellee for hospital purposes, but rented to a maintenance employee for $45 per month.
4. Living quarters in a building which had been a nursing home were rented by appellee to a doctor who was not on its medical staff, but was an employee of the Employees Trust.
5. All except two of the members of the board of directors of appellee are the same as the directors of the Employees Trust.
6. Only three charity patients have been treated at the hospital.
It is undisputed that the hospital operated by appellee was formerly owned by the St. Louis Southwestern Railroad Lines Hospital Trust and commonly called the Cotton Belt Hospital. It was used exclusively by employees of the railroad or its subsidiaries who were members of the trust. All of the buildings, equipment and lands which were used in connection with the hospital were donated by the railroad company and the hospital trust to appellee about September 1, 1967. The buildings, in addition to the hospital itself, consisted of a dwelling house, and the former nursing home building.
Sam Raney, appellee’s administrator, was in charge of the operation of the hospital. He testified that the loan from the Employees Trust was to be repaid when and if appellee could do so. The only writing evidencing the loan was in the minutes of the board of directors of the lender. Raney stated that there were 28 doctors from the local community on the actual medical staff and 9 doctors on a courtesy staff. Any number of patients of a member of the actual staff could be admitted to the hospital, according to the skills or ability of the member physician to treat them. Only four patients of a member of the courtesy staff can be admitted in any one calendar year. Raney exercises discretion as to admission of a patient referred by a physician on the staff, but none is refused treatment and service which the hospital and its staff can adequately render. He said that, even though 50% to 53% of the hospital patients were Employees Trust members, 700 to 1,000 patients who were not members had been cared for by appellee at the hospital. In addition, the hospital admitted approximately 2,000 patients under the Medicare program administered by the United States Department of Health, Education and Welfare. The hospital also provided services under the state Medicaid program, whose payments are limited, however, to 20 days of inpatient services and 12 outpatient visits, after which one becomes a charity patient unless he is transferred to a Little Rock hospital. One of these patients had six admissions and four outpatient visits.
Raney said that a new surgical suite, a new recovery room, a clinic, a new conference room, a nurse’s station, an emergency power unit and an x-ray film developer had been added to the hospital by appellee to enable it to adequately serve “public” patients. He also testified that two surgical suites and the second floor of the west entrance had been remodeled and a waiting room converted to a semiprivate visitors’ room for this purpose. He added that new desks, chairs and beds had been purchased. He estimated that appellee had spent a couple of hundred dollars for bulldozer work. He totalled expenditures for such purposes from the loan at $123,000.
The hospital has neither emergency room nor maternity ward. The reason given for not having an emergency room was inability of appellee to find doctors to adequately staff it. Raney admitted that a pregnant woman had been denied admission by him, but explained that the hospital wasn’t equipped to treat her.
A resolution requiring that the hospital be operated in such a manner as to satisfy criteria of the Federal Internal Revenue Service necessary for an institution for “charitable” patients and directing officers and employees of the hospital not to refuse to accept patients in need of hospital care solely on the basis of their inability to pay was adopted by appellee’s board of directors. All patients admitted are charged the same rate. Bills are paid by the patient, insurance companies, federal or state welfare programs, employee associations or not at all. The payment for Medicare patients is based upon a per diem rate adjusted annually with the HEW Department, based upon actual cost of operation plus 2%. The difference between the amount billed to the patient at the regular rate and the Medicare rate is written off by the hospital at the end of the month after the patient’s discharge. Raney testified that this difference must be made up by paying patients. Over a three-year period the hospital had written off $46,-227.28 in this manner. It had also written off $2,700 to the Arkansas Public Welfare Department and $2,500 for Arkansas Public Welfare and Medicaid. In its second 'year of operation the hospital showed a gain of $45,-152, most of which went to offset a deficit of $38,208 in the succeeding year, and the balance into service and improvements. It appears that there would have been a great many more purely charity cases, had it not been for Medicare payments.
It has been held that a benevolent and charitable organization’s property used as a hospital may be constitutionally exempt from taxation if it is open to the general public, if no one may be refused services on account of inability to pay and if all profits from paying patients go toward maintaining the hospital and extending and enlarging its charity. Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954. We do not agree with appellant that appellee’s operation is so oriented toward service of the Employees Trust Association that, as a matter of law, it is outside the scope of the constitutional exemption. There is really no evidence to indicate that appellee has not conformed its practice to its stated corporate purpose. Raney testified that all money received by the hospital is expended for its maintenance and improvement and none diverted from the institution in any manner. Nor is there any evidence that the gift of the property was not outright and without any obligation of appellee to the railroad or its Employees Trust Association.
We do not understand how the failure of the hospital to provide emergency and maternity service could be taken to disqualify it from the tax exemption. There was evidence that it has dietary, maintenance, administration, pharmacy, nursing, surgical, x-ray, laboratory and physical therapy departments and limited outpatient services. We are not aware of any requirement that a hospital provide all services which can possibly be provided by any hospital in order to make its use exclusively for public charity. There is no reason why a hospital whose services are limited, e.g., to surgery or to maternity, should not be entitled to the tax exemption.
It does not appear that the hospital administrator is answerable, in any way, to the railroad or its hospital trust or that the common directors of the hospital and the trust have acted, in any way, to prefer members of the trust over any member of the general public. The mere fact that the members of the trust use the hospital along with other members of the general public, and on the same basis, would not necessarily change its charitable purposes so long as its receipts from any source are held in trust for the furtherance of these purposes. Fordyce v. Women’s Christian National Library Association, 79 Ark. 550, 96 S. W. 155, 7 L. R. A. (n.s.) 485.
The chancellor found that the part of appellee’s property for which rents were collected was not being used directly and exclusively for public charity and directed that this part be identified and subjected to taxation. This distinction is proper as the exemption is based upon the actual use of the property, rather than the use of its revenues. Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954; Brodie v. Fitzgerald, 57 Ark. 445, 22 S. W. 29; Robinson v. Indiana & Ark. Lbr. & Mfg. Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426. See also Ark. Stat. Ann. § 84-206 (Repl. 1960). The exemption of that property of appellee which is used exclusively for public charity is not affected because other parts are not exempt. See Hilger v. Harding College, 231 Ark. 686, 331 S. W. 2d 851.
Appellee cross-appealed from that part of the court’s decree which found that it had no jurisdiction of the 1969 tax assessment. The court’s decree must be affirmed on cross-appeal. The basic relief asked by appellee was a writ of mandamus to the county judge to remove its property from the tax rolls, and an injunction against the tax assessor restraining his placing the property on the tax rolls. In the first place, the chancery court had no jurisdiction to issue a writ of mandamus. Nethercutt v. Pulaski Co. Spl. Sch. District, 248 Ark. 143, 450 S. W. 2d 777; Harber v. Rhodes, 248 Ark. 1188, 455 S. W. 2d 926. Even the circuit court, which has superintending control and appellate jurisdiction over county courts under Article VII, Section 14, of our Constitution, could not direct the county court’s action by mandamus. Rolfe v. Spybuck Drainage District No. 1, 101 Ark. 29, 140 S. W. 988.
In the second place, exclusive original jurisdiction of all matters pertaining to county taxes is vested in the county court. Article VII, Section 28, Constitution of Arkansas; Turner, ex parte, 40 Ark. 548; Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706. Within the limits of its jurisdiction the county court is a court of superior jurisdiction. Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508. No other court may disregard or invade that jurisdiction. Curry v. Dawson, 238 Ark. 310, 379 S. W. 2d 287. See also Stumpff v. Louann Provision Co., 173 Ark. 192, 292 S. W. 106; Bragg v. Thompson, 177 Ark. 870, 9 S. W. 2d 24; State v. Wilson, 181 Ark. 683, 27 S. W. 2d 106. This jurisdiction is exercised by the county court, not the county judge. Needham v. Garner, 233 Ark. 1006, 350 S. W. 2d 194. There is no suggestion that the county judge has acted, attempted to act or proposed to act in this matter in any capacity other than as presiding judge of the county court, that any wrongful diversion of public funds or fraud is involved, or that a tax which is itself illegal is being levied. In these circumstances, the action of the county court cannot be dictated by mandamus, injunction or other process of either the chancery or circuit court. See Curry v. Dawson, supra; Turner, ex parte, supra; Ward v. Boone, 231 Ark. 655, 331 S. W. 2d 875.
It is true that appellee had a judicial remedy if the property was exempt from taxation for the year 1969, without resort to appeals from the tax assessment. Clay County v. Brown Lumber Co., 90 Ark. 413, 119 S. W. 251. There is no doubt that a court of equity may grant relief against a void or illegal tax assessment. W. P. Brown & Sons Lumber Co. v. Sims, 146 Ark. 253, 225 S. W. 322; State v. Mississippi A. & W. Ry. Co., 138 Ark. 483, 212 S. W. 317.
Even if appellee’s action against the tax assessor should be outside the exclusive original jurisdiction of the county court, the passage of time had taken the matter of 1969 tax assessments entirely out of his hands, so that it was not possible for him to effectuate any decree that the court might have rendered. The courts will not render judgments which have no practical effect in settling the rights of litigants. Kirk v. North Little Rock Special School District, 174 Ark. 943, 298 S. W. 212; Griffin v. Anderson-Tully Co., 91 Ark. 292, 121 S. W. 297, 134 Am. St. Rep. 73.
The assessor was required to make his real estate assessment prior to July 1, 1969. Ark. Stat. Ann. § 84-415 (Repl. 1960). He was required to certify his completed assessment record to the county board of equalization on or before August 1, 1969. Ark. Stat. Ann. § 84-465.1 (Repl. 1960). His report of assessment was to have been filed with the county clerk by the third Monday in August 1969. Ark. Stat. Ann. § 84-447 (Repl. 1960). Assessments were then subject to action by the equalization board until the third Monday in September 1969 [Ark. Stat. Ann. § 84-708 (Repl. I960)] unless conditions prevailed which extended the time until the third Monday in November 1969 [Ark. Stat. Ann. §§ 84-706, 84-477 and 84-717 (Repl. I960)], after which even it had no authority to change a tax assessment. Jones v. Crouch, 251 Ark. 720, 552 S. W. 2d 258. It was the duty of the county clerk to deliver the tax books to the tax collector on or before the third Monday in February 1970.
This suit was filed on September 17, 1969, at which time the assessor had no control over the assessment. The decree dated July 25, 1970 was filed on the 11th day of August, 1970, and resulted from a hearing on the 20th day of July, 1970. On these latter dates the 1969 tax books were in the hands of the tax collector. Neither the tax collector nor the county clerk was ever made party to the action. Insofar as both the county judge and tax assessor are concerned, the question of the validity of the 1969 tax assessment has become an academic one, so the chancellor properly declined to act. Catlett v. Republican Party of Arkansas, 242 Ark. 285, 415 S. W. 2d 651; Dermott Drainage District v. Cherry, 217 Ark. 829, 255 S. W. 2d 587. See also Connor v. Ricks, 212 Ark. 855, 208 S. W. 2d 10.
The decree is affirmed on appeal and cross-appeal.
Apparently this house was torn down after the property was given to appellee and another built in its stead. | [
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Conley Byrd, Justice.
Appellant Ike Van Meter acquired a State tax deed from thei State Land Commissioner under the following description:
“Parts of Section Exc. 1A W of RR SW M NE M Sec. 22 Twp. 2S, Range 3E, Acres 24, lOOths .00 year for which forfeited 1966.”
In a quiet title suit by appellees Emma Murphy Adding-ton and Deborah White, the trial court held :the description void. We affirm for the reasons stated in Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118 (1917), Halliburton v. Brinkley, 135 Ark. 592, 204 S. W. 213 (1918), and Irby v. Drusch, 220 Ark. 250, 247 S. W. 2d 204 (1952).
Affirmed. | [
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Frank Holt, Justice.
This is the second appeal in this action. The first appeal resulted from a breach of contract action brought by appellee, Guaranty Financial Corporation, against appellant, Nineteen Corporation. Nineteen Corporation v. Guaranty Financial Corp., (Ark. Mar. 17, 1969) 438 S. W. 2d 685. There we affirmed the chancellor’s findings that appellant had mortgaged to appellee 150,000 shares of Universal Insurance stock and certain real property located in Oklahoma as security for the purchase price of the 150,000 shares purchased from appellee; that appellant had defaulted on the sales contract; that it was not a usurious transaction; and that appellee was entitled to a judgment of $293,329.51. We reversed and remanded, however, because the chancellor’s decree ordered a judicial sale for cash of the 150,000 shares of stock contrary to Ark. Stat. Ann. § 51-1109 (1947). This statute requires a judicial sale to be on a three months’ credit basis. The decree also erroneously attempted to fix a lien on the Oklahoma lands, the additional collateral.
Upon remand, appellee was ordered to tender back to the commissioner the 150,000 shares of Universal Insurance Company stock which it, as the secured party, had purchased at the void cash sale in order that a sale on a three months’ credit basis could be properly effected. Appellee, however, was unable to deliver the shares of stock to the commissioner. During the pendency of the first appeal, it had purchased the stock at the void judicial sale for $230,000 cash and a month later sold the stock to a third party, Arkansas Best, for $251,574.07. Also, during the first appeal, appellee had obtained a foreclosure against the Oklahoma lands and had purchased these lands at a judicial sale.
In the present proceeding the chancellor found a $41,755.44 deficiency judgment (after applying the $251,-574.07 to the original $293,329.51 judgment) plus the interest and attorney’s fees. However, the chancellor ordered appellee to reconvey the Oklahoma property to appellant upon payment by appellant of this deficiency judgment plus the interest and attorney’s fees, all of which totaled $65,546.79. Appellant brings this second appeal asserting that the chancellor erred by refusing to apply the presumption that the stock sold at the void sale was worth at least the amount of the debt and erred further in accepting the testimony of Guaranty’s president as to the price received upon the resale of the stock as being the amount that should reasonably have been obtained through a sale conducted according to law.
In support of its contention, appellant relies upon Norton v. National Bank of Commerce, 240 Ark. 143, 398 S. W. 2d 538 (1966); Barker v. Horn, 245 Ark. 315, 432 S. W. 2d 21 (1968), and related cases. In Norton we said: “We think the just solution is to indulge the presumption in the first instance that the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law.” In Barker the only evidence adduced to show the value of the collateral was the selling price and this court refused to accept that evidence as being sufficient to support a judgment in favor of the secured party. In both Norton and Barker, and related cases, the secured party brought an action for a deficiency judgment after the collateral had been sold at a private sale without any notice to the defaulting debtor.
In the case at bar there is no question of notice. The appellant was given notice and, in fact, made objections to the sale. Appellant merely relies upon the presumption established in Norton to prevent a deficiency judgment being rendered against him. Even if we agree with appellant’s contention that Norton is applicable, which we do not decide, we think appellee has sufficiently met the presumption.
We hold that Guaranty’s president was a competent witness to rebut the Norton presumption. He was president of the corporate organization during the entire litigation and testified that he had ten years’ experience in such business affairs and in acquiring and selling mortgages; and that he had placed ten million dollars in mortgage loans. He said that the partial liquidation of Universal plus the sale price of certain assets to Arkansas Best totaled $251,574.07. He testified as to the value of Universal’s assets as of the date of the sale transaction. He stated that the mortgages were valued at $139,841.65; that the total cash owned by the company was $45,732.42; that the company had $50,000 in certificates of deposit and the value of the company’s charter was $16,000. We think that his testimony about the resale to Arkansas Best shows that it was conducted similarly to the original sale nine months earlier to appellant and, therefore, establishes that the resale was a negotiated and an arms-length transaction. In our view this evidence, which is unrebutted, is sufficient to establish the reasonable value of the assets which “would have been obtained through a sale conducted according to law” as required by Norton.
Appellant further contends that the testimony of Guaranty’s president as to the price received upon resale of the stock was refuted by his earlier testimony. At the first trial the president testified as to the value of Universal’s assets in October 1967, the date of the sale to appellant who defaulted. He testified that as of this sale date appellee owned mortgages valued at $148,620.37; $72,663 in cash, $5^0,000 in saving’s accounts, and the charter was valued at $22,000. At the second trial, the same witness testified that in July 1968, the date of the resale, the mortgages were valued at $139,841.65; the company had $45,732 in cash, $50,000 in saving’s accounts, and its charter was valued at $16,000.
Appellant asserts that it only had control of Universal for four days during the nine-month period between the sale by appellee to appellant and the resale by appellee, after appellant’s default, to Arkansas Best, during which interim Universal’s assets diminished at least $41,000. Even though such a variance existed, the president of appellee testified without contradiction that no expenditures were paid from Universal to appellee or any of its management during this nine months or until the resale occurred. He also testified that withdrawals from Universal were used to pay obligations which appellant’s management had incurred during the time it had control of Universal. Other expenditures were for reinsurance and other normal expenses. From a review of his testimony and the entire record, we cannot say that the asserted discrepancies were not sufficiently explained.
Affirmed.
Fogleman, J., not participating. | [
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Lyle Brown, Justice.
Garry Wayne Morris, a/k/a Boatwright, was adjudged by the Pulaski County Juvenile Court to be a dependent and neglected child. Custody was removed from the mother (the father was deceased) and the boy was placed in the custody of Mr. Jim Fisher, operator of Shawnee Valley Boys Ranch, Harrison, Arkansas. Three years later, when the mother had regained her health and was steadily working, she petitioned that the boy be returned to her custody. That petition was denied and on appeal to circuit court there was an affirmance. The mother, Shirley Boat-wright, appeals, alleging the judgment to be contrary to the law and the evidence; that the court erred by admitting into evidence several notarized statements from employees of the boys school; and that the mother was not bound by any contractual arrangement between herself and the boys school to the effect that the child was to remain at the school until he finished the twelfth grade.
In 1966 Shirley Boatwright was approximately twenty-eight years of age, in poor health, and in dire financial circumstances. Life for her had been rugged. As a teenager she had served a time in the Arkansas Girls Training School. Following that episode she married; in fact she had five different husbands. To one or more of those marriages were born two children, and in 1966 the daughter was ten years of age and Garry was two years older. Shirley made arrangements with her parents to care for the daughter. Because the parents’ home was not large enough to accommodate both children, and because Garry presented an unusual disciplinary problem, the mother agreed to a juvenile court order declaring the boy a ward of the court and with the understanding that he would be placed in the Shawnee Valley Boys Ranch.
In 1969 the mother was living in Alabama. She was regularly employed and earning some sixty dollars a week take-home pay. She had a three-bedroom apartment. She took the daughter to Alabama and placed her in school, where the child was reportedly making good grades. In that situation, and with her health regained, the mother petitioned the Pulaski County Juvenile Court to reinvest her with custody of the boy. The court adjudged that the boy remain in the present custody as award of the court.
We cannot agree with appellant that the judgment is contrary to the law and the evidence. In Duncan v. Crowder, 252 Ark. 628, 339 S, W. 2d 310 (1960), we said: “As in all child custody cases, the tender consideration we have for the future of the child involved causes us more concern than we experience in any other type of case. Of course it is a universal rule of law that the paramount consideration in awarding custody of minor children is the best interest and welfare of the child.” With that rule of law as a guide we examine the evidence.
We do not dispute the assertion that the mother is not as unstable as she was when she relinquished custody of her son in 1966. But the paramount question is whether the son has shaken off his incorrigibility which just four years ago was so serious that neither the mother nor the boy’s maternal grandparents could control him. On cross-examination the grandfather, who was called as a witness by the mother, stated the opinion that the interest of the boy would be better served if he were left at the boys ranch. Jim Fisher is the director of the boys ranch. He said Garry had made considerable improvement but that he is not yet ready to adjust to public school life because of personality traits. Fisher predicted that if the mother’s petition for custody were granted, Garry would doubtless end up in a reform school. The trial judge was also probably impressed, as we are, with the fact that the mother has to work full time and therefore would not be able to give maximum attention to the child’s problems. Then there was the testimony of Rev. Grover Bishop, pastor of the Fairview Baptist Church in Little Rock. At appellant’s request he had helped get the boy admitted to the boys ranch. He had observed Garry “in the most recent months,” and it was Rev. Bishop’s opinion that Garry is not yet prepared to be released from the boys ranch. The testimony we have recited was not contradicted. The only substantial testimony offered by the mother was as to her belief that she is now able, physically, emotionally, and financially, to care for her son.
Appellant complains that the court considered, in violation of the hearsay rule, five notarized statements from teachers and custodians at the boys ranch. Those statements opposed Garry’s release. After a careful search of the record we find no showing that the statements were in fact introduced as evidence. There was considerable discussion concerning those instruments. At one point the court said, “Very well, they appear to qualify.” But before the court pursued the matter to a final determination on admissibility counsel for appellant interceded and asked for permission to further question the witness on the point of inadmissibility. That motion was granted. After further questioning of the witness through whom the instruments were sought to be introduced, the court said: “The documents will be marked for identification and submitted to the court and I will make my ruling as to the admissibility subsequently. Let them be marked for identification as State’s Exhibit Two.” (Emphasis ours.)
Other than allowing the instruments to be marked for identification we are unable to find any further reference thereto. At the close of appellant’s evidence the respondent moved for judgment. The court responded by saying that he had “not read the reports that have been admitted.” We conclude that he was referring to the two written instruments which were admitted in evidence on behalf of the appellant. (The admissibility of those instruments is not attacked on appeal.) They consisted of a letter from the State of Alabama, department of pensions and security, and another létter from the department of pensions and security of Mobile County, Alabama.
It is to be noted that the court said a ruling would be subsequently made on the admissibility of the documents. In that situation, if the appellant desired to pursue the motion, she should have subsequently called the court’s attention to the motion and sought a ruling. The failure to so act constituted a waiver. Flake v. Thompson, 249 Ark. 718, 460 S. W. 2d 789.
The next point made by appellant is that “any contractual arrangement between Mrs. Boatwright and Shawnee Valley Boys Ranch that Garry w'ould remain there until he finished high school would be void as against public policy.” Mr. Fisher testified that he wrote a letter to the juvenile court stating that Garry would be accepted on condition that he stay at the ranch until he finished high school. Appellant did not pursue her initial objection to the testimony. There is no intimation that the trial court took that statement into consideration in its decision. That condition was not incorporated into the juvenile court decree and properly so, even if appellant had given her consent. Waldron v. Childers, 104 Ark. 206, 148 S. W. 1050 (1912). For the reasons stated, we find the point to be without merit.
Affirmed. | [
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Lyle Brown, Justice.
The appellants, Loyd Henry Byrd and Calvin Ford, were convicted of voluntary man slaughter. From that conviction they have here lodged a transcript. Appellants asked the trial court for an appeal and that prayer was denied. They did not thereafter apply to this court for an appeal, which procedure is authorized by Ark. Stat. Ann. § 43-2709. The same situation was present in McKine v. State, 242 Ark. 384, 413 S. W. 2d 860 (1967). We there held that the granting of an appeal in criminal cases in accordance with the statutory procedure is a prerequisite to our consideration of the case.
If we were to reach the case on its merits a majority of the court would affirm.
Dismissed. | [
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John A. Fogleman, Justice.
Appellant asserts that the circuit court’s instructions defining total disability were erroneous, in the light of the policy on which appellee sued. We find reversible error in that regard.
A review of the evidence would serve no useful purpose. It is sufficient to say that "there was evidence sufficient to support a finding of total disability whether the court’s definition or appellant’s is used. The pertinent policy provision is as follows:
TOTAL DISABILITY. When, as the result of injury and commencing within thirty days after the date of the accident, the Insured is wholly and continuously disabled and prevented from performing each and every duty pertaining to his occupation, the Company will pay periodically the Monthly Indemnity stated in the Schedule for the period the Insured is so disabled, not to exceed twelve consecutive months. Subject to the “Maximum Period Total Disability Accident Indemnity” stated in the Schedule and after the payment of Monthly Indemnity for twelve months as aforesaid, the Company will continue the periodic payment of Monthly Indemnity so long as the Insured is wholly and continuously disabled and prevented by reason of said injury from engaging in each and every occupation or employment for wage or profit for which he is reason ably qualified by reason of education, training or experience.
It is conceded that appellant paid total disability benefits to appellee for more than 12 months prior to September 17, 1968. Appellee then sued for benefits from that date until the date of trial and recovered judgment for these payments at the policy rate of $100 per month with statutory penalty and attorney’s fees. As one of its defenses appellant denied that appellee was permanently disabled so that in the future he would be unable to return to his former employment or engage in any occupation for wages or profit.
The circuit judge gave only the following instruction defining total disability:
You are instructed that the provisions of the policy which I have quoted relating to disability do not mean a state of absolute helplessness. But they mean that, if there was any substantial and material acts necessary to be done pertaining to his occupation that he could not perform in the usual and customary way, he would be totally disabled within the meaning of this policy.
Appellant objected because the instruction would preclude the jury from considering appellee’s ability to engage in any occupation for which he was reasonably qualified by reason of education, training and experience, other than his previous occupation.
Appellant offered, and the court refused, the following instructions pertaining to total disability:
NO. 2
The term “total disability,” as contemplated by an accident insurance policy such as the one sued on in this case, does not mean what a literal reading would require, that is, a state of absolute helplessness, but rather contemplates such a disability as renders the insured unable to perform all the sub stantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which the insured is reasonably (R. 94) qualified by reason of his education, training and experience.
NO. 5
You are instructed that even though you believe from the evidence in this case that the plaintiff is and has been unable to return to his former occupation with the Missouri Pacific Railroad, yet if you further believe from the evidence that the plaintiff has not been prevented as a result of his injury from performing all the substantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which he is reasonably qualified by reason of his education, training or experience, then the Court instructs you that the plaintiff would not be entitled to the benefits for which he is suing, and your verdict should be for the defendant.
Appellant concedes that the instruction given by the court would be correct were it not for the fact that total disability benefits are payable under two different conditions, i. e.\ (1) benefits for a maximum of 12 months while the insured was totally disabled from performing any substantial and material duties of his former occupation; and (2) benefits thereafter so long as the insured is disabled from performing the material duties of any occupation for which he is reasonably qualified by reason of education, training and experience. We agree with appellant that all our previous cases, save one, have dealt with policies that were substantially similar, but which did not have two separate and distinct categories for payment of disability benefits. While the one exception involved only the question of liability for total disability in the usual sense, it was clearly recognized there that different considerations might have been involved had liability in the second category set out above been in issue. See Franklin Life Insurance Company v. Burgess, 219 Ark. 834, 245 S. W. 2d 210. Part I of the policy there involved entitled the insured to monthly benefits for a maximum of 12 months while prevented by illness or injury from performing each and every duty pertaining to his occupation. Thereafter, the payments were to be continued so long as the insured should be wholly, necessarily and continuously disabled and prevented by such injury or illness from engaging in any occupation for wages or profit. In reducing the amount of attorney’s fees allowed, the court noted that we had previously approved fees in excess of the amount of recovery in similar cases where the determination of questions involved also determined the liability of the insurance company for future disability payments. We said:
It is noted that the second paragraph of Part I of the policy provides for payment of monthly indemnity after the twelve-month period provided in paragraph one on certain conditions and uses language somewhat different from that employed in the first paragraph. It is true that a recovery in the present suit preserves appellee’s right to seek further recovery for future installments under paragraph two, but it does not establish a right to future payments after the twelve-month period or determine appellant’s liability therefor.
While this language does not constitute binding authority for appellant’s argument, it is clear recognition that the language in that policy defined two entirely different bases for liability for total disability. The language of the policy here is strikingly similar. If the words in the two clauses of each of the respective policies defining the total disability meant the same thing, then nothing short of recovery by the insured would prevent a judgment under the first clause from being res judicata as to future liability under the second clause. Such a result does not seem to be a sensible one in light of the disparate language of the two clauses. In construing a contract, even one for insurance drawn by the insurer, we must assume that the use of different language to define different obligations was deliberate and accompanied by an intention to convey different meanings rather than the same one. Different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is at all possible, and, giving effect to one clause to the exclusion of another on the same subject where the two are reconcilable, is error. Kelsey and Fletcher v. Brown and Hackney, 165 Ark. 613, 264 S. W. 930; American Indemnity Co. v. Hood, 183 Ark. 266, 35 S. W. 2d 353. A construction which neutralizes any provision of a contract should never be adopted if the contract can be construed to give effect to all provisions. Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S. W. 2d 611. What we said in Fowler is particularly appropriate here, viz:
It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered not from particular words and phrases but from the whole context of the agreement. In fact, it may be said to be a settled rule in the construction of contracts that the interpretation must be the entire instrument and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the court can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from beginning to end, and all its terms must pass in review, for one clause may modify, limit, or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. Seeming contradictions must be harmonized, if that course is reasonably possible. Each of its provisions must be considered in connection with the others, and, if possible, effect must be given to all.
The rights and liabilities of the parties to an in surance contract must be determined by considering the language of the entire policy. American Indemnity v. Hood, supra. Legal effect must be given to all the language used, and the object to be accomplished by the contract should be considered in interpreting it. Aetna Life Insurance Company v. Spencer, 182 Ark. 496, 32 S. W. 2d 310. Whatever the construction of a particular clause standing alone may be, it must be read in connection with other clauses limiting or extending the insurer’s liability. Aetna Casualty & Surety Co. v. Sengel, 183 Ark. 151, 35 S. W. 2d 67. In considering the phraseology of an insurance policy the common usage of terms should prevail when interpretation is required. National Investors Fire & Casualty Co. v. Preddy, (March 23, 1970), 451 S. W. 2d 457.
When we read the clear language of the two sentences of the total disability clause, giving their terms the meaning ascribed by common usage, the intention to describe two different types of total disability is inescapable. Whatever construction we might give the language of the second sentence describing total disability if it stood alone, when both clauses are read together we simply cannot say that it was contemplated that they define the same kind of disability. Consequently, appellant’s specific objection was well taken and the instruction was incorrect for the reason stated by appellant. Therefore, we must reverse the judgment and remand the case for new trial.
It does not follow, however, that appellant’s offered instructions must be given. While the giving of one of them might not be error, it can be said that both are ambiguous in that they would require appellee to be unable to perform all the substantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which the insured is reasonably qualified by reason of his education, training and experience. It is only necessary that he be unable to perform any of such acts in order to qualify for benefits. Avemco Life Insurance Company v. Luebker, 240 Ark. 349, 399 S. W. 2d 265, 21 A. L. R. 3d 1378; Alexander v. Mutual Benefit Health ir Accident Assn., 232 Ark. 348, 336 S. W. 2d 64; Franklin Life Insurance Co. v. Burgess, 219 Ark. 834, 245 S. W. 2d 210. We clearly expressed a preference for an instruction using the word “any” in Avemco. If the words “any of” had been substituted for “all” in the offered instructions, appellant would have clearly been entitled to have one of them given. While both would then appear to be correct, appellant’s requested instruction no. 2 would be preferable because it is more in keeping with our per curiam order of April 16, 1965, requiring that instructions not covered in AMI, Civil, be simple, brief, impartial and free from argument..
In passing, we note that appellant’s failure to request a correct instruction on the issue of total disability does not bar him from relief on appeal because he made a specific objection pointing out the respects in which the instruction given was an erroneous declaration of law. Collier Commission Co. v. Wright, 165 Ark. 338, 264 S. W. 942.
In view of the disposition we make, we do not reach appellant’s point as to the amount of attorney’s fees allowed appellee.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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John A. Fogleman, Justice.
Appellant states 15 points for reversal of his conviction of the crime of rape. He argues them in four groups and relies upon those arguments to support his first three points, which are not otherwise covered.
Appellant first asserts that his conviction was based upon prejudice, bias, speculation, conjecture, surmises and irrelevant and impeached testimony. This argument is based upon attacks on the credibility of the prosecutrix. He contends that her testimony is the only incriminating evidence against him. He points out that his accuser made no outcry, gave no notice to her neighbors in a thickly populated district in the city of North Little Rock, made a positive identification of a ring and a knife which she said appellant had in his possession at the time of the alleged attack without any reason for her certainty, or means of distinguishing them from thousands of other such objects similar in appearance, and varied her testimony at different times as to the hour and minute of the alleged crime and her state of dress when it occurred. This witness was positive in her identification of appellant, but he says that the jury could not have properly based its verdict upon her testimony, because it should be considered as incredible.
Appellant concedes that corroboration of prosecuting witness is not essential to a conviction of the crime of rape. Lacy v. State, 240 Ark. 84, 398 S. W. 2d 508. Where the prosecuting witness is positive in her identification, the question of her credibility is for the jury. Hamm v. State, 214 Ark. 171, 214 S. W. 2d 917. Prosecutrix, who said that she was then 15 years old, testified that she attempted to scream, but “nothing would come out.” She also said that appellant, who had pulled a knife on her, told her that he would not kill her if she cooperated, but if she said anything he would kill her. Failure of the prosecutrix to make an outcry or to make prompt complaint is properly considered when the defense is based upon her consent or want of resistance or upon the contention that a rape was not committed by someone. Kurch v. State, 235 Ark. 688, 362 S. W. 2d 713, cert, denied, 373 U. S. 910, 83 S. Ct. 1299, 10 L. Ed. 2d 412; Daniels v. State, 186 Ark. 255, 55 S. W. 2d 251; Jackson v. State, 92 Ark. 71, 122 S. W. 101. Even then the failure to make an outcry is excused if prevented by fear of the prosecutrix for her life or bodily safety. Pemberton v. State, 221 Ark. 19, 251 S. W. 2d 825; Zinn and Cheney v. State, 155 Ark. 542, 205 S. W. 704. But no such defense was made, and the prosecutrix testified that she did not make an outcry because of her assailant’s threats. The prosecutrix and her husband had only lived at the apartment where the offense took place for three weeks. She testified that she told an elderly lady across the street what had happened when she found that she was unable to reach her husband by telephone because it was out of order. She then went by cab to the place her husband was in school and reported the incident to him. Questions of identification and alibi (the defense made by appellant) were jury questions. Hamm v. State, supra; Lacy v. State, supra. Resolution of conflicts in the testimony of the prosecutrix was also a jury function. Marshall v. State, 250 Ark. 585, 466 S. W. 2d 920.
The next group of points argued by appellant turns upon his argument that a lineup identification, when he was without the assistance of counsel, violated his constitutional rights. Appellant was charged with having committed the crime on January 17, 1967, and the lineup in question was held on January 24, 1967, so the decisions in United States v. Wade, 588 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 588 U. S. 265, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, both decided June 12, 1967, do not apply. Stovall v. Denno, 588 U. S. 295, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Foster v. California, 594 U. S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). Appellant contends, however, that the identification procedures at the lineup, when judged by the totality of the circumstances, were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law, relying upon Foster. Appellant also contends that his testimony about the lineup identification was more persuasive than that of the arresting officer. The determina don of persuasiveness of the testimony on this point is a matter in which we must give substantial weight to the circuit judge’s superior opportunity to evaluate credibility. See Jackson v. State, 249 Ark. 653, 460 S. W. 2d 319.
The circumstances here are entirely different from those in Foster, however. Sergeant Bruce of the North Little Rock Police Department picked Tarkington up off the streets, from a description given by the prosecutrix, and a radio report that a man fitting that description was in the area. Another suspect had been previously picked up from this description, but the prosecuting witness failed to make an identification in a lineup in which he was placed, so he was released. According to Bruce, he placed Tarkington and three other persons in a lineup to be viewed by the prosecutrix at police headquarters. None of the others resembled Tarkington except that one of them was near Tarkington’s weight and size. Tarkington said he was in the lineup about 10 minutes. Mrs. Jones testified that as soon as she looked at Tarkington, she said, “That’s the man.” Her immediate identification of Tarkington was corroborated by Bruce.
The essential elements making the lineup identification a denial of due process in Foster are lacking here. Foster was at least six inches taller than both of the other persons in that lineup. He wore a jacket similar to one which the victim of the crime described as worn by the person who robbed him. The vicdm there could not positively identify Foster. Even after a face-to-face confrontation across a table in the absence of anyone else except prosecuting officials, the witness was unsure whether Foster was one of the robbers. At a second lineup in which there were five persons, of which Foster was the only one who had been in the first, the victim was convinced of Foster’s identity. It was held that the procedures followed had the police, in effect, saying to the witness, “This is the man,” made eventual identification of the accused by the victim inevitable and so undermined the reliability of the identification as to violate due process. Since one man in the lineup with Tarkington was of his weight and size, and the prosecutrix was prompt and positive in her identification after having failed to identify her assailant in a previous lineup, we find no violation of due process here. It also seems significant to us that a “class” ring fitting the description of one worn by the assailant, as related by the prosecutrix, had been removed from Tarkington’s hand before the lineup was viewed by the prosecutrix.
The next group of points argued by appellant has to do with an allegedly prejudicial course of conduct of the prosecuting attorney. In appellant’s original motion for new trial, he only asserted that the prosecuting attorney violated the orders of the court by asking him if he were not charged with assault with intent to rape on January 23, 1967, and improperly argued that appellant’s whole defense was framed by Robert Tarkington, his father. An amended motion filed later asserted the single ground that the prosecuting attorney conducted a star chamber proceeding at which certain witnesses were intimidated and harassed.
We are not aware of any question propounded to appellant about his being charged with assault with intent to rape. The only question of that nature called to our attention is one commenced by the deputy prosecuting attorney conducting the trial for the state. He asked appellant, “On the twenty-third day of January, 1967, did you assault Lois____?” He never completed the question because the prompt objection by appellant was sustained by the circuit judge, who also admonished the jury to disregard the question.
There are several reasons, in addition to appellant’s failure to make this question a part of his motion for new trial, why there was no prejudicial error. The court’s admonition was certainly calculated to remove any prejudice. If appellant had felt that it failed to do so, he should have moved for a mistrial. Not having done so, he is in no position to complain. Freyaldenhoven v. State, 217 Ark. 484, 231 S. W. 2d 121; Fair v. State, 241 Ark. 819, 410 S. W. 2d 604. When a defendant takes the stand, he may be asked, in good faith, about other crimes he may have committed, for the purpose of throwing light upon his credibility, but he cannot be asked if he has been charged, indicted or accused of other crimes. Johnson v. State, 256 Ark. 917, 370 S. W. 2d 610. Appellant’s argument apparently goes, however, to the deputy prosecuting attorney’s good faith in asking the question because appellant relates the question to earlier incidents in the trial. It is admitted that, at the beginning of the trial, the court had directed the deputy prosecuting attorney not to call Lois Sikes as a witness. The court had heard a statement by the deputy prosecuting attorney that he expected to prove a similar incident within a week after the rape of the prosecutrix. During the course of the trial the deputy prosecuting attorney called Lois Sikes as a witness. She came from the witness room and walked past the jury box, but never took the stand, because of an objection by appellant’s counsel and his request for a hearing in chambers.
At the hearing in chambers the deputy prosecuting attorney made the following proffer:
I have called as my next witness Mrs. Lois Sikes, and I would propose to prove by her that on the 23rd of January, 1967, this defendant came to her house asking about vacant apartments; that he asked her for a drink of water in order to gain entrance; that, upon gaining entrance, he pulled a knife on her and stated to her that he was going to have sexual relations with her; that, at that time, she lived at 505 Olive Street in North Little Rock, in close proximity to the residence of the complaining witness in this case; and I propose to introduce this testimony for the purpose of showing a course of conduct, not for the purpose of proving guilt or innocence in the case which we are trying today.
Although the circuit judge expressed some uncertainty about the matter, he sustained appellant’s objection, and the state rested its case. After a motion for a directed verdict by appellant was denied, the court instructed the deputy prosecuting attorney to call his next witness. The deputy prosecuting attorney responded that he understood the court to have ruled that Mrs. Sikes (the state’s last witness) would not be permitted to testify, and that the state rested.
It was appropriate for the circuit judge to be extremely cautious about the admission of such testimony, as any real doubt about the question should be resolved in favor of the accused. We have zealously guarded the rights of accused persons to have the state’s evidence strictly confined to the issues to insure that no one is convicted because he has committed offenses other than that for which he is on trial or because he is of bad character and addicted to crime. See Alford v. State, 223 Ark. 330, 266 S. W. 2d 804; Moore v. State, 227 Ark. 544, 299 S. W. 2d 838, cert, denied, 358 U. S. 946, 79 S. Ct. 356, 3 L. Ed. 2d 353. Yet the mere fact that evidence shows the defendant was guilty of another crime does not prevent its being admissible when otherwise competent on the issue on trial. State v. Dulaney, 87 Ark. 17, 112 S. W. 158, 160.
In Alford, we held that evidence of a prior assault with intent to rape by a defendant on trial for rape was inadmissible. Intent was not an issue either there or here. We recognized, however, that if conduct other than that with which an accused is charged is relevant as tending to prove some material point in issue, and not that the defendant is a criminal, evidence of that conduct may be admissible, but that a proper cautionary and limiting instruction should be given. Among those instances we gave was that arising where alibi is an issue.
In Moore, the state had been permitted to prove that two of four defendants on trial for murder committed in the perpetration of robbery assaulted and robbed another victim five days after the crime for which they were on trial. We held that error was committed in admitting this evidence because no connection between the two crimes was even alleged. The only similarity between the two was that the victims in both were picked up while hitchhiking. We again pointed out that there are innumerable situations in which proof of other conduct on the part of an accused is relevant and competent, even though it also shows the commission of another crime.
We have long recognized that evidence of other conduct by a defendant which shows other crimes by him is admissible when relevant to show mode or methods of operation, habits and practices of the defendant and to identify him as the person who committed the crime for which he is on trial. Tolbert v. State, 244 Ark. 1067, 428 S. W. 2d 264; Wood v. State, 248 Ark. 109, 450 S. W. 2d 537; Roach v. State, 222 Ark. 738, 262 S. W. 2d 647; Parks v. State, 136 Ark. 562, 208 S. W. 435; Puckett v. State, 194 Ark. 449, 108 S. W. 2d 468; Larmon v. State, 171 Ark. 1188, 286 S. W. 933. We have repeatedly held that evidence of the commission of other similar crimes or acts by a defendant at about the same time, tends to show the guilt of the defendant when it tends to establish his identity as the person who committed the crime charged. Kurck v. State, 242 Ark. 742, 415 S. W. 2d 61; Miller v. State, 160 Ark. 469, 254 S. W. 1069; Keese and Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542; Reed v. State, 54 Ark. 621, 16 S. W. 819; Nash v. State, 120 Ark. 157, 179 S. W. 159; Cain v. State, 149 Ark. 616, 233 S. W. 779.
One of the most widely recognized applications of the rule is in cases where the modus operandi tends to establish identity. If the crime charged has been committed by a novel means or in a particular manner, and the identity of its perpetrator is in issue and not otherwise conclusively established, evidence of a defendant’s commission of a similar offense by that means or in such manner is admissible as tending to show identity of the perpetrator when the similarity of the means or manner employed logically operates to set the offenses apart from other crimes of the same general variety and tends to suggest that the perpetrator of one was the perpetrator of the other. Jones v. Commonwealth, 303 Ky. 666, 198 S. W. 2d 969 (Ct. App. 1947); People v. Haston, 69 Cal. 2d 233, 70 Cal. Rptr. 419, 444 P. 2d 91 (1968); State v. Moore, 460 P. 2d 866 (Ore. 1969); Harris v. State, 189 Term. 635, 227 S. W. 2d 8 (1950); Wollaston v. State, 358 P. 2d 1111 (Okla. Crim. 1961); Nester v. State, 75 Nev. 41, 334 P. 2d 524 (1959); State v. Francis, 91 Ariz. 219, 371 P. 2d 97 (1962); State v. Redmond, 19 Utah 2d 272, 430 P. 2d 901 (1967); Thessen v. State, 454 P. 2d 341 (Alaska 1969), cert, denied, 396 U. S. 1029, 90 S. Ct. 588, 24 L. Ed. 2d 525; Ferrell v. State, 429 S. W. 2d 901 (Tex. Crim. App. 1968); Anderson v. State, 222 Ga. 561, 150 S. E. 2d 638 (1966); Brasher v. State, 33 Ala. app. 13, 30 So. 2d 26 (1946); Affirmed & modified, 249 Ala. 96, 30 So. 2d 31 (1947); Williams v. State, 80 S. Ct. 102, 4 L. Ed. 2d 86; United States v. Johnson, 382 F. 2d 280 (2nd Cir. 1967); Fernandez v. United States, 329 F. 2d 899 (9th Cir. 1964), cert, denied, 379 U. S. 832, 85 S. Ct. 621, 13 L. Ed. 2d 40; State v. Sorenson, 270 Minn. 186, 134 N. W. 2d 115 (1965); State v. Stevens, 26 Wis. 2d 451, 132 .N. W. 2d 502 (1965); Layton v. State, 248 Ind. 52, 221 N. E. 2d 881 (1966); State v. McClain, 240 N. C. 171, 81 S. E. 2d 364 (1954). See also, State v. Stephenson, 191 Kan. 424, 381 P. 2d 335 (1963); State v. Turner, 81 N. M. 571, 469 P. 2d 720 (1970).
Examples of application of the identity exception to the general rule of exclusion to the method or means of approach taken by an assailant are numerous. See e. g., Allen v. State, 201 Ga. 391, 40 S. E. 2d 144 (1946), where the common elements were that all the rapes and attempts to rape were committed by a negro upon white women in the same general section of a city, and a knife was the means of intimidation and coercion; Hart v. State, 447 S. W. 2d 944 (Tex. Crim. App. 1970), where the subsequent event about which evidence was admitted occurred eight days after the rape charged and was similar in that the person involved made his approach after watching the women in a washateria; Nester v. State, 75 Nev. 41, 334 P. 2d 524 (1959), where the rape charged occurred about six months prior to the other rape and was similar in that the fuses or lights were unscrewed to keep the area where contact was made in darkness, the assailant concealed his face, the threatening language was virtually identical, the method of forcible entry was similar and accomplished without removal of the victim’s garments; State v. Francis, 91 Ariz. 219, 371 P. 2d 97 (1962), where the victim and another young female were each stopped on different occasions by a man who showed a badge, identified himself as a juvenile officer and each was asked to get into his automobile; Williams v. State, 110 So. 2d 654 (Fla. 1959), in a prosecution for rape, where the assailant, who concealed himself in the back seat of the victim’s automobile in a parking lot at night, explained that he had crawled into the automobile to take a nap, thinking it was his brother’s, evidence was permitted to show that six weeks earlier the accused gave the same explanation when frightened away from another lady’s automobile in which he had concealed himself at night; People v. Lindsay, 227 Cal. App. 482, 38 Cal. Rptr. 755 (1964), wherein the charged rapes and uncharged ones were similar in that the perpetrator covered the faces or eyes of his victim, and bound her before committing the rape; State v. Stevens, 26 Wis. 2d 451, 132 N. W. 2d 502 (1965), where all thefts by fraud and attempts followed a procedure by which the thief would come to the home of a stranger, ask for an unknown person, claim ability to cure an ill person in the home, ask for a glass of water in which she put certain material, ask for money to bless and wrap in a cloth, use ruses to get both husband and wife out of their house and then disappear with the money; State v. Moore, 460 P. 2d 866 (Ore. App. 1969), where the robber in both cases initiated the robbery with the question, “Would you believe this is a holdup?” and then pulled a gun; People v. Adamson, 225 Cal. App. 74, 36 Cal. Rptr. 894 (1964), where the robbery charged occurred in Sacramento, California, two weeks prior to another in Reno, and in both cases, two men entered, one produced a hand weapon, pointed it toward a clerk and caused the clerk to turn his back while the other went behind a counter and removed only currency from a cash register; State v. Woolard, 467 P. 2d 652 (Ore. App. 1970), where a ring was discovered missing in a jewelry store on two occasions shortly after the accused and a female companion had left after trying on rings; People v. Perez, 65 Cal. 2d 615, 55 Cal. Rptr. 909, 422 P. 2d 597 (1967), where all the robberies were committed during the evening or early morning, two or three men participated, one or more of whom wore a mask, a gun was used, and no victim was physically injured: Thessen v. State, 454 P. 2d 541 (Alaska 1969), where 10 fires were started in trash piles with paper towels or tissue and the fire charged was started with paper towels taken from a trash bucket; Ferrell v. State, 429 S. W. 2d 901 (Tex. Crim. App. 1968), where the robber of two different motels on occasions eight days apart was wearing a hat, drawstring gloves, a woman’s hose over his face and exhibited an automatic pistol; Webster v. State, 425 S. W. 2d 799 (Tenn. Crim. App. 1967), cert, denied, 1968, where the instructions given and procedures followed by the abortionist in all instances were the same. Other cases where evidence of rapes or attempts to rape other persons was held admissible to establish identity in trials for rape or carnal abuse include: Mitchell v. State, 45 Ala. App. 668, 235 So. 2d 917 (1970); Mosley v. State, 211 Ga. 611, 87 S. E. 2d 314 (1955); Anderson v. State, 222 Ga. 561, 150 S. E. 2d 638 (1966); People v. Clark, 6 Cal. App. 3d 658, 86 Cal. Rptr. 106 (1970).
We have made this application of the rule in some cases without actually stating it, apparently accepting it as well established. For instance in Puckett v. State, 194 Ark. 449, 108 S. W. 2d 468, we held testimony about an attempted burglary by the appellee about 15 minutes prior to the burglary with which he was charged to be admissible. The house burglarized was entered by cutting a screen and breaking a window in about the same manner as the accused was earlier seen attempting entry into another house. In Kurck v. State, 242 Ark. 742, 415 S. W. 2d 61, testimony of witnesses about previous similar attempts to defraud by a “green money racket money press” was held properly admitted to show the accused’s identity, scheme, purpose, intent, design and motives.
In this case, the prosecutrix testified substantially as follows:
Appellant knocked at her door and inquired about the apartment next door. When she brought a rent receipt to the door to show appellant the name of the apartment building operator, Tarkington asked her for a drink of water. She told him to wait at the latched screen door, but when she returned with the water, he had entered the living room. She persuaded him to come outside by showing him the apartment office, but he asked for another drink of water. She became frightened and tried to get inside her apartment and close the door, but appellant followed her, prevented her from closing the door and followed her into the bedroom. When she turned he had a knife in his hand and was saying, “Don’t be scared. I won’t hurt you if you will just cooperate.” He told her to pull off her housecoat, then pushed her down on the bed and raped her.
While the trial judge must exercise a sound judicial discretion in admitting such evidence, the similarity in the approach was such that the admission of Lois Sikes’ testimony consistent with the proffer would not have been error especially if accompanied by an instrucdon limiting the purpose for which the jury might consider this evidence.
Appellant seeks to connect the calling of Mrs. Sikes to the stand, the later question partially propounded to her and testimony on hearing of his motion for new trial that this proposed witness had been seen talking to some of the jurors. The subject of the conversation was not shown. Mrs. Sikes denied that any such thing took place. If the testimony of his witnesses, both of whom were relatives of appellant, was given full credit, perhaps the trial court would have been justified in finding prejudice or conducting further investigation. No juror was ever identified. The only one called as a witness could not remember Mrs. Sikes’ having been called to the witness stand or anyone’s having spoken to him at all. We are unable to predicate reversal upon the record in this regard, as the question was one of credibility.
Appellant’s argument about the “star chamber” proceeding is based upon the following sequence of events. His first witness was his father, Robert Tarkington. This witness laid the foundation for appellant’s defense of alibi. The father identified one Gerald Cox as a person who was working with him on the date of the offense charged and as one who would know the date and time of a telephone call the father received from his son on that date. After two other alibi witnesses had testified, appellant called Gerald Cox as his next witness. The state’s attorney then inquired whether the witnesses who had testified and those who had not were being segregated. When informed that they were not, he requested that this be done, and the court granted the request. Appellant’s motion for mistrial was denied. The deputy prosecuting attorney requested a hearing in chambers, which was granted. At that hearing conducted while the jury was excused for the noon recess, the deputy prosecuting attorney examined Robert Tarkington and Gerald Cox, the uncle of appellant’s wife, as to whether the witnesses who had testified and returned to the witness room had discussed the proceedings during their testimony with the witnesses who had not been called, and he specifically asked Tarkington if he had “coached” the other witnesses. When no significant disclosure was made, the deputy prosecuting attorney made no motion. Appellant’s counsel again moved for a mistrial on the ground of intimidation of witnesses.
Appellant argues that this proceeding placed the witnesses under such a strain that their demeanor was affected and their credibility damaged. At the hearing on the motion for new trial, three of appellant’s witnesses who had not been on the witness stand prior to this proceeding testified that the elder Tarkington and Cox returned to the witness room all “shook up” and even though they would not say anything, this frightened or made them nervous. One of these three said that he could not look at or talk straight to the jury. Another, appellant’s father-in-law, said he was sick. Cox said that he was nervous. One of these witnesses stated that a rumor “got out” that anybody from Faulkner County would be prosecuted for perjury. The circuit judge heard all the testimony on the motion for new trial and observed these witnesses when they did testify. We cannot say that there was any intimidation of witnesses through this proceeding or that the discretion of the trial judge was abused in denying a new trial on any alleged misconduct on the part of the attorney prosecuting.
It is not at all clear to us how conduct of the prosecutrix during the trial is misconduct of the prosecuting attorney. Nevertheless, appellant showed by the testimony of the deputy prosecuting attorney that the prosecutrix was present on the second day of the trial and that she and her husband were in an anteroom of the judge’s chambers. He denied any recollection of this witness having cried in the presence of jurors outside the courtroom or at any time except while she was testifying, although appellant’s attorney stated that he had witnessed the prosecutrix crying hysterically and waving her arms in the presence of eight or nine jurors. Appellant’s first cousin, his uncle and one Junior Lee Smart, identified as appellant’s father’s brother-in-law, all testified that such an incident occurred during a recess, and the two relatives said that the prosecutor was with her. One of them testified that appellant’s attorney saw what took place. The uncle said that someone got her out quickly. Appellant’s father said that appellant’s attorney had discussed the matter with him at the time it occurred. Yet, this matter was never called to the circuit judge’s attention in any way prior to the motion for new trial. Even though appellant now argues that the witness was under the control of the deputy prosecuting attorney, and that he should have prevented such an occurrence, no excuse is offered for failure on the part of appellant to ask any action by the trial court at the time, or even to make the circuit judge aware of the incident, even though, according to appellant, both he and his attorney were aware of it. The circuit judge did not abuse his discretion in denying a new trial on this ground.
Appellant concedes that there is no record of the deputy prosecuting attorney’s closing argument. Neither is there any record of any objection to it. Of course, we cannot consider any point based on statements in the course of this argument. We find no reversible error for the misconduct of the state’s attorney.
The next group of points relates to action of the trial court. Two points argued by appellant have to do with statements made by the trial judge. One of these was the court’s admonition to the jury at the end of the first day of the trial. He admonished the jurors not to read newspapers, stating that if they did, he would have to declare a mistrial, and it had cost the state a couple of thousand dollars up to that time. Later during the presentation of appellant’s evidence, he offered exhibits in the form of weather bureau reports purporting to show amount of snowfall in the Little Rock area during the months of January, February and March, The trial judge remarked that lots of times it is raining at Adams Field and not at his house. When the deputy prosecuting attorney stated that he was at a loss to determine what the offered exhibits showed, the judge asked: “Do you want to let the jury guess on it?” While the judge’s statement as to the cost of the trial and his comments in regard to the weather bureau reports in the presence of the jury were perhaps inadvisable, we find no basis for reversal. Appellant did not object on either occasion, did not ask any corrective action and did not ask for a mistrial. Kimble v. State, 246 Ark. 407, 438 S. W. 2d 705.
Another argument advanced by appellant in this category is that the circuit judge erroneously refused to permit him to read the transcribed testimony of Lawrence Keathley at an earlier hearing pertaining to the case, because the witness was outside the_ jurisdiction of the court. He admits that the record does not disclose this action in any way.
Appellant moved for diminution of the record in this respect on April 20, 1970. We granted certiorari. The writ was returned indicating that there was no such record. The court reporter filed her affidavit that no written or oral motion to make this testimony a part of the record was ever presented to the court, and that no subpoena was issued for Lawrence Keathley.
Appellant then renewed his motion and asked permission to file a bystander’s bill of exceptions. We then remanded the case to the trial court for the purpose of settling the record on June 22, 1970. When the record had not been returned, we again issued a writ of certiorari on October 9, 1970. Return of this writ on November 6, 1970, indicated that the record was complete. Appellant’s motion on November 25, 1970, for certiorari or diminution of the record and for additional time to prepare a bystander’s bill of exceptions was denied by this court.
Appellant now argues that we must consider a bystander’s bill on this point, in spite of these proceedings. We do not agree. While appellant relies on Ark. Stat. Ann. §§ 27-1750 and 27-1751 (Repl. 1962), we have no record of the proceedings in the trial court before us and no bystander’s affidavit, even though the record was on remand to the trial court for the purpose of settling the record for more than four months. Neither do we know that the testimony of the witness was relevant, material or competent.
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Lyle Brown, Justice.
John Weber appeals from a second degree murder conviction arising out of the death of Claude Brock on the night of December 15, 1969, in the community of Concord, Cleburne County. Appellant advances- three points for reversal:
I. The court erred in allowing the introduction of ballistics testimony in that (a) appellant’s counsel was not permitted to cross-examine one of the State’s witnesses on that point; and (b) a proper foundation was not laid for the introduction of a shell casing;
II. Admissions purportedly made by the accused should have been suppressed; and
III. The court erred in ruling that Eva Jane Carter, a/k/a Eva Jane Weber, was not the wife of appellant and in permitting her to testify against appellant.
On the morning of December 16 Claude Brock was found dead in his front yard. He had been shot in the back by a high powered rifle. It was the State’s theory that appellant and Eva Jane drove to the Brock home on the previous night; that Brock was driving away from his home but stopped on the approach of the Weber vehicle; that the two men got out of their cars and engaged in conversation; and that appellant shot Brock with a rifle which appellant had, about a month before, obtained from Roscoe Brackett. The State’s case rested mainly on two items of proof. First, it showed by the testimony of Eva Jane that she and appellant drove to the Brock home on the night of December 15; that the two men conversed while standing outside their cars; that she heard a gun fire but could not say who fired it; and that appellant returned to the car exclaiming, "My God, Jane, I have got to get you out of here.” The witness said she knew appellant had a 30-30 rifle which was obtained from Roscoe Brackett and it was in the back seat of the car when the couple left Memphis the morning before the shooting that night. Second, Sgt. Honeycutt of the State Police, criminal investigation division, testified that he recovered a 30-30 bullet hull at the spot from whence the shot was said to have been fired. He obtained another bullet hull from Brackett, which was claimed to have been fired by the same rifle in November while Brackett owned the gun. Captain Paul McDonald, arms expert in charge of the State police laboratory, testified that “without a doubt” the two bullets were fired by the same rifle.
The foregoing recitation of testimony is sufficient to an understanding of appellant’s first point for reversal. Appellant says his counsel was not permitted to cross-examine Sgt. Honeycutt. The sergeant was called to identify the shell hulls which the State sought to introduce. After direct examination was completed the witness was instructed to stand aside. Appellant’s counsel suggested that he should be permitted to cross-examine Honeycutt. The court replied that such opportunity would be afforded. After witnesses Brackett and McDonald completed their tracing of the shells, Sgt. Honeycutt was called back to the stand and he was cross-examined extensively by appellant’s counsel. While the better practice would have been to permit the cross-examination immediately on completion of the direct examination, we see no prejudice in the adopted procedure.
The other assertion of error in Point I is that a proper foundation was not laid for the introduction of the shell hull obtained from Brackett. If there was a motion to strike the testimony of either Brackett or Officer Honeycutt, it is not abstracted. Furthermore, we have examined the detailed testimony of both witnesses on the point in question and it is clear that the evidence was sufficient to present a fact question.
The second point challenges the admissibility of statements purportedly made by the accused to the officers. On May 5, 1970, Sgt. Honeycutt interviewed appellant in the jail about mid-morning. The officer conceded that appellant appeared disheveled and sleepy, as if he had been up all night. The officer detected no odor of alcohol and said appellant responded coherently. The sergeant recited the preliminary statements he made to appellant which consisted of all the Miranda warnings, and said appellant indicated a willingness to answer questions. The officer said he asked these questions: “What did you do with the 50-50 rifle that you used to shoot Claude Brock with?” “What did you do with the automobile you were driving at the time the shooting occurred?” To those questions the appellant is said to have replied that he sold them somewhere in Mississippi. Appellant was asked about the 30-30 rifle he bought at Concord and he replied that he did not buy it, that he traded a drilling machine for it. (The latter statement corroborated a similar statement by Brackett.) The officer said he then asked appellant if he wanted to go into detail about the incident “and he stated he better consult a lawyer and the interview discontinued at this point.” A deputy sheriff testified that he was present when Sgt. Honeycutt interviewed appellant and fairly corroborated the sergeant’s testimony.
The accused testified at the Denno hearing. He categorically denied that he was given the Miranda warnings. He agreed that Honeycutt asked him the questions about the gun and the automobile, but he denied giving the answers Honeycutt recited. He said he told them he had been in Florida and he agreed with the officer that “running isn’t much fun.” He also admitted telling the officers he traded off the gun he got from “Slick” Brackett. Appellant said he was not drunk at the time of questioning and clearly recalled the interrogation. His main difference with the questioning officers was that he denied having been asked if he used the car and gun in connection with the killing of Claude Brock.
We have carefully reviewed the record on the question of voluntariness of the statements and considering the respectful consideration we give to the trial judge’s findings on the issue, we are unable to say the court erred in holding the statements to have been made and voluntarily given. Harris v. State, 244 Ark. 314, 425 S. W. 2d 293 (1968).
This brings us to appellant’s final point. The State gave notice in pretrial that it intended to call Eva Jane Carter, a/k/a Eva Jane Weber, as a witness against appellant. Appellant filed a motion to exclude her testimony on the ground that Eva Jane was his wife. At the conclusion of an evidentiary hearing the trial court ruled that Eva Jane and appellant were not husband and wife and therefore held the State could call her as a witness.
Eva Jane was the principal witness at the hearing on the motion to exclude her evidence. She relied (1) on a common law marriage in Texas and (2) on a marriage ceremony performed in Mexico. Here is a summary of her testimony on those two points:
John and I started dating in February 1958 and started living together as husband and wife in Seattle, Washington, in May 1958. We lived there six months and then went to Lubbock, Texas, where we lived and worked some four months. John worked as a mechanic and I was a waitress. From Lubbock we went to Colorado Springs and worked during the tourist season. From there we lived at various intervals in Idaho, Seattle, Indiana, following seasonal work, including the harvests. Then in 1963 we moved back to Lubbock and lived there three months. Then we returned to the west coast. During all those times we continuously considered ourselves husband and wife, cohabited as such, and held ourselves out as man and wife. Our baby was born in 1960. Here is my social security card in the name of Eva Jane Weber. Here is one of my withholding statements in the name of Jane Hunter Weber. We sent and received many letters in our travels and they all have our names on them as Mr. and Mrs. Weber. Here are some of them.
Then in 1964 we decided we should go through a marriage ceremony, especially since we had a baby. We went across the border to Texacali, Mexico. We inquired about where a couple could get married and we were "directed to a lawyer’s office. He performed the marriage ceremony, charging us fifteen dollars. Here is our receipt. The receipt is styled MARRIAGE ***** RECORDING ***** RECEIPT. It gives the lawyer power of attorney to record our marriage, receipts us for our money and certifies that he would send us our official marriage certificate after recording. We never received the certificate; I had a letter sent to him but it came back showing the lawyer deceased.
We have continued to live together. There have been times when we had quarrels and separated but would go back together. In fact I started divorce proceeding once but we made up and the matter was dropped.
Texas recognizes common law marriages and the requirements may be classified as minimal. “To establish a common law marriage there must be an agreement express or implied between the parties to become husband and wife, cohabitation in pursuance of such agreement, and a holding out by the parties that they are husband and wife.” Moore v. Jordan, 328 S. W. 2d 343 (1959). See Darling v. Dent, 82 Ark. 76, 100 S. W. 747 (1907). In Darling this court had occasion to treat with favor the validity of a Texas common law marriage. Eva Jane gave uncontradicted testimony which showed clearly that the parties met the three requirements of Texas law. In support thereof she produced her social security card, withholding statement, and numerous letters, all in the name of Mrs. Weber. Then there was the birth of the child, of which appellant was indisputably the father.
With respect to the purported marriage in Mexico, Eva Jane gave positive testimony that a marriage was there performed and presented a document which strongly corroborated her recitation of facts.
Appellant, having moved to exclude Eva Jane’s testimony on the ground that she was his wife, initially carried the burden of sustaining the point. McFarland v. State, 165 Ark. 431, 264 S. W. 938 (1924). But once substantial evidence of a marriage is introduced the marriage is presumed to be valid “and the burden of proof is on the party attacking it.” Yocum v. Holmes, 222 Ark. 251, 258 S. W. 2d 535 (1953). In Yocum the only evidence of the marriage was the bare statement of the wife that “she married Holmes in April 1950 in Camden, Arkansas.” That testimony was held sufficient to make a factual question as to whether the marriage took place.
A Mexican marriage was involved in Miller v. State, 235 Ark. 880, 362 S. W. 2d 443 (1962). There the court said: “No presumption of law is much stronger than the presumption that a marriage is lawful, innocent and not criminal.” It was further said that the presumption is so strong and so positive as to require one who asserts illegality to assume the burden of proving that illegality.
The abundance of evidence presented by the testimony of Eva Jane, and her supporting exhibits, were certainly sufficient to raise the presumption of marriage, both at common law in Texas and a ceremonial marriage in Mexico. Faced with that evidence it became incumbent on the State to refute it and not a syllable of testimony was offered to repudiate Eva Jane’s evidence. The trial court should have granted the motion to exclude.
Reversed and remanded.
Harris, C. J., and Fogleman, J., concur. | [
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J. Fred Jones, Justice.
This is an appeal by Jerry Denham from an order of the Pulaski County Circuit Court denying his petition for post-conviction relief in the form of habeas corpus. The trial court record enables us to dispose of the matter without a great deal of difficulty. We affirm the judgment of the trial court.
Denham was charged with first degree rape of a little Negro girl who had been babysitting with Den-ham’s sister-in-law’s children. Competent counsel was appointed to represent him. He entered a plea if not guilty and not guilty by reason of insanity. He was found without psychosis upon examination at the State Hospital; and after a jury was empaneled and selected to try his case, the prosecuting attorney agreed to waive the death penalty upon a plea of guilty. Denham entered his plea of guilty and was sentenced to the penitentiary for life.
Denham alleged in his petition that his constitutional rights were violated in that he was denied the assistance of counsel; that he was never given a copy of indictment, or information, or bill of particulars; that he was denied counsel at police interrogation; that trial counsel finally appointed for him was ineffective; that statements made under duress were admitted in evidence against him; and finally, that he was denied the right to appeal his conviction. The petition was signed by Den-ham over a jurat as follows:
“Sworn and subscribed this 22nd day of September, 1970. /s/ Jack Jones—My Commission Expires April 25, 1974.”
An evidentiary hearing on the petition was held in the trial court on the 28th day of October, 1970, at which time Denham appeared with his court-appointed counsel and was permitted to testify in support of his petition. At the outset, however, the record made at the original trial of his case was read to him, which reflected that he was charged by information filed on June 27, 1967; that on July 3, 1967, Harry Robinson and Allan Dishongh were appointed to defend and his case was passed to July 10 for arraignment; that on July 11, 1967, he entered a plea of not guilty and not guilty by reason of insanity; that he was then sent to the State Hospital for psychiatric examination; that on July 25, 1967, he was returned to the court with a certificate from the State Hospital “without psychosis”; that on July 31, 1967, a jury trial was set for October 26 and 27; that on October 23, 1967, Allan Dishongh was relieved as attorney. Under date of October 26, 1967, the record made in the trial court reveals as follows:
“Both parties announced ready for trial; drawn and struck jury; death penalty was asked by the State; the jury was empaneled and sworn; death penalty was waived by the State; plea of not guilty withdrawn, plea of guilty entered, jury instructed to return a verdict of guilty and assess a life sentence; verdict, by direction of Court, guilty, life, Max F. Atwood, Foreman; and time for sentencing waived and defendant sentenced and committed.”
The record before us reveals that on September 25, 1970, Mr. Louis Rosteck was appointed to represent the petitioner on his petition for habeas corpus. In support of his petition Denham testified that he did not know that Mr. Dishongh was appointed to represent him; that he does not recall whether Mr. Dishongh was in the courtroom when he entered his plea of guilty to the rape charge or not; that he does not recall whether he ever talked to Mr. Dishongh but does not think that he did. He testified that he recognized Mr. Robinson as being his attorney; that he remembers that he first pleaded not guilty to the charge of rape; that he believes it was not guilty by reason of insanity as well. The pertinent answers to questions are as follows:
“Did your attorney, or attorneys, ever talk to you concerning the trial? Did you have any conferences with them, with either of them?
A. Yes. I had one or twice with Mr. Robinson, and I don’t remember what it was about though.
Q. Well, did you talk about the nature of the case itself?
A. Yes, sir, I imagine we did. I just don’t remember, it’s been so long ago.
Q. And did you make it known to him as to what your plea would be?
A. Yes, sir.
Q. Now, I would like for you to be more specific since you are alleging here, one of the grounds here, that you were coerced into making a plea of guilty. I wish—I don’t hardly know how to ask the question, but I wish you would tell the Court here as to what you base that on?
A. What do you mean?
Q. You have alleged here that you were coerced into entering a plea of guilty.
THE COURT: Somebody forced you to enter a plea of guilty.
THE WITNESS: Well, I had to plead guilty, or get the electric chair.
Q. (Mr. Rosteck, Continuing) Tell the Court how that came about?
A. Well, anybody with any sense would say that is my point.
Q. Who came to you and told you that you had to enter a plea of guilty?
A. I don’t rightly remember.
Q. Did your attorney, or court-appointed attorney, recommend to you to enter a plea of guilty?
A. I believe he did; said it would be best to plead guilty.
Q. To plead guilty?
A. Yes, sir.
Q. Are you sure about that now?
A. Yes, sir, I am sure.
Q. Was any of the officers, either the county jail or the county officers, city officers, or state officers, did any of them threaten, coerce you in any manner?
A. No, sir.
Q. As to entering a plea of guilty to this charge?
A. No, they didn’t.
Q. Did you at any time make it known to your attorney that you wanted to have a jury trial, or did not want to have a trial?
A. Yes, sir, we was going to have a trial and then we come in here, this room here, and I believe that is when he told me it would be best to plead guilty because I had all of those people in the courtroom on me, and it was in the papers and all that stuff; told myself it would be best to plead guilty instead of getting the electric chair.
Q. Or get the electric chair?
A. Right.
#46- 4t« TT* TT
Q. Let me ask you this. Do you recall appearing in the courtroom with your attorney, or attorneys, and that a jury was selected?
A. Yes, sir, a jury was selected.
Q. They were selected and seated in the jury box?
A. Yes, sir.
Q. You recall that?
A. Yes, sir.
Q. After the jury was sworn in by the clerk, you recall that?
A. Yes, sir.
Q. Jury being sworn in?
A. Yes, sir.
Q. What transpired from that point on?
A. Well, I don’t really remember. That’s when we come in here and started talking. I don’t know.
Q. Was there any indication to you at the time you went to trial that the Prosecuting Attorney’s office, or the State, was asking the death penalty?
A. Yes, sir, they was to start with.
Q. You were aware of that?
A. Yes, sir.
Q. So your attorneys were ready to have a jury trial at that point?
A. Yes, sir.
Q. At some point after the jury was empaneled, you came into the Judge’s Chambers? Is that correct?
A. Yes, sir.
Q. And, at that time, be specific on what you’re saying now, and think carefully, what happened, if anything happened, that you can recall, either coerced, or under duress, or threatened, or anything of that nature, to make you change your plea from not guilty to guilty?
A. Well, I wasn’t really, what you say threatened. Like I told you while ago, the man said it would be best to plead guilty and I know it would be myself.
* * #
Q. (Mr. Rosteck, Continuing) Mr. Denham, you mentioned here that you did—you never received a copy of the bill of particulars. Was this requested by you?
A. No, sir.
Q. Do you know what a bill of particulars is?
A. I really don’t.
Q. You alleged in here that you requested, you intimated that you didn’t receive it, neither did you receive a copy of the information?
A. I didn’t receive one.
Q. Did you make any formal request of your attorney for a bill of particulars?
A. No, sir.
Q. Did you ask your attorney for information to be more specific as to the crime itself?
A. I don’t know.
Q. To get you any information?
A. No.
Q. Were you aware at the time that you were brought to trial what you were charged with?
A. Yes, sir.
Q. The nature of the crime?
A. Yes, sir.
Q. And also the penalty for which you could receive?
A. Yes, sir.
Q. You were aware of all that at that time?
A. Yes, sir.
Q. Now, you further allege, and this is the last point here, that you had ineffective assistance in counsel. Now, I wish you would be more specific and say why you feel that you did not have effective assistant counsel?
A. Well, really, I don’t believe I could have had any court-appointed, or any other kind, the way they were all right in court and all that stuff on me. I didn’t have a chance to start with.
Q. When you say ineffective assistance, what do you actually mean by that?
A. Well, I didn’t even—I don’t know. I didn’t write that. That lawyer up there wrote it for me.
THE COURT: You got a jailhouse lawyer, or a regular lawyer?
THE WITNESS: I don’t know. I guess sorta jailhouse lawyer.
Q. (Mr. Rosteck, Continuing) Well, for the matter of record here, did you receive—
THE COURT: (Interposing) How much did he charge you for writing it?
THE WITNESS: He didn’t.
THE COURT: I didn’t know if he was practicing law without a license, or not. Proceed.
Q. (Mr. Rosteck, Continuing) Did you receive counsel from your court-appointed attorneys? Did they counsel with you?
A. Yes, sir, Mr. Robinson did.
Q. Do you feel like there was anything they could have done which they didn’t do?
A. No, sir, I don’t believe they could.
Q. In other words, you feel that they were as effective as they could possibly have been under the circumstances for which you were charged?
A. Yes, sir.
Q. I will ask you one last question. Is there anything else, or any statement that you would like to make to support your petition, anything that I have not asked you and anything you want to say?
A. No, sir, not that I know of.”
On cross-examination the appellant reiterated that he was afraid the jury would assess a death penalty, and that he knowingly and intentionally entered his plea of guilty with the understanding that he would get a life sentence to the penitentiary, rather than take the chance of getting a sentence of death in the electric chair. The assistant prosecuting attorney then proceeded on cross-examination to elicit the following answers to the following questions:
“Q. Now, your attorney went into a great deal of detail in explaining this to you, did he not?
A. Well, he didn’t go into all that; he just told me.
Q. You agreed to it, did you not?
A. Yes, I agreed to it.
Q. You agreed to it because you had done the act that you were charged with? Is that not true?
A. No, sir, I didn’t do the act.”
On redirect examination Mr. Denham testified as follows:
“Q. Mr. Denham, you indicated that you did not commit this particular crime. I will ask you specifically, did you, or did you not —are you, or are you not stating that you were, or were not, guilty of the crime of rape?
A. I pleaded guilty then, yes.
Q. You plead guilty to it, and you are admitting today that you were guilty of it?
A. No, I am admitting I wasn’t guilty of it, but I pleaded guilty instead of getting the electric chair, which I would have got.
Q. Now, so that I am sure I am right on this, you plead guilty because you were in fear of getting the electric chair?
A. That’s right.
Q. And what induced you to plead guilty?
A. If you read the papers, the papers would tell you why.”
The court reporter who' participated at the original trial on the plea of guilty, as well as Mr. Harry Robinson who represented the appellant at his original trial, testified. The substance of their testimony was that after the jury was empaneled to try the defendant on a charge of first degree rape, the prosecuting attorney agreed to waive the death penalty and recommend life imprisonment if Denham desired to enter a plea of guilty rather than risk his chances with a jury. Mr. Robinson’s qualifications, as set out in the record, show that he had been an attorney for 40 years; that he had served as deputy prosecuting attorney; had served as a municipal judge as well as a circuit judge; and that he had participated in the trial of many capital cases.
Mr. Robinson testified that he discussed the case with the appellant and his family on many occasions prior to trial; that after the jury was empaneled and sworn to try the case, he discussed a plea of guilty with the prosecuting attorney; that when the prosecuting attorney agreed to waive the death penalty, he felt that it was to his client’s best interest that he enter a plea of guilty and accept a sentence to life imprisonment.
The pertinent facts surrounding the original crime are only before us as referred to by Mr. Robinson in his testimony. The substance of his testimony is that the crime itself had complicated features in that the victim of the crime was a little Negro girl who was babysitting for the appellant’s sister-in-law; that following the crime she was denied admittance to a local hospital because the doctor in charge did not want to become involved, and the crime itself as well as the subsequent events was attended by considerable statewide publicity. Mr. Robinson concludes as follows:
“I just told him the facts as it was. He had a rough case, coupled with some other—rape itself was rough, but all this other hullabaloo, it was just a rough case, and Denham understood it.
* * *
I could have discussed it with him a hundred times and never would come up with but one conclusion —you better plead if you could. It wras that kind of case to me.”
Mr. Robinson testified that he filed a motion requesting a list of the witnesses the state intended to use at the trial, but that after a plea arrangement was worked out with the prosecuting attorney, the motion became moot. As to the alleged failure to furnish a bill of particulars and to appeal, Mr. Robinson testified as follows:
“Q. Did you ever file a motion for a bill of particulars?
A. No, I didn’t need it. I didn’t think. Now, a bill of particulars is either to aggravate, or delay, the Prosecuting Attorney, or it’s very seldom ever filed for, actually for information.
THE COURT: Let me ask you this. Did this man request you to appeal this case? He said something in there about failure to take his appeal.
THE WITNESS: No, sir, he was well satisfied under the circumstances. ***
Q. (Mr. Rosteck, Continuing) Let me ask you you one last question. If, today, you had the same situation, would your decision be the same?
A. Absolutely.”
Mr. Denham was offered the opportunity to direct questions to Mr. Robinson concerning the petition he filed, but he declined to do so.
The judgment is affirmed. | [
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George Rose Smith, Justice.
The city of Little Rock, with some aid from a group of private citizens, proposes to submit for approval at a special election a $9,500,000 bond issue under the authority of Constitutional Amendment No. 18 and its implementing statute, Act 206 of 1963, compiled as Ark. Stat. Ann., Title 19, Ch. 31 (Repl. 1968). This is a taxpayer’s suit brought by the appellant to enjoin the city directors from proceeding with the election and to obtain a declaratory judgment holding the implementing act to be unconstitutional and declaring some or all of the purposes of the bond issue to be beyond the proper scope of' Amendment 18. After a hearing at which a number of witnesses testified the chancellor entered a decree declaring the city’s proposal to be valid in every particular. The taxpayer’s complaint was accordingly dismissed for want of equity. Upon this appeal the taxpayer argues five points for reversal, which must be discussed separately.
I. As a precautionary argument, the appellant first states that his appeal should not be dismissed for lack of a justiciable issue. We agree with his position. If the contemplated election is in fact illegal, as the appellant contends, the expense of holding it would constitute an illegal exaction for which the constitution provides a remedy by injunction. Townes v. McCollum, 221 Ark. 920, 256 S. W. 2d 716 (1953). Moreover, a declaratory judgment is especially appropriate in disputes between private citizens and public officials about the meaning of the constitution or of statutes. Culp v. Scurlock, 225 Ark. 749, 284 S. W. 2d 851 (1955).
II. The appellant contends that the first paragraph of Amendment 18 contemplates a five-mill tax to be voted annually and does not authorize a continuing levy to support a bond issue. We find no merit in that contention. The Amendment provides that the tax may be levied “for the period that may be provided by law.” The implementing act authorizes a continuing tax levy to support a bond issue maturing serially over a period of not more than 35 years. Ark. Stat. Ann. §§ 19-3106 and -3107. In a substantially similar situation, where the constitution provided for an annual twelve-mill school tax, we held that the legislature could authorize the electorate to approve a continuing levy to support a long-term bond issue. Woodruff v. Rural Special Sch. Dist. No. 74, 170 Ark. 383, 279 S. W. 1037 (1926). We see no material difference between that case and this one.
III. The most serious question in the case is whether Amendment 18 authorized the city to utilize the five-mill tax levy to support a bond issue as a means of financing the nine separate proposals that are set forth in the petition for the special election. (The petition contains a tenth catch-all proposal, but counsel for the appellees conceded at the oral argument that the language is too broad and vague to justify judicial sanction of the expenditure of funds under that clause of the petition.)
Amendment 18 was clearly designed to enable cities of the first class in counties having a population of at least 105,000 to levy a five-mill property tax for the purpose of attracting industries. The Amendment begins with these words: “It being most apparent that factories, industries and transportation facilities are necessary for the development of a community and for the welfare of its inhabitants, a special tax not exceeding five mills on the dollar of all taxable property . . . may be levied ...” The rest of the Amendment goes on to specify how and by whom the proceeds of the tax levy are to be spent.
The third paragraph of the Amendment enumerates five purposes for which the tax money may be used. We are quoting that paragraph verbatim, except that for convenience of discussion we have divided it into subparagraphs and have inserted parenthetical numbers for the several enumerated purposes:
"The proceeds of such tax may be expended as may be provided by law
(1) for the purpose of securing the location of factories, industries, river transportation and facilities therefor within and adjacent to such cities or
(2) other public purposes, exclusive of charities and those now within the powers of said cities to perform,
and the expenditures may also be made for
(3) advertising such cities and the State, or
(4) making secured loans to such factories and industries, or
(5) for any other public purpose that may be provided by law, connected with securing the location of such factories and industries and encouraging them.”
We have no hesitancy in holding that five of the purposes enumerated in the petition for the special election are set forth in such general language that we cannot properly declare that those purposes fall within the scope of Amendment 18. We quote the language of the petition with respect to those five proposals:
2. To improve by reconstructing and paving certain streets and to construct certain streets, including, where necessary, acquisition of rights of way, widening, curbing, overpasses, underpasses, bridges and draining appurtenances.
3. To construct or reconstruct certain storm drainage facilities, including, where necessary, acquisition of rights of way and appurtenances.
4. To construct, reconstruct, equip or re-equip certain fire stations.
# # # #
7. To acquire, construct, establish, develop and improve facilities for the off-street parking of vehicles and any facilities or improvements necessary or desirable in connection with the utilization and operation thereof.
* * * *
9. To acquire, construct, establish, develop and improve parks and recreational facilities, indoor and outdoor, and facilities necessary or desirable in connection with the utilization and operation thereof.
It will be noted that none of the foregoing purposes are defined in such a way as to limit the expenditures to projects, such as streets, having a direct connection with the factories, industries, etc., that are the primary subject of the Amendment. See, by way of contrast, Myhand v. Erwin, 231 Ark. 444, 330 S. W. 2d 68 (1959), where Amendment 49 was held to authorize the construction of a road leading to a $35,000,000 industrial plant.
Here the appellees introduced witnesses who testified in general terms that business men and corporations are apt to be favorably impressed, in seeking a location for a new plant or the like, by a city which has well-paved streets, adequate storm drainage facilities, sufficient fire stations, and so on. The fact remains, however, that nothing in the petition requires any direct connection between the proposed capital improvements and the new industries. It would be entirely permissible for the city to spend all or any part of the bond proceeds for the improvement of streets in residential areas or for other improvements having only a remote bearing upon the attraction of new industries. That authority, however, already existed and certainly was not the reason for the adoption of Amendment 18, with its attendant tax levy.
Nor do we think the scope of the Amendment to be indefinitely broadened by what we have numbered as its second purpose: “[Ojther public purposes, exclusive of charities and those now within the powers of said cities to perform.” We are unwilling to lift the words, “other public purposes,” from their context and take them to mean absolutely any conceivable public purpose, regardless of its connection with the rest of the Amendment. In Words and Phrases there are listed some fifty public purposes that might appropriately be accomplished by the use of municipal funds. McQuillin points out that the term “public purpose” is so broad that the courts as a rule have not attempted a judicial definition of it. McQuillin, Municipal Corporations, § 10.31 (3d ed., 1966).
In holding that the phrase, “other public purposes,” was not an open-end authorization of unlimited scope, we are influenced by two principles of interpretation. First, the rule of construction known as noscitur a sociis (It is known from its associates) requires that general language be construed to be comparable to the specific language of its context. Altus Cooperative Winery v. Morley, 218 Ark. 492, 237 S. W. 2d 481 (1951). Here every other clause in the Amendment has to do with the attraction of new industry. In that context the reference to other public purposes may fairly be taken to mean those of the same nature as the enumerated ones, even though not specifically set forth.
Secondly, the rules of statutory construction also apply to the interpretation of constitutional amendments. Bailey v. Abington, 201 Ark. 1072, 148 S. W. 2d 176 (1941). Hence, in cases of ambiguity, it is proper to refer to the title of such an amendment as an aid to its interpretation. Haile v. Foote, 90 Idaho 261, 409 P. 2d 409 (1965); State ex rel. Getchell v. O’Connor, 81 Minn. 79, 83 N. W. 498 (1900); Rathjen v. Reorganized Sch. Dist. R-11, 365 Mo. 518, 284 S. W. 2d 516 (1955). The title of Amendment 18, which was all that the voters saw upon their ballots in voting for that initiated measure, read as follows:
To authorize the voters to vote a special tax in the cities of the first class located in counties now or hereafter having not less than one hundred and five thousand population to secure the location and encourage the operation of factories, industries, river transportation and facilities therefor within and adjacent to such cities. [Acts of Arkansas, 1929, p. 1526.]
Under our Initiative and Referendum Amendment the ballot title must contain a fair statement of the scope and import of the proposed measure. Westbrook v. McDonald, 184 Ark. 740, 44 S. W. 2d 331 (1931). Since the title to Amendment 18 gave the voters no hint that taxes might be levied under the measure for purposes other than those stated, we are confirmed in our conclusion that no such sweeping construction of the Amendment should be adopted.
We are of the opinion, however, that the other four purposes enumerated in the petition now before us fall fairly within the scope of Amendment 18. One is the construction of a convention center, which is shown to be not only a means of advertising the city but also a facility having a direct connecdon with the specific purpose of attracting new industries. Two of the purposes have to do with river transportation, barge terminals, railroad terminals and facilities, and similar improvements falling fairly within the purview of the Amendment. The ninth purpose: “To provide capital for a nonprofit small business investment company to aid in the financing of industries when such financing is not available from private sources,” appears to be an appropriate means of achieving what we have numbered as the fourth express aim of the Amendment, the making of secured loans to new factories and industries.
IV. Amendment 18 provides that the proceeds of the tax levy are to be expended by a board of three commissioners. One of the commissioners is to be selected by a majority of the judges of this court, a second by a majority of the circuit, county, and chancery courts in the county, sitting as a board, and the third by a majority of the banks and trust companies located in the city. It is quite apparent that the three commissioners were to be carefully selected and were to have positions of responsibility and authority in the expenditure of the funds collected under the Amendment. We must therefore hold that section 5 of the. implementing act, Ark. Stat. Ann. § 19-3105, is unconstitutional to the extent that it attempts to strip the board of commissioners of all the authority vested in them by the Amendment, to reduce them to mere puppets having no duties except to receive the tax proceeds from the county treasurer and deposit them in a bank account, and to vest all the powers of the commissioners in the governing body of the city. The conflict between the act and the Amendment is so direct that the two cannot possibly be reconciled. In such a situation the provisions of the constitution are of course controlling.
V. Finally, the Amendment provides that the petition for the special election must be signed by “ten per cent of the owners of real property in such city.” Neither the constitution nor the implementing act attempts to say how the necessary ten per cent is to be determined, as, for example, by number, by the area of the property, or by its assessed value. The city proposes to solve the problem by accepting a petition signed by the owners of property having at least ten per cent of the total assessed value of the real property within the city.
We do not think that the proposed procedure conforms to the intent of the Amendment. Ten per cent of the owners by assessed value might enable a comparatively small group of wealthy persons or corporations to call the election. But the Amendment says “ten per cent of the owners of real property,” not the owners of ten per cent of the real property. We think the plain language of the Amendment means ten per cent in number of the total real property owners within the city. In that way the small property owner, whose taxes are just as burdensome to him as those paid by a large corporation are to it, has a real voice in the calling of the election.
In conclusion, we should add that we have not overlooked an amicus curiae brief filed by certain mem bers of the Jefferson county bar. We are told that Jefferson county or the city of Pine Bluff wishes to construct a convention center, but the county does not have sufficient population to bring it within the provisions of Amendment 18, We are asked to decide instead whether the county or city may construct such a center under the provisions of an entirely different part of the constitution; namely, Amendment 49.
We must decline that invitation. There does not appear to be any case pending in Jefferson county or elsewhere involving the question now posed. Certainly there is in this court no record of any such case. Consequently we are being asked to render a purely advisory opinion upon an academic question, which we have consistently refused to do. Hogan v. Bright, 214 Ark. 691, 218 S. W. 2d 80 (1949).
The decree of the chancery court is affirmed in part and reversed in part and the cause remanded for the entry of a declaratory decree consistent with this opinion.
Fogleman, J., concurs in part and dissents in part. | [
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George Rose Smith, Justice.
The appellee, a real estate broker brought this action to recover a $3,500 commission which he had assertedly earned by finding a purchaser for a 31-acre farm being offered for sale by the appellant, a family corporation owned by Julian James and his wife. This appeal is from a $3,500 verdict and judgment for the plaintiff. For reversal it is contended that the plaintiff’s proof was fatally deficient in four particulars.
We state the facts most favorably to the appellee, as is our rule. On a Wednesday morning, June 18, 1969, Bennett and Julian James happened to meet at the post office in Jonesboro. James orally employed Bennett to sell the farm for $33,000, with the down payment to be $15,000 and the balance to be paid in five years, at T/i% interest. In response to a question Bennett stated that he thought that Wallace Fowler would be interested in buying the property.
On Thursday and Friday Bennett discussed the farm with Fowler and showed it to him. Fowler was interested but wanted easier credit terms. On Friday Bennett talked again with James, who raised the price to $35,000 but reduced the. down payment to $7,500 and extended the period of credit to fifteen years. On Saturday morning Fowler agreed to the new terms. That afternoon Bennett telephoned James and reported that he had sold the land to Fowler upon James’s exact terms. James replied: “That’s great, Bob. . . . You’ve done a good job.”
On Monday morning Bennett received this letter from James, dated the preceding Saturday:-
Since I talked to you today, I have discussed, in detail, the possibility of selling the acreage out by Craighead Forest, with the family, and several things have developed, that has caused us to not sell the property at this time.
From all indications another deal for another piece of property is going to go thru, and if it does, we think it best to hold this acreage, for it might be best to sell it off in lots.
Your interest in selling it and helping us is sincerely appreciated. If and when we decide to think of selling it, we will be glad to talk to you first.
When Bennett called James on Monday morning to express his surprise and disappointment at James’s change of position, James said that his wife wouldn’t let him sell the property. Despite James’s written statement that he and his family had decided not to sell the property, on June 25—only two days later—James and his wife sent Bennett a letter offering him an exclusive listing to sell the property for $37,500. In that letter Mr. and Mrs. James stated that they would like to see Bennett’s client (Fowler) get the property and explained that the new price was a compromise between what James had discussed with Bennett and what Mrs. James wanted for the property. Later on this action was filed, resulting in a verdict for Bennett for the full 10% commission.
The appellant corporation now relies upon four asserted deficiencies in Bennett’s proof to justify its refusal to pay Bennett’s commission. Not one of those grounds for refusal was asserted in James’s about-face letter of Saturday, June 21. Consequently the appellant is confronted with the settled rule that a seller who has attempted to revoke his earlier acceptance of an offer obtained by the broker cannot ordinarily defeat the latter’s claim to his commission upon a ground not originally stated as a basis for the revocation. This introductory statement to an A. L. R. annotation fits the case at bar so precisely that it is well worth quoting:
For example, in a case where a landowner has listed property for sale with a broker, and the latter has procured an oral offer from a prospect so easily that the owner concludes he should have asked more for the property, for which reason he rejects the offer and gives the standard excuse that his wife will not let him sell, or he frankly states that he wants more money, a question arises as to whether he may later defend the broker’s action for commissions or other compensation by asserting other matters not discussed when refusing the offer, such as [several illustrative excuses stated]. As will be seen in III, infra, as a general rule, none of these matters may be raised as a defense under such circumstances. [156 A. L. R. 602.]
The foregoing principle of waiver applies to the first three of the grounds now relied upon by the appellant for a reversal of the judgment. For that reason we need discuss those contentions only briefly.
First, it is argued, on the basis of dictum contained in a footnote in Cherry v. Montgomery, 242 Ark. 233, 412 S. W. 2d 845 (1967), that a broker does not earn his commission if the purchaser’s oral offer is made to the broker rather than to the seller himself. That rule prevails in California, as an incident to the statute of frauds. Mattingly v. Pennie, 105 Cal. 514, 39 Pac. 200, 45 A. S. R. 87 (1895). The rule has never been followed in Arkansas, and, moreover, it does not apply even in California when, as in the case at bar, the seller waives the rule by preventing the broker from bringing the parties face to face. Martin v. Culver Enterprises, 49 Cal. Rptr. 149 (Cal. App., 1966).
Secondly, it is contended that Bennett did not prove Julian James’s authority to act for the family corporation. Bennett showed, however, without contradiction, that James and his wife owned 494 of the corporation’s 500 outstanding shares of stock and that James was the president of the company. To allow such a one-man corporation to avoid its owner’s contract would be a fraud. Security Bank & Tr. Co. v. Warren Light & Water Co., 170 Ark. 50, 278 S. W. 643 (1925). Furthermore, here the corporation perforce relies upon James’s letter of June 21, revoking the contract, but that letter was signed by James as an individual. Finally, the principle of waiver, already mentioned, obviously applies here, for if Mr., and-Mrs. James had been sincere about wanting to sell the property upon the terms accepted by Fowler, they could readily have supplied the necessary corporate resolution.
Thirdly, it is argued that the appellant never agreed to an offer of $1,000 earnest money that accompanied a written acceptance signed by Fowler on Monday, June 23. A complete answer to that contention is that James’s terms of sale made no mention whatever of any earnest money. A seller certainly cannot complain of a provi sion in the buyer’s acceptance more generous to the seller than what the latter had demanded.
Finally, the appellant, again citing Cherry, supra, argues that Bennett did not prove that the purchaser, Fowler, was financially able to make the purchase. We do not imply that the doctrine of waiver applies to this contention, for some authorities recognize an exception to that doctrine when the seller’s belated objection is based upon a matter that the broker could not have cured even if the objection had been brought to his attention. 156 A. L. R. 604. But here, unlike the fact situation in Cherry v. Montgomery, the uncontradicted proof is that Fowler, the buyer, was financially able to make the purchase. Fowler testified that he was in the retail furniture business, that he owned a farm, and that he was interested in other businesses, which he named. He stated positively that he had been financially able to go through with the contract. On cross examination he said that he had the funds to make the $7,500 down payment, without having to borrow any money. It will also be remembered that on June 25 Mr. and Mrs. James stated in their letter to Bennett that they hoped that Fowler would be the purchaser of the property at the increased price of $37,500. Thus there was an abundance of substantial evidence to support the jury’s verdict upon this issue.
Affirmed.
Harris', C. J., and Fogleman, J., dissent. | [
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John A. Fogleman, Justice.
This action originated with a complaint by appellants in which they sought to cancel the claim of appellee to an 80-acre tract of land in Phillips County as a cloud on appellants’ title. Ap pellants alleged that appellee had planted and harvested crops on parts of the land in 1967 and 1968. Appellants professed not to know the exact nature of appellee Harts-field’s claim. Appellee filed an answer claiming title by virtue of deeds to him by Beaver Bayou Drainage District of Phillips County, dated June 11, 1966, and from the Cotton Belt Levee District No. 1 of Phillips County, dated April 29, 1967. He alleged that these districts acquired title through actions foreclosing their liens on the lands arising from taxes, benefits and assessments and that the interest of appellants was thereby extinguished. He also alleged that before the conveyances to him, the districts had acquired the title of the State of Arkansas, which also resulted from the nonpayment of taxes due it. Appellee further pleaded the statute of limitations, laches and estoppel. The chancery court found the issues in favor of appellee and dismissed appellants’ complaint.
On appeal, appellants state that the respective improvement district titles were barred by adverse possession of appellants and their predecessors in title. There seems to be no doubt that appellants, their predecessors in title or their tenants had been in actual possession of the lands in question, most of which were in cultivation for many years, up to and including the year 1966. Appellants contend that their continued possession of the land following its sale for nonpayment of accruing installments of benefits assessed in the improvement districts barred the rights of the districts, and, consequently, of their grantee. This argument, insofar as deeds to the districts more than seven years prior to appellee’s taking possession are concerned, would be well taken in each instance were it not for Act 82 of 1945. That act made the statute of limitations inapplicable to lands which had been sold to an improvement district. Yet, it is necessary that we determine the effect of this act on appellee’s title.
The contentions of the parties and the validity of the deeds under which appellee claims can best be under stood by the following chronological table of the pertinent proceedings:
No. Date Item (Where land descriptions are not given the instrument affected the entire 40 acres involved.)
1 May 21, 1925 Decree of chancery court foreclosing lien of Beaver Bayou Drainage District for unpaid installment of assessed benefits for 1924.
2 Sept. 24, 1925 Report of commissioner’s sale to Beaver Bayou Drainage District pursuant to decree described as Item 1 confirmed by chancery court, and commissioner directed to execute deed to purchaser. Deed was acknowledged in open court and approved.
3 June 14, 1927 Commissioner’s deed pursuant to Item 2 recorded.
4 June 24, 1930 Clerk of Phillips County certified that SM NWM NEM of Sec 3, T 3S, R 2E, was sold to the State of Arkansas for nonpayment of the státe and county taxes assessed for the year 1927, which remained unredeemed on that date and were forfeited to the state.
5 May 26, 1934 Title of the state under tax sale and forfeiture for nonpayment of 1927 •_taxes was confirmed by the chan eery court in a suit brought by the state pursuant to Act 296 of 1929, SK NWK NEK Sec 3.
6 Mar. 1947 term Decree of chancery court foreclosing lien of Beaver Bayou Drainage District for unpaid installment of assessed benefits for 1946 on SK NWK NEK Sec 3.
7 July 31, 1947 Commissioner sold 'ands to Beaver Bayou Drainage District pursuant to Item 6.
8 Sept. 20, 1950 Commissioner’s deed pursuant to Items 6 and 7 approved and acknowledged in open court.
9 Sept. 22, 1950 Commissioner’s deed described in Item 8 recorded.
10 Aug. 15, 1951 County clerk certified that NK SWM NEK of Sec 3 was sold to the state for nonpayment of general taxes assessed for the year 1947, which remained unredeemed on that date and was forfeited to the state.
11 Jan. 17, 1952 Decree of chancery court foreclosing lien of Cotton Belt Levee District for unpaid installments of assessed benefits for 1937 and 1938 on SK NWK NEK Sec 3.
12 July, 1952 term Decree of chancery court foreclosing lien of Cotton Belt Levee District No. 1 for unpaid installments of assessed benefits for 1939 on SK NWK NEK Sec 3.
13 July 28, 1952 Commissioner sold land to Cotton Belt Levee District pursuant to Item 12.
14 July 28, 1952 Decree of chancery court foreclosing lien of Cotton Belt Levee District No. 1 for unpaid installments of assessed benefits for 1940 and 1941.
15 Aug. 21, 1953 State deeds lands to the Beaver Bayou Drainage District, upon evidence of erroneous certification of the lands as forfeited pursuant to Act 206 of 1943.
16 Sept. 29, 1954 Commissioner sold lands to Cotton Belt Levee District No. 1, pursuant to Item 11 and reported sale which was confirmed by chancery court; deed was approved and acknowledged in open court.
17 Sept. 29, 1954 Commissioner’s report of sale set out in Item 13 approved by chancery court. Deed approved and acknowledged in open court.
18 Sept. 29, 1954 Commissioner sold lands to Cotton Belt Levee District No. 1 pursuant to Item 14 and reported sale, which was confirmed by chancery court. Deed was approved and acknowledged in open court.
19 Sept. 30, 1954 Commissioner’s deed pursuant to Items 11 and 16 recorded.
20 Sept. 30, 1954 Commissioner’s deed described in Item 17 recorded.
21 Sept. 30, 1954 Commissioner’s deed pursuant to Items 14 and 18 recorded.
22 Mar. 29, 1955 Title of the state to NK2 SWH NEM Sec 3 under tax sale and forfeiture for nonpayment of 1947 taxes confirmed by the chancery court in a suit brought by the state.
23 June 11, 1966 Quitclaim deed from Beaver Bayou Drainage District to appellee conveying all right, title and interest of district by reason of tax forfeiture for the year 1966 and prior years.
24 Apr. 29, 1967 Quitclaim deed from Cotton Belt Levee District No. 1 to appellee conveying all right, title and interest of district by reason of tax forfeitures from the year 1965 and prior years.
It is extremely difficult to follow appellants’ arguments, because all are lumped under their only point to be relied on—“that the learned trial court erred in finding for the appellee on the issue of title.” They do contend, however, that the foreclosure of the lien of Cotton Belt Levee District Nb. 1 for unpaid installments of benefits assessed for the years 1937 and 19.38 (Item 11 above) was barred by the three-year statute of limitations provided by Ark. Stat. Ann. § 20-1140 (Repl. 1968). This statute does not apply to this district or to Beaver Bayou Drainage District. See Ark. Stat. Ann. § 20-1142 (Repl. 1968); Whitaker & Co. v. Sewer Imp. Dist. No. 1, 229 Ark. 697, 318 S. W. 2d 831. However, Ark. Stat. Ann. § 20-1128 (Repl. 1968) does apply and, insofar as pertinent, contains identical language. We find nothing whatever in the abstract of title exhibited or the abstract of the record to indicate the date when the foreclosure suit was filed, so we are unable to say whether this statute of limitations would have applied, in any event.
Foreclosure suits by levee districts and drainage districts are conducted in accordance with the practice and proceedings of chancery courts, with minor and irrelevant exceptions. Ark. Stat. Ann. § 21-634 (Repl. 1968); Ark. Stat. Ann. § 21-547 (Repl. 1968). A statute of limitations, generally speaking, is a defense in judicial proceedings. Western Union Telegraph Co. v. State, 82 Ark. 309, 101 S. W. 748; Harris v. Mosley, 195 Ark. 62, 111 S. W. 2d 563. It must be specially pleaded in a chancery foreclosure. Livingston v. New England Mortgage Security Co., 77 Ark. 379, 91 S. W. 752. A decree of foreclosure by a court having jurisdiction cuts off all defenses that could have been raised therein, including the statute of limitations. Livingston v. New England Mortgage Security Co., supra; Shaw v. Polk, 152 Ark. 18, 237 S. W. 703; Briggs v. Manning, 80 Ark. 304, 97 S. W. 289. A decree cannot be avoided on collateral attack upon the ground of any defense, including the statute of limitations, that might have been asserted in the proceeding in which it is rendered. Lewis v. Bank of Kensett, 220 Ark. 273, 247 S. W. 2d 354; Wallace v. Brown, 22 Ark. 118, 76 Am. Dec. 421. A decree by default is as conclusive on collateral attack as any other rendered by a court having jurisdiction. Lewis v. Bank of Kensett, supra. A decree of a court, vested by statute with jurisdiction to foreclose specified liens by suits in rem upon constructive service by publication, is not subject to collateral attack, when the provisions of the act have been followed and such a decree is given the same favorable presumptions as those rendered upon personal service. Hobbs v. Lenon, 191 Ark. 509, 87 S. W. 2d 6.
Even if the record had disclosed that the statute had run, this defense is not now available to appellant. For the same reason, it is not available in regard to any of che improvement district foreclosures.
Appellants also contend that Beaver Bayou Drainage District’s title under the foreclosure proceedings on account of the 1924 installment was barred by the seven-year statute of limitations set out in Ark. Stat. Ann. § 37-101, (Repl. 1962), before it was amended in 1945. This statute began to run on the date the period of redemption expired. Pinkert v. Polk, 220 Ark. 232, 247 S. W. 2d 19. The date of the foreclosure sale is not disclosed in the record, but it obviously was prior to September 24, 1925, the date of the commissioner’s report of sale. The period of redemption expired after two years, so the statutory bar against Beaver Bayou on account of this foreclosure became complete at least by September 24, 1934. Section 24, Act 279 of 1909, also Ark. Stat. Ann. § 20-1145 (Repl. 1968). The subsequent amendment to the statute (37-101) could not revive the district’s claim since the rights of. appellants had become vested under the statute before amendment. See Smith v. Spillman, 135 Ark. 279, 205 S. W. 107, 1 A. L. R. 136; Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623; Meadows v. Costoff, 221 Ark. 561, 254 S. W. 2d 472; Pope’s Ex. v. Ashley’s Ex., 13 Ark. 262; Couch v. McKee, 6 Ark. 484. Appellee cannot succeed upon the basis of this foreclosure. (Items 1, 2 and 3.)
Beaver Bayou District also foreclosed on the S'á NWM NEM on account of the 1946 installment. (Items 6, 7, 8 and 9.) The three-year statute of limitations would not have, applied to this foreclosure, even if pleaded. Appellants contend, however, that the seven-year statute bars this foreclosure in spite of the 1945 amendment.
Act 82 of 1945, effective February 21, 1945, (Pinkert v. Lamb, 215 Ark. 879, 224 S. W. 2d 15), added the following proviso to Ark. Stat. Ann. § 37-101 (Repl. 1962):
Provided, however, that this section shall not apply to lands which have been sold to any improvement district of any kind or character for taxes due such districts, or to any taxes due any such improvement district, but the lien of said taxes shall continue until paid.
Appellants argue that this proviso is not available to appellee, a purchaser from an improvement district, but that it benefits improvement districts only. The plain language of the statute answers this argument. It does not provide that the seven-year statute does not apply to improvement districts. It does provide that it does not apply to lands which have been sold to any improvement districts of any kind or character for taxes due such districts. The statute would be meaningless if construed according to appellants’ contention, because the district could never dispose of property to which it held title but not possession. The clear inten tion of the statute was to permit an improvement district to hold title without taking possession from the landowner but not at the risk of bar of a prospective sale by the seven-year statute.
It has been held that this statute is not only available as a defense to one in possession, but that it amounts to an investiture of title and may be used as the basis for title in an affirmative action by the possessor. Worthen v. Rushing, 228 Ark. 445, 307 S. W. 2d 890; Jeffery v. Jeffery, 87 Ark. 496, 113 S. W. 27; Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475. The quitclaim deed to appellee conveyed all title and right of the district. Consequently, appellants’ additional argument that the statute, as amended, cannot be relied upon by appellee in appellants’ action to quiet title as distinguished from one for recovery of possession is without foundation. Appellants themselves are using the statute as the basis of their action and not as a defense, in spite of the supposed limitation of the statute, before the amendment, to suits for recovery of land. It would be inconsistent to hold that the statute is available to one as basis for quieting title, but that the added proviso was not available to another defending that very action.
Title was vested in Beaver Bayou District by this 1946 foreclosure. Title in the district because of previous foreclosures had been previously divested by adverse possession as above pointed out. Consequently, appellee’s title to this 20-acre tract must prevail against appellants’ claim.
The Cotton Belt Levee District title on account of the foreclosure for the 1937 and 1938 installments (Items 14, 18 and 21); were also valid for the same reasons, was also the date of sale. The bar of the seven-year statute no longer applied, because of Act 82 of 1945. We should add that the foreclosures on this tract for 1939 (Items 12, 13 and 17) and for 1940 and 1941 (Items 14, 18 and 21) were also valid for the same reasons. Appellants argue that these subsequent foreclosures could not be valid because of our previous holding in
such cases as Crowe v. Wells River Savings Bank, 182 Ark. 672, 32 S. W. 2d 617. (See also Terry v. Drainage District No. 6, 206 Ark. 940, 178 S. W. 2d 857, in which Word v. Grigsby, 206 Ark. 164, 174 S. W. 2d 439, infra, was ignored.) In these cases we had held that once an improvement district acquired title through foreclosure, it could not rely upon later foreclosures to vest title. These cases are no longer authoritative. In Street Improvement District No. 419 v. Pinkert, 221 Ark. 265, 253 S. W. 2d 780, we rejected such a contention as is made here, pointing out the unsoundness of the premise on which Crowe was decided. We relied upon Word v. Grisby, supra, (in which Crowe was not mentioned), where we reached a result directly contrary to that of Crowe. Not only is the rule in Street Improvement District No. 419 v. Pinkert, supra, a later declaration, it is certainly the sounder of the two rules. If the first foreclosure sale should prove to be invalid, then under the Crowe rule an improvement district could be barred as to subsequent unpaid installments both on those on which it had also foreclosed and on those on which it had not foreclosed in reliance on the Crowe rule. Such a result is contrary to the basic fundamentals on which improvement districts are organized and financed. The earlier Beaver Bayou foreclosures did not bar these by Cotton Belt. Street Improvement District No. 419 v. Pinkert, supra. Appellee’s title to the entire 40 acres is valid because of these foreclosures.
We need not consider the effect of the deed from the state to Beaver Bayou Drainage District, in view of the validity of appellee’s title by reason of the improvement district foreclosures. Neither the forfeiture for 1927 (Item 4) nor that for 1947 (Item 10) was any impediment to the improvement district foreclosures upon which appellee’s title is based. Ark. Stat. Ann. § 20-1146 (Repl. 1968).
The decree is affirmed.
After filing of the complaint, it was discovered that appellee claimed only 40 acres of the tract. The litigation was thereafter conducted as if it related only to the portion claimed by appellee.
We do not consider a foreclosure by Cotton Belt Levee District No. 1 for an unpaid installment of assessed benefits for 1922 because the lands are described as all E. of Big Creek Wá Frl. NEM of Sec. 3. Examination of a plat and aerial photograph in the record convinces us that this description does not include any of the lands involved here. | [
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Robert L. Jones, Jr., Special Justice.
The appellants and the appellee entered into an agreement, dated July 28, 1966, under the terms of which appellee agreed to advance the sum of $5,000.00 “for administrative and printing costs to form a non-profit corporation to be known as National College Award Foundation.” The duties and obligations of the appellants are not specifically stated, but it is implied that they would furnish services rather than money as their part of the investment. The appellee actually advanced $4,750.00. The Agreement further provided a method whereby the appellee was to receive back all of the money he had invested out of fees from the sale of memberships. The “non-profit corporation” was formed, but never became operational and appellee filed suit against appellants for rescission of the Agreement, alleging that there was a failure of consideration. Later an amended complaint was filed also alleging violations of the Arkansas Securities Act, Act 254 of 1959, Sections 1, 7, 14 and 22. The trial court found that appellee was entitled to rescission, ordered restitution of the sum of $4,750.00, plus court costs, from which order the appellants bring this appeal.
There is very little dispute in this case about the facts. After the written agreement was entered into, on July 28, 1966, the appellee advanced the sum of $4,750.00. $2,250.00 was paid to John B. May to reimburse Mr. May for money that he had paid to Mr. Jackson and Mr. Long as an investment in the National College Award Foundation. A second check was issued by the appellee to Mr. Jackson and Mr. Long in the amount of $2,500.00. It is obvious from the testimony of all of the parties that all four of the persons connected with this transaction expected to make a profit. Appellee was to get his money back first, then the appellants and the appellee were to share equally in the profits. It also appears obvious that all of the parties knew that there was some question as to the legality of the proposal. The appellee inquired of Mr. Jackson how it was possible to make a profit out of a non-profit corporation, and Mr. Jackson told him that they would do it the same way that private clubs operate. The appellee ad mits that he was told that it would be necessary to secure the approval from either the Attorney General’s Office or the Securities Commissioner’s Office before the corporation could commence business; he further admits that he was not led to believe that such approval had already been secured before he entered into the contract.
The non-profit corporation was formed, and Mr. Thomas attempted to secure the approval of the State Securities Commissioner. The Securities Commissioner failed to find any merit in the program for the public of Arkansas, and so advised Mr. Thomas by letter. After Mr. Thomas failed to obtain the approval of the Securities Commissioner, he did some further legal research and found that under Ark. Stat. Ann. § 67-1248, there is a specific exemption for any corporation organized not for profit, but exclusively for educational purposes. Based on this exclusion, Mr. Thomas told Mr. Long and Mr. Jackson that in his opinion, they could go ahead without the approval of the Securities Commissioner. An effort was also made (through an official authorized to receive an opinion from the Attorney General) to obtain an opinion from the Attorney General as to the legality of the plan but no such opinion was obtained.
There is testimony that by this time, the money advanced by appellee had been spent. It also appears that the appellants were reluctant to proceed without the approval of the Securities Commissioner or the Attorney General, and for these reasons, the matter became dormant, which resulted in the filing of this action for rescission by the appellee.
It is a well-established rule that this Court hears and determines appeals from chancery courts de novo. As stated in Sharum v. Terbieten, 241 Ark. 57, 406 S. W. 2d 156 (1966):
“Whether the Chancellor makes a finding or bases his decision on an erroneous conclusion does not preclude our reviewing the case ‘de novo.’ Culber house v. Hawthorne, 107 Ark. 462, 156 S. W. 421; Langley v. Reames, 210 Ark. 624, 197 S. W. 2d 291.”
1. Was there a failure of consideration? It is not contended that any of the appellants made false or fraudulent representations to the appellee to induce him to invest $4,750.00. Rather, appellee contends that there was a failure of consideration on the part of the appellants. The basis of this contention is that appellants made certain promises which they failed to fulfill. The written agreement between the parties contains no promises on the part of appellants. However, the undisputed oral testimony is that appellants would seek to obtain the approval of the Securities Commissioner, or an opinion from the Attorney General that “memberships” in the Foundation could be sold without being registered as a security under the provisions of the Arkansas Securities Act (Ark. Stat. Ann. § 67-1235, et seq.). Appellants formed the corporation and made an effort to obtain the approval of the Securities Commissioner, and an opinion from the Attorney General, but were unsuccessful on both counts. Accordingly, it appears that the appellants did what they agreed to do, and that there is no failure of consideration.
2. Were the parties in pari delicto? Even if there was a failure of consideration, the appellee is not entitled to rescission of the Agreement and to obtain restitution if he was in pari delicto with the appellants. It is well settled that courts of equity will not aid parties to an illegal agreement, but will leave the parties where it finds them.
In Williams v. Wilson, 181 F. Supp. 351 (1960), Judge Henley correctly stated the law of Arkansas on this point as follows:
“It is a settled principle of law in Arkansas that courts will not enforce illegal bargains or those that are contra bonos moros, and that where the parties to such bargains are in pari delicto, the law will leave them where it finds them. Womack v. Maner, 227 Ark. 786, 301 S. W. 2d 438, 60 A. L. R. 2d 1271, and cases there cited.”
All of the parties connected with this transaction knew from the outset that the legality of the undertaking was questionable and the appellee admits that he was told that it would be necessary to obtain the approval of the Securities Commissioner or an opinion from the Attorney General that registration under the Arkansas Securities Act was not necessary. Knowing that such approval had not been obtained, he was willing to risk his money on the possibility of making a profit. All of the parties are therefore in pari delicto.
3. Was the agreement a security? Appellee contends that even though the parties are in pari delicto, that appellee is still entitled to rescission of the Agreement under the provisions of Ark. Stat. Ann. § 67-1256, if the Agreement entered into between the parties is a “security”. We have examined the definition of “security” as contained in Ark. Stat. Ann. § 67-1247 (1), and find that the Agreement between the parties, dated July 28, 1966, was not a “security” within the meaning of the Statute.
It is, therefore, the opinion of the Court that the appellee is not entitled to rescission of the Agreement and is not entided to full restitution. Appellee is only entitled to an accounting of the funds which were agreed to be spent “for administrative and printing costs”. The decree is therefore reversed and the cause remanded to the trial court for the purpose of determining that all of the money advanced by appellee was spent for the purposes provided in the Agreement. The appellee is entitled to a return of any funds that remain unexpended, and is entided to judgment for any funds spent by appellants for purposes other than “administrative and printing costs”. In making such determination, appellants are not entitled to compensation for time expended for the reason that time and services constituted their investment in this venture.
Reversed and remanded.
Smith and Fogleman, JJ., and Murphy, S.J., dissent.
Byrd and Holt, JJ., not participating. | [
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Frank Holt, Justice.
The appellant was charged by information with two counts of possession of stolen property. The jury assessed his punishment at three years in the State Penitentiary on each count. From a judgment on that verdict comes this appeal.
Appellant, through his court-appointed trial counsel, contends for reversal that the evidence was in sufficient to establish that the automobile (one count in the information) was stolen. We must agree with the appellant. The owner of the automobile was alleged in the information. It was also alleged that the appellant possessed the car “with the unlawful and felonious intent then and there to deprive the true owner of its property.” The State adduced evidence that the appellant was apprehended in possession of the vehicle as described in the information. However, the alleged ownership was never established. Ownership is a material element in the definition of the crime of possession of stolen property. Ark. Stat. Ann. § 41-5938 (Repl. 1964). The punishment is the same as in cases of larceny. Although an officer testified that the vehicle was reported stolen, there was no competent evidence establishing the ownership of the property. Since the alleged ownership in the information is a material and vital element in the alleged offense, we must hold that the evidence supporting this allegation was insufficient. See Fletcher v. State, 97 Ark. 1, 132 S. W. 918 (1910); Sutton v. State, 67 Ark. 155, 53 S. W. 890 (1899). Cf. Rogers v. State, (Ark. May 11, 1970) 453 S. W. 2d 393. The allegation of ownership permits an accused to make preparation for trial, to be confronted by the witness claiming ownership, and to be able to plead former acquittal or conviction should he ever again be accused of this same offense.
Appellant also contends for reversal that “without proof” as to the value of certain credit cards, there could be no conviction for the unexplained possession of them. There was evidence that appellant was found in possession of several credit cards. It is the State’s theory, which was supported by the owner’s testimony, that the various credit cards were of unrestricted value as to the amount that “might be collected thereon.” See Ark. Stat. Ann. § 41-3906 (Repl. 1964). The appellant’s theory is, however, there was no evidence that the value of the credit cards exceeded $35.00 or that he acquired any property in excess of $35.00 by using the credit cards. Therefore, at the most, he asserts that the alleged violation would be only a misdemeanor. We think that appellant was entitled to present to the jury his theory of a lesser offense which is in accordance with our recent view in Pierce v. State, (Ark. Mar. 9, 1970) 451 S. W. 2d 219.
We have examined other contentions appellant urges for reversal and find them to be without merit.
Reversed and remanded. | [
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Frank Holt, Justice.
This is a tort action for damages allegedly resulting from a defectively manufactured brake hose. In September 1964, appellant purchased a 1965 Pontiac Catalina from appellee Horace Terry Pontiac Company (doing business at that time as Milner-Terry Pontiac Company). Almost four years and some 16,000 miles later, the Catalina’s front brake hose ruptured, thus rendering the hydraulic braking system ineffective and allegedly causing appellant to ram into the rear of another vehicle. In April 1969, or about ten months after the accident, appellant received a recall letter from appellee General Motors Corporation stating that the front brake hoses on some full-size 1965 Pontiacs were subject to fatigue and rupture after extensive usage and should be immediately replaced. The letter further indicated that: “If this condition should exist on either hose, a sudden heavy brake application might cause the brake hose to rupture and result in a loss of hydraulic braking action.”
On June 30, 1969, appellant filed suit against both appellees (hereinafter referred to as Terry and General Motors), premising his complaint only on the theory of strict liability in tort. Terry answered and General Motors demurred. Upon arguments of counsel, the trial court sustained the demurrer and dismissed the complaint as to General Motors, from which ruling appellant does not appeal. Thereafter, Terry filed a cross complaint against General Motors as a third-party defendant for full indemnity or, in the alternative, contribution in the event of an adverse judgment. At about this same time, appellant received a second notice from General Motors warning him of the potential danger of the brake hose originally installed in his Catalina and urging him to have it replaced.
Prior to trial, Terry propounded a “request for admissions” to third-party defendant General Motors. In its answer, General Motors admitted that there existed a possibility of an unexpected rupture of the brake hose and a resulting loss of braking power in certain of its 1965 Pontiacs, including the Catalina model. General Motors objected, however, to the introduction into evidence of either this request or its answer. A ruling on the objection was reserved and the case proceeded to trial with the court sitting as a jury. Appellant attempted to enter the recall letters into evidence, to which both appellees objected. General Motors objected in that appellant had no cause of action against it (the demurrer having been sustained); Terry objected in that the letter:
* * * is not relevant or an admission against Horace Terry Pontiac, but we don’t have any objection to the letter being in evidence itself. We do have an objection to it being considered on the complaint of the plaintiff against Horace Terry. It’s not an admission by Horace Terry of anything. That’s the only basis for our objection.
Subsequently the trial court ruled that the request for admissions, its answer, and the recall letters were all properly admissible into evidence and so received them.
After considering all testimony and evidence introduced by the parties, the trial court made, in pertinent part, the following findings of fact:
That said 1965 Pontiac Catalina was in a defective condition in that the flexible front brake hoses did fatigue after extensive usage.
# # *
That ... no evidence shows adnormal or abusive use of the product, or use in a manner not intended by the seller.
# # *
That a defective right front brake hose that ruptured was a proximate cause of the collision and the damages sustained by [appellant].
That [appellant] was not guilty of any negligence that was a proximate cause of his damages.
However, the court also found that there was po allegation or proof that the defect was caused by the negligence of either appellee. The reason for this deficiency was, of course, because appellant chose to proceed under the theory of strict liability which obviates the necessity of proving negligence. Nonetheless, the trial court concluded that since Arkansas law has not yet embraced the rule of strict liability in defective product cases, appellant was not entitled to judgment. Hence this appeal urging for reversal that the tort theory of strict liability should be adopted in products liability cases and, thus, replace the sales theory of warranty.
■ We think that even if this jurisdiction had previously adopted the theory of strict liability in tort for defective products, appellant still could not have prevailed because of his failure to have effectively proven a pre-existing defect by admissible and competent evidence.
Generally speaking, strict liability simply eliminates the necessity of proving negligence as a prerequisite to recovery for injuries received from defective products. See, e. g., Putman v. Erie City Mfg. Co., 338 F. 2d 911 (5th Cir. 1964); Santor v. A & M Karagheusian, Inc., 44 N. J. 52, 207 A. 2d 305 (1965). However, a plaintiff must still prove a defect in design or manufacture which was a proximate cause of his injury. This imposes upon him the burden of proving that the product was in a defective condition at the time it left the hands of the particular seller. See Comment (g), Restatement Torts, Second, § 402(a). In the absence of direct proof that the product is defective because of a manufacturing flaw or inadequate design, plaintiff must negate the other possible causes of failure of the product for which the defendant would not be responsible in order to raise a reasonable inference that the dangerous condition existed while the product was still in the control of the defendant. See Jakubowski v. Minnesota Mining & Mfg., 42 N. J. 177, 199 A. 2d 826 (1964). Otherwise, proof of proximate causation would be reduced to rank speculation [see Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S. W. 2d 885 (1964)]; and this clearly is not an objective of strict liability.
In the case at bar, appellant is now prosecuting his claim only against appellee Terry, the distributor or retailer. The admissions which Terry elicited in its request for admissions as part of its third-party action were binding only on General Motors. See Young, Adm’r. v. Dodson, 239 Ark. 143, 388 S. W. 2d 94 (1965). Similarly, the recall letters were not proper evidence against Terry. When the letters were proffered by appellant, Terry responded by urging the propriety of their introduction for the limited purpose of substantiating its third-party complaint against General Motors, but specifically objected to their relevancy or competency (since they were admissions only by and solely against General Motors) as evidence for appellant’s claim against appellee Terry. The trial court tentatively allowed the letters into evidence; and subsequently, in its written conclusions of law, found the letters to be admissible. It is unclear whether the court intended this evidence to be admitted only for the limited purpose urged by Terry. But since no such specific delimitation was expressed, we may assume that the recall letters issued by General Motors were also admitted against Terry. If so, we cannot agree.
Although the letters were certainly relevant to the issue of a pre-existing defect in the brake hoses, they were not competent as against Terry in view of the restrictive objection. The letters emanated from a source other than the party against whom they were sought to be introduced. As such, absent a showing that they were adopted by or otherwise binding upon it, the contents of the letters of recall constituted mere hearsay and res inter alios acta as to Terry. See, e. g., Central Mfg. Co. v. St. Louis-San Francisco Ry. Co., 394 F. 2d 704 (8th Cir. 1968); Southern Express Co. v. Todd, 56 F. 104 (8th Cir. 1893). See, also, 31A C. J. S. Evidence § 318. However, the admissions contained in the letters were clearly competent for the limited purpose of Terry’s third-party action against General Motors.
Since neither the answer of General Motors to the request for admissions nor the recall letters were competent evidence by appellant against Terry, appellant’s proof is deficient that the brake hoses were in a defective condition at the time he purchased the Catalina from the dealer. The evidence does not sufficiently negate the possibility that the rupture resulted from normal wear and tear or discount other various contingencies which may have caused the rupture for which the seller could not be held responsible under a theory of strict liability. Thus, there was neither competent direct proof of a pre-existing defect, nor any other proof from which there could properly arise a reasonable inference that a dangerous condition existed while the Catalina was still in the control of Terry. Consequently, we need not at this time determine the propriety of judicially accepting or rejecting strict tort liability in this jurisdiction for defective products, for even under that theory appellant could not have prevailed. Moreover, appellant cannot prevail under traditional tort concepts since he neither alleged nor proved negligence on the part of Terry. It follows that the judgment below must be affirmed and the case dismissed as to appellee Terry and, also, as to appellee General Motors on the cross complaint.
Affirmed. | [
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Frank Holt, Justice.
This is an action instituted by appellees for personal injuries allegedly received in an automobile accident. A default judgment was entered against appellant; and, from a denial of his motion to vacate that judgment, he brings this appeal.
Appellees stopped on an ice-covered bridge where an accident had previously occurred causing several other automobiles to block both lanes of passage. Appellant, driving behind, collided into the rear of appellees’ car. The police who investigated the accident filed a report indicating that appellant was the holder of a Tennessee driver’s license which gave his address as 405 Fonvilk Avenue, Martin, Tennessee. About fifteen months later, appellees filed suit alleging that appellant was a resident of Tennessee and attempted to obtain service under the nonresident motorist statutes.
Summons was issued on the Secretary of State, and appellees’ attorney mailed a registered letter containing a copy of the summons and complaint to appellant at the above Tennessee address. The letter was returned to the writer marked: “Forwarding Order Expired, Out of U.S.A.” A letter containing the summons, which was mailed to appellant by the Secretary of State, was also returned similarly marked. Appellees’ attorney then filed an affidavit stating compliance with the out-of-state service statute. A verified petition was filed by appellees seeking to take depositions of their doctors by interrogatories and alleging that “service cannot be had on the defendant, inasmuch as he is out of the continental United States.” Appellant was thereafter determined to be in default; and, upon testimony of damages, the trial court rendered judgment totaling $58,383.89.
Several months later appellant learned of the judgment against him and filed a motion to set it aside in which he alleged that: The Tennessee address was not, and never had been, his last known address; at the time of the accident he was residing at 5522 North Kenmore, Chicago, Illinois, and had noted this same address in his Motor Vehicle Accident Report which was made the day following the accident; at the time suit was filed he was a missionary in New Guinea where he was at present; the judgment was void because he did not receive either of the letters mailed to the Tennessee address and did not, therefore, have notice of the suit or opportunity to appear and defend; and the judgment was also voidable because of fraud and unavoidable casualty. By verified amendment, he alleged a meritorious defense.
In support of his motion, appellant testified by deposition that: He had been a missionary in New Guinea for ten years; prior to this time he had lived in Chicago where he was pastor of a church; when he returned to the United States a friend in Tennessee had given him a car at which time he also obtained a driver’s license from that state. He further stated that at the time of the accident he was on a year’s sabbatical leave residing with his family at his Illinois address and had gone to Tennessee to visit his stepmother and some friends. His testimony also asserted that he gave his Illinois address to the police officer who had investigated the accident, to the local hospital which treated his children who were riding with him at the time of the accident, and to his insurance adjuster.
The trial court denied appellant’s motion, and its order reads in part:
The Court is of the opinion that in addition to showing the invalidity of the service, it is necessary for the defendant [appellant] to allege and prove a meritorious defense to this action.
The defendant has sufficiently alleged, by verified complaint, a meritorious defense but the Court does not feel that the proof in this case is adequate to sustain this defense and therefore it is unnecessary for this Court to determine whether the service is valid upon the defendant or not and the defendant’s Motion to Vacate Judgment should be denied.
For reversal appellant relies upon three contentions: (1) The service was insufficient; (2) the judgment was void under Ark. Stat. Ann. § 29-107 (Repl. 1962), a meritorious defense therefore not being required; and (3) the judgment was voidable under § 29-506 and should have been voided in that there was an allegation and prima facie showing of a meritorious defense. We agree with appellant that the proceedings were void ab initio and that a showing of a meritorious defense was therefore unnecessary.
Appellees insist, however, that our holding in Haville v. Pearrow, 233 Ark. 586, 346 S. W. 2d 204 (1961), is dispositive of the issues now before us. There the appellants sought to set aside a judgment solely on the basis of § 29-506 which provides for the vacating of a judgment after the expiration of the term in which it was rendered. We said:
Under the view we take, it is not necessary that we discuss whether the service was valid, for under our holdings, irrespective of the validity of service, the judgment must be affirmed. We have mány times held that before one can successfully set aside a judgment, he must show a meritorious defense. This is in accord with our statutes. Section 29-508 provides that proceedings to vacate judgments or orders under § 29-506 shall be by complaint, verified by affidavit, and shall set forth the judgment or order, grounds to vacate or modify same, and the defense to the action, if the party applying was a defendant. Section 29-509 provides that a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action on which the judgment is rendered.
In the case at bar, however, appellant does not rely on § 29-506 only. He also affirmatively attacks the very validity of the judgment itself, alleging that it is void under § 29-107 for lack of notice. If service on appellant was, as he contends, improper, then the trial court was without personal jurisdiction over him and the proceedings were void. Any adjudication resulting therefrom would, of course, be without binding force or legal consequence. Pennoyer v. Neff, 95 U. S. 714 (1878); Moore v. Watkins and Others, 1 Ark. 268 (1858). The trial court therefore erred in holding that the absence of a meritorious defense renders a determination of the validity of the service unnecessary; rather it is the validity of the service and the jurisdiction which it thereby confers that affords legal vitality to the consideration of whether or not appellant presented a meritorious defense. See Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 521 (1955). Although we think that a prima facie showing of a meritorious defense was made in the case at bar, this showing was not necessary since, as shall be demonstrated, service over the appellant was not effectively acquired. The proceedings were conducted without proper notice to appellant; and the judgment, consequently, was void. Beck v. Rhoads, 255 Ark. 619, 561 S. W. 2d 545 (1962).
Our nonresident motorists statutes, based on the state’s police power, are designed to furnish a convenient forum in which one who has been injured within this State through the negligence of an out-of-state motorist can enforce his civil remedies. They provide that operation of a motor vehicle by a nonresident on Arkansas highways is deemed equivalent to the appointment of the Secretary of State by such nonresident as being his agent upon whom may be served all lawful process in any action arising out of any accident in which he may be involved within the boundaries of this State. Section 27-542.1. Service of process on the Secretary of State is sufficient to acquire personal jurisdiction over the nonresident, “provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff or his attorney to the defendant at his last known address.” Section 27-542.2. Proof of compliance with these statutes must also be demonstrated by appending to the writ of process and filing with the trial court the defendant’s return receipt or an affidavit of the plaintiff or his attorney stating compliance. Section 27-542.2. We do not think that appellees adequately observed these provisions in the case before us.
Although Alexander v. Bush, 199 Ark. 562, 134 S. W. 2d 519 (1939) suggests that our nonresident motorist statutes require actual notice to the defendant, this is not always insisted upon. Jurisdiction can be acquired if the statutes are validly enacted and prescribe a constitutional mode of service, and if the plaintiff fully complies with their provisions. See Leñar, R. A., American Conflicts Law, § 21 (1968). See, also, Bruce v. Paxton, 31 F. R. D. 197 (E. D. Ark. 1962). But the substituted service and constructive notice which these statutes authorize are not intended to dilute a defendant’s due process right to be heard. In Mullane v. Central Hanover Bank & Tr. Co., 339 U. S. 306 (1950), the United States Supreme Court well expressed this point:
This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. * * * [W]hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.
Where, as in the case at bar, personal jurisdiction over a defendant may be founded on something less than actual notice, statutory service requirements, which are implemented in derogation of common law rights, must be strictly construed and exactly complied with. Jenkins v. Hill, 240 Ark. 197, 398 S. W. 2d 679 (1966); Kerr, Adm’r v. Greenstein, 213 Ark. 447, 212 S. W. 2d 1 (1948); 61 C. J. S., Motor Vehicles, § 502 (l)(a).
In Wuchter v. Pizzutti, 276 U. S. 13 (1928), the constitutionality of service requirements in nonresident motorist statutes was contested. The United States Supreme Court held such requirements to be constitutionally valid if they contain a provision making it reasonably probable that notice of the service on the Secretary of State will be communicated to the nonresident defendant who is sued. The Court also indicated that the burden is on the injured party to investigate into those facts which would normally reveal the address of the nonresident defendant. This is so, according to the Court, since “. . . it could hardly be fair or reasonable to require a nonresident individual owner of a motor vehicle who may use the state highways to make constant inquiry of the Secretary of State to learn whether he has been sued.”
The requirement in our statute that notice be sent to the nonresident defendant at his “last known address” has been said to be indefinite. See Recent Decisions [Kelso v. Bush, 191 Ark. 1044, 89 S. W. 2d 594 (1935)], 34 Mich. L. Rev. 1227 (1936). Unless this is interpreted to mean that diligence is necessarily required in ascertaining such address, the statute does not prescribe a method of service reasonably calculated to give actual notice and, therefore, does not comport with the constitutional standards set out in Wuchter v. Pizzutti, supra. Other jurisdictions have already grappled with the problem of assigning an appropriate meaning to similar “last known address” provisions. See State ex re. Cronkhite v. Belden, 193 Wis. 145, 211 N. W. 916 (1927), overruled, Sorenson v. Stowers, 251 Wis. 398, 29 N. W. 2d 512 (1947); Hartley v. Vitiello, 113 Conn. 74, 154 A. 255 (1931). See, also, Spears v. Ritchey, 108 Ohio App. 358, 161 N. E. 2d 516 (1958); Drinhard v. Eastern Airlines, 290 S. W. 2d 175 (Mo. 1956). And, cf. Nonresident Motorists Process Acts, 33 F. R. D. 151 (1963). We think that the provision in our statute necessarily implies that a plaintiff must make a greater effort than was made in the case at bar to determine the nonresident defendant’s last address in order to create a reasonable probability that he will receive actual notice of the suit.
In the case at bar, appellant testified by deposition that he gave his Illinois address to the investigating officer. According to the officer, he could not “state positively about this particular time, it is my custom and I usually verify the parties present address with the one shown on the driver’s license by asking if that is still their present' address.” Appellant also testified that he gave his Illinois address to the local hospital where his children received treatment, and to his insurance adjuster. The record affirmatively reflects that appellant entered this address on his Arkansas Motor Vehicle Accident Report which was promptly made (one day after the accident) and filed with the Motor Vehicle Division of the Arkansas Revenue Department in compliance with our laws. See Ark. Stat. Ann. § 75-1418 et seq. (Repl. 1957). Further investigation certainly would have disclosed appellant’s Illinois address.
We do not intend to enunciate a rule which would allow an evasive absentee defendant to deliberately frustrate the purpose of our nonresident motorist statutes. This is not the case here. We simply hold that in the circumstances before us, appellees did not demonstrate that sufficient inquiry was made in attempting to ascertain appellant’s last known address and thereby deprived him of “reasonably probable” actual notice consistent with due process. The substitute service statute not having been sufficiently complied with, the default judgment is void. The order denying appellant’s motion to vacate is reversed and the cause remanded for proceedings consistent with this opinion. | [
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George Rose Smith, Justice.
On June 6, 1968, Florida Rowan was appointed guardian of the estate of her minor son, Andrew David Rowan, Jr. Mrs. Rowan’s $9,000 guardian’s bond was signed by the appellant, Continental Insurance Companies, as surety. Thereafter the probate court, on its motion, removed Mrs. Rowan as guardian, because of her failure to file an inventory of the assets of the estate. The court appointed L. E. Henson as guardian in succession.
In April, 1970, the guardian in succession filed a motion for judgment against Continental in the amount of whatever funds Mrs. Rowan had received as guardian and had failed to report or account for. Continental resisted that motion on the ground that the principal’s liability should first be determined before the entry of any judgment against the surety. Thereafter, at a hearing at which Mrs. Rowan appeared merely as a witness and not as a party, the court found that Mrs. Rowan had collected $2,731.40 as the proceeds of a life insurance policy upon the life of the ward’s father, of which the ward was the beneficiary. The court further found that Mrs. Rowan should have deposited the money in a guardianship account and should not have expended it without a court order. Upon those findings the court entered judgment against the surety for $2,731.40. In appealing from that order Continental renews its contention that the guardian’s primary liability should have been determined before the entry of any judgment against the surety.
We are of the opinion that Continental’s position is well taken. Apparently Mrs. Rowan had collected and expended the life insurance proceeds before she was removed by the court upon its own motion. For some time the court was unable to find out just what assets the guardian had received or what disposition she had made of them. Finally the court, on June 12, 1970, entered an order directing Mrs. Rowan “to appear as a witness” at a hearing set for June 17.
At that hearing the guardian in succession and the surety appeared through their attorneys. Mrs. Rowan, without counsel, appeared as a witness and explained that she had collected the insurance money and has used it to discharge liens against the house in which she and her ward were living and against certain other real property in which Mrs. Rowan claimed some interest. Whether any or all of the expenditures benefited the ward is a point about which the testimony is not conclusive and upon which the probate judge made no finding. The court merely found that the money had not been deposited in a guardianship account and had been spent without a court order. Upon that finding the court entered judgment for $2,731.40 against the surety only.
Before the adoption of the Probate Code it was our rule that “an administrator in succession must proceed in the probate court against the former executor or administrator for a settlement or accounting and an order to pay over the sum found due to him' before he can sue the bondsmen of the former executor or administrator.” Statham v. Brooke, 140 Ark. 187, 215 S. W. 581 (1919). That rule is sound, for the surety’s liability is derivative and ordinarily does not exceed that of the principal. Fausett Builders v. Globe Indemnity Co., 220 Ark. 301, 247 S. W. 2d 469 (1952). The Probate Code recognizes the court’s authority to proceed against the “obligors” in the bond, Ark. Stat. Ann. § 62-2221 (Supp. 1969), but we find nothing in the Code that changes the orderly and logical procedure by which the guardian’s primary liability is to be ascertained before the entry of judgment against the surety. Consequently we adhere to our former cases upon the point.
Reversed and remanded for further proceedings. | [
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Conley Byrd, Justice.
Appellant Lois Rogers was tried before the court, sitting as a jury, upon a grand larceny charge. The trial court found appellant guilty of a misdemeanor in the taking of a 1969 Chevrolet truck from the Skull Creek D-X Station on or about the 12th day of May, 1970.
Appellant contends that the judgment of conviction is void on its face. We do not agree. Larceny is defined by Ark. Stat. Ann. § 41-3904 (Repl. 1964), as “the taking and removing away any goods or personal chattel. . . with intent to steal the same. . .” By Ark. Stat. Ann. § 41-3907 (Repl. 1964), larceny is a felony if the value of the property taken is more than $35 and a misdemeanor if less than $35. In Rogers v. State, 248 Ark. 696, 453 S. W. 2d 393, we refused to take judicial notice of the value of a vehicle. Thus upon failure to prove the value of the vehicle, appellant could still have been found guilty of a misdemeanor upon proof of the taking with intent to steal. As we read the record it is sufficient on its face to show that the trial court so found.
Affirmed. | [
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George Rose Smith, Justice.
This is a death claim filed under the workmen’s compensation law by the widow and minor children of Opal Lee Zeiler, who was accidentally killed in the course of his employment on March 27, 1967. At the time of his death Zeiler was a sawyer cutting timber for his employer, Wendell Nelms, who in turn was a logger working under a contract with the appellant Simmons Lumber Company. The principal question for the commission was whether the primary liability for the Zeiler death claim rested upon Simmons and its insurance carrier or upon Nelms and his insurance carrier. The commission put the responsibility upon Simmons and its insurer, upon a finding of fact that Simmons had orally agreed to provide workmen’s compensation insurance coverage for Nelms and his employees. This appeal is from a circuit court judgment sustaining the commission’s decision. We hold that the judgment should be affirmed.
Nelms testified that for some time prior to March, 1967, he had been cutting and hauling timber for Nebo Lumber Company at a contract price of $29 per thousand feet. Nelms was then carrying workmen’s compensation insurance upon his own employees, with Reliance Insurance Company. About two weeks before Zeiler’s death Nelms, with his men, began working for Simmons. Nelms testified that he and Mr. Simmons agreed upon a contract price of only $28 a thousand, instead of $29, because Simmons was to carry the compensation insurance. This is Nelms’s testimony upon that point:
[Simmons] said, well, you ought to be able to knock off a dollar per thousand feet and us carry the insurance on it. I said, yeah, that sounds about right. It’d take that to pay the insurance. He said, well, now in the meanwhile we request you to carry liability on your truck, and we’ll carry workmen’s compensation on your crew, and that’s all there was to it.
The appellants argue that the Simmons-Nelms agreement for compensation insurance coverage was not valid, principally because Simmons would not have agreed to provide the coverage if he had known that Nelms himself had a policy that was not to expire until about two months later. There was, however, certainly no fraud or concealment. According to the undisputed testimony, the two men simply made rio reference whatever during their discussion to the possibility that Nelms might have a policy of his own.
Thus there is ample proof to support the commission’s finding that Simmons agreed to provide compensation insurance for Nelms and his crew. In fact, there is no evidence to the contrary. The validity of such an agreement is thoroughly established by our decisions. Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S. W. 2d 670 (1964); Hughes v. Hooker Bros., 237 Ark. 544, 374 S. W. 2d 355 (1964); Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S. W. 2d 270 (1963). It may be true, as thei appellants argue, that the Simmons compensation policy would not have prevented Zeiler’s dependents from bringing a wrongful death action against Simmons, as the prime contractor, had such a cause of action existed. Even so, that possibility does not entitle Simmons to repudiate its contract. Any such election would lie with the claimants, not with the primary contractor or its insurer.
The appellants also contend that the full commis sion should have allowed them to introduce a deposition of Howard Simmons that was not taken until almost six months after the referee had handed down his decision in favor of the claimants. The commission held that, under its own procedural rules, the deposition was taken and tendered too late; for the referee would have received the deposition if it had been offered earlier. We find no abuse of discretion in that ruling. Moreover, in the deposition Mr. Simmons admitted with candor that if Nelms had testified “that he’d talked to you wanting $29 and that you offered him $28 and agreed to carry insurance,” that testimony would “likely be correct.” Thus no prejudice is shown, for Simmons corroborated Nelms upon the pivotal point of fact in the case.
Affirmed.
Jones, J., dissents. | [
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J. Fred Jones, Justice.
At a special election, properly called for the purpose, the electors of the City of Crossett, Arkansas, voted in favor of annexing two areas to the City of Crossett. One of the areas lay north of the present city limits and is referred to as “North Crossett.” The other area lay south of the present city limits and is referred to as “South Crossett.” Both North and South Crossett are contiguous to the present corporate limits but not to each other.
Following the election the City Council, hereafter called “City,” filed its petition for annexation in the Ashley County Court as provided by statute (Ark. Stat. Ann. §§ 19-302—19-307 [Repl. 1968]). The county court gave due notice of a hearing on the petition and C. W. Anthony, Harold Bryant, Nolan Jeffress, W. M. Stover and Chesley Peters filed a response in opposition to the petition. The two areas involved were treated as separate cases and the county court denied the petition as to both North and South Crossett. The City appealed to the circuit court where the cases were consolidated for trial and the petition as to both areas was also denied by the circuit court on trial de novo. The City has appealed to this court and relies on the following points for reversal:
“Lower court erred in denying appellant’s motion to dismiss contest as to South Crossett for lack of standing to sue by appellees.
There is no substantial evidence to support the findings of the trial court as to:
A. North Crossett.
B. South Crossett.”
We agree with the City on its first point, but we must affirm the judgment of the trial court as to North Crossett.
The fact situation in this case presents a rather unique problem for the City of Crossett. The Georgia Pacific Corporation and its predecessor, Crossett Lum ber Company, apparently at one time owned all lands inside the present city limits of Crossett as well as most of the surrounding lands in the area. Georgia Pacific still owns all the vacant land inside the corporate limits of Crossett, and from time to time develops, and sells to individuals, such residential and business lots as it considers necessary for the orderly growth of Crossett and as it considers the demand and need exists. It appears from the record that Georgia Pacific places certain restrictive covenants in its deeds of conveyance apparently designed to control a uniform and orderly construction of homes in connection with adjacent areas of the city. As Georgia Pacific develops and sells lots from its lands inside the city, it constructs streets and extends utilities, all of which apparently goes into the cost price of the lots; thereby leaving a prospective purchaser with the option of purchasing a lot from Georgia Pacific inside the present city limits or going outside the city limits where there is more competition in the open market for building lots and where there is more latitude in restrictive use covenants or none at all. As a result the City of Crossett has actually expanded, and continues to expand, in a haphazard manner beyond its corporate limits, both north and south along the highways, and into areas unplanned and unrestricted as to use, zoning, location or structure. It is apparent from the overall record before us that Crossett could very easily be swallowed up by slums over which it has no control and in which it has no legal jurisdiction.
The guide lines for the annexation of contiguous property to a town or city as laid down in the case of Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, have been so consistently followed by this court since the rendition of the Vestal decision in 1891, that we deem it unnecessary to repeat them here. See Mann v. City of Hot Springs, 234 Ark. 9, 350 S. W. 2d 317, and Planque v. City of Eureka Springs, 243 Ark. 361, 419 S. W. 2d 788. It is also well settled that the vote of electors favoring annexation makes a prima facie case for annexation and the burden rests on those objecting, to produce sufficient evidence to defeat the prima facie case. Mann. v. City of Hot Springs and Planque v. City of Eureka Springs, supra. This burden of proof does not shift but remains the same when tried in the circuit court de novo on appeal from the county court, Marsh v. City of El Dorado, 217 Ark. 838, 233 S. W. 2d 536, and the circuit court findings have the same weight and effect as the verdict of a jury. In such situation we are not called upon to decide where the preponderance of the evidence lies, but we are obligated to affirm the trial court’s judgment if we find any substantial evidence to support it. Garner v. Benson, 224 Ark. 215, 272 S. W. 2d 442.
We render no opinion as to whether the City of Crossett fully met the guide lines for annexation as laid down in Vestal, supra, for that is not the question before us on this appeal. We are not called on to determine whether the trial court erred in granting the petition; we are called on to determine whether the trial court erred in denying it. We now proceed to the questions that are before us.
Ark. Stat. Ann. § 19-102 (Repl. 1968) provides that “any person interested may appear and contest the granting the prayer. . .” So, the first question is whether the protestants have such interest that entitles them to contest the petition on appeal in circuit court for the annexation of South Crossett. We are of the opinion that they have shown no such interest.
In the early case of Perkins, et al v. Holman, et al, 43 Ark. 219, Perkins and 36 other persons attacked the annexation of territory to the incorporated town of Locksburg through certiorari for the want of notice prescribed by law and for other causes. After the proceedings and orders of the county court had been certified up, the defendants filed a motion to quash the writ of certiorari—in legal effect a demurrer to the petition— because it appeared that the judgment and proceedings were regular and in pursuance of law. The motion was sustained and the petition dismissed. In affirming the trial court, this court said:
“Without considering the merits of the controversy, there is one insuperable obstacle in the way of re versing the judgment below. Neither the petition, nor any other part of the record, shows that the petitioners have any interests to be affected by the determination of the question sought to be presented. It is not alleged that they, or any of them, reside, or own property, either in the old town, or in the territory proposed to be annexed. It does not appear what right the petitioners have to interfere to prevent annexation. This is a subject upon which no presumptions can be indulged by an appellate court. There must be a substantial error, injurious to the appellants, before we can disturb the judgment of the Circuit Court.”
In the case at bar all of the protestants testified. Their testimony was confined to where they lived and owned property. Mr. Anthony testified that he lived on Route S, North Crossett, but not within the area subject to annexation. He testified, however, that he did own a business inside this area of North Crossett, but owns no property in South Crossett. Mr. Bryant testified that he lives in the North Crossett area under consideration for annexation and has never resided or owned property in South Crossett. Mr. Jeffress testified that he lives in North Crossett in the area subject to annexation and that he does not live or own property in South Crossett. Mr. Stover testified that he lives in North Crossett in the area subject to annexation and does not reside or own property in South Crossett. It was stipulated that Mr. Peters resides in North Crossett in the area subject to annexation and that he does not live or own property in South Crossett.
The City of Crossett filed a motion in the circuit court which reads, in part, as follows:
"That in their response to the petition for annexation the above named respondents state that they are residents and property owners in the area proposed to be annexed and described in the petition for annexation filed herein by petitioners; that the proof before the court establishes conclusively that none of the respondents were residents of or prop erty owners in the area commonly known as South Crossett in this annexation action and more particularly described as being all of the Southwest Quarter of Section 29, Township 18 South, Range 8 West lying South of the existing city boundary of the City of Crossett and the Northwest Quarter of Section 52, Township 18 South, Range 8 West.
That no party to this action has shown any standing to contest the annexation of the area known as South Crossett and the contest as to that area ought to be dismissed and the area deemed to be annexed to and a part of the City of Crossett, Arkansas.
WHEREFORE, petitioner moves the Court to grant its motion dismissing the contest as to the area described above and known as South Crossett for the reasons hereinabove stated.”
While it is true that these protestants filed their protest for themselves and others similarly situated, they do not reside or own property in the South Crossett area subject to annexation or within the present city limits of the City of Crossett. We are of the opinion, therefore, that the protestants, for themselves as well as for others similarly situated, have not shown such interest within the meaning of the statute that would permit them to question the propriety of the annexation of an area to a city in which they have shown no interest in the city or in the area to be annexed. If these protestants have such interest, there would be no reason why any other citizen within the trade area of Crossett; or indeed within Ashley County, would not also have such interest. We hold, therefore, that “any person interested” as referred to in the statute, means any person who actually has some interest in the city or in the area to be annexed, and that at least some such interest must be shown on trial de novo in the circuit court in the face of a motion to dismiss for lack of interest.
As to the North Crossett area, the case of Pine Bluff v. Mead, 177 Ark. 809, 7 S. W. 2d 988, is very much in point. In that case the majority of electors in Pine Bluff voted to annex contiguous territory. The county court approved the annexation and on appeal to the circuit court conflicting evidence was submitted on trial de novo and the petition was denied. After reciting the conditions under which it is proper for the boundaries of a city or town to be extended as laid down in Vestal v. Little Rock, supra, this court in Mead said:
"We think it unnecessary to set out or to review the testimony offered in support of and in opposition to the prayer of the petition for annexation. We are of the opinion that by far the greater part of the territory involved is shown, under the tests announced by Judge Hemingway, by the great preponderance of the evidence, and much of it by the undisputed evidence, to be territory which should be annexed to the city. But, before we could reverse the finding and judgment of the circuit court, we would have to say that all of the land included in the petition was adapted to urban uses.
We do not interpret the court’s finding as meaning that none of the land embraced in the petition was adapted to urban uses, but only that lands were included in the petition which should not have been, and, if that finding is supported by substantial testimony, we must affirm the judgment of the circuit court, which denied the prayer of the petition. Brown v. Peach Orchard, 162 Ark. 175, 257 S. W. 732.
There was testimony that a forty-acre tract of land owned by W. M. Simpson is unplatted and is used exclusively for agricultural purposes, and its present value is due to that use and is not attributable to its adaptability for urban purposes. Similar testimony was offered as to certain other tracts of land.
This testimony was not undisputed. On the contrary, the testimony on the part of the petitioners was to the effect that all this land was adapted to urban uses and derived its principal value from that fact. But we are required to affirm the judgment of the court below if it is supported by substantial testimony, and it is so supported.
In the Vestal case, supra, this court on the appeal held that most of the territory embraced in the annexation petition should properly have been annexed, including a forty-acre tract of land which was said to be vacant, low, flat, wet, and covered with timber, but the judgment of the circuit court which had affirmed the order of the county court annexing the unincorporated town of Argenta to the city of Little Rock, was reversed because another forty-acre tract of land was embraced in the annexation petition, and the court found that the owner of this land had no need of local government and the city had no need of his land.
A similar finding was made by the court below as to certain agricultural land included in the petition, and, as there is substantial testimony to support that finding, the judgment must be affirmed, and it is so ordered.”
In the case at bar the trial court found, among other things, as follows:
“The principal area sought to be taken is North of the City of Crossett containing about 2000 acres of the total acreage sought. A part of this area, lying along U. S. Highway 82, is densely populated and there are several platted additions and a street system in this area. On the other hand, there are extensive areas that are not densely populated or populated at all and which are not served by streets or municipal services or adjoined by platted additions. There are more than 327 acres of timber land in the North Crossett and 123.84 acres in the South Crossett area according to the testimony of the county tax assessor and 355 acres of open unimproved land, possibly farm lands, in the North Crossett area according to the testimony of the Manager, U. S. Department of Agriculture office.
#jí, ¿¿, IP tP
. . . a large portion of the areas sought to be annexed include a large part, possibly as much as 800 acres, in vacant, unimproved, open land, under cultivation or in timber and uninhabited and not served with streets or roads and which is not suitable for annexation.
* * #
This is not to say that a part of the proposed area is not suitable for annexation but because of the large portion that is not suitable this court has no alternative but to deny the petition of the City of Crossett for annexation in its entirety and in this respect the motion of the city to dismiss as to the South area should be denied.”
Mr. Harold Bryant, in surrebuttal, testified that there is some farm land under cultivation in the North Crossett annexation area. He testified that a Mr. Mann owns 40 acres within the area which he uses for pasturing cows and horses; that a Mr. Barnett lives within the proposed annexation area and owns 60 acres of which about 40 acres is in cultivation; that Tommy Barton lives within the area and owns about 120 acres which he also uses for pasture. He testified that Belouts have 60 acres within the area which is not being used for anything now, but which has been used for pasture. He testified that Dr. Barnes’ estate consisting of 79 acres of open land is within the area but that it is not being used for pasture. He testified that Sonny Courson has about 20 acres within the area which has been used in the past for horse pasture.
None of the vacant land owners testified and there is no evidence in the record as to enhancement of land values because of adaptability to municipal inclusion. It was stipulated that Mr. J. C. McGoogan, a real estate agent, if called as an expert witness, would testify that the highest and best use of the undeveloped land within the proposed annexation area would be for residential and commercial purposes.
Mr. Joe West was the only witness who lived or owned property in South Crossett. His testimony was directed primarily to the water system now in use in South Crossett. He also testified that a petition was circulated in South Crossett and a majority of the residents signed the petition opposing annexation.
Certainly if the trial court had granted the petition for annexation, there would have been substantial evidence to support such judgment—but that is not the case. The trial court denied the petition and as we said in Mead, “before we could reverse the finding and judgment of the circuit court, we would have to say that all of the land included in the petition was adapted to urban use.” We cannot say this for the reason that there is substantial evidence that some of the land in the North Crossett proposed annexation area is not adapted to urban use.
The judgment as to North Crossett is affirmed and the judgment as to South Crossett is reversed. This cause is remanded to the trial court for entry of an order annexing South Crossett to the City of Crossett.
Affirmed in part; reversed in part and remanded.
George Rose Smith, Brown and Byrd, JJ., dissent. | [
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John A. Fogleman, Justice.
The Commissioner of Revenues contends that the chancery court erroneously granted summary judgment in favor of appellee AMF Beaird, Inc., a Delaware corporation, whose principal office is in Louisiana, for recovery of income taxes paid the State of Arkansas by it for the years 1964, 1965 and 1966. In the judgment, granted on appellee’s motion in a suit by it to recover these taxes, the chancellor made the following findings:
1. Plaintiff timely filed, on February 8, 1969, amended returns requesting refunds of income tax paid for the calendar years 1964, 1965, and 1966. Defendant denied the requested refunds, and plaintiff timely sought review of that denial in this Court.
2. Defendant has presented no evidence in opposition to the affidavit, depositions, and exhibit submitted by plaintiff in support of its motion and supplement to motion for summary judg ment, and there is, therefore, no genuine issue as to any material fact.
5. Defendant is prohibited by the terms of 15 U. S. C. A. § 881 from levying an income tax on plaintiff for the years 1964, 1965, and 1966.
Appellant urges three points for reversal. He contends that the court erred (1) in holding that appellant had presented no evidence in opposition to the affidavit, depositions and exhibits submitted by appellee in support of its motion for summary judgment; (2) in granting summary judgment in spite of the existence of genuine issues as to material facts; and (3) in holding that appellant is barred from levying an income tax on appellee for the years in question by United States Public Law 86-272, 73 Stat. 555, 15 U. S. C. A. § 381. As we view the matter, the issues raised by these points are so interdependent and intertwined that they cannot well be treated separately, so we will discuss them collectively. The real issue raised by the pleadings is whether appellee is relieved from the payment of income taxes for the years in question by the provisions of the federal law above mentioned. The act, insofar as pertinent, reads as follows:
(a) No state, or political subdivision thereof, shall have power to impose, ... a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both of the following:
(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside, the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and
(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person,. if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).
(b) The provisions of subsection (a) of this section shall not apply to the imposition of a net income tax by any State, or political subdivision thereof, with respect to—
(-1) any corporation which is incorporated under the laws of such State; or
(2) any individual who, under the laws of such State, is domiciled in, or a resident of, such State.
Appellee based its motion for summary judgment upon the pleadings, the depositions of Robert Carroll, Jr., Paul Downs and Clian Dearien and the affidavit of N. T. Adams. In response, appellant filed only a formal allegation that there was a genuine issue of material fact and a brief in which he argued that the business activities of appellee exceeded the mere solicitation of orders for sales of tangible property. Appellant relied upon disclosures in the depositions upon which appellee based its motion. These disclosures included the contracts between appellee and certain of those with whom it did business in Arkansas.
Carroll operates Carroll Building Sc Supply Company, a sole proprietorship in Murfreesboro, engaged in the building material and LP gas business. He sells LP storage tanks manufactured by Beaird. He makes payment for tanks sold each month either to its representative or directly to the company at its principal office in Louisiana. He never returned any equipment to Beaird unless it was damaged or defective. He said that AMF salesmen never did anything except take orders, check his inventory and accept payments. Carroll carried insurance on the equipment obtained from Beaird while it was in his possession. He said that monthly sales were about equal to monthly orders. He stated, “As we sell a tank we pay for it.” The contract between Carroll and Beaird, which could be terminated by either party upon 30 days’ notice, contained the following pertinent provisions:
I. That First Party shall consign to Second Party Beaird Standard LP-Gas domestic systems at Second Party’s business location in Murfreesboro, Arkansas, and Second Party shall receive and accept possession of said systems upon the terms and conditions hereinafter stated:
II. Shipments will be made by truck or rail at First Party’s discretion, and all freight charged from First Party’s plant to destination will be paid by First Party;
III. The prices at which Second Party shall buy said systems will be in accordance with a schedule to be furnished Second Party by First Party, and said prices will be subject to change by First Party at any time;
IV. Second Party agrees to accept billing for all systems remaining in their consigned stock over twelve months;
V. Second Party agrees that no consigned systems or other equipment will be used, sold or removed from its stock until cash payment for said systems or equipment has been made to First Party. Upon request of Second Party, giving serial number of systems sold, name and address of purchaser, First Party shall furnish State or local regulatory bodies and the customer the required data sheets. Second Party also agrees that parts will not be removed from systems in stock for any purpose without written approval from First Party. Second Party agrees to store systems or other tank equipment in a manner which will hold them safe from fire, theft or other damages which may occur and to protect First Party against any liens, seizures, taxes, or other claims or privileges which might be made against said systems or First Party. Second Party, as consignee, especially assumes liability for and\ agrees to pay any state or local taxes levied on the consigned articles or their use or sale, or on the business growing out of the consignment of said systems;
VI. Second Party shall diligently promote the sale of First Party’s systems and if, in the opinion of the First Party, any or all of said systems on hand at any time are slow of movement, then at the sole discretion of First Party, Second Party shall make disposition of said systems in accordance with written instructions directed to it by First Party. Any freight or hauling charge involved in such disposition shall be at the expense of First Party.
VII. During the terms of this contract Second Party agrees not to stock or sell LP-Gas systems manufactured by others than First Party.
Carroll stated that he used his own sales agreement forms, billed customers and extended credit at his own risk, without any dictation or suggestion or prices by Beaird, in spite of the contract provisions.
Downs operated Tobin Furniture & Butane Company, a corporation engaged in the LP gas and furniture business in DeQueen, under a contract similar to that with Carroll. Paragraph 4, however, in the Tobin contract, reads as follows:
IV. Second Party agrees to use systems shipped into consignment on a first-in first-out basis in order to avoid obsolete inventory, and fur thermore, Second Party agrees to remit for all systems remaining in their consigned stock over twelve (12) months.
This contract also contained an additional provision reading as follows:
If Second Party cancels the consignment agreement, he agrees to (a) either purchase the remainder of stock on hand at First Party’s published list price as of date of cancellation, no cash discount, will be allowed; or (b) deliver the stock remaining in consignment to another consignment located as directed by First Party; or (c) return the stock remaining in consignment to the First Party’s factory at Second Party’s expense.
Downs followed practices similar to those of Carroll. He said that Beaird’s salesman would come by, inventory his stock and collect for whatever merchandise he had sold.
, Dearien operated Stone County Gas Company, a corporation in Mountain View, selling propane gas and appliances. The corporation acquired the business from O. H. Stevens, who was buying from Beaird. It continued the existing relationship with appellee. Stevens’ contract with Beaird was virtually identical with that of Tobin. Dearien obtained tanks by placing an order, usually when Beaird’s salesman called. He paid Beaird either at the end of a month or when the salesman came around and checked inventory. Otherwise, the method of operation was similar to those conducted with the other deponents. Dearien testified, "The property was on consignment and it was ours to handle any way we saw fit as long as we paid for it.”
N. T. Adams was Beaird’s sales representative at all times after June 1, 1951. He made monthly calls on Beaird’s customers in Arkansas. He stated that his only duties in Arkansas were:
(a) To receive orders from the customer for transmittal to the home office in Shreveport, Louisiana, where the order is accepted or rejected.
(b) To check the customer’s inventory of Beaird equipment.
He said that the customer paid Beaird each month for the merchandise sold by the customer during the preceding month. He added that Beaird did not intend to retain title to the equipment sold to its customers, took no action for this purpose, did not designate its customers as its agents and did not deal with them on that basis. He corroborated the deposing customers as to practices with reference to sales, credit extended, prices, etc.
At the outset, we should say that we do not agree with the chancellor that the failure of appellant to offer evidence in opposition to the affidavit, depositions and exhibits submitted by appellee necessarily entitled the latter to summary judgment, or showed nonexistence of any genuine issue as to any material fact. See Ashley v. Eisele, 247 Ark. 281, 445 S. W. 2d 76. This is only the case when the moving party has clearly met its burden of demonstrating that there is no justiciable issue. The adverse party only has the burden of demonstrating the existence of such an issue when the moving party has made a prima facie showing of entitlement to the relief sought by it. See Ark. Stat. Ann. § 29-211 (e) (Supp. 1969); Miskimins v. City National Bank of Fort Smith, 248 Ark. 1194, 456 S. W. 2d 673. In determining whether the movant has made the requisite showing, all doubts are resolved against summary judgment, all presumptions and inferences must be resolved against the movant and, in a case in which fair-minded men may honestly differ about the conclusions to be drawn from the testimony, summary judgment must be denied. Mason v. Funderburk, 247 Ark. 521, 446 S. W. 2d 543. The evidence must be liberally construed in favor of the party opposing the motion. Pickens-Bond Const. Co. v. North Little Rock Elec. Co., 249 Ark. 589, 459 S. W. 2d 549.
In order to determine the correctness of the chancery court’s action, we must decide whether the facts shown in support of appellee’s motion made a prima facie case for recovery of the taxes paid by it. We find that they do not. Appellee failed to bring itself within the statute upon which it relies because it did not show that the only business activity on its behalf in Arkansas was the solicitation of orders. The stated purpose of the act in question was to prohibit states from collecting income taxes permitted by Northwestern States Portland Cement Co. v. Minnesota and Williams v. Stockham, 558 U. S. 450, 79 S. Ct. 357, 3 L. Ed. 2d 421, wherein it was held that mere solicitation of orders afforded sufficient “nexus” with the state in which they were solicited for such taxation. 2 U. S. Code Cong. & Adm. News 2548 et seq. (86th Cong., First Session, 1959). When we consider the purpose of the legislation and the language of the act, we cannot give the term “solicitation” the broad interpretation necessary to sustain this judgment. Other jurisdictions considering this section have held that “solicitation” is not to be given a broad construction. Clairol, Inc. v. Kingsley, 109 N. J. Super. 22, 262 A. 2d 213 (1970); Cal-Roof Wholesale Co., Inc. v. State Tax Commission, 242 Ore. 435, 410 P. 2d 233 (1966); Herff-Jones Co. v. State Tax Commission, 247 Ore. 404, 430 P 2d 998 (1967). The legislative history of the act clearly indicates that a narrow construction of the term “solicitation of orders” was intended by Congress. 2 U. S. Code Cong. & Adm. News 2548, et seq. (86th Cong., First Session, 1959).
The activities of appellee’s representative in Arkansas go far beyond mere solicitation of orders for sales of appellee’s products to be shipped into the state if the orders are approved. Proper performance of his duties requires him to make regular checks of customers’ inventories of Beaird equipment. The record shows that Adams did so. This practice itself extends Beaird’s activities beyond the scope of solicitation of orders. Even if it should be said that this activity helped to produce orders, it is equally reasonable to conclude that Beaird’s interest was in protecting its property rights in the items shipped to the various parties with whom it had contracts, to establish the basis for billing these parties and to determine whether conditions in any particular instances required invocation of rights reserved in the various contracts. If Beaird did not maintain this degree of control, then it would have had no means of determining whether or when it should bill a customer for a particular item or whether proper and timely remittances had been made by the customer.*
We would have no difficulty, however, in finding that appellee had failed to show, at least as a matter of law, that its activities were restricted to solicitation of orders for sales of tangible personal property. Appellant argues, with persuasive force, that the relationship between appellee and its “customers” is based upon a consignment arrangement, and that no sale is made by Beaird to them. Since the contracts might possibly be construed as being for conditional sales, in determining whether there was a sale or consignment we must look at the entire contract, as well as the actions of the parties thereunder. Sternberg v. Snow King Baking Powder Co., 186 Ark. 1161, 57 S. W. 2d 1057; American Snuff Co. v. Stuckey, 197 Ark. 540, 123 S. W. 2d 1063. See also, Ludvigh v. American Woolen Co., 231 U. S. 522, 34 S. Ct. 161, 58 L. Ed. 345 (1913); Edgewood Shoe Factories v. Stewart, 107 F. 2d 123 (5th Cir. 1939); Liebowitz v. Voiello, 107 F. 2d 914 (2nd Cir. 1939); Reliance Shoe Co. v. Manly, 25 F. 2d 381 (4th Cir. 1928).
Significant factors in evaluating such a transaction include:
1. Suggestion and contemplation of consignment in the memorandum of the agreement between the parties. [See In re DIA Sales Corporation, 339 F. 2d 175 (6th Cir. 1964).]_
2. Lack of obligation on the part of the “consignee” to pay for unsold goods. [See Ludvigh v. American Woolen Co., supra; Fowler v. Pennsylvania Tire Company, 326 F. 2d 526 (5th Cir. 1964); In re DIA Sales Corporation, supra.]
3. Obligation of the consignee to pay for goods when sold by him. [Edgwood Shoe Factories v. Stewart, supra.]
4. Prompt remittance to consignor for goods sold, whether for cash or credit. [See Edgewood Shoe Factories v. Stewart, supra.]
5. Visits to consignee to inquire into sales and urge prompt remittance of collections to consignor. [See Ludvigh v. American Woolen Co., supra.]
6. Keeping by a representative of the consignor of an account or inventory of goods consigned and sold. [See Ludvigh v. American Woolen Co., supra.]
7. Provision for return of merchandise upon termination of the agreement. [See Ludvigh v. American Woolen Co., supra.]
In reviewing the contract and the actions of the parties here we note the following significant factors indicating that the arrangement was for consignment rather than sale:
1. The contracts use words consistent with consignment throughout, e.g.:
a. First party shall consign to second party. . .
b. Second party agrees that no consigned systems will be used, sold or removed from its stocks...
_c. Second party as consignee, especially as sumes liability for and agrees to pay any state or local taxes levied on the consigned articles or their use and sale, or on the business growing out of consignment of said systems.
d. Second party agrees to use systems shipped into consignment on a first-in and first-out basis. . . and furthermore second party agrees to remit for all systems remaining in their consigned stock . ..
e. If Second party cancels the consignment agreement he agrees to (a) . . . or (b) deliver the stock remaining in consignment to another consignment ... or (c) return the stock remaining in consignment.
2. The “customers” were only obligated to receive and accept possession of systems consigned upon the terms of the contract.
3. There is no obligation on the part of the “customer” to pay for consigned systems unless they remain in his consigned stock for more than 12 months, or unless they have been sold by him. He may, at his option purchase the remainder of stock on hand if he cancels the consignment agreement.
4. Parts cannot be removed from any system in stock without written approval of Beaird.
5. The “customer” is obligated to store the systems in a manner to hold them safe from fire, theft or other damages and to protect Beaird from liens or claims which may be asserted against Beaird.
6. If, in the opinion of Beaird, any of the systems are slow of movement, then at the sole discretion of Beaird, the “customer” shall make disposition of the systems in accordance with Beaird’s written directions, with freight or hauling expense borne by Beaird.
7. The “customer” agrees not to stock or sell systems manufactured by others.
8. The “customer” agrees to “use” systems on a first-in, first-out basis to avoid obsolete inventory (in spite of the fact that he must pay 'for all systems remaining in the consigned stock over 12 months).
9. If the “customer” cancels the contract, he may either pay for the stock on hand, deliver the property remaining to another consignment at the direction of Beaird or return it to Beaird’s factory at his own expense.
We do not intend to say that there are not other significant factors involved. It would not be unreasonable to infer from appellee’s filing of tax returns and paying the taxes that it once thought that it was liable for them. Some of the actions of the parties are probably more consistent with a conditional sale than with consignment. We do mean to say that, at the very least, those factors pointed out suffice to raise a question of fact for the trial court’s determination. Language from In re Lexington Appliance Company, Inc., 202 F. Supp. 869 (D. C. Md. 1962) is appropriate here:
A consignment is generally defined as a bailment for care or sale, where there is no . obligation to purchase on the part of the consignee. The presence or lack of an obligation to purchase or pay for the goods on the part of the consignee is the most important factor in determining whether the agreement may be termed a consignment, because, if the alleged consignee is absolutely bound in all events to pay for the goods unsold, even though title is reserved in the alleged consignor, the transaction is a sale, or at least a conditional sale. ,
Here the “customers” were never absolutely bound, in all events to purchase any item. The contracts could easily be terminated before liability accrued for a system in stock for more than 12 months.
Since we cannot say that appellee was entitled to judgment on the record before us, as a matter of law, the judgment is reversed and the cause remanded for further proceedings.
Jones, J., dissents.
Plemmons Brothers Butane Company in Waldron had a similar arrangement with Beaird, but it is not now doing business.
We do not discuss the effect of "acceptance of payments” in Arkansas by appellee’s representative because appellee asserted and appellant admitted in oral argument that this issue had not been raised in the trial court.
It is notable that the words “sold” and “sale” are never used in connection with the transactions between Beaird and its “customers.” They are only used in reference to transactions conducted by the “customers” in disposing of the goods. | [
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Conley Byrd, Justice.
Appellant Arkansas State Highway Commission by this appeal again argues that the sum of the various interests in the property merely make up the fair market value of the whole property and that the sum of the parts cannot exceed the value of the whole. We held contrary to appellant on this issue in Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S. W. 2d 81 (1959). We find that the record here supports our former decision from which we refuse to recede.
Our Constitution Art. II § 22 provides:
“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”
The record shows that Myrtis B. Polk and Carolyn Polk Holcomb owned 83 acres at the time the declaration of taking was filed on February 28, 1969, subject to an agricultural lease in favor of H. F. Lynn that would expire on December 31, 1971. The witnesses in appraising the landowners’ interest in the land considered its highest and best use to be for rural residential purposes and gave its before and after value for that use. Mr. Lynn, the tenant, on the other hand arrived at his damages based upon an agricultural use. While he acknowledged that his lease covered the whole tract he stated without hesitation that he only messed with the 43 cultivated acres.
When we remember that the interests of both the landlord and lessee constitute private property and that each is entitled to compensation for the property taken for a public use, the invalidity of appellant’s whole unit theory can readily be demonstrated. The price a willing buyer and a willing seller arrive at for residential development ordinarily contemplates an orderly development of the tract because there is usually a time difference or lag between the beginning and final development of an 83 acre tract. In arriving at the purchase price or the market price for that purpose, the use of the premises for agricultural purposes is at most only incidental to the market price. See Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495 (1957), where we held it was improper to value lands on behalf of the landowner both for commercial purposes and residential purposes. The highest and best use of the premises on behalf of the lessee, however, is for agricultural purposes but since his lease may or may not affect the market price of the landowner, it follows that if both the landowner and the lessee are to receive just compensation the private property of each must be valued on the basis of each respective ownership even though it may amount to more than the landowner could recover in the absence of a lease. For instance in the present case part of the lessee’s damages was amortization of lime applied, an item that would have no practical effect upon the value of the lands for residential purposes.
Appellant in pursuit of its whole unit rule objective, offered its instruction No. 5 defining just compensation in terms of all of the defendants. The trial court modified the instruction by adding the italicized word “Landowners.” As given the instruction read:
“Just compensation to the Defendant Landowners in this case is the difference in the fair market value of the land immediately before the taking on February 28, 1969, and the fair market value of the land immediately after the taking; assuming that the highway is completed and permanently in place.
“The term ‘fair market value,’ as used in these instructions, means the price the land would bring on the market in a transaction between a buyer and seller with knowledge of all the uses and purposes to which the land is adopted after they have had a reasonable time for negotiations, and the seller was willing but not forced to sell, and the buyer was willing, but not forced to buy.”
The objection at the trial was that the instruction allowed an overlap or double payment where a lease was involved. Appellant now argues that the instruction was erroneous because it did not require the jury, when assessing the landowners’ damages, to take into consideration that the property was encumbered by a lease. We find no merit in this contention for either of two reasons: (1) it is raised for the first time on appeal and (2) the burden was on appellant to request an instruction on that issue if it desired that it be submitted to the jury.
Instruction No. 7 given by the court defined the damages which the lessee Mr. Lynn would be entitled to recover. The objection at that time, besides the whole unit rule, was that it was not supported by the evidence. On appeal the argument is that the instruction does correctly state the measure of damages for a leasehold interest in a partial taking. We do not consider the argument now made since it is raised for the first time on appeal. Not having presented the issue now argued to us to the trial court, appellant is not now in a position to claim that the trial court committed error.
Affirmed. | [
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John A. Fogleman, Justice.
This appeal is a satellite of Home Insurance Company v. Dearing, 248 Ark. 574, 452 S. W. 2d 852. It comes from a summary judgment for the recovery by appellee Home Insurance Company of $2,348.88 paid appellant Floyd as its insured on a policy of automobile insurance which included collision coverage. Appellant and Mrs. P. M. Dearing were involved in an automobile collision on May 14, 1967. As pointed out in Dearing, appellant’s suit against her for damages was concluded by an order of dismissal with prejudice entered on November 28, 1967.
It is admitted that appellee paid Floyd the above amount for collision damage on January 8, 1968, on the basis of a loan receipt and proof of loss executed by Floyd. The loan receipt recites that appellee made the payment as a loan, payable only to the extent of Floyd’s net recovery from anyone on account of the collision. In the receipt, Floyd pledged his recovery as security for repayment and agreed to prosecute suit for said loss with due diligence, at the expense and under the exclusive direction and control of appellee. In the proof of loss, Floyd made the following assertions:
Nothing has been done by, or with, the privity or consent of the insured or this affiant to violate the terms and conditions of this policy or render it void . . . No attempt has been made to deceive the insurer in any manner as to the cause and the extent of said loss or otherwise.
It is also admitted that before making said payment the supervising adjuster of appellee addressed a letter dated December 18, 1967, to appellant’s attorney acknowledging receipt of all copies of the- pleadings in appellant’s case against Mrs. Dearing, forwarded by the local representative of the General Adjustment Bureau which had represented appellee in the investigation and processing of matters pertaining to the collision. This letter contained the following paragraph:
Before making payment on this claim, we would like to have your assurance that our subrogation claim has been protected in the settlement of this claim. We note that you did delete the property damage prayer from the pleadings but would just like to have your assurance that our claim will be protected.
Reply was made by appellant’s attorney on January 2, 1968, as follows:
I have furnished you copies of the proceedings, and the Farm Bureau Insurance Company and Mr. Jimason Daggett of Marianna, its attorney, are completely advised that the settlement made with them covered personal injuries only.
On August 20, 1968, appellant filed the suit against Mrs. Dearing which is the action that culminated as Home Insurance Company v. Dearing, supra. When Mrs. Dearing entered her plea of res judicata based on the order of dismissal, appellee filed an amendment to its complaint making Floyd a party to the action. In this amendment appellee alleged that, if defense of res judicata were sustained, it would then be entitled to recover the amount it paid to appellant Floyd for breach of his proof of loss and loan receipt upon the basis of which he was paid. To this pleading Floyd filed an answer and cross-complaint, alleging that he included the property damage claim in his suit against Mrs. Dearing at the insistence of, and with the knowledge of, the adjustment bureau, with the understanding that, if he did not recover from Mrs. Dearing, recovery would be had under his policy with appellee. His cross-complaint was based upon his assertion that appellee had breached its contract of insurance by filing suit against him.
After our decision in Dearing, appellee moved for summary judgment upon the basis of the correspondence between its supervising adjuster and appellant’s attorney. Appellant responded and filed the affidavit of his attorney. This affiant stated that he was in constant contact with the adjustment bureau and its Helena manager whose office adjoined the attorney’s, that this manager investigated the accident, interviewed witnesses and delivered all information gathered to the affiant for the purpose of attempting to collect the vehicle damage from Mrs. Dearing, and obtained a replacement vehicle for appellant at a discount. He further stated that there was a complete understanding with the adjustment bureau manager that Floyd would withhold his claim under appellee’s insurance policy until the settlement of the Dearing litigation but that appellant received nothing from Mrs. Dearing or her insurance carrier for his vehicle damage by reason of the amendment to the complaint and the dismissal of the action. He also deposed that the loan receipt was filed by Floyd in his presence and in the presence of the adjustment bureau manager with full knowledge of the facts set out in the affidavit.
We have clearly recognized that a cause of action in tort may be split upon settlement with the tort-feasor by specific agreement of the parties. St. Paul Fire and Marine Insurance Company v. Wood, 242 Ark. 879, 416 S. W. 2d 322. There is no suggestion that there was any agreement between Floyd and Mrs. Dearing to this effect, as we pointed out in Dearing. We have also said that no act of an insured releasing a tort-feasor from liability could defeat the insurer’s rights when it was done without knowledge or consent of the insurer and with the tort-feasor’s full knowledge of the insurer’s right of subrogation. Sentry Ins. Co. v. Stuart, 246 Ark. 680, 439 S. W. 2d 797. In that case, we held that a settlement made by the tort-feasor under those circumstances constituted consent to the splitting of an otherwise indivisible cause of action. In Dearing we pointed out that the appellee had no subrogation rights in this case prior to the recovery by Floyd from Mrs. Dearing or her insurance carrier and that there had been no court judgment or even any suit filed in Sentry.
The only reasonable inference to be drawn from the inquiry by appellant’s supervising adjuster is that the insurance company was aware of our holdings that settlement could be accomplished in a manner which split a cause of action in tort and which would protect the rights of appellee. Appellee’s response through his attorney did not put the company on notice that a dismissal with prejudice of the Floyd v. Dearing case had been entered, and there is nothing else in the record which would have indicated to either the company or the adjustment bureau employed by it that this was the manner in which the case was being terminated. Ap pellee’s statement that the agent of the adjustment bureau had full knowledge of all the facts set out in his affidavit falls far short of controverting the only reasonable inference to be drawn from appellant’s statements in the proof of loss and loan receipt and the cited correspondence, i. e., that appellant assured appellee that the Floyd-Dearing litigation had been settled without impairment of the right of recovery of the vehicle damage from Mrs. Dearing. As we said in Dearing, the order of dismissal constituted a complete defense against this recovery under the principle applied in Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S. W. 2d 491, and nothing was done which amounted to a splitting of the cause of action. Appellant cannot be heard to say that he was not aware of the effect of this order, as the rule of law has been well established in this state. Since the admissions upon which appellee relied for its motion showed a prima facie right to recover, and appellee’s controverting affidavit did not set forth specific facts showing that there was a genuine fact issue for trial, we affirm the summary judgment.
The judgment might also have been affirmed for appellant’s failure to abstract the subrogation agreement and loan receipt in compliance with Rule 9, had the appellee not cured the defect by abstracting both. Wells v. Smith, 198 Ark. 476, 129 S. W. 2d 251; Gardner v. Farmers Electric Co-op. Corp., 232 Ark. 435, 338 S. W. 2d 206; DeSoto Hotel & Baths v. Luth, 239 Ark. 424, 389 S. W. 2d 897.
Harris, C. J., dissents. | [
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John A. Fogleman, Justice.
On. the first appeal in this case, we found that there was error in the circuit court’s failure to strike the landowner’s value testimony in this eminent domain proceeding. We are not confronted with that problem on this second appeal because the trial court instructed the jury not to consider such testimony by Highfill on the retrial. The sole point for reversal is that there is no substantial competent evidence to support the verdict. We might well dispose of this case upon the basis that no objection was made to the value testimony of either of the two other witnesses called by appellees, and no motion was made to strike the testimony of either. The question of competency, if any actually exists, was waived by appellant. Koelsch v. Arkansas State Highway Commission, 223 Ark. 529, 267 S. W. 2d 4; Sneed v. Reynolds, 166 Ark. 581, 266 S.W. 686.
The real basis of appellant’s argument here is that the witnesses based their opinions upon noncomparable sales. One of them, Hobart Yarborough, was unable to find sales of comparable land in the immediate vicinity, so he relied upon three sales of land some distance away. One of these was 254 miles southeast of Clarksville, while the Highfill land was 13 miles west. Another was two miles up Spadra Creek and lay adjacent to the city limits. It was not demonstrated that there were any other dissimilarities in the two tracts. The witness stated that he had used this sale and another from Hardgraves to Morgan in testifying in this and other cases pertaining to creek bottom lands. The third sale was not considered by him when he made his first appraisal, i. <?., before the first trial in this case. Appellant also argues that Yarborough’s professed lack of knowledge about other purported sales about which he was quizzed on cross-examination and his failure to consider other sales as comparable show that his testimony could not be substantial.
Separation of two tracts by distance where they are otherwise similar is not sufficient to show that the sale of one is not evidence of value of the other, where it cannot be said as a matter of law that they are in different localities. St. Louis I. M. & S. Ry. Co. v. Maxfield, 94 Ark. 135, 126 S. W. 83, 26 L. R. A. (n. s.) 1111. See also, Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S. W. 2d 354; Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702. If the sales relied upon by appellees’ witnesses were not comparable as a matter of law, it was incumbent upon appellant to call that fact to the attention of the trial court. Baker v. City of Little Rock, 247 Ark. 518, 446 S. W. 2d 253. This it did not do. On the basis of disclosures made with reference to the respective tracts we are unable to say that they are not comparable as' a matter of law. Consequently, the weight to be given Yarborough’s testimony was for the jury. Arkansas State Highway Commission v. McAlister, 247 Ark. 757, 447 S. W. 2d 649.
While appellant insists that Yarborough admitted that he did not consider the third sale (from Bailey Barns to Charles Larrison), we construe the witness’ testimony to be that he did not consider it when he made his first appraisal, but did consider it as a basis for his testimony at the' second trial. The knowledge (or lack of knowledge) of the witness as to other sales, if indeed appellees’ data about them was correct, would only bear upon the weight to be given to his testimony. Arkansas State Highway Commission v. Shields, 249 Ark. 710, 460 S. W. 2d 746; Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S. W. 2d 354. We cannot say that it had no substance.
Virtually the same argument is made about the testimony of Harold Lewis, the other value witness called by appellees. One sale which Lewis used in his evaluation of the Highfill property was 12 miles northeast of Clarksville, another was 18 miles from the Highfill land, and he also referred to two of the sales used by Yarborough. He denied that other lands about which he was asked on cross-examination were comparable to that of the Highfills.
We are simply unable to say that appellant has demonstrated that the verdict had no substantial evidentiary support.
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Lyle Brown, Justice.
Appellee A. G. “Harrison” Earp claimed to be the son of M. C. “Harrison” Earp. The claim was denied by all other possible heirs of M. C. “Harrison” Earp, who died intestate. Appellee initiated this action to establish his heirship. The chancellor ruled in A. G.’s favor. The points for reversal will be listed as they are discussed.
M. C. “Harrison” Earp married Ida Smelser on July 4, 1919. At the time of that marriage he had seven children by a prior marriage, and Ida had five children born of her first marriage. The husband and wife lived together with their children until the fall of 1919 at which time they separated, and Ida filed for divorce. “Harrison” answered and cross-complained, alleging fraud on the part of Ida in that she was allegedly pregnant (at the time of marriage) by a man other than the defendant, “Harrison.” A child was born to Ida on February 28, 1920, and the decree annulling the marriage was entered April 12, 1920. A. G. “Harrison” Earp, appellee, contends that he is the child born of the marriage between M. C. “Harrison” Earp and Ida Smelser Earp.
After the divorce from Ida, M. C. “Harrison” Earp married Bettie Earp who lived with him as his wife until his death in 1942. No children were born of this marriage. Bettie Earp was appointed administratrix of the estate of the intestate. When a petition to assign dower and homestead was filed, appellee intervened merely to note his claim as an heir at law of M. C. “Harrison” Earp. With respect to that intervention the probate court said:
The court finds that it is not necessary to take any action on the intervention of A. G. Earp herein for the reason that said intervenor merely notes his claim that he is an heir at law of M. C. Earp, Deceased, and does not controvert the right of Mrs. Bettie Earp to homestead or dower as herein awarded.
No determination of heirship was ever made in the probate court proceedings.
Bettie Earp died on May 30, 1969. Her homestead and dower rights being thus extinguished, the estate of M. C. “Harrison” Earp passed to his heirs at law. A. G. “Harrison” Earp filed a complaint on August 13, 1969, against the children of M. C. “Harrison” Earp by his first marriage and their heirs. The complaint alleged that A. G. “Harrison” Earp was also an heir of M. C. “Harrison” Earp and prayed a partition of the land in question. The chancellor found for appellee and granted him an undivided one-eighth interest in the lands. From the order of the chancellor, the heirs of M. C. “Harrison” Earp by his first marriage bring this appeal.
Appellants rely on three points for reversal. The first point is the contention that the lower court erred in making a finding of fact that A. G. “Harrison” Earp was the legitimate son and one of the heirs at law of M. C. “Harrison” Earp. It is clear that if A. G. “Harrison” Earp was in fact the child born to Ida Earp on February 28, 1920, before the marriage was dissolved by an annulment on April 20, 1920, then A. G. “Harrison” Earp is presumptively an heir of M. C. “Harrison” Earp and entitled to inherit along with the other children of the intestate. Ark. Stat. Ann. § 61-104 (1947), (since replaced by § 61-141) was in effect in 1942 when the lands passed to the heirs subject to the dower and homestead rights of the widow. It provided: “The issue of all marriages deemed null in law, of dissolved by divorce, shall be deemed and considered as legitimate.” In Morrison, Admx. v. Nicks, 211 Ark. 261, 200 S. W. 2d 100 (1947), this court said: “There is a presumption, said to be one of the strongest known to the law, that children born to a couple lawfully married are the children of the husband, and that this presumption continues until overcome by the clearest evidence that the husband was impotent or without access to his wife, and the controlling question is whether that proof was made.” See also Jacobs v. Jacobs, infra.
The following witnesses testified that A. G. “Harrison” Earp was the child born on February 28, 1920, before the annulment of the marriage between M. C. “Harrison” Earp and Ida Earp: A. G. “Harrison” Earp, appellee; Mrs. Aubra Kappleman, half sister to the appellee; Mrs. Sybil Williams, cousin of appellee; Luther Smelser, half brother to appellee; and Ray Breckenridge, a neighbor of M. C. “Harrison” Earp when appellee was born. None of the appellants testified. The only evidence presented by them to prove that appellee was not the child who was born on February 28, 1920, was an entry in a school record for the year 1936 when appellee was in the seventh grade, and appellee’s application for •& marriage license. The entry on the school record was made by someone other than appellee and indicated that appellee was born February 28, 1921. The application for the marriage license was dated March 13, 1944, and indicated that appellee was twenty-three years old at that time. The entries were made by someone other than appellee, except for his signature. (1944 less twenty-three is 1921. Appellee should have been twenty-four on March 13, 1944, according to his testimony.) It should be noted, however, that there is no place on the application for the date of birth of the appellee. The form merely asks for the age of the parties applying for the license, the purpose of the questions, no doubt, being to insure that they have reached the age of majority.
Appellants contend that the annulment decree which was offered into evidence was res judicata as to the question of the legitimacy, or putting it the way appellants expressed it, “This annulment decree was not plead nor was it argued as being res judicata against this appellee, but was plead and introduced in evidence to establish a finding of fact made by the lower court which should be binding on that court.” Also, appellants say, “This finding of the lower court in 1920 removed this case from the application of Ark. Stat. § 61-104 supra and this appellee can claim no rights under that statute.”
The case of Shatford v. Shatford, 214 Ark. 612, 217 S. W. 2d 917 (1949), answers the contention of appellants. In the Shatford case the husband was seeking an annulment from his wife due to fraud. He alleged that she was pregnant with child by another man. The chancellor granted the annulment, and the wife appealed. The appeallant contended that evidence by the husband and other witnesses as to the fact that he had never had sexual intercourse with the wife was inadmissible since it tended to bastardize the child born after the marriage. The Shatford court held that the testimony was admis sible in the annulment proceeding but would not be res judicata in a subsequent bastardy or heirship proceeding.
Appellants would cast the burden of proving legitimacy on appellee. That contention is answered in Jacobs v. Jacobs, 146 Ark. 45, 225 S. W. 22 (1920):
The decided weight of authority is that every child born during wedlock is rightly presumed to be the offspring of the husband. The presumption must be adhered to for the protection of the rights of those who are attempted to be bastardized without any fault on their part, to preserve the peace of families and to promote the interest of society.
The presumption of legitimacy means that the parties contesting the legitimacy of a child must bear the burden of proof and must show by sufficient evidence that the husband was impotent or entirely absent at the period in which the child in the course of nature was begotten. Kennedy v. State, 117 Ark. 113, 173 S. W. 842 (1915).
Thus it would appear that the preponderance of the evidence is with the findings of the chancellor that appellee was the child born on February 28, 1920, and a lawful heir of the intestate, M. C. “Harrison” Earp. Appellants made no showing that M. C. “Harrison” Earp was impotent or without access to Ida. On the other hand, appellee made a showing by the testimony of several witnesses that the husband and wife slept together during the summer of 1919 after their marriage.
The second contention of appellants is that the lower court erred in failing to recognize the probate proceedings in connection with the administration of the M. C. “Harrison” Earp estate as being res judicata against A. G. “Harrison” Earp to any interest alleged by him. The simple answer to that contention is that A. G. “Harrison” Earp did all he could do to protect his interests in the estate; he intervened in the proceedings before the final decree which awarded homestead and dower to the widow of the intestate, and he filed this action for partition within two and one-half months after the death of the widow. We have previously quoted that portion of the closing order which noted appellee’s intervention.
The third and final point which appellants rely on is the contention that the statute of limitations had run on the appellee. Four dates are suggested as starting points for the statute to begin to run: April 12, 1920, the date of the decree of annulment; the date of appellee’s twenty-first birthday; the date of the death of M. C. “Harrison” Earp, September 1, 1942; and January 4, 1944, the date the probate court fixed dower and homestead and divided the personal property. Obviously, the first two dates cannot be considered since M. C. “Harrison” Earp did not die until 1942. As to the second two dates, appellee did appear in the probate proceeding assigning dower and homestead to the widow for the purpose of noting the fact of his claim as an heir at law of the decedent. The probate court found it was unnecessary to determine his rights in that proceeding since the only issue was related to the dower and homestead claims of the widow. The widow’s possession under dower and homestead rights was not adverse to the plaintiff or the other heirs. Head et ux v. Farnum, 244 Ark. 367, 425 S. W. 2d 303 (1968). The evidence shows that the widow retained possession of the land in question until her death.
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Lyle Brown, Justice.
The appellants are the widow and nine of the ten children of Edgar Woolf, who died intestate in 1949. The appellees are the tenth child, Martha Madison, and her husband, Willard Madison. Appellants brought this action to cancel a deed to the Edgar Woolf homeplace wherein appellees were the grantees. Appellants asserted that one of the considerations for the deed was the agreement by appellees to care for the mother for the remainder of her life. Appellants cóhtéhded the responsibility was violated. The chancellor held that appellants did not meet the burden of proof necessary to support their allegations. The appellants here contend that the findings of the chancellor “were against the clear preponderance of the evidence.”
The Woolf homestead, the subject of this litigation, consisted of 131.5 acres in Clay County. It was not held as an estate by the entirety. Shortly after the death of Edgar Woolf the widow and nine of the children deeded the lands to the tenth child, Willard Woolf. The deed recited a consideration of one dollar “and other good and valuable consideration.” It reserved to the widow the main dwelling “for her sole use during the term of her natural life.” On the same date Willard executed a note and mortgage in favor of the widow for $7,000, payable in annual installments of $500. In addition to the recited considerations there was an oral agreement between grantors and grantee that the latter would care for the mother during the remainder of her life.
Willard lived on the property and cared for his mother for about two years. He did not make any of the annual note payments. Willard wanted to leave the farm to attend college. With the consent of his mother he deeded the lands to a sister and her husband, Mr. and Mrs. Lloyd Kendrick. The Kendricks executed a note and mortgage to the mother for $10,000, payable in annual installments of $500. The use of the home by the mother was reserved in the deed. The Kendricks testified that they accepted the deed with the same verbal agreement to care for the mother.
The Kendricks decided, after three years, that the farming operation was not profitable. They arranged with appellees to take the land and assume the mortgage. That deed also reserved to the mother the exclusive use of the main house on the farm. Kendrick testified that he discussed with appellees the understanding among all the children that the grantees would be obligated to care for the mother.
In their answer, and in their brief, appellees contend there was no agreement on their part to care for the mother. Although the evidence does not reflect precisely the items of responsibilities contained in the obligations, we think the evidence is clear, cogent, and convincing that the ownership of the lands carried with it the condition that the owners did have limited obligations of care.
Willard Woolf was the grantee in the first deed we have described. He said one of the considerations for the deed, which he made with all the other children, was that he would care for the mother during her natural life. The second grantees were Mr. and Mrs. Lloyd Kendrick. Mrs. Kendrick testified that the care of her mother was very much a part of the consideration, excepting the payment for clothing and doctor bills. “And we were to get her to and from the doctor.” The Kendricks testified that appellees agreed to the same arrangements. W. G. Woolf, another son, stated that appellees accepted the obligation to care for the mother. Of still greater significance on this point is the testimony of appellees. Martha Madison, one of the appellees, testified that she and her husband assumed substantially the same obligation toward the mother as did the Kendricks. Appellee Willard Madison testified that he made an agreement with Willard Woolf, “. . . the agreement we had we were to move out there in the house with her. She was going to buy her part of. the groceries and we were to live there and see that she got to the doctor.” (Mrs. Woolf, because of infirmities, did not attend court.)
The second pivotal question is whether appellees violated in substantial respect the obligations to the mother. We think those responsibilities were those described by the Kendricks and corroborated by appellee Martha Madison. The evidence preponderately shows that appellees abided by the agreement for some fifteen years and until Mrs. Woolf voluntarily left the home.
The Madisons, appellees, received their deed in May 1955 and shortly moved into the main house with the approval of the mother. At that time the mother was near sixty-five years of age and suffering from diabetes. That of course affected her diet. She administered her own insulin. From the outset and until Mrs. Woolf left the home in 1969 (near the age of eighty years) there is no question but that she received dutiful and kindly attention from appellee Martha Madison and her children. They took the mother to church regularly; they took her to the beauty shop weekly; she went with her daughter grocery shopping; she had her own television which the family provided her; she had two rooms for her private use; she had access to a telephone; the daughters and appellee Martha saw that the mother’s rooms were kept clean; and foods commensurate with her diet were supplied. Appellees’ small son slept on a rug at his grandmother’s bedside, which pleased her very much. The girls wrote letters, read to her, and ran errands for the grandmother.
According to appellees and two of their daughters, Mrs. Woolf became somewhat of a problem to the household. This appears to have set in about the time she passed her seventy-fifth year. She experienced two cataract operations, she became forgetful, and she gradually lost considerable strength. It was said that she became somewhat quarrelsome and exhibited an attitude of independence. Appellee Willard Madison said that on more than one occasion she would visit some of her other children and would leave after quarreling with them; and he said “any time she said anything to me it was criticism.” Mrs. Madison said she avoided arguments with her mother by not contradicting her. One of the children testified that her grandmother “got a little childish,” became more forgetful, and became a little more demanding; and that she developed a carelessness about her appearance and cleanliness. Another daughter testified that as her grandmother advanced in years she became more difficult to please; that she admonished the child about correcting her younger brother and sister; and that the grandmother became inquisitive about telephone calls received by other members of the family. Notwithstanding, there is no evidence that Mrs. Woolf’s daughter, Martha, or the children treated Mrs. Woolf with anything but respect and understanding.
Appellee Willard Madison seems to have responded differently to the increasing idiosyncrasies of Mrs. Woolf. He said he moved his family into the main house at the suggestion of Willard Woolf, who felt that the Madisons could better “care for and look after Mrs. Woolf.” Madison said his relations with Mrs. Woolf were very good for a number of years. His first displeasure with the Woolf family was that “they would come too often and stay too long,” Madison related. He denied emphatically that he set out to “freeze Mrs. Woolf out of the home.” He admitted that he had not carried on any conversations with Mrs. Woolf for some few years “because any time she said anything to me it was some criticism. I didn’t do something right.” He also admitted that he had criticized Mrs. Woolf’s demeanor—not to her—but to one or more of her children.
Several of Mrs. Woolf’s children testified, in substance, that they noticed a strained relationship between Mrs. Woolf and appellee Madison; and that they were not on speaking terms. “If mama said something, he didn’t like it and mama didn’t like what he’d say every time.” However, it can be said to the credit of appellee Madison that there is no specific evidence that he ever abused Mrs. Woolf, either physically or by spoken words. Mrs. Madison said she had never heard her husband use a profane word in the hearing of Mrs. Woolf.
When Mrs. Woolf left the home in 1969 she did not intimate that she had no intention of returning. She left the impression that she was going to visit her daughter, Ruth Kendrick. Mrs. Woolf asked Mrs. Madison to call Ruth to come after her. She took only some of her personal effects.
By virtue of the reservation of the homeplace in the deed, together with the oral agreement, Mrs. Woolf is entitled to live in the home with the Madisons, and if she returns, appellees are obligated to care for Mrs. Woolf and to see that she gets to the doctor. Appellees are not obligated to pay Mrs. Woolf’s medical bills or to furnish her clothing.
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Frank Holt, Justice.
This is a boundary line dispute between adjoining landowners. Appellee, who owns the southern or “lower” tract, brought suit in equity to enjoin appellants, owners of the northern or “upper” tract, from trespassing upon a 3S-foot-wide strip of land which runs along and inside of the southern edge of the upper tract. Appellee claims ownership of this strip by adverse possession, whereas appellants claim it as a part of their upper tract by warranty deed. From a decree apportioning the strip of land between the parties and enjoining further trespass, appellants bring this appeal. For reversal appellants contend that the decree is contrary to the law and the evidence and that the court erred in refusing the appellants’ motion for a new trial. Basically, the appellants contend for reversal that the findings of the chancellor are against the preponderance of the evidence. We cannot agree.
About 45 years prior to this action, the two tracts constituted a single parcel. The then owner excavated a drainage ditch traversing, in an east-to-west direction, the half-mile width of that parcel. Thereafter, upon .purchasing the upper tract in 1945, appellants’ predecessor in title caused a survey to be made which revealed that the boundary of the upper tract extended from approximately 25 to 30 feet south of the drainage ditch. Since the severed southern strip of this upper tract was not convenient to farm, it had been, prior to this 1945 purchase, converted into a utility roadway servicing both the upper and lower tracts. Appellants continued, as did their predecessor in title, to use the strip for this purpose.
Appellee purchased the lower tract in 1969, apparently under the misconception that its northern boundary extended to the drainage ditch. He instructed his tenant farmer to plow up the roadway and to plant crops up to the ditch. Appellants thereupon caused another survey to be made which reestablished their southern boundary line as extending from 25 feet beyond the drainage ditch at one end to 33 feet beyond the ditch at the other. Appellants then disked up appellee’s crop to this survey line. Appellee secured a quitclaim deed, executed by his two immediate predecessors in title, which described the lower tract as extending northward to the center of the ditch. He then instituted the present action.
Testimony established, and appellants admit, that the lower tract had, since at least 1946, been farmed up to the roadway. However, appellants contended, and adduced other testimony, that the roadway occupied the total width and length of the severed strip. Appellee’s evidence, on the other hand, was to the effect that the roadway extended no further in width than 10 feet south of the ditch. There is no question that if the roadway was of a width less than that of the half-mile severed strip (25 to 33 feet), then appellee, through his predecessors in title, gained title to the remainder of the strip by adverse possession. The only real issue, therefore, concerns the width of the roadway prior to being plowed up by appellee’s tenant farmer. The chancellor’s decree established the boundary line as running 15 feet from the center of the drainage ditch. This was, as we understand it, to have the effect of allowing appellants a 10-foot-wide roadway between their drainage ditch and the new boundary.
In no event, however, has appellee acquired title to the actual space occupied by the roadway. Adverse possession without color of title does not extend beyond actual occupancy. Coslin v. Crossett Co., 233 Ark. 13, 342 S. W. 2d 303 (1961); Fee v. Leatherwood, 232 Ark. 817, 340 S. W. 2d 397 (1961); Cooper v. Cook 220 Ark. 344, 247 S. W. 2d 957 (1952). Obviously, it was appellee’s purpose to gain such color of title by acquiring, two days before he instituted this action, a quitclaim deed from his predecessors in title describing the lands therein conveyed as extending northward to the drainage ditch. But this deed is ineffective to extend appellee’s claim to include the actual roadway since the roadway was continuously in use by appellants, thus repelling the assertion of adverse possession.
Equity cases are, of course, reviewed de novo on appeal; and the chancellor’s findings, unless against the preponderance of the evidence, must be affirmed. In regard to the width of the roadway, we note that upon examining the record, the conflicting evidence appears to be evenly poised. In such instances we defer to the judgment of the chancellor who was in a superior position to determine the credibility of the witnesses. Munn v. Ratcliff, 247 Ark. 609, 446 S. W. 2d 664.
In the case at bar, the decree of the chancellor is affirmed. | [
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Carleton Harris, Chief Justice.
This appeal comes from the action of the Pulaski County Circuit Court in reversing and setting aside an order of the Arkansas State Medical Board which suspended the license of J. Byron Grimmett a physician of Waldo, to practice medicine. Grimmett had been charged with acts of unprofessional conduct, including charges that he aided and abetted an unlicensed person to practice medicine, violated the laws governing the possession and distribution of amphetamines and barbiturates, and laws relating to the possession and distribution of narcotic drugs. Grimmett, appellee herein, was also charged with failing to possess the moral character requisite for the proper practice of medicine. After a lengthy hearing, the board found appellee guilty of the acts with which he was charged, and suspended his license to practice. The following provision concludes the order:
“Grimmett may, at the next regular meeting of the Board, present any relevant evidence to the Board which he believes may cause the Board to reconsider its action and reinstate his license. This hearing should not be closed at this time, but should be continued subject to the request of Grimmett or his attorney to appear before a subsequent regular meeting of the Board and present other evidence.”
A Petition for Review was filed in Pulaski Circuit Court. After reviewing the evidence, that court made inter alia the following findings pertinent on this appeal:
“3. That a cursory weighing of the proof indicates that there was substantial evidence to warrant the action of the Board in suspending petitioner’s license but a careful and considered examination- of the evidence convinces that the Board should have warned and admonished the petitioner in the areas upon which the Board predicted its order; that such warning and admonition was justified and would have been proper; and that such warning and admonition would have been sufficient instead of the harsh, severe and drastic action taken which deprived the community in which he practiced of acutely needed medical services. * * *
5. That Ark. Stats. 5-713 provides that a reviewing court can stay enforcement of the Board’s order and' can reverse the Board’s action on such terms as may be just.”
The court then found that it would be unjust to continue the suspension of appellee’s license to practice medicine and surgery while the issues are being litigated, and accordingly reversed the order of the Arkansas State Medical Board, restoring Dr. Grimmett to all the rights and privileges of a duly licensed physician, subject however to the following provision.
“It is further CONSIDERED, ORDERED AND ADJUDGED that said restoration of the right to prac tice medicine shall be subject to the following conditions: That Dr. Grimmett shall not maintain any stock of any drug the use and possession of which is subject to regulation under the Arkansas Uniform Narcotic Drug Act, the Arkansas Drug Abuse Control Act, nor shall he maintain any stock of drugs which are designated as ‘legend’ drugs under the Federal Food Drug and Cosmetic Act. This condition shall not be interpreted to prevent Dr. Grimmett from maintaining a supply of emergency drugs for his personal office use provided said supply does not exceed the amount of emergency supplies normally stocked by non-dispensing physicians.”
From the order so entered, the Arkansas State Medical Board brings this appeal. It is first contended that there was substantial evidence to support the order of the board and the court erred in reversing that order.
In Bockman v. Ark. State Medical Board, 229 Ark. 143, 313 S. W. 2d 826, this court said:
“The appellant contends that the board’s findings of fact are not sustained by any substantial competent evidence. Upon this point it is our rule in proceedings like this one that the board’s action will not be set aside on certiorari unless there is an entire absence of substantial evidence to sustain the findings, in which case the board’s action is deemed to be arbitrary, [citing ■ cases]”
In McCain, Labor Commissioner v. Collins, 204 Ark. 521, 164 S. W. 2d 448, a case involving misconduct of a Supervisor of the Security Division of the State Labor Department, this court quoted from Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041, as follows:
“We are not called on to decide primarily whether or not the decision of the board was correct. The law makers have placed that authority in the board of control, and it would be clearly an encroachment by the courts upon the authority of another department of government to undertake to substitute the judgment of the judges for that of the members of the tribunal vested with authority to manage the institutions of the state and to appoint and remove those who are placed in charge. When all the testimony in the case is considered and viewed in the strongest light to which it is susceptible in support of the board’s findings, it cannot be said that there is an entire absence of evidence of a substantial nature tending to establish the charge of inattention and neglect of duty on the part of the superintendent. This being true, it becomes the duty of the courts, upon well-settled principles of law, to leave undisturbed the action of the tribunal especially created by the lawmakers to pass upon those questions. Any other view would make the board of control a mere conduit through which a decision on the removal of an unfaithful or inefficient superintendent would be passed up to the courts instead of leaving the matter where the lawmakers have placed it, in the hands of the board.”
That language is likewise apropos in the case now before us. Accordingly, let us examine the evidence to determine if it is of a substantial nature.
Dr. Grimmett was charged with a violation of Ark. Stat. Ann. § 72-613 (Supp. 1969), it being asserted that he was guilty of aiding and abetting Pat Kimbell, an unlicensed person, to practice medicine. Two persons, in addition to Dr. Grimmett, testified to facts pertinent to this charge. Sgt. Bruce Atkinson, Supervisor of the Narcotic and Dangerous Drug Bureau of Arkansas State Police, testified that he visited the Grimmett Clinic at Waldo on three occasions. On August 8, 1969, he went there and talked with Mrs. Pat Kimbell, who appeared to be in charge. The sergeant, who used the name of Dale Henry Attwood, told her that he was from out-of-state and desired to purchase some diet pills. He said he kidded with Mrs. Kimbell about what he wanted diet pills for, and she said that the doctor was not there, but she could handle anything he wanted; that she was taking care of the medicine and pills and that the doctor would sign a prescription later. The witness stated that she first took his blood pressure, saying that the doctor had so authorized her; that the reading was 160 over 100, and Mrs. Kimbell stated that this was too high to permit him to purchase amphetamines. He replied that he had been drunk at a party and Mrs. Kimbell said that would account for it, and went ahead and made the sale to him. He purchased a bottle containing thirty pills which were later identified as Dexamyl spansules. On leaving the clinic, he sealed the drugs and marked them as evidence. The pills were turned over to the Arkansas Food and Drug Laboratory, which is customarily used by the State Police for analysis. A subsequent report by two chemists with Arkansas Food and Drug found the pills to be amphetamines and amobarbitals. Sgt. Atkinson testified that he paid $7.11 to Mrs. Kimbell, and received a receipt for that amount.
The witness stated that on December 3, 1969, he made another purchase from a lady on duty, asking for a refill of the prescription of August 8. He did not have the bottle nor a signed receipt. The lady filled that prescription, and he then asked her for some quarter, or half, grain codeine pills for headaches. She also filled that prescription, stated that Dr. Grimmett would sign the prescription pad at a later date. Sgt. Atkinson received twenty-four codeine pills, and paid $12.30, apparently for both prescriptions. He said these pills were also identified by the above mentioned laboratory as Dexamyl amphetamines and codeine phosphate.
-Atkinson testified that on January 27, 1970, he went back to the clinic, Mrs. Kimbell being in charge, and she again made a sale of amphetamines to him. He requested additional codeine tables for headaches and “hang over” and she also furnished that.
Woodrow Little, an Investigator for the Arkansas State Medical Board, also, on this occasion, made two purchases, in the presence of Sgt. Atkinson, these drugs later being identified by the chemists as Overdrin LÁ, a controlled drug.
Atkinson testified that Dr. Grimmitt had never examined him, and that on the night of the arrest of Grimmett, made on January 27, the doctor admitted that he had never before seen Atkinson. Little also testified that he was never examined by Grimmett, and had never been to the doctor as a patient. Little’s testimony reveals that he had been observing Grimmett’s Clinic for about two years, and had been there seven times posing as a detail man. Little said that he would sit in the clinic and would observe people bringing in empty bottles and asking for pills and would then observe the ladies working in the clinic delivering pills to customers. Grimmett testified that he had examined Atkinson “some time last summer” when Atkinson came in as a patient, and that he had prescribed Dexamyl spansules for him. He denied that he had admitted to Atkinson on the occasion of his arrest that he had never seen the sergeant before. He also testified that Little had never bought any drugs from his clinic to his knowledge.
A handwriting expert testified that the ledger page for August 8, 1969, reflected that Pat Kimbell had made an entry reflecting a sale to Dale Attwood, and that entries immediately under this particular entry were made by Dr. Grimmett. Similar testimony was' offered concerning other transactions, and it is difficult to believe that the doctor would not have noticed the entry made by Mrs. Kimbell when making his own entries.
Ark. Stat. Ann. § 72-604 (Repl. 1957) defines the practice of medicine as follows:
“(1) The term ‘practice of medicine’ shall mean: (a) holding out one’s self to the public within this state as being able to diagnose, treat, prescribe for, palliate or prevent any human disease, ailment, injury, deformity, or physical or mental condition, .whether by the use of drugs, surgery, manipulation, electricity, or any physical, mechanical or other means whatsoever; (b) suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever;***”
Appellee says there is no evidence that Mrs. Kim-bell performed the acts heretofore related with the intention to receive “any fee, gift, or compensation”. The short answer to this contention is that the testimony reflects that she did receive compensation for the drugs furnished Atkinson and Little. It is also argued that it is not shown that Mrs. Kimbell was not licensed as a nurse. Mrs. Kimbell did not testify, and while, if she were licensed as a nurse, it would appear that some mention of that fact would have been made during the course of the evidence, her status or lack of status as a nurse is immaterial to the disposition of the matter before us. Ark. Stat. Ann. § 72-729 (Supp. 1969), subsection d, states:
“The practice of professional nursing means the performance for compensation of any acts in the observation, care and counsel of the ill, injured or infirm or in the maintenance of health or prevention of illness of others, or in the supervision and teaching of other personnel, or the administration of medications and treatments, as prescribed by a licensed physician, [Our emphasis] or dentist; requiring substantial specialized judgment and skill and based on knowledge and application of the principles of biological, physical and social science. The foregoing shall not be deemed to include acts of diagnosis or prescription of therapeutic or corrective measures. [Our emphasis]”
Mrs. Kimbell’s acts went beyond nursing care. Let it be remembered that the testimony reflects that she took Sgt. Atkinson’s blood pressure, and told him that it was too high for him to purchase amphetamines, but after being told that he had been drunk at a party, agreed that that would account for it, and made the sale. Further, when Atkinson asked her for codeine pills for relief of his headaches, she furnished the pills to him, taking pay. As previously stated, there is evidence that Dr. Grimmett was aware that employees were making sales. The facts testified about constituted substantial evidence that Dr. Grimmett was aiding and abetting an unlicensed person to practice medicine.
Ark. Stat. Ann. § 72-613 (Supp. 1969) provides that the board may revoke or suspend a license to practice medicine for inter alia violation of the laws of the United States or the State regulating the possession, distribution or use of narcotic drugs, or drugs, the sale and distribution of which is regulated by the Arkansas Barbiturate and Benzedrine Law.
The Arkansas Drug Abuse Control Act, Ark. Stat. Ann. § 82-2101 et seq (Supp. 1969) defines various types of drugs. Among other definitions appear the following:
"(d) The term ‘depressant or stimulant drug’ means:
(1) Any drug which contains any quantity of (A) barbituric acid or any of the salts of barbituric acid;* * *
(2) Any drug which contains any quantity of (A) amphetamine or any of its optical isomers; (B) any salt of amphetamine or any salt of an optical isomer of amphetamine; * * * ”
Under authority of a court order, Grimmett was arrested and the premises searched for drugs. Officer Atkinson, Mr. Little, Kenneth (Phillip) Melancon, employed by the Bureau of Narcotics and Dangerous Drugs, and William H. Hogue, an employee of the Food and Drug Division of the Arkansas State Health Department, all participated in the search. An attorney for Grimmett was also present while the stock of drugs was being inventoried. The officers found drugs in almost every room in the building, locating them in all types of containers, including coffee cans and orange juice bottles. They were not under lock and key. Apparently, labels which had been taken from samples of various drugs which the doctor had received, had been taken from the samples and placed on whatever container was used as a matter of identifying the particular drugs in that container. The labels taken from the samples would show that a few doses had been included in the sample, but some of the containers held several thousand pills or tablets. Hogue said that many of these were controlled drugs. The inventory revealed a total of 1,812,-97 6 dosages of drugs at the time Grimmett was arrested. Mr. Melancon testified that Grimmett had over 300,000 dosages of Fiorinal, which is a controlled drug containing barbiturates. Sgt. Atkinson testified that Grimmett himself stated upon being arrested that he (Grimmett) doubted if he could come within a million of the actual drugs on hand due to the fact that they were physician’s samples. The fact that tabs from the samples had been placed on containers holding hundreds or thousands of pills is, of course, a clear indication that these sample drugs were being sold. Melancon testified that Grimmett made the statement that most of his money came from the dispensing practice and if he didn’t have his dispensing practice, he didn’t want to operate. Under the provisions of Art. Stat. Ann. § 82-2107 (Supp. 1969), every person engaged in manufacturing, compounding, processing, selling, delivering or otherwise disposing of any depressant or stimulant drug shall, upon the effective date of the Act (June 29, 1967), prepare a complete and accurate record of all stocks of each drug on hand and shall keep such record for three years. Mr. Hogue testified that Grimmett told him that he had not made this inventory of amphetamines and barbiturates in 1967, and the testimony reflected that there were as many as 3000 controlled drugs in some of the containers found in the clinic. The testimony is somewhat confusing in that Sgt. Atkinson stated that Grimmett later produced an inventory; however he stated that this inventory “carried prices but no quantities”. Be that as it may, it is very clear that whatever inventory there might have been did not come close to covering all the drugs in the possession of Grimmett.
Ark. Stat. Ann. § 82-1005 (Supp. 1969) requires that a written order for any narcotic drug shall be signed in quadruplicate by the person giving the order, or his duly authorized agent. The section provides what shall be done with these copies, including a requirement that one should be sent to the State Health officer not later than the 10th of the month following the month during which the order was made. In event the order is filled, there is a further requirement that each party shall preserve his copy of the order for a period of two years in such a way for it to be readily accessible for inspection by any public officer or employee engaged in the enforcement of the act. Mr. Hogue testified that Grimmett did not have such a complete and accurate record of drugs received by him. “Some of his order forms that he has to mail in when he places an order for narcotic drugs were missing. We have not received all order forms on orders he had placed”. It would appear from this testimony that Hogue checked copies of drúg orders found in Grimmett’s office with files at the State Health Department, thus making his determination that copies had not been sent to the Health Department. Appellee makes a vigorous attack upon this evidence,* *** and we agree that Mr. Hogue could have been muck more definite and specific in his testimony, explaining exactly how he knew that this provision of the law had not been complied with, and offering into evidence whatever exhibits supported his testimony.
Ark. Stat. Ann. § 82-1009 (Supp. 1969), provides:
“Every physician, dentist, veterinarian, or other person who is authorized to administer or professionally use narcotic drugs, shall keep a record of such drugs received by him, and a record of all such drugs administered, dispensed, or professionally used by him otherwise than by prescription. * * *”
Mr. Hogue testified that he could not find complete records of the dispensing of drugs. Appellee complains that Hogue did not even bother to produce “an inaccurate and incomplete record for the inspection of the Board”. Of course, Mr. Hogue’s testimony was that he could not find a complete record and, after all, if such a record existed, only Grimmett, or those to whom he had confided, would know where to locate such a record. Certainly, though the over-all burden was on the complainants to establish their case, Dr. Grimmett had the opportunity to present records of compliance with the law, and it would seem that one so charged would very quickly do so—if such records existed. He did testify briefly, though he reserved the right to claim the privilege granted under the Fifth Amendment to the Federal Constitution, and actually did invoke the protection of that Amendment at one point.
Witnesses Hogue, Atkinson, and Melancon all testified that the cabinets containing the drugs were not locked as required, some narcotics even being on the shelves. Appellee says that the Statute (Ark. Stat. Ann. § 82-1025 [Supp. 1969]), which requires that narcotic drugs be kept in a safe or other receptacle equipped with a lock sufficient to secure such narcotic drugs against theft, only applies to a licensed pharmacist. There is no necessity for us to go into the requirements of the state’s statutes relative to this subject for it has been previously pointed out in this opinion that subsection (5) of Ark. Stat. Ann. § 72-613 provides that violation of the laws of the United States, as well as state laws, regulating possession or use of narcotic drugs, constitutes “unprofessional conduct”, and is a ground for revocation of a medical license. 26 CFR 151.471, under the topic, “Safeguarding of Narcotics” states that “Narcotic drugs and preparations shall at all times be properly safeguarded and securely kept (our emphasis) where they will be available for inspection by properly authorized officers, agents, and employees of the Treasury Department and the Department of Justice”.
The testimony makes clear that the drugs under discussion were neither “safeguarded” nor “securely kept”.
In addition to the violations heretofore discussed, the board found Grimmett guilty of failing to possess the moral character requisite for the proper practice of medicine. This finding was based upon the testimony of three young women, all of whom testified that they had been patients of Dr. Grimmett; that he had prescribed for them various drugs, and had made advances to them. Two of the women testified that they had sexual relations with Dr. Grimmett, the third testifying that the doctor had endeavored to have relations with her. All testified that he consistently prescribed different drugs and one was finally committed for treatment as a drug addict. Dr. Grimmett admitted sexual relations with one of these women, although he stated that he did not recall whether this occurred while she was a patient or after she was a patient, but he denied the testimony of the other two. Admittedly, he also had fathered an illegitimate child by still another woman, while married and living with his wife.
It is strenuously argued by appellee that, though there is a requirement that one possess good moral character before being licensed to practice, there is no statutory authority for the board to revoke a license because of immorality.
This opinion is already lengthy, and the facts previously enumerated (disregarding the charge of immorality) are, we think, clearly sufficient to sustain the findings and order of the board. Accordingly, no good point would be served by discussing this particular charge.
Some dozen witnesses, residents of the area in which Dr. Grimmett has practiced, testified in his behalf, stating that their association with the doctor as patients had been pleasant and without any flaw; some said that they had tried to get drugs refilled but were unable to do so. Several mentioned various courtesies that had been extended, and one related that when called to the patient’s home, the doctor took his shoes off in order to keep from tracking up the rug. Other persons said that the people in the community needed his services. Of course, in a case of this nature, this is what might be termed “negative” evidence. For the fact that he did not act in the manner, heretofore discussed, with these particular patients, in nowise disproves the evidence already mentioned; the witnesses, after all, were only saying that no violations occurred during their contacts with the doctor.
We think the evidence relating to the violations of drug laws was very convincing, and apparently the trial court was likewise of the view that, at least, the testimony relating to the drugs was true, for in its judgment providing that Dr. Grimmett could continue to practice, a proviso was inserted that the doctor could not maintain any stock of any drug that was subject to regulations under the Arkansas Uniform Narcotic Drug Act and the Arkansas Drug Abuse Control Act; nor legend drugs under the Federal Food and Cosmetology Act (except for a supply of emergency drugs for personal office use not exceeding a supply normally stocked by a non-dispensing physician).
We do not agree with the trial court that the action taken by the board was “harsh”, “severe”, or “drastic”; in fact, from the evidence introduced, and entirely aside from the question of possession the requisite moral character to practice, we are of the opinion that the board’s order was not only justified, but rather restrained. Dr. Grimmett’s license was not revoked, and the suspension was not for a particular period of time. To the contrary, Grimmett was given the opportunity to present, at the next regular meeting of the board, any relevant evidence which might cause the board to reconsider its action to reinstate his license. The order of the board specifically provided that the hearing was not closed, but should be continued, subject to the request of Grimmett or his attorney to appear and present other evidence. Thus, appellee still has the right, if he so desires, and can furnish additional evidence of extenuating circumstances, to take this step.
There was substantial evidence to support the action of the Board, and it follows from what was said in McCain, Labor Commissioner v. Collins supra that the Court erred in entering the judgment appealed from.
Accordingly, it is the order of this Court that the judgment of the Pulaski County Circuit Court is re versed, and the cause is remanded with directions to reinstate the order of the board.
It is so ordered.
This case dealt with an action instituted by the Board of Control of State Charitable Institutions against the Superintendent of the State Hospital for Nervous Diseases, seeking his ouster for alleged misconduct.
He never went when Grimmett was present.
From the testimony of Mr. Hogue: "A number of these drugs have monograms on the tabs from the manufacturer and a number of these bottles contained a small label for instance taken from a physicians sample package the label says ‘four tabs or four caps of physicians samples’ and this small label would be taken and put onto a container of a gallon coffee can or half gallon can or orange juice bottle or container other than the original package. This would constitute mislabeling and misbranding for a number of these sample packages. * * * These small labels have on each label each physicians sample package ‘control or lot number of that particular drug’. As you know, a thousand, two thousand, fifty or what not broken down from packages that originally contained four or six samples constitute a number of different lot or control numbers over a period of time.”
This figure was taken from the brief. A tabulation compiled on an adding machine, from exhibits in the record, reveals 1,834,052.
From appellee’s brief: “This is not substantial competent evidence because (1) all we have is his naked word, (2) there is no evidence to show how these records are received, filed, stored, etc., by the Health Dept, so the conclusion that Mr. Hogue’s Dept, lost tbe records could be as easily drawn as the conclusion that Dr. Grimmett did not mail them in as required, (3) ‘some of them were missing’ is so vague and indefinite no conclusion can be drawn, (4) the witness did not say which ones are missing, so appellee had no opportunity to make specific rebuttals to Mr. Hogue’s assertions, (5) the records that had been sent were not produced at the hearing so Appellee could not ascertain by inspection which, if any, of the records were missing, and for that matter, (6) if they are missing, how does Mr. Hogue KNOW they are missing. No foundation whatever has been laid in the record that could lend credibility to the testimony on this point.” | [
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ELANA CUNNINGHAM WILLS, Justice.
I,In this original action, petitioner, Brandon Woodrome, seeks this court’s review of the Secretary of State’s determination regarding the legal sufficiency of a statewide initiative petition. The petition, sponsored by the “Arkansas Progressive Group,” bears the popular |2name “A Constitutional Amendment to Repeal All State Taxes and Establish A Flat Rate Sales Tax.” On December 21, 2009, the Arkansas Progressive Group submitted its proposed popular name and ballot title to the Attorney General for review and certification pursuant to Arkansas Code Annotated section 7-9-107 (Repl.2007). The Attorney General responded on January 7, 2010 with Opinion No. 2009-212, substituting and certifying a popular name and ballot title for the proposed amendment under section 7-9-107(b). As revised, the Attorney General certified the following popular name and ballot title:
Popular Name
A Constitutional Amendment to Repeal All State Taxes and Establish a Flat Rate Sales Tax
Ballot Title
AN AMENDMENT PROVIDING THAT, EFFECTIVE JULY 1, 2012, ALL EXISTING TAXES LEVIED BY THE STATE’S GENERAL ASSEMBLY' ARE REPEALED AND A FLAT RATE SALES TAX SHALL BE ENACTED. ALL REVENUES GENERATED BY ANY TAX LEVIED BY THE GENERAL ASSEMBLY WILL CEASE ON JULY 1, 2012, INCLUDING REVENUES FROM ALL CAPITAL GAINS TAXES, ALL CORPORATE TAXES, ALL INCOME TAXES, ALL PAYROLL TAXES, AND ALL REAL ESTATE TRANSFER TAXES. TO PROVIDE A SOURCE OF STATE REVENUE, THE GENERAL ASSEMBLY SHALL, BEFORE JULY 1, 2012, DETERMINE THE RATE OF THE FLAT RATE SALES TAX. THE GENERAL ASSEMBLY SHALL DETERMINE THE DISTRIBUTION OF THE FLAT RATE SALES TAX. THE RATE OF THE SALES TAX MAY IMPACT CURRENT REVENUES AND STATE SERVICES. THE GENERAL ASSEMBLY MAY CHANGE THE INITIAL RATE OF THE FLAT RATE SALES TAX BY A VOTE OF AT LEAST |aTHREE-FOURTHS OF THE MEMBERS ELECTED TO EACH HOUSE. EACH CITIZEN WILL BE PAID A MONTHLY CITIZEN PAYMENT. THE MONTHLY PAYMENT WILL BE DETERMINED BY THE FOLLOWING FORMULA: THE RATE OF THE TAX MULTIPLIED BY THE VALUE OF THE POVERTY LEVEL DIVIDED BY TWELVE. THE ANNUAL POVERTY LEVEL SHALL BE DETERMINED BY THE DEPARTMENT OF HEALTH AND HUMAN SERVICES. THE FLAT RATE SALES TAX SHALL NOT INHIBIT OR AFFECT THE POWER OF A COUNTY OR MUNICIPALITY TO LEVY AND COLLECT LOCAL TAXES. NO FLAT RATE SALES TAX IS IMPOSED ON: A TAXABLE PROPERTY OR SERVICE PURCHASED IN THE STATE FOR A BUSINESS PURPOSE; A TAXABLE PROPERTY OR SERVICE PURCHASED IN THE STATE FOR AN INVESTMENT PURPOSE AND HELD EXCLUSIVELY FOR AN INVESTMENT PURPOSE; A TAXABLE PROPERTY THAT HAS BEEN TAXED AT THE INITIAL RETAIL LEVEL AND IS TRANSFERRED BY A SUBSEQUENT SALE; EDUCATION TUITION FOR PRIMARY, SECONDARY, OR POST-SECONDARY LEVEL EDUCATION AND JOB-RELATED TRAINING COURSE; AND SERVICES REQUIRED BY FEDERAL, STATE OR LOCAL LAWS TO BE PERFORMED BY A PERSON.
In substituting and certifying the popular name and ballot title, however, the Attorney General added a cautionary note, in light of the complexity and “far-reaching effects” of the proposed amendment. He emphasized the direct correlation between the complexity of a proposed amendment and its susceptibility to a successful ballot title challenge.
After the Attorney General’s certification, on January 25, 2010, Woodrome filed a petition for a determination of the legal sufficiency of the initiative petition with the Secretary of State’s office pursuant to Arkansas Code Annotated section 7-9-503(a)(1) (Repl.2007). The Secretary of State requested a consultation on the popular name and ballot title from the Attorney General, pursuant to section 7-9-503(b) (Repl.2007), to determine whether the popular name and ballot title were “fair and complete” and whether the |4measure, if approved, would violate constitutional, statutory, or regulatory provisions or would otherwise be invalid. In a letter to the Secretary of State dated February 23, 2010, the Attorney General noted that although he had previously rejected two versions of the popular name and ballot title “due to ambiguities in the text of the proposed amendment,” he substituted and certified the popular name and ballot title for the measure in Opinion 2009-212. The Attorney General stated that the name and title were “as ‘fair and complete’ as they can be, based upon the text of the measure submitted.” Regarding the measure’s constitutionality, the Attorney General’s letter warned that it was “difficult to analyze the substantive constitutionality of a proposed measure without a full-blown adversary proceeding.” Moreover, because the measure represented a “substantial revision of state tax laws,” it was “difficult to determine whether it might violate the United States Constitution without the development of facts as to the implementation of the measure^]”
The next day, on February 24, 2010, the Secretary of State sent a letter to Chris Stewart, Woodrome’s counsel, stating that he agreed with the Attorney General that the proposed popular name and ballot title were “fair and complete,” although the Secretary noted that he shared the Attorney General’s concerns and reservations about the assessment of the ballot title. In addition, the Secretary agreed that the proposed amendment would not [¡¡violate the State Constitution, nor did it appear to be facially unconstitutional under the United States Constitution.
Woodrome brought the instant original action in this court on March 5, 2010, filing a petition for review of the Secretary of State’s determination. See Ark.Code Ann. § 7-9-505 (Repl.2007). On April 6, 2010, Randy Zook, Dennis Jungmeyer, Randy Wilbourn, and Ray Dillon, individually and on behalf of Arkansans to Protect Police, Libraries, Education & Services (APPLES) filed a motion to intervene in the proceedings. After the motion to intervene was granted, APPLES filed a response to Woodrome’s petition as well as a cross-petition on April 16, 2010, asserting that Woodrome was entitled to seek neither the Secretary of State’s declaration under section 7-9-503 nor this court’s review of that declaration under section 7-9-505. In addition, the cross-petitioners sought this court’s review of the Secretary of State’s declaration, alleging that the popular name and ballot title were not fair and complete and that the measure was in violation of the Arkansas and United States Constitutions.
Before reaching the merits of Woo-drome’s petition before this court, we must address the question raised by APPLES as to whether Woodrome has standing to bring the instant | (¡petition for review. APPLES points out that, in previous decisions, this court has questioned whether the sponsor of a measure may petition the Secretary of State for a determination of the legal sufficiency of a petition under section 7-9-503. See Stilley v. Priest, 341 Ark. 329, 339, 16 S.W.3d 251, 257 (2000) (Stilley II) (noting, but not addressing, the question of whether Act 877 might lead to “friendly” actions to “garner the court’s approval of the text of proposed amendments”); Ward v. Priest, 350 Ark. 345, 377, 86 S.W.3d 884, 907 (2002) (Brown, J„ dissenting) (noting the distinction in Act 877 between the “sponsor” of a measure and a “petitioner” and opining that it would be “absurd” for sponsors to challenge the legal sufficiency of their own ballot titles).
APPLES also expresses concern with the fact that Act 877, as codified at Arkansas Code Annotated sections 7-9-501 to - 506 (Repl.2007), contains no requirement that a petition filed with the Secretary of State’s office be publicized, nor does it provide a mechanism by which any interested individual or group, other than the petitioner and the sponsor, may be invited to intervene or join in the review process. APPLES urges that an interpretation of Act 877 that permits “friendly” challenges by sponsors of proposed ballot measures could result in “sham” suits that could “collaterally estop or bar challenges to a proposed ballot measure by other taxpayers.”
This court has not squarely addressed the precise issue raised by APPLES in this case. Our statutes require, prior to any initiative or referendum petition being circulated for signatures, that the Attorney General certify a popular name and ballot title for the measure. \1See Ark. Code Ann. § 7-9-107 (Repl.2007). The separate sub-chapter at issue herein, Arkansas Code Annotated sections 7-9-501 to -506, was adopted “to provide for the timely and expeditious review of the legal sufficiency of initiative petitions by the Supreme Court.” Ark.Code Ann. § 7-9-501 (Repl. 2007). It applies to “all initiative petitions submitted to the Attorney General after” the effective date of the Act. Ark.Code Ann. § 7-9-506 (Repl.2007). Section 7-9-503 provides for declarations of sufficiency by the Secretary of State and reads as follows:
(a)(1) Any Arkansas taxpayer and voter may submit a written petition to the Secretary of State requesting the determination of legal sufficiency of statewide initiative petitions.
(2) The petitioner shall notify the sponsor of the measure of the petition for determination by certified mail on the date that it is submitted to the Secretary of State.
(b) Within thirty (30) days after receipt of the petition for determination, the Secretary of State shall decide and declare, after consultation with the Attorney General, questions on one (1) or both of the following issues:
(1) Whether the popular name and ballot title of the measure are fair and complete; and
(2) Whether the measure, if subsequently approved by the electorate, would violate any state constitutional provision or any federal constitutional, statutory, or regulatory provision or would be invalid for any other reason.
(c) The declaration shall be in writing and shall be mailed to the petitioner and the sponsor of the measure by certified mail on the date that it is issued.
(d) The scope of review authorized by this subchapter shall be strictly limited to the questions referred to in subsection (b) of this section and shall not include questions regarding the sufficiency or validity of signatures on the initiative petition.
^Section 7-9-505 then provides that “[t]he petitioner, the sponsor of the measure, and any Arkansas taxpayer and voter shall have the immediate right to petition the Supreme Court to review the determination of the Secretary of State regarding the sufficiency of the initiative petition.”
The cardinal rule of statutory construction is to effectuate the legislative will. Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003); Ozark Gas Pipeline v. Ark. Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bank of Eureka Springs, supra. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id.
When a statute is ambiguous, however, we must interpret it according to the legislative intent. Id.; Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001). Our review becomes an examination of the whole act. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. We also look to the legislative history, the language, and the subject matter involved. Barclay, supra. We have also held that literal meaning yields to legislative intent if the literal meaning leads to absurd consequences contrary to legislative intent. See, e.g., Burford Distrib., Inc. v. Starr, 341 Ark. 914, 20 S.W.3d 363 (2000).
bln this instance, section 7-9-503(a) is unclear whether a sponsor of an initiative petition may seek a determination of the measure’s legal sufficiency. Section 7-9-503(a) provides that “[a]ny Arkansas taxpayer and voter” may submit a request for a declaration from the Secretary of State. Ark.Code Ann. § 7-9-503(a)(l). While this may, at first glance, appear broad enough to include the sponsor, the very next subsection seems to draw a distinction between the individual who submits the petition and the sponsor of the measure: “The petitioner shall notify the sponsor of the measure of the petition[.]” § 7-9-503(a)(2) (emphasis added). Moreover, section 7-9-503(c) also appears to contemplate that the petitioner and the sponsor are not the same person when it states that the Secretary of State’s declaration “shall be mailed to the petitioner and the sponsor of the measure.” (Emphasis added.) In addition, section 7-9-505 provides a right of review of the Secretary of State’s decision to “[t]he petitioner, the sponsor of the measure, and any Arkansas taxpayer and voter.” This provision clearly includes the sponsor, whereas section 7-9-503(a)(l) does not.
Justice Brown’s dissenting opinion in Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884, noted this distinction, writing as follows:
There is also the point that sponsors ... would not be challenging the legal sufficiency of their own ballot titles and amendments. That would be absurd. Such an interpretation flies in the face of the very language of Act 877, which takes pains to distinguish between the sponsor of the initiative and the petitioner challenging the initiative. This distinction is made in two places in Act
Ward, 350 Ark. at 377-78, 86 S.W.3d at 907 (Brown, J., dissenting) (emphasis in original).
Nonetheless, the statute does not explicitly declare, one way or the other, whether a sponsor may bring a petition for declaration of legal sufficiency. We conclude that the internal contradictions within section 7-9-503 and the more inclusive language of section 7-9-505 render the statute ambiguous. As noted above, when a statute is ambiguous, this court must interpret it according to the legislative intent. In the case of Act 877, the General Assembly’s intent is spelled out in section 1 of the Act, codified at Arkansas Code Annotated section 7-9-501 (Repl.2007): “The purpose of this act is to provide for the timely and expeditious review of the legal sufficiency of initiative petitions by the Arkansas Supreme Court.” In addition, the emergency clause to the Act provides as follows:
It is hereby found and determined by the Eighty-second General Assembly that the current procedures for review of the sufficiency of initiative petitions is insufficient; that in matters affecting amendments to the Constitution and measures to be voted on by the people, there should be a certainty with reference to the amendment or measure affected; and that this act is immediately necessary to provide for a timely and expeditious review of the sufficiency of initiative petitions.
Acts of 1999, No. 877, § 10.
Act 877 vests this court with jurisdiction to consider the sufficiency of popular names and ballot titles prior to the collection of signatures, and this court has held this to be constitutional. See Stilley II, 341 Ark. at 334, 16 S.W.3d at 254 (stating that, while | n “Amendment 7 does contemplate filing the initiative petition with the requisite signatures with the Secretary of State for a sufficiency determination, at no point does it preclude an earlier review of the text of the popular name and ballot title or the validity of the proposed amendment”).
Stilley II further noted that Amendment 7 specifically provides that “laws may be enacted to facilitate its operation.” The court stated that the early review of a ballot title and popular name by the Secretary of State and by this court “would have the salutary effect of facilitating a smoother operation of Amendment 7,” which “has as its ultimate purpose the establishment of a procedure by which the people can adopt legislative measures.” Stilley II, 341 Ark. at 335, 16 S.W.3d at 255.
The language of Amendment 7, which Act 877 is intended to facilitate, supports the notion that a challenge pursuant to Act 877 needs to be brought by a “petitioner” with an adverse interest — or at least one who is not the sponsor. Amendment 7 speaks of a “challenge” to the sufficiency of a petition, and notes that, “[i]n the event of legal proceedings to prevent giving legal effect to any petition upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition.” Ark. Const, art. 5, § 1 (emphasis added). The sponsor of a measure would hardly be likely to be found in the 1 ^position of seeking to “prevent giving legal effect” to the measure he or she proposed, nor would the sponsor want to “attack! ] the validity” of the measure.
As noted by Justice Brown’s dissent in Ward v. Priest, supra, the statute “takes pains” to distinguish between the petitioner and the sponsor and uses markedly different language in section 7-9-503 and section 7-9-505. If the statute is construed to allow a sponsor to petition for a declaration of legal sufficiency, then this court could conceivably be put in a position of having to decide the sufficiency of a ballot title without the benefit of any countervailing argument.
We conclude that a petition for a declaration of sufficiency pursuant to Act 877 may not be brought by the sponsor of the measure for which review is sought. The purpose of Act 877 is to facilitate the operation of Amendment 7 by providing for the timely and expeditious review of the legal sufficiency of initiative petitions. Without the existence of adverse parties, any review under the statute would amount to little more than an advisory opinion. See Block v. Allen, 241 Ark. 970, 980, 411 S.W.2d 21, 27 (1967) (“[I]mportant questions [should] be pounded out on the anvil of advocacy by persons whose interests are | ^vitally real, not academic, with all interested parties before the court.”). We therefore hold that petitioner Woo-drome lacked standing to bring the instant petition either before the Secretary of State or this court. As no declaration was sought by any party with standing, the Secretary of State lacked any statutory basis for rendering its declaration; thus, there is no valid declaration of sufficiency pursuant to section 7-9-503. Accordingly, as requested by APPLES, we dismiss Woodrome’s petition for review and vacate the Secretary of State’s declaration of sufficiency.
We are left, however, with APPLES’s cross-petition. Having vacated the Secretary of State’s declaration of sufficiency for the above-stated reasons, there remains nothing from which APPLES may seek review. We therefore dismiss the cross-petition as well.
. Although the record before this court reflects actions by both attorney Chris Stewart (in submitting the measure for the certification of the Attorney General) and by petitioner Brandon Woodrome (in seeking the Secretary of State’s review under Arkansas Code Annotated section 7-9-503), documents related to the latter action refer to the measure as being sponsored by the Arkansas Progressive Group. Stewart agreed at oral argument that the Arkansas Progressive Group is the sponsor of this amendment, and petitioner Woo-drome is one of the incorporators of the Arkansas Progressive Group.
. The Attorney General noted that, because the measure was a proposed amendment to the Arkansas Constitution, if adopted, it necessarily would not violate the Arkansas Constitution.
. Also on April 6, 2010, APPLES filed its own petition for determination of legal sufficiency with the Secretary of State's office. The Secretary of State had thirty days in which to act on the petition; that thirty days expired on May 6. At oral argument, held on May 13, 2010, counsel for APPLES represented that they had received some documentation from the Secretary of State's office, although it was agreed that the matter was outside of the record of the instant action.
. Ward v. Priest was a split opinion that involved a challenge to the legal sufficiency of a petition after the requisite number of signatures had been collected and certified, not a petition for review under Act 877. It was unnecessary for the majority to address the precise issue raised in the dissent.
. As noted above in footnote 1, there is no factual dispute in this case that the petition for review was sought by the sponsor of the instant measure.
. In the few cases in which we have reached the merits of a challenge under Act 877, the petition for review to this court was brought by a party who was unaffiliated with the sponsor. In Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), this court reviewed a petition filed by APPLES challenging the sufficiency of a popular name and ballot title that had been sponsored by a group called the "Arkansas Taxpayers Rights Association.” Roberts, 341 Ark. at 820, 20 S.W.3d at 380. In Stilley II, an individual sought review of a popular name and ballot title that was sponsored by the Arkansas Casino Corporation, and this court concluded that it was a "bona fide challenge” under Act 877. Stilley II, 341 Ark. at 340, 16 S.W.3d at 257.
. As noted above, APPLES sought its own declaration of sufficiency of the instant popular name and ballot title from the Secretary of State. As of the date of this opinion, APPLES has not filed a petition for review of that declaration with this court pursuant to section 7-9-505. | [
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John A. Fogleman, Justice.
The City of Little Rock and the Bishop of the Catholic Diocese of Little Rock have appealed from the decree of the Chancery Court of Pulaski County voiding that portion of Ordinance #11944 which vacates “I” Street between Harrison and Tyler Streets in Little Rock. Appellees, who attack this ordinance and another [#11604] vacating Tyler Street between “H” and “I” Streets, have also appealed. Their appeal is from the same decree insofar as it pertains to Ordinance #11604 and to the vacation of parts of the alley in Blocks 9 and 16 of Hollenberg’s Addition.
Block 16 is bounded on the west by the portion of Tyler Street vacated by Ordinance #11604 adopted June 7, 1965. Block 16 lies on the south side and block 9 on the north side of that portion of “I” Street which Ordinance #11944 proposed to vacate. The alley runs north and south and bisects these blocks. Title to all of block 15 and all of those portions of block 16 and block 9 abutting the portions of the alley and “I” Street which would be closed is vested in Albert L. Fletcher as Bishop of the Catholic Diocese of Little Rock.
Appellees are citizens, residents, taxpayers and owners of real property in the city. Their real property is in the vicinity of the streets and alleys sought to be closed. Only one of them owns any property in the same block with any portion of the public ways affected. He is the owner of a lot bordering a portion of the alley which would not be closed. They originated this action on behalf of themselves and other persons similarly situated. Their complaint was filed August 30, 1967. They contend that both ordinances are void for want of authority in the Board of Directors in the city and because the findings made by the Board were untrue, arbitrary and unreasonable. They claim a vested right to the continued use of these public ways.
Among other defenses, appellants pleaded the bar of the statute of limitation set out in Ark. Stat. Ann. § 19-3829 (Repl. 1956) as to Tyler Street.
After hearing the evidence, the chancellor rendered an opinion. In that opinion he held that the attack by appellees on the closing of Tyler Street was barred by the statute of limitation pleaded by appellants. We agree with the trial court on this finding.
Bishop Fletcher filed a petition for the closing of Tyler Street between blocks 15 and 16. The ordinance recites the giving of notice as required by law and the hearing of all persons desiring to be heard. It includes a finding that the petitioner was an educational institution operating Holy Souls Elementary School on both sides of the portion of the street to be closed. It also recites: That the petitioner, as owner of all propertj7 abutting on this portion of the street, had filed written consent to vacation of the street; that the portion of the street to be closed is not required for public purposes and that the public interest and welfare will be benefited by abandonment thereof. The ordinance expressly vacated and abandoned all rights of the city and the public generally in that portion of Tyler Street. The determination and findings of the council are conclusive unless suit to reject the ordinance is brought within thirty days after its passage. Ark. Stat. Ann. § 19-3829. Since no suit was brought, the action instituted by appellees attacking this ordinance is barred.
A petition for closing the block of “I” Street between Harrison and Tyler Streets and 130 feet of the alley lying immediately north of this portion of “I” Street and the 200 feet thereof lying immediately south of “I” Street was also filed by Bishop Fletcher and certain owners of real property in the City of Little Rock. This petition was filed under the provisions of Ark. Stat. Ann. § 19-3818, § 19-2304 and § 19-3825. The petitioners alleged that the land embraced within the alleys to be closed was needed for the purpose of con struction of new church buildings for Holy Souls Catholic Church, and was not needed for corporate purposes because modern municipal planning eliminates alleys in residential areas.' They allege that the portion of the alleys which will remain will give sufficient access to public streets. They also stated that the portion of “I” Street in question was not required for corporate purposes of the city and that there are sufficient other streets in the neighborhood to carry the traffic volume. The petition relates that Bishop Fletcher holds title as a corporation sole and, as such, is an educational institution, operating places of academic and religious education.
The schools are presently located on blocks 15 and 16, south of “I” Street. The Holy Souls Catholic Church is located on this same property. It is alleged that the space in the existing buildings is inadequate and facilities are to be expanded on blocks 15 and 16. This expansion would include living quarters for the principal and some of the teachers of the school, parking facilities for teachers and patrons, a new church building, a new gymnasium, cafeteria and auditorium, all of which would be used jointly by the school and the church. This ordinance recites these, among other, findings by the Board of Directors:
“e. There are sufficient other East/West streets in the vicinity of the street to be closed to carry the traffic volume of the neighborhood. Also, it is preferred in modern municipal planning to eliminate alleys in residential neighborhoods and to have streets at intervals of 500 to 600 feet instead of 200 to 300 feet apart. Therefore, the portion of “I” Street to be closed and the portion of the alleys to be closed are not required for corporate purposes of the City of Little Rock.
f. All property abutting the portions of the street and alleys to be closed is owned by Albert L. Fletcher, as Bishop of Little Rock, as a corporation sole. As such corporation, the petitioner operates Holy Souls Elementary School, an educational institution with more than 650 regular daily students, and Holy Souls Catholic Church. Both of these institutions are located South of “I” Street at the location in question on Blocks 15 and 16, Hollenberg’s Addition. Those institutions make a joint use of their existing facilities. The petitioner Fletcher proposes to expand the facilities to the North side of “I” Street and needs to use the space in the street and alleys to be closed for the construction of the new facilities.
g. By his written petition, the petitioner Fletcher has consented to the vacation of the street and alleys in question. The Board of Directors finds that the public interest and welfare of the City will be benefited by granting the petition; **.”
In Sections 1 and 2 of the ordinance, the city released, vacated and abandoned all of its rights and the right of the public generally in and to those portions of “I” Street and the alleys in question.
Testimony on behalf of the property owners in this regard showed that the property of at least some of them was included in street improvement districts which had improved the streets in the area, including the portion of “I” Street to be closed. The improvements included paving and installation of curbs and gutters.
Appellees showed that something over 900 cars a day used the block of “I” Street to be closed and that there was fairly heavy foot traffic because there were more sidewalks on “I” Street than the other streets in the neighborhood. There was testimony tending to show:
“I” Street constitutes a preferable entrance to and exit from the neighborhood because its approach to Kavanaugh Boulevard, one of the principal traffic art eries in that part of the city, was more nearly level than approaches at “H”, “J”, “L” and Evergreen Streets; the “H” Street entrance to Kavanangh, one block south of the “I” intersection, is uphill and runs into Kavanaugh at the intersection of the latter with Van Burén Street; “J” Street is one block north of “I” and lacks one block of going as far west as “I”, its entrance to Kavanaugh is uphill and visibility there is impaired by buildings; Evergreen, two blocks north of “I”, is wider than either of the other alternate streets, but it has an upbill entrance to Kavanaugh and no sidewalks; there are curbs and gutters on “I” Street from Kavanaugh to Fillmore where it terminates; parents transporting-children to Mount St. Mary’s, Fair Park Elementary and Forest Heights Junior High School, as well as those attending Holy Souls School, use “I”; at times during the day there is heavy pedestrian traffic involving- school children, principally from Holy Souls School; during icing conditions in the winter, the level entrance provides easier and safer access to Kavanaugh and ice tends to melt faster on “I” Street than on other streets entering- onto Kavanaugh.
One of the property owners admitted that many people choose to use the “H” Street, “J” Street and Evergreen intersections with Kavanaugh. He also said that the closings would not prevent him from having access to the neighborhood or any point in the city, nor would they cause an increase in travel distance to exceed a block or two and travel to exceed a minute or two. This condition would also be true as to the other protesting property owners. Another appellee, whose experience qualified him as a safety expert, agreed with the statement in Ordinance #11944 that other east-west streets in the vicinity were sufficient to carry the traffic volume in the neighborhood during good weather; however, he stated that in winter weather, ice tends to melt faster on “I” Street than the others. Most of the property owners testified that traffic was increasing on “I” and the other streets in the neighborhood and that the closing of this block on “I” Street would place an additional traffic burden on the adjoining streets.
On tbe other hand, appellants offered the testimony of Mr. Henry M. de Noble, Director of Community Development and former Director of Planning and Traffic, who is a traffic engineer. He had been employed in his profession since 1948 and by the City of Little Bock for nine years. He recommended to the city council that this block on “I” Street and the alleys be closed. He testified that there are sufficient other streets in the vicinity to handle the traffic flow with safety and adequate access to all property in the area with these ways closed. According to him, “H” Street carries 2,400 vehicles daily and has a capacity of 6,000; “ J” Street currently has a traffic flow of 175 vehicles daily, and its capacity is 6,000; Evergreen’s current traffic is 2,500 daily, and its capacity is 6,000. The latest traffic count on “I” Street was 970 vehicles on a particular day. Mr. de Noble’s study of accident records showed that there had been two accidents at Kavanaugh and “ J” in the last ten years; eight at Kavanaugh and Evergreen; and nine at Kavanaugh and “I”. He further testified that the closing of this portion of “I” Street would fit the approved traffic pattern. This pattern contemplates parallel streets approximately 300 to 400 feet apart and cross streets one quarter mile apart. The creation of larger blocks results in fewer streets to maintain and lower accident potential. Mr. de Noble classified “I” Street as a “hop, skip and jump street,” by reason of the fact that there are five separate segments of the street. Three of the properties intervening are the locations of schools. According to him, these interruptions create an unfavorable traffic condition. It was his opinion that the streets and areas involved in this action are not required for city purposes and it should be beneficial to the public to close them.
In considering the questions presented to us by this appeal, it is essential that we give consideration both to the powers and responsibilities of the city and to the rights of the property owners.
A city is a creature of the state and its function is to aid the state in the regulation and administration of local affairs. City of Piggott v. Eblen, 236 Ark. 390, 366 S.W. 2d 192. When a power is conferred upon a city, a discretion in the exercise of the power, both as to use and extent of the use, is vested in its governing body. Lackey v. Fayetteville Water Co., 80 Ark. 108, 96 S.W. 622; Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165, AC 13D 1086; North Little Rock v. Rose, 136 Ark. 298, 206 S.W. 449; Arkansas Power & Light Co. v. Cooley, 138 Ark. 390, 211 S.W. 664; Herring v. Stannus, 169 Ark. 244, 275 S.W. 321; Street Imp. Dist. No. 130 v. Crockett, 181 Ark. 869, 28 S.W. 2d 331; Springfield v. City of Little Rock, 226 Ark. 462, 290 S.W. 2d 620.
Matters pertaining to regulation of streets and alleys and their use are among those over which cities have authority to act and to exercise discretion. Ark. Stat. Ann. § 19-2303 (Repl. 1956); House v. City of Texarkana, 225 Ark. 162, 279 S.W. 2d 831. The care, supervision and control of public ways are vested in city governing bodies. Ark. Stat. Ann. § 19-3801, .et seq. They have the power to open, widen, straighten, establish, improve, maintain and light streets and alleys and to assess charges against property owners for those purposes. Ark. Stat. Ann. § 19-2313; Holt v. City of Texarkana, 168 Ark. 847, 271 S.W. 960. They may adopt a master street plan designating the location, characteristics and functions of streets and highways, with provision for removal, relocation, vacation and abandonment of ways shown thereon. Ark. Stat. Ann. § 19-2828 (d) (Supp. 1967). They may compel abutting owners to build sidewalks and curbs and gutters there-along. Ark. Stat. Ann. § 19-3806 — 7 (Repl. 1956); Brizzolara v. City of Ft. Smith, 87 Ark. 85, 112 S.W. 181; Malvern v. Cooper, 108 Ark. 24, 156 S.W. 845. They may permit the use of streets by electric power companies and irrigation corporations. Ark. Stat. Ann. § 35-301 and § 35-1207 (Repl. 1962). They may grant the use of air rights over streets to owners of private property. Ark. Stat. Ann. § 76-137 (Supp. 1967). In addition, they are given the power to alter, change the width or extent of streets and alleys and to vacate such portions thereof as may not for the time being be required for public purposes Ark. Stat. Ann. § 19-2304 (Repl. 1956). (See Kemp v. Simmons, 244 Ark. 1052, 428 S.W. 2d 59, where the identical power of cities of the second class was sustained.) They are also authorized to vacate public streets and alleys or portions thereof where they have not been used by the public for five years or where all abutting property is owned by an educational institution. Ark. Stat. Ann. § 19-3824, et seq. With such broad powers over streets and alleys, it seems that the latitude of discretion vested in city governing boards should be very wide indeed.
Every reasonable presumption must be indulged that any ordinance adopted by a city within the scope of its power is valid and not unreasonable or arbitrary, and may be overcome only by clear and satisfactory evidence. House v. City of Texarkana, supra; Deloney v. Rucker, 227 Ark. 869, 302 S.W. 2d 287; Goldman & Co. v. City of North Little Rock, 220 Ark. 792, 249 S.W. 2d 961; Sander v. City of Blytheville, 164 Ark. 434, 262 S.W. 23; Shaw v. Conway, 179 Ark. 266, 15 S.W. 2d 411; City of North Little Rock v. Rose, 136 Ark. 298, 206 S.W. 449; Pierce Oil Corp. v. City of Hope, 127 Ark. 38, 191 S.W. 402, aff’d. 39 S. Ct. 172, 248 U.S. 498, 63 L. Ed. 381; City of Helena v. Miller, 88 Ark. 263, 114 S.W. 237.
Where a city board is invested with discretion in any matter, the exercise thereof may not be divested or controlled by reviewing courts, nor may the courts substitute their judgment for that of the board. Little-Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165, Ann. Cas. 1913D 1086; City of North Little Rock v. Rose, supra; Lackey v. Fayetteville Water Co., 80 Ark. 108, 96 S.W. 622; Springfield v. City of Little Rock, 226 Ark. 462, 290 S.W. 2d 620; City of Little Rock v. Fausett & Co., 222 Ark. 193, 258 S.W. 2d 48; Herring v. Stannus, 169 Ark. 244, 275 S.W. 321; Street Imp. Dist. No. 130 v. Crockett, 181 Ark. 869, 28 S.W. 2d 331.
This court long ago recognized that the varied uses and conflicts of city life required that much must be left to the discretion of city authorities, whose actions should not be judicially interfered with unless manifestly unreasonable and oppressive, an unwarranted invasion of private rights, or clearly in excess of powers granted. State v. City of Marianna, 183 Ark. 927, 39 S.W. 2d 301; Sander v. City of Blytheville, supra. In considering matters pertaining to streets, this court said in City of Marianna v. Gray, 220 Ark. 468, 248 S.W. 2d 379:
“The exercise of the broad discretion granted municipal governing bodies in matters pertaining to the use of the streets and sidewalks of a city may not be overturned by the courts except on a clear showing that the action taken or refused was arbitrary, unreasonable or discriminatory.”
The city board of directors made specific findings that the public ways vacated are not required for corporate purposes and that the public interest and welfare will be benefited by their closing. Before the courts can reject these findings, it must be shown that they were unreasonable and arbitrary. City of Little Rock v. Fausett & Co., supra; Evans v. City of Little Rock, 221 Ark. 252, 253 S.W. 2d 347. The action of the city council is final if there is room for reasonable difference of opinion on the question. House v. City of Texarkana, 225 Ark. 162, 279 S.W. 2d 831.
In view of the evidence before the trial court, it cannot be said that the action of the city was unreasonable, arbitrary, oppressive, or in excess of its powers granted by Ark. Stat. Ann. § 19-2304. The identical power in cities of the second class was recently sustained by this court. Kemp v. Simmons, 244 Ark. 1052, 428 S.W. 2d 59.
Under the evidence here, we may also sustain the proceeding, as against contentions that the action was unreasonable, arbitrary and in excess of the city’s powers under §§ 19-3824 — 30 The procedure prescribed was followed and the essential findings clearly made by the board of directors. The trial court found, however, that the owner of the property is not an educational institution, contrary to the express finding by the city directors. Under the undisputed evidence here, we think that the courts have no right to reject their finding.
Each of the conveyances of the abutting property was made to Fletcher as Bishop and his successors and assigns. Under the common law, the existence of corporations sole was recognized and bishops were said to constitute corporations sole. A corporation sole consists of one person only and his successors, who are incorporated by law, in order to give them legal capacities and advantages which they could not have in their natural persons. I Blackstone, 2 Ed. 470; 2 Kent, 14th Ed. This concept of corporation sole has been recognized as a part of the common law in other jurisdictions. Terrett v. Taylor, 13 U.S. 42, 3 L. Ed. 650 (1815); Overseers of The Poor v. Sears, 22 (Pick) Mass. 122 (1839); Weston v. Hunt, 2 Mass. 500 (1807); The Inhabitants of The First Parish in Brunswick v. John Dunning, 7 Mass. 444 (1811); Santillan v. Moses, 1 Cal. 92 (1850); Archbishop v. Shipman, 79 Cal. 288, 21 P. 830, (1889); Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927); Willard v. Barry, 113 Fla. 409, 152 So. 411 (1933).
While the existence of the corporation sole can well qualify Bishop Fletcher and his successors as an institution, the church property would not be that of an educational institution simply because it conducted religious education. The evidence in this case, however, discloses that Holy Souls Elementary School has been operated at the present location under the supervision and authority of Bishop Fletcher. There is also a school for retarded children there. The school has grown from two classrooms to eighteen. Its academic credits are transferrable to the public schools. Its enrollment has been as high as 650 and is now 490. The building of a new church and rectory and the development of parking facilities for Sunday use that could also be used for playgrounds during the week are proposed. All of these would be located on blocks 9 and 16. Later, an auditorium would be built. Part of the parking and play area would be north of “I” in block 9, as would a new rectory. The new church building would be located in blocks 9 and 16 and on a part of the block “I” in question. The proposed rectory would be located on block 9, north of “I”, and house the business offices of the parish, the church and the school. Bible instruction and instruction in the masses of the church now given in the present church building would be given in the new building.
The Supreme Court of Arizona has defined the meaning of the words “educational institution” in Lois Grunow Memorial Clinic v. Oglesby, 42 Ariz. 98, 22 P. 2d 1076 (1933), as follows:
“An educational institution has been judicially defined as 'one which teaches and improves its pupils; a school, seminary, college or educational establishment.’ Cumberland Lodge No. 8, F.&A.M. v. Nashville, 127 Tenn. 248, 154 S.W. 1141; Curtis v. Allen, 43 Neb. 184, 61 N.W. 568; Essex v. Brooks, 164 Mass. 79, 41 N.E. 119; Peck v. Clafin, 105 Mass. 420; North St. Louis Gymnastic Society v. Hudson, 85 Mo. 32.”
The Supreme Court of Tennessee held that the words “educational institution” mean school, seminary, college or educational establishment, but not necessar ily a chartered institution. Ward Seminary for Y. L. v. Mayor, 129 Tenn. 412, 167 S.W. 113 (1914).
The words do not imply limitation to public organizations, as distinguished from private ones, or to corporations as distinguished from individuals. In re Shattuck’s Will, 193 N.Y. 446, 86 N.E. 455; In re Sutro’s Estate, 155 Cal. 727, 102 P. 920 (1909); Ward Seminary v. Mayor, supra.
We think the scope of an educational institution is well set out in Commissioners, District of Columbia v. Shannon & Luchs Const. Co., 17 F. 2d 219 (CA D.C. 1927) as follows:
“* * * educational institution consists, not only of the buildings, but of all the grounds necessary for the accomplishment of the full scope of educational instruction. More properly defined, a modern educational institution embraces those things which experience has taught us are essential to the mental, moral, and physical development of the pupils. It is not the modern conception of a public school that it be erected on a lot merely large enough in area to contain the school building. In addition to the buildings there should be playground space, basketball stops, chinning bars, room for calisthenics, all in the open air. It is also for the general welfare and safety that the school children be furnished a place in which to play, removed from the dangers of street traffic. ¶ That these accessories are an essential part of a modern educational institution is in line with the recent decisions of many courts.”
It was also pointed out in that case that education may include development of physical faculties, teaching of Bible and other religious evidences, and improvement of moral and religious natures, as well as the cultivation of the mind.
We think the city’s finding that the abutting property was owned by an educational institution in the sense of Ark. Stat. Ann. § 19-3825, rather than the chancellor’s finding to the contrary, is supported by the preponderance of the evidence.
There remains, however, the question whether there has been an unwarranted invasion of property rights by the city’s action. In matters such as these, a citizen and taxpayer, as such, has no standing to complain. McKnight v. Tate, 222 Ark. 564, 261 S.W. 2d 793; Citizens’ Pipe Line Co. v. Twin City Pipe Line Co., 178 Ark. 309, 10 S.W. 2d 493. In this respect, this case is different from Lancaster v. Incorporated Town of Mountain View, 227 Ark. 596, 300 S.W. 2d 603, where citizens and taxpayers joined the Incorporated Town of Mountain View in preventing a private obstruction of public streets. There the citizens and taxpayers were acting in the interest of the town, while they are challenging an act of the municipality here.
The city did not lose any of its authority over the .street on account of the power given the improvement district to make improvements thereon and the property owners did not gain any proprietary interest on that account. Williams v. City of Ft. Smith, 165 Ark. 215, 263 S.W. 397.
It has long been recognized, however, that relief against the closing of a public way may be given to those who suffer special and peculiar injury distinct from that of the public in general. Wellborn v. Davies, 40 Ark. 83; Arkansas River Packet Co. v. Sorrells, 50 Ark. 466, 8 S.W. 683. This special injury or damage must be such as is not common to the general public and not a matter of general public inconvenience. Before an inconvenience can constitute a special injury or damage it must be one which is different in character and not degree from 'that which every citizen suffers, whose business or pleasure causes him to travel the way. Well-born v. Davies, supra; Hot Springs R.R. Co. v. William son, 45 Ark. 429; Stoutemeyer v. Sharp, 89 Ark. 175, 116 S.W. 189. In Little Bock & Hot Springs W. Ry. Co. v. Newman, 73 Ark. 1, 83 S.W. 653, this court followed definitions of the Supreme Courts of Illinois and Michigan holding that a property owner suffers no special damage where his property is not adjacent to the streets and alleys vacated and the access, ingress and egress from his lot are not affected by the vacation of streets and alleys in another block. Many of these authorities were reviewed in the case of Risser v. City of Little Rock, 225 Ark. 318, 281 S.W. 2d 949, wherein residents of another part of Little Rock sought to prevent the abandonment of a small portion of East Tenth Street and to relocate East Twenty-Sixth Street for a distance of a little over one-half mile. These portions of the street were closed on authority of Ark. Stat. Ann. § 19-2304. There the inconvenience of travelers in turning two corners and traveling a little further, requiring less than a minute in' additional time, was said to be not peculiar to these property owners because the street was an outlet from the city to one of the most thickly populated sections of the county so that every person who traveled the street suffered the same inconvenience as the property owners there. Diminution of property values resulting from inconvenience of additional travel was also held not to constitute special damages in Wenderoth v. Baker, 238 Ark. 464, 382 S.W. 2d 578. We conclude that appellees are in no different position from the property owners in Bisser v. City of Little Bock, supra, and that they have shown no damage that differs, except in degree, from that suffered by anyone who might he traveling the ways in question on business or pleasure. For this reason we hold that the finding of the chancellor as to the closing of “I” Street is against the preponderance of the evidence and that the decree should he reversed in this respect.
What we have said with respect to “I” Street would apply equally to the álíeys, except for the position of appellee Savary. This property owner has his residence near the corner of Tyler and “ J” Streets, and the rear of his lot abuts upon the portion of the alley through block 9 which would not be closed. He testified that he used his backyard for parking several cars and a boat. He commonly approached the back part of his property from “I” Street to the south because the south portion of the alley was more level than the north end and was a better approach. His objection to approaching from “J” Street was that the rear end of his automobile would drag. The tidal court found that the property owner had offered no compelling and extrinsic reasons that the alleys were needed for the use of persons other than the owners of the property abutting thereon. Mr. de Noble testified that he had no difficulty making an entry into the alley from “J” Street and that the pastor of Holy Souls Church had agreed to make such repairs to this portion of the alley as the city suggested.
It is true that an owner of property which does not abut- upon the public way suffers special damage, as an injury differing in kind from that suffered by his neighbors, if he is deprived of any entrance to or exit from his property. Campbell v. Ford, 244 Ark. 1141, 428 S.W. 2d 262; Lincoln v. McGehee Motel Co., 181 Ark. 1117, 29 S.W. 2d 668; McKnight v. Tate, 222 Ark. 564. 261 S.W. 2d 793; Sullivant v. Clements, 180 Ark. 1107, 24 S.W. 2d 320; Langford v. Griffin, 179 Ark. 574, 17 S.W. 2d 296; Arkansas Riper Packet Co. v. Sorrells, 50 Ark. 466, 8 S.W. 683.
The closing of an alley which a property owner had ■used as a-convenient but not necessary passageway to and from his property was sustained in Cernauskas v. Fletcher, 211 Ark. 681, 201 S.W. 2d 999. We cannot say that the finding of the chancellor on the conflicting testimony on this point is against the preponderance of the evidence.
Appellees rely heavily upon Brooksher v. Jones, 238 ArK. 1005, 386 S.W. 2d 253. That case is easily distinguished from this. The only finding as to basis for the closing made hy the city commission was that it was “for the purpose of allowing Safeway Stores, Incorporated ... to build, construct and own buildings and other improvements over and across the designated portion of Birnie Avenue.” We clearly pointed out in that opinion that before the street could be closed it must first be shown that the portion being closed was not required for public purposes. Summary judgment was granted the property owners on uncontroverted affidavits presented by them. Not only was there no finding that the street was not required for corporate purposes, as there was here, no evidence to support such a finding was offered.
Appellees also rely upon Roberts v. Pace, 230 Ark. 280, 322 SW. 2d 75. This decision is also easily distinguishable. There the alley was closed at its south end by abutting property. The city closed the other end under § 19-3824, et seq., upon petition of the abutting owners. In contrast with the situation here, the undisputed evidence there showed that the abutting property owner in the interior of the block would be deprived of any ingress or egress via the alley. We said that no opinion was expressed as to what our holding would be if the south end of the alley was not closed. We also clearly stated that the action in that case would not be res judicata of any nature litigation between the same parties instigated under § 19-2304.
We reverse the decree on appellants’ appeal and affirm it on appellees’ appeal. The cause is remanded for entry of a decree consistent with this opinion, since title to real property is affected.
Byrd, J., dissents. | [
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Lyle Brown, Justice.
This suit was brought by Howard Griffith, plaintiff-appellant, against his employers, George Melbourn and Farm Service Cooperative, to recover severance pay. The trial court ruled that Farm Service, through its manager, Melbourn, had agreed to pay Griffith one-half salary for four months after discharge; however, the court denied recovery on the finding that Griffith had pledged to refrain from remonstrative conduct and he violated that agreement. The appeal poses two questions, namely,
(1) was there a valid contract between the parties, and
(2) , if so, did Griffith violate it?
For approximately fifteen years Howard Griffith had been regularly employed by Farm Service Cooperative. On August 20, 1966, Melbourn, in conference with Griffith, informed the latter he was being discharged. Griffith was advised he would be on vacation for the remainder of the month with full pay; that he would be paid the annual bonus usually given key employees; and that for four months following his vacation he would be paid one-half his regular salary in the form of “severance pay.” It is not claimed that severance pay was part and parcel of the original employment agreement. It was a voluntary practice instigated by Melbourn when he became manager in 1964. Two employees previously severed from work had been given similar benefits by Melbourn and the directors of Farm Service ratified his actions.
It is undisputed that Melbourn imposed a condition on Griffith to the grant of severance allowance. Unfortunately those conditions were not reduced to writing and only the two parties — Melbourn and Griffith — participated in the conversation. Griffith said he was told that the payments were conditioned that he refrain from complaining to the board members about his discharge and not to try to get Melbourn fired. Melbourn asserted the substance of the conditions to be that Griffith not create dissension among the board members or the employees and otherwise refrain from brewing trouble. Suffice it to say that the trial court found Melbourn’s version to bo the correct one. The testimony was sufficient to support that finding.
The bonus and two of the monthly severance payments were made. It was Melbourn’s decision to decline delivery of the severance payments for the last two months on the grounds that Griffith was protesting to the board members and discussing salary scales with employees. That decision brought on this suit for $800,
Was there a valid contract between Farm Service, acting through Melbourn, and its discharged employee, Griffith? We think so. We start with the premise that initially, under his contract of employment, severance payments were not involved. His tenure of employment was at the will of the Cooperative and that board permitted its manager to handle matters of fringe benefits in his discretion. Griffith believed his discharge to be without merit. There were two courses open to him. First, he could decline the offer of fringe benefits and appeal to the board of directors of the Cooperative with the view of having Melbourn’s decision reversed. Alternatively, he could accept the immediate benefits totalling $2364 and close the incident. Griffith testified that he accepted Melbourn’s proposition and further asserted that he lived up to it. The acceptance of the terms of the severance “settlement” constituted a contract with valid consideration. It was a benefit paid and to be paid Griffith, for which he waived his right of protest. See First National Bank v. Hasty, 183 Ark. 519, 36 S.W. 2d 967 (1931). In Hirsch v. Associated Amusement Machine Operators of New York, Inc., 127 N.Y.S. 2d 82 (1953), the discharged employee submitted his resignation allegedly on the promise that he would receive severance pay. There it was held that the surrender of his position constituted sufficient consideration for the promise to make severance payment.
Finally, did the employee-appellant violate the non-protest agreement? The trial court so found and we find substantial evidence to sustain that holding. Mr. Griffith called on the president of the Cooperative some three times. His discharge was discussed and Griffith urged a special meeting of the board of directors. Griffith pointed up alleged sala^ disparities between employees. Another board member related internal operation problems which had been called to his attention by Griffith. Joe Reed, president of Cooperative, testified that the continued discussion of Griffith’s discharge resulted in a number of men coming to him and in quiring about it, which to his opinion caused confusion among members. The recited incidents are alleged to have occurred after Griffith’s discharge and resulted in the suspension of severance payments. In all, five of the directors of the Cooperative were contacted by Griffith.
Affirmed. | [
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Paul Ward, Justice.
This is an appeal from a probate court decree holding the surety on a guardian’s bond had been discharged. We explain below how the issue reaches this Court.
On April 14, 1964 Lottie Nabors (appellant) had the probate court appoint June Quick (one of the appellees here) guardian for her brother James Wilburn (referred to as the ward). About two weeks later the guardian filed a bond in the amount of $10,000, the surety being Kansas City Fire and Marine Company (the other appellee), hereafter referred to as surety. The ward died on August 5, 1964, and two days later appellant had the court appoint the guardian (Miss Quick) administratrix of the estate of Jessie Wilburn deceased, and a new bond, with a new surety, was executed and filed. Then on November 19, 1964 the guardian filed a first and final report, and on the same day the probate court entered an order closing the guardianship and discharging the surety (Kansas City Fire and Marine Insurance) from further liability.
This Suit. On August 31, 1967 appellant filed a complaint in chancery court (later transferred to probate court) against June Quick and Kansas City Fire & Marine Ins. Co. alleging, in substance among other things, that June Quick, as guardian, had failed to account for assets in the amount of $1168.22, and had not properly reported and explained certain expenditures. The prayer was for “a true accounting and a judgment for the amount of assets diverted”. Kansas City Fire & Marine Ins. Co. filed a separate answer admitting the guardianship of Miss Quick and that it signed her bond as such guardian, but denying all other allegations. It further stated: (a) the guardian made all disbursements on orders of the court; (b) appellant received a large portion of the assets; (c) all disbursements were proper; (d) it was discharged by a proper order of the probate court from which no appeal has been taken, and; (e) the chancery court has no jurisdiction of the subject matter of this action.
On March 7, 1968 the trial court entered a decree dismissing appellant’s complaint based on these findings: (1) The court has jurisdiction of the parties and the subject matter; (2) on November 18, 1964 “an order was entered closing the guardianship and discharging the defendant as surety from any further liability”; (3) the parties agreed that appellant would not seek to recover any sums diverted during the guardianship; and, (4) the liability of defendant (surety) terminated with the filing of the administratrix’s bond because it was not shown that June Quick, while acting as guardian, misappropriated or diverted any funds of the ward.
For reasons presently set out we have concluded that the decree of the trial court must be reversed.
Ark. Stat. Ann. § 57-642 a. (Supp. 1967) [Guardian to Account], in pertinent part, reads:
“Unless otherwise directed by the court a guardian of the estate shall file ... a written verified account of his administration. Notice of hearing of every accounting shall be given ...” “ The account shall show with respect to each item for which credit is claimed ...”
The subsequent section 57-645 [Discharge of Guardian], in material part, reads:
“Upon the guardian of an estate filing receipts or other evidence satisfactory to the court, showing that he has delivered to the persons entitled thereto all the property for which he is accountable as guardian, the court shall make an order discharging the guardian and his surety from further liability or accountability with respect to the guardianship.” (Emphasis supplied.)
It would serve no useful purpose to set out the testimony in detail regarding the accounting and purported discharge of the guardian and the surety on her bond. Suffice to say the record reveals that the statutes quoted above were not, in any manner, complied with. In fact, appellees do not appear to contend otherwise.
In view of the law and the record referred to above, we are compelled to conclude that appellee (Kansas City Fire and Marine Ins. Co.) has not been legally released from liability as surety on the bond. Therefore the decree of the trial court is reversed, and the cause is remanded for the trial court to determine the extent, if any, of appellees’ liability to appellant | [
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George Rose Smith, Justice.
This is a divorce case in which the only two issues still being contested relate to the payments required of the appellant for the support of the parties’ younger two children.
Mrs. Matthews obtained a divorce in September, 1965. By a supplementary decree entered in October, 1966, the chancellor approved a property settlement (which the chancellor considered to be a liberal substitute for alimony) and directed Matthews to pay $300 a month for the support of his two minor daughters— .Dinah Dale, who was almost 18, and Dawn Elizabeth, who was six. There was no appeal from that decree, which has therefore become conclusive except to the extent that changed conditions may have arisen.
Two months after the entry of the supplementary decree Matthews filed a petition asserting that Dinah Dale had reached the age of 18 on December 11, 1966, that she was of sound mind and body (a fact later established by stipulation), and that the monthly support payment of $300 should be reduced by whatever amount had been provided for Dinah Dale. By agreement of the parties no additional testimony was taken. The chancellor concluded that the payments should continue at the level of $300 a month until Dinah Dale’s graduation from high school in May, 1967, after which the allowance for the support of Dawn Elizabeth alone would be fixed at $200 a month. By this appeal Matthews questions both modifications of the earlier decree.
Upon the first point Matthews contends that his obligation to support the older child should have been terminated when she became of age rather than when she finished high school about six months later. Counsel cite, among other cases, Worthington v. Worthington, 207 Ark. 185, 179 S.W. 2d 648 (1944), where we reaffirmed our earlier holdings that “ordinarily” a parent’s obligation to support a normal child ceases upon majority of the child. It may be observed that in the Worthington case the father actually agreed to support both his daughters until they became self-supporting, which in each instance proved to be at the age of nineteen.
Upon the point at issue our cases have not laid down an inflexible rule. In Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92 (1962), we pointed out that an earlier opinion had said that “ordinarily” there is no legal obligation on the part of a parent to support his children after they become of age. But we went on to say: “A significant word in the above quotation is the word ‘ordinarily’, showing that the Court realized there might be circumstances which could impose on a parent the duty to support a child after such child became of age.”
In the case at bar we are not willing to say that the chancellor’s decision was against the weight of the evidence. Had the chancellor terminated the appellant’s support payments for Dinah Grale as soon as she became of age, it may be assumed, as far as this record shows, that she would have been forced to drop out of high school to support herself, there being no obligation on the part of either of her parents for her continued maintenance. We know, by common knowledge, that a high school diploma is of almost inestimable value to a young person who seeks to make his or her own living. The appellant, as a result of having taken no appeal from the supplementary October decree and as a result of having offered no new testimony at the hearing with respect to the modification of that decree, is not in a position to contend that he has suffered an undue hardship by having to support his daughter during the six months between her coming of age and her graduation from high school. Upon the facts of this case — and our decision of course is limited to those facts — we sustain the chancellor’s slight extension of the appellant’s minimum duty to support the older child.
We have concluded, however, that the weight of the proof does not sustain the chancellor’s allowance of $200 a month for the support of six-year-old Dawn Elizabeth. At the hearings below Mrs. Matthews’ testimony lumped all her family expenses so inextricably together that it is impossible to winnow from the record a reasonable estimate of what it costs to support Dawn Elizabeth alone. It is fair to say, however, that the proof wholly fails to establish that $200 of the original $300 monthly allowance is now needed for Dawn Elizabeth’s support, or will be so needed in the near future. To the contrary, the inferences to be drawn from the proof are that the older daughter’s necessary maintenance decidedly exceeded that required for her six-year-old sister. Common knowledge rebuts the notion that it costs as much to support a girl of six as it does to support a young lady of eighteen. On the record as a whole we have concluded that the allowance for the support of Dawn Elizabeth should be reduced to $125 a month, subject to such modifications as may be called for by changed conditions that may develop in the future.
Upon this phase of the case counsel for the appellee makes the argument, supported by some citation of authority, that the original $300 monthly allowance ought not to be even roughly prorated between the two daughters, for the reason that the father’s limited means might have compelled the court to approve an allowance that actually fell far short of being enough for the support of both children. If the record supported that argument then of course it would be altogether proper for the greater part of the $300 allowance — or even the whole of it- — to be continued in force for the necessary support of Dawn Elizabeth. Our study of the testimony, however, does not convince us that this case is one in which the original allowance was necessarily fixed at an inadequate sum owing to the father’s inability to pay the full amount required for his daughters’ maintenance. Consequently we are unable to sustain the appellee’s contention upon the point.
Modified and affirmed.
Harris, C. J., not participating. | [
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Paul Ward, Justice.
This is the second appeal by these parties. See Grumbles v. Grumbles, 238 Ark. 355, 381 S.W. 2d 750.
In the first case appellant, the wife, was granted a divorce from her husband, appellee here. In that case, the trial court (on April 24, 1963) granted appellant custody of their two children, and ordered appellee to pay child support and $154 per month as alimony. Later appellee became eleven months delinquent in payment of alimony — a total of $1,694.
On June 14, 1967 appellant filed in chancery court a “Petition for Contempt Citation” against appellee. The petitioner alleged that, in spite of frequent demands, appellee was delinquent in the above mentioned amount, and is in contempt of court. In the prayer appellant also asked for “a reasonable sum for the services of her attorney”.
Answering the above petition, appellee filed an answer, stating: (a) admits being delinquent as alleged; (b) admits he has ignored repeated demands; (e) denies he is in contempt or that he should pay said amount “because of the harrassment and persecution of the petitioner”. Later appellee, in a response to appellant’s Motion for Summary Judgment, paid the sum of $1,694 in to the registry of the court “for satisfaction of his past due alimony”.
No testimony was offered by either side, and the issues of contempt, alimony, and attorney’s fee were presented to the trial court on the pleadings.
On June 29, 1967 the court (a) ordered the clerk to pay to appellant the sum of $1,694 in full payment of past due alimony; (b) ordered that appellee “should be purged of contempt”, and; (c) took under submission “the issue of attorney fees”. Appellant was “granted 20 days to plead” further.
No further pleadings were filed, and on December 18, 1967 the trial court entered an Order denying a fee for appellant’s attorney. It is from the above Order that appellant prosecutes this appeal.
It is our conclusion that the trial court was correct, and that its holding must be sustained.
Ark. Stat. Ann. § 34-1210 (Eepl. 1962), in pertinent parts, reads:
“During pendency of action for divorce or alimony the Court may allow the wife . . . reasonable fee for her attorneys . . . and the Court may allow additional attorneys fees for the enforcement of payment of alimony ...” (Our emphasis.)
As is indicated by tbe word “may” above, our courts have consistently held for many years that allowances of alimony and attorney fees are matters that lie within the sound discretion of the trial court. See: Plant v. Plant, 63 Ark. 128, 37 S.W. 308; Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S.W. 2d 246, Lewis v. Lewis, 222 Ark. 743, 262 S.W. 2d 456, and McGuire v. McGuire, 231 Ark. 613, 331 S.W. 2d 257. In the Plant case the court, in 1896, was construing Sand & H. Dig. sec. 2512 and in the Gladfelter case the court, in 1943, was construing Pope’s Dig. § 4388 — both sections being the same as the present statute copied above. In the McGuire case the Court, in construing § 34-1210, made the following statement:
“This Court has said many times that the granting of support and attorney’s fee are within the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion”.
We find nothing in the record before us — -and appellant points to none — from which we could reasonably conclude the trial court abused its sound discretion in this instance.
Accordingly, the holding of the trial court should be, and it is hereby, affirmed.
Harris, C.J. & Brown, J. dissent.
Carleton Harris, Chief Justice.
If the record reflected that Mr. Grumbles had become delinquent in the alimony payments to his ex-wife because of financial inability to pay, I would agree that no attorney’s fee should be allowed. However, this was not the situation. As mentioned by the majority, in his response to appellant’s petition for relief, Mr. Grumbles admitted that he was delinquent as alleged; admitted that he had ignored her repeated demands, but denied that he was in contempt, or that he should pay the amount sought because of the “harassment and persecution” of Mrs. Grumbles. No testimony was offered, and appellee paid the sum of $1,694.00 into the registry of the court to satisfy the past due alimony.
No evidence was taken, and I accordingly do not know whether Mr. Grumbles is well off financially, or on the verge of bankruptcy. Likewise, the record fails to reveal whether Mrs. Grumbles is financially “well fixed,” or barely able to “make ends meet.” I presume, however, that appellee’s failure to pay was not predicated upon financial reasons, for if such were the case, he would certainly have set it up as a defense— and he would have been unable to pay the money. At any rate, when one becomes delinquent in making payments ordered by a court, I think that certainly the burden is upon him to establish a valid reason for not making the payments. This was not done.
The fact remains that Mrs. Grumbles waited eleven months to receive the alimony — and was only able to obtain it after court proceedings were instituted. Under these circumstances, I think a reasonable fee should have been allowed.
I therefore respectfully dissent.
Lyle Brown, Justice. I would reverse and remand with directions that proof be taken on the issue of contempt. If we knew the facts we might readily agree that Grumbles was not in contempt. Since he was cited to show cause, and since he was admittedly delinquent, I think the husband should come forth with his proof.
We would then have a record to evaluate. | [
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Lyle Brown, Justice.
This suit steins from a vehicular .collision between appellant Edward Waterman, and a driver for Jim Walter Corporation. The latter had leased a vehicle from Southern Auto Leasing Company. Jim .Walter, sued Waterman for damages, and Southern was later permitted to join in the case as a plaintiff. Jim Walter and Southern recovered judgment. Waterman appeals,, questioning the right of Jim Walter, the lessee, to bring the suit. Secondly, Waterman questions the right of Southern to be made a party plaintiff since Southern is a foreign corporation having no office in Sebastian County.
The case was tried to a jury but the appeal is based on a partial record which incorporates only the pleadings, motions, orders thereon, and judgment.
When Jim Walter filed suit for damages to the vehicle, it alleged ownership. Other pertinent allegations are that Jim Walter is authorized to do business in Arkansas; that its principal • office is in Sebastian County; that the accident occurred in Johnson County, the residence of Waterman; and that Waterman’s negligence was the sole cause of the collision. Actually, Jim Walter sued Waterman and his father, alleging young Waterman to have been the agent of his father; however, the jury found against the plea of agency, from which there was no appeal.
The Watermans filed an answer and cross-complaint. They denied Jim Walter owned the damaged vehicle forming the basis of the complaint. However, the Watermans alleged some type of lease agreement between Jim Walter and Southern Auto Leasing Corporation.
Jim Walter subsequently filed a “Motion to Allow Plaintiff to Amend Complaint.” By that pleading it was sought to make Southern a party plaintiff in view of the Watermans’ allegation of ownership. That motion was granted on the day of filing. The next day an amendment was filed, alleging ownership of the car in Southern and asserting that Jim Walter was in possession under a lease agreement. A copy of that amendment was served on the Watermans’ counsel.
Six months later the Watermans moved to dismiss the amendment. The thrust of the argument was (1) that they had no notice of the filing of the motion to amend, (2) that Jim Walter was never legally in court because it did not own the automobile as alleged in the original complaint, and (3) that Jim Walter had no residence in Sebastian County. That motion was overruled and the action went to trial.
First, it is here contended that Jim Walter’s original complaint did not state a cause of action in that Jim Walter’s asserted ownership was a misstatement. However, by amendment, Jim Walter asserted a bailee interest which allegedly entitled it to recover for damages to the automobile. A copy of the amendment was received by Waterman’s counsel. Permission was granted Jim Walter to amend without notice to Waterman, but, without present reference to that part of the amendment making Southern Leasing a party plaintiff, we see no prejudice. Jim Walter merely changed its position from that of alleged owner to lessee and reasserted its right to recover. Appellant contends, and for the first time on appeal, that the lease was not- attached to the pleadings. That attachment was not necessary to state a cause of action.
Appellant next asserts that the pertinent venue statute does not include the right of the lessee to bring this suit. Ark. Stat. Ann. § 27-611 (Eepl. 1962) permits the suit to be brought in the county of the residence .of the owner of the property. It is true Jim Walter was not the owner of the property but it did assert such an interest as might give it a right to recover for damages to the vehicle. Assuming, without deciding, that Sebastian County was not the proper venue, the Water-mans waived any defect in venue when they filed their answer and cross-complaint. Further, in announcing ready for trial, the Watermans made no objection to venne.
Regarding the right of a bailee to bring suit for damages to the bailed vehicle, we think the right is well settled. Ferguson & Son v. White, 197 Ark. 183, 121 S.W. 2d 894 (1938); 9 Blash. Auto § 5857 (1955); 8 Am. Jur. 2d, Bailments § 247.
The status of the judgment in favor of Southern Leasing is different from that of Jim Walter. Southern Leasing was made a party plaintiff without notice to the Watermans; no summons was ever served on the Watermans by Southern Leasing; and the Watermans never filed any pleading against Southern Leasing which would waive their rights. In the first place, Southern Leasing had no semblance of statutory authority to sue the Watermans in Sebastian County because it was a foreign corporation and maintained no office in Arkansas. The trial court should have granted the Water-mans’ motion to dismiss Southern Leasing from the case.
Affirmed as to Jim Walter, reversed and dismissed as to Southern Leasing. | [
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George Rose Smith, Justice.
This is an action brought by the appellee to collect a debt of $6,150 assertedly owed to him by the appellant. The attorney originally employed by the defendant Green filed a demurrer to the complaint, bnt when the demurrer was overruled that attorney failed to file an answer within the time allowed or to appear in court on the day the case was set for trial. Green’s present counsel were engaged at the eleventh hour, but in the presentation of their client’s case they were evidently and understandably handicapped by want of sufficient time to prepare for trial. The case was heard without a jury. This appeal is from a judgment for Maddox for the full amount sued for.
The indebtedness was evidenced by five uncashed checks, totaling $6,150, that were payable to Maddox and signed by Green. The single contention here is that the plaintiff failed to prove any consideration for the checks.
We cannot sustain that contention. Maddox was in a nursing home at the time of trial and, presumably for that reason, did not appear as a witness to explain the checks. However, Ben M. May had attempted to collect the instruments for Maddox and testified in his behalf. May said that he and Maddox had discussed the debt with Green on two occasions. May testified that on the first occasion Maddox said, “Now, Floyd, you’re going to pay me, aren’t you?” and Floyd answered, “Yes, I sure am, but right now I don’t have the money. But when I sell some cattle I will.”
According to May, the second encounter again involved a promise by Green that he would pay the debt. When Green was asked to sign new checks, because the statute of limitations was about to run, he equivocated by saying, “This is really my wife’s money. It’s in her name and her business, and I’ll have to check with her.”
May’s testimony, corroborated by the checks, was amply sufficient to make a prima facie case. In fact, Green did not deny having signed the cheeks. He mere ly stated that he did not remember anything about them, that he had not received any money for them, and that he did not know what they were for. Thus the single issue below was that of credibility. In the circumstances the trial judge’s determination has the force of a jury verdict and is conclusive here. Hughes v. Harris, 227 Ark. 407, 299 S.W. 2d 85 (1957).
Affirmed. | [
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Lyle Brown, Justice.
This litigation was instigated by appellees. They are Celia Long Gardner, Agnes Long "Whitehead, Tommie Dean Long, and McHenry Long, children of H. T. and Maulcie Long. The purpose of the two separate proceedings they filed was (1) to set aside a 1932 foreclosure by Metropolitan Life Insurance Company, and (2) to have the court construe, by declaratory judgment, various instruments in the chain of title to the lands involved. On the main issue the chancellor ruled that the mortgage foreclosed was executed by Maulcie Long, for herself and as guardian of the children; that at the time of execution the children were contingent remaindermen in a portion of the lands; and, as respects the children’s interest, the foreclosure was ineffective. Metropolitan and its grantee, Mrs. E. E. Burgess, appeal.
At the time of his death in 1924, H. T. Long resided on the SE1^, Sec. 2, Twp. 3 South, Rge. 8 West, in Jefferson County. When Long expired, he owned a one-half interest in the north eighty acres and held a purchase agreement to the other one-half interest. After H. T. Long’s death, Dovie Long Hayes, daughter of H. T. Long by his first wife, conveyed her interest in the north half to Maulcie Long, widow of H. T. Long. Maulcie Long then paid off a purchase agreement with one Leeth, and title to the north half of the SE% became vested in her and the four small children.
Title to the south eighty acres came into the Long family from a different source. In 1922, B. P. Davis conveyed his three-fifths interest by deed in which the grantees were named as follows: “ ... unto the said Mrs. Dovie Hayes, and Mrs. Maulcie Long, and to the bodily heirs of Mrs. Maulcie Long and her present husband, H. T. Long, and unto their heirs and assigns forever .. ” This language was repeated in the habendum clause. After the death of H. T. Long, his widow (Mauleie) obtained a quitclaim deed from Dovie Hayes and also title to the outstanding two-fifths interest.
In 1928, Mauleie Long, for herself and as guardian of the children, obtained a loan, secured by a mortgage on the entire acreage, to pay for the purchase from Leeth, to pay taxes, and to make minor improvements. Metropolitan became the owner of the mortgage. At that time Mauleie owned the 160 acres in fee, less whatever interest was held by the bodily heirs of Mauleie and H. T. Long by virtue of the deed from B. P. Davis. The acreage also constituted the homestead of Mauleie and her children.
In 1932 Metropolitan effected a foreclosure on the mortgage and obtained a commissioner’s deed to the entire acreage. Mrs. Long and children continued to occupy the lands as tenants for about one year and then moved. In 1949 Metropolitan conveyed the lands to Mrs. E. E. Burgess, one of the two appellants.
The Long children initiated this litigation by the filing of an action asking the court to declare the deed from B. P. Davis to have created a fee tail estate; they asked that the foreclosure decree be determined of no effect on them as contingent remaindermen; and subsequently they amended their pleadings and converted the a,ction to a petition for declaratory judgment because Mauleie Long, the alleged life tenant, was still living. In the foreclosure suit, they sought the right to redeem their alleged interest. They also alleged that the foreclosure involved the illegal sale of the minors’ homestead and entitled them to an accounting of rents and profits since 1932.
Metropolitan denied all allegations and specifically asserted that the probate and foreclosure proceed ings were proper in all respects; and that any claims ever held by the Long children were barred by laches, estoppel, adverse possession, and limitations.
The trial court held that the deed from B. P. Davis created a joint life estate in Dovie Hayes and Maulcie Long, with a remainder over in Maulcie and H. T. Long’s bodily heirs, whose interest was not subject to mortgage; that the probate and foreclosure proceedings were ineffective to divest the children’s interest in the 160 acres; that they had and have a homestead interest in the north eighty acres and a leasehold interest in the south eighty acres; that they are not barred by laches, estoppel, or limitations; and that an equitable lien exists in favor of Metropolitan covering the homestead and leasehold interest for the amount of Metropolitan’s judgment in foreclosure, less credits to which the children may be entitled. Finally, the chancellor declared the children had no right of possession because the mother is still living. For the same reason he held the motion to vacate the foreclosure decree was prematui’e.
I. The estate created by the deed from Davis “unto the said Mrs. Dovie Hayes, and Mrs. Maulcie Long, and to the bodily heirs of Mrs. Maulcie Long and her present husband, H. T. Long, and unto their heirs and assigns forever ...” The deed did not contain any express declarations as to the nature of the tenancy given to Dovie and Maulcie. Ark. Stat. Ann. § 50-411 (1947) provides that an interest granted to two or more persons (other than executors and trustees) shall be a tenancy in common unless expressly declared a joint tenancy. It was stated in Ferrell v. Holland, 205 Ark. 523,169 S.W. 2d 643 (1943), that the construction should be against joint tenancy unless the intent to create it is clear. Also, Ark. Stat. Ann. § 50-403 (1947) says deeds shall be construed to convey fee simple title unless expressly limited by appropriate words. Construing the deed in harmony with the recited law, we conclude that Dovie Hayes acquired a one-half fee simple interest in the lands conveyed, that being a three-tenth’s interest in the sonth eighty acres.
We conclude that the other three-tenths interest was vested for life in Manlcie Long with a contingent remainder thereto in the bodily heirs of Manlcie and H. T. Long. Peebles v. Garland, 221 Ark. 185, 252 S.W. 2d 396 (1952); Gray, Trustee v. McGuire, 140 Ark. 109, 215 S.W. 693 (1919). A fee tail general was held to have been created by a deed “to the grantee and the heirs of her body.” Horsley v. Hilburn, 44 Ark. 458 (1884). Actually, we have here a deed which creates a fee tail special because it is restricted to the bodily heirs of Manlcie and H. T. Long. Our disentailing statute creates a life estate in Manlcie Long and a contingent reminder in the bodily heirs. Ark. Stat. Ann. § 50-405 (1947). It logically follows that the foreclosure was ineffective as to the three-tenths interest of the bodily heirs in the sonth eighty acres.
We cannot agree with the contention of appellants that the rule in Shelley’s Case is applicable. It is applied only “when the language of the will or conveyance creates a limitation to the heirs of the devisee or grantee in general. If the limitation is to the bodily heirs or the heirs of the body of the grantee, then the rule in Shelley’s Case has no application.” Gray, Trustee v. McGuire, supra.
In the deed before us the grant was to “Mrs. Dovie Hayes, and Mrs. Manlcie Long, and to the bodily heirs of Mrs. Manlcie Long and her present husband, H. T. Long, and unto their heirs and assigns forever.” The appellants contend that the final clause, “and unto their heirs and assigns forever,” refers all the way back to Dovie Hayes and Maulcie Long, thereby creating a fee simple estate in Mrs. Long under our holding in Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490 (1893). We do not agree with that contention, because in our opinion the clause in question refers both grammatically and logically to the bodily heirs of Maulcie and II. T. Long, so that the rule in Shelley’s Case, as interpreted in the Eardage case, is inapplicable.
II. The latos of estoppel, laches, statute of limitations, and adverse possession, as they affect the rights of the children to claim any interest in the lands. These contentions asserted by appellants, as to the undivided three-tenths interest, fail because of our interpretation of the words of conveyance in the deed from B. P. Davis. In other words, the interest of the bodily heirs was never effectively mortgaged or foreclosed. In Love v. McDonald, 201 Ark. 882, 148 S.W. 2d 170 (1941), it was pointed out that a contingent remainder is an interest not capable of being transferred or mortgaged. In numerous cases it has been held that limitations do not begin to run against remaindermen until the death of the life tenant. Perry v. Rye, 223 Ark. 594, 267 S.W. 2d 507 (1954); Tennison v. Carroll, 219 Ark. 658, 243 S.W. 2d 944 (1951). We do agree with appellants that the children have no claim to any other interest at this late date. The youngest child, McHenry Long, became twenty-one years of age on March 22, 1946. If they were entitled to any credits for being deprived of their homestead rights during their minority, they should not have waited these many years to make their claim.
III. The alternative prayer of Metropolitan to be reimbursed by appellees proportionately for the original debt and the cost of supporting their title since 1928. We are cited no authorities which would approve the claimed reimbursement. As we view it, the lender was a volunteer. By operation of law it did not acquire any security in the future interest of the contingent remaindermen. The only bona fide security which Metropolitan obtained for the loan was a lien on Maulcie’s interest.
The cause is remanded with directions that the trial court’s decree be modified to conform to the views herein expressed. | [
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Carleton Harris, Chief Justice.
This case relates to the mechanics and materialmen’s liens statutes, Ark. Stat. Ann. § 51-601 et seq. (1947). G-. S. and Pauline Lambert are the owners of 366 acres of land adjacent to Beaver Reservoir in Benton County. A 10-acre tract near the center of their acreage had previously been deeded to an Arkansas corporation, Bevark Investment Company, Inc. The Lamberts entered into a contract with Bevark, William E. Davidson, and Jim L. Moore for the development of the 10-acre tract (heretofore referred to) and a portion of the Lambert land a part of which had already been sub-divided into residential lots. Under the contract, Moore was obligated to develop and sell all real estate described in the contract, and that instrument also provided that the Lamberts were to share in the net profits resulting from the development and sale of the lands. Bevark, of which Mr. Lambert was president at the time of the signing of the contract, was also to receive a share of the net profits resulting from the development and sale. Moore employed appellee, Sam Newman, to do certain bulldozer work on the land pursuant to the terms of the contract, and Newman worked for a period of about four weeks. According to appellee’s records, 452 hours of bulldozing had been done, this at a charge of $12.50 per hour, and appellee contended that he was due $5,650.00 for this work. Moore paid $1,000.00 on this bill, but made no further pay ments, and Newman ceased work on the property. Thereafter, appellee instituted suit against Moore, Davidson, Bevark, and the Lamberts, seeking a monetary judgment for the amount allegedly due against the first two, and seeking a first lien against the lands of the Lamberts and Bevark, as security for the judgment. Moore and Davidson did not appear and a default judgment was entered against them. The Lamberts and Bevark filed a demurrer which was overruled by the court . Thereafter, these defendants filed an answer denying the allegations of the complaint. The case proceeded to trial, and at the conclusion of appellee’s evidence, the Lamberts demurred to the evidence. This was overruled, and after appellants’ witnesses had been heard, the court held that Newman was entitled to a materialman’s lien on “said property owned by the said defendants, G-. S. Lambert and Pauline B. Lambert and Bevark Investment Company.” Interest from August 15, 1966, at the rate of 6% was allowed, and the court directed that, if the judgment be not paid within 20 days, the lien should be foreclosed, and the property sold. Prom the decree so entered, the Lamberts alone bring this appeal.
Though several points are urged for reversal, actually, all are merged into the simple question, “Is Newman entitled to a lien, under Section 51-601, for the work he performed in cleaning up the premises?”
The pertinent portion of the statute reads as follows :
“Every mechanic, builder, artisan, workman, laborer or other person who shall do or perform any work upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection, improvement upon land, or upon any boat or vessel of any kind, or for repairing same, under or by virture of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this act [§§ 51-601, 51-604 — 51-626], shall have for his work or labor done, or materials, fixtures, engine, boiler or machinery furnished a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre; . ’
Newman, in testifying, stated that his work consisted of clearing timber and underbrush at various places on the property. From the record:
“Q. I want you to describe to the Court, Mr. Newman, the exact nature of the clearing that was done by your dozers, how the land looked, give a description of how the land'was before, generally, and how it was after, generally?
A. "Well, there had been roads cut through the property but none of the land had been cleaned up for sub-leasing. We went in and removed all the brush and underbrush and small trees and rotten trees out and just left the big trees for development.
Q. What was the effect of your work in that area?
A. Well, it’s an improvement to the land, I mean, it looks to me like it is an improvement, at any time when you take out the brush and underbrush, you are improving land.”
We think the Chancellor erred in holding that appellee was entitled to a statutory lien. This exact sit- nation has not previously been presented to the court, but we think the language of the statute and our cases are contrary to appellee’s view.
It is noted that a laborer or materialism is given a lien for work done or material furnished “for any building, erection, improvement upon land, ***.” In Dix v. Olds, 242 Ark. 850, 415 S.W. 2d 567, we specifically pointed out that there is a difference in the meaning of the word “upon” and the word “to.” The court stated:
“We conclude that if the legislature had intended to create a statutory lien on all land that may be improved by labor and materials, it would have separated the improvement from the land subject to lien, and would have said ‘improvement to land’ instead of ‘improvement upon land,’ and would have extended the lien to the land so improved rather than confine it to the land ‘upon which the same are situated.’ ”
We reiterate this distinction in case the General Assembly desires to make a change.
It is also pointed out in Dix that the materialman’s lien law is in derogation of the common law, and must be strictly construed .
In Leiper v. Minnig, 74 Ark. 510, 86 S.W. 407, we held that a contractor was entitled to a lien on property upon which he, under authorization, placed a sidewalk. This was contrary to earlier decisions which, under the statute at that time, had held that “improvement” meant a building or erection of some nature. Guise v. Oliver, 51 Ark. 356. In 1895, the Legislature amended the law, and Justice Wood, writing the opinion in Leiper, mentioned this fact, and the court held that the new act was broad enough to include sidewalks. The pertinent language, “for any building, erection, improvement upon land,” in tbe 1895 act, relied on by the court, is still a part of tbe present law. There is no Arkansas case which holds that the mere clearing of land entitles one to a lien.
Oases from other states are generally of no aid, because of the difference in the wording of the statutes; courts which have a similar statute, using the word “upon,” have differed in their interpretation. The Missouri case of Vasquez v. Village Center, Inc., 362 S.W. 2d 588, is relied upon by appellee. There, the Supreme Court upheld a jury verdict which found that the work performed by the plaintiff was lienable within the meaning of the statute which provided a lien for those who performed “any work or labor upon ***.” However, it might be mentioned that the factual background is somewhat different from that involved in the present litigation. There, the court, reciting the facts, stated:
“It appears to us that there was substantial evidence from which a jury reasonably could have found that the work performed by plaintiff was lienable within the meaning of the language of Section 429.010, construed, as it should be, as favorably to plaintiff as its terms will permit. That is because there was evidence justifying a finding that the work plaintiff did was performed as an integral part of a total plan to proceed without delay to erect a group of buildings as a shopping center on the land in question. The evidence that the course of the creek which meandered through the property was changed; the evidence as to the leveling and filling, the construction of parking areas adjacent to designated building sites, the providing of means of ingress and egress for the proposed shopping-center and the parking areas to and from Manchester Road, the preparing of sub-grades for buildings on which concrete slabs were to be poured as the next step in the construction process — all amounted to evidence of essential work in the accomplishment of the specific plan and intention to build a shopping center including buildings.”
This is a “far cry” from clearing brush and rotten trees from land, which, under plans for the future, will be sold as lots — and, if sold, residences constructed thereon.
The Supreme Court of Utah, in Backus v. Hooten, 294 P. 2d 703, reached a contrary conclusion in construing the word “upon.” There, a lien was claimed for leveling land, and the court said:
“Let it be conceded that leveling land enhances its value and improves its utility. It does not follow that such leveling constitutes an improvement upon land. It would seem to be an unreasonable construction to hold that a contract for plowing, seeding, or manuring of land is a contract for the construction of an improvement upon land.
“Nor do we feel that it is necessary to call upon any rules of statutory interpretation since the language seems not to require interpretation. However, under a familiar rule of construction the expression ‘or improvement upon land’ can only refer to improvements of a character similar to those immediately before mentioned.”
See also the Iowa case of Brown v. Wyman, 9 N.W. 344, cited in the Utah ease.
It follows, from what has been said, that appellee was not entitled to the lien, and the court erred in granting same.
Reversed.
As to Paragraph 11 of the complaint, the court treated the demurrer as a motion to make more definite and certain, and required appellee to plead definitely as to the precise nature of the relationship existing between and among the defendants relative to their proprietary interest in the lands sought to be subjected to the lien.
The balance of the paragraph deals with buildings, erections, and improvements made upon any lot of land in a town or city.
Once it is determined that the property is subject to a lien, the procedure for perfecting same is liberally construed. | [
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Carleton Harris, Chief Justice.
This litigation involves the question of whether certain property constitutes an ancestral estate. S. E. Connell and Coia Connell, his wife, acquired two parcels of property by purchase, as an estate by the entirety, one parcel being acquired in 1946, and the other in 1951. The Connells were the parents of one son, Granville Connell. This son was the only child, who never married, but lived with his parents and worked with them in the operation of a grocery store. In 1957, S. E. Connell died intestate. The wife and son continued to operate the family business. Mrs. Connell broke her hip not too long after the death of her husband, and was thereafter unable to be active in conducting the business.
In 1965, Mrs. Connell died, leaving a will in which she named the son, Granville, as the sole devisee and legatee. The will was admitted to probate, and a settlement reflecting that Granville was the only heir and sole devisee under the will, was filed and approved by the court. In 1966, Granville Connell died, and B. J. Buck, husband of appellant herein, was appointed administrator. Thereafter, a petition for determination of heirship and lawful distribution was filed by appellees, who are the brothers and sisters, or children of deceased brothers and sisters, of Mrs. Connell. The petition asserted that the two parcels of property herein involved were an ancestral estate from the maternal bloodline, and petitioners contended that, as collateral heirs on the maternal side, they were entitled to the property .
Mrs. B. J. Buck, appellant herein, a sister of S. E. Connell, contends that the properties involved are new acquisitions and should pass ha to the appellees as heirs of Coia Connell and V% to appellant as the heir of S. E. Connell. On trial, the court entered its order determining heirship and authorizing distribution, and held, as to both of these parcels of property, that they were maternal ancestral real estate and should be distributed to appellees alone. From the order so entered, appellant brings this appeal. For reversal, it is first asserted that the real estate is neither a maternal nor a paternal ancestral estate.
Appellant contends that since this real estate was acquired as an estate by the entirety, both husband and wife owned same and each was equally responsible for bringing the property into the family. It is argued that there is no reason to favor either the heirs of the mother or the heirs of the father. From her brief:
‘ ‘ An estate by tbe entirety is unique and should be treated differently than the regular fee simple estate. In the creation of an estate by the entirety the ownership of both husband and wife occurs at precisely the same instant. Both are equally responsible, under the law, for bringing property into the family line and the heirs of both should be considered as sharing equally in the property, regardless of whether the husband dies first or the wife dies first.”
Appellant says there is no precedent in this state for the situation involved herein; that it is only logical and equitable that this court hold that this is not a pure paternal or maternal ancestral estate, but since it contains ingredients of both types of ancestral estates, it should pass V2 to the heirs of the father, and V2 to the heirs of the mother, “preserving the integrity of the original way in which the property was brought into the family equally by both father and mother. ’ ’ There is perhaps something to be said for appellant’s argument when viewed from her standpoint, but we think the law is contrary to the position taken. As far as these particular facts are concerned, this is a case of first impression, but the case of Brown v. Smith, 240 Ark. 1042, 405 S.W. 2d 249 (1966) bears a close similarity, and the reasoning in that case is, we think, applicable here. There, J. A. Bennett and Eula Mercer Bennett, husband and wife, were the parents of one son, Joe Mercer Bennett. J. A. Bennett purchased two parcels of land. Shortly after the purchase, Bennett deeded the property to W. D. Trotter for $1.00 and other good and sufficient consideration, Eula Mercer Bennett relinquishing dower and homestead rights. Two days after receiving the deed, Trotter and wife, for the same recited consideration, deeded the property to Eula Mercer Bennett. Eula Mercer Bennett died in 1940, and J. A. Bennett died in 1957. The son, Joe Mercer Bennett, died in 1963 intestate and without issue. The same question presented in the instant litigation arose at that time, i.e., the collateral heirs of both J. A. Bennett and Eula Mercer Bennett made claim to the property. From the opinion:
“The trial court held, in effect, that upon the death of Eula in 1940 the property, subject only to her husband’s curtesy right (extinguished of course when he died in 1957), descended to the deceased (her son); that her son took the property as a maternal ancestral estate, and; that therefore, at the son’s death, the property ascended to the heirs of his mother (Eula Mercer Bennett).”
Appellants urged that this was error, contending that there was no valuable consideration for the conveyance from J. A. Bennett to his wife; that in reality it was a gift to the wife . This court said:
“Finally, appellants make an extended and forceful argument, supported by citations from many authorities, to the effect that the issue here is controlled by ‘The common law tradition.’ It is pointed out that ‘The policy of the common law was to keep the real property in the line of the ancestor by whom it was brought into the family. ’ Appellants insist that in this instance the mother should be disregarded, because she paid nothing for the property. Hence, it is argued, it was the father who brought the property into the family and who should therefore be treated as the propositus or stock of descent.
“This argument overlooks a basic characteristic of ancestral estates. Such an estate can be treated only by a gift, devise, or inheritance to a person who is related ~by Mood to the donor.”
After quoting some earlier eases, the court stated:
“* * * In the case at har it follows that the tracts now in question were held by Eula S. Bennett as a new acquisition, because she received them from her husband, who was not related to her by blood.”
One thing is certain: Irrespective of when the title to the properties vested in Mrs. Connell, the acquiring of such properties was, legally speaking, a new acquisition —because she was not related by blood to either the grantors or her husband. It is thus apparent that the involved properties were new acquisitions as to the mother, but ancestral property as to the son, Granville.
Appellant also contends that this is not an ancestral estate, because it is essential that there be no consideration other than that of blood in the descent of the property. This statement of the law is correct. Martin v. Martin, 98 Ark. 93, 135 S.W. 348. Appellant states in her brief:
“The devise of these two tracts of real estate was not gratuitous, as the stipulations and evidence introduced clearly showed that Granville Connell worked side by side with his father and mother in acquiring and holding everything which they had during their life time, including the two (2) tracts in question. His labor and industriousness contributed as much to the family fortune as that of any other of the two members of the family.”
In other words, appellant asserts that Granville Connell already held equitable title to the properties at issue. Income tax returns and leases were introduced as a matter of endeavoring to strengthen this argument. There are more answers than one to appellant’s contention, but it is unnecessary to discuss them here, for there is nothing in the record which shows that Gran-ville became owner of the tracts in any manner, or for any reason, other than as a gift. The will of Mrs. Connell recites, “I give, devise and bequeath to my son * * Although several witnesses testified for appellant, no one said that either Mr. or Mrs. Connell ever made any remarks indicating that their son was part owner of the properties (nor, for that matter, was there any evidence that Granville ever told anyone before the death of either parent that he was part owner). In fact, the settlement of his father’s estate reflects that Mrs. Connell was the owner of these tracts, and Gran-ville approved the settlement. Likewise, the final settlement of Mrs. Connell’s estate reflects, and the order of distribution find, that Granville was the only heir at law, and the sole devisee under the will of Mrs. Connell; that he was entitled to receive these particular properties (along with others) as the sole heir of the decedent.
The court did not commit error.
Affirmed.
The petition likewise asserts that at the time of his death, Granville Connell owned real estate which was an ancestral estate from the paternal side, “and which this court has already vested in the bloodline on the paternal side.”
Of course, the conveyance itself was from Trotter and wife to Eula Mercer Bennett, but apparently all parties agreed that the conveyances from Bennett to Trotter, and Trotter back to Eula Mercer Bennett were made for the purpose of giving Mrs. Bennett the title to the property. In other words, Trotter was simply a “straw man.”
In other words, the result is the same if (1) Mrs. Connell became an owner and possessor per tout at the time of the conveyances to her and Mr. Connell, his like interest being terminated upon death — or (2) if Mrs. Connell had an undivided interest (or even only a half interest) in the properties until Mr. Connell’s death, and absolute title vested in her at that time. | [
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J. Fred Jones, Justice.
James B. Randle and Clifford L. Wright were charged, in the Columbia County Circuit Court, with the crimes of first degree rape. Randle was also charged with third degree rape. They were tried jointly on their own motion, the jury found them both guilty of first degree rape and they were sentenced to the state penitentiary for periods of thirty years each.
Both defendants have appealed to this court and they rely on the following points for reversal:
“The crime of carnal abuse is included in the offense of rape and the jury should have been instructed on third degree rape.
The appellants were deprived of a fair trial by the urging of the Court for the jury to reach a verdict and leave the sentence and punishment to the Court.”
As related to this case, the statutory definition of rape in the third degree as distinguished from rape in the first degree, (Ark. Stat. Ann. § 41-3401 [Supp. 1967]) is as follows:
“A male is guilty of rape in the third degree when: (a) he engages in sexual intercourse with a female or carnally abuses a female who is less than sixteen (16) years old.
# # #
A male is guilty of rape in the first degree when he engages in sexual intercourse with a female:
(a) by forcible compulsion. ...”
The penalty section of the statute applying to third and first degree rape (Ark. Stat. Ann. § 41-3403 [Supp. 1967]) is as follows:
“* * * Any male, upon conviction of third degree rape, shall be subject to imprisonment in the State Penitentiary for a term of not less than one (1) nor more than ten (10) years.
# * *
Any male, upon conviction of first degree rape, shall be subject to death or thirty (30) years to life imprisonment in the State Penitentiary.”
The appellants do not question the sufficiency of the evidence to sustain the conviction, so the evidence will not be set out in detail.
The appellants, Bandle and Wright, were married men twenty-eight and twenty years of age respectively when the acts for which they were convicted occurred on July 24, 1967. The victims were two unmarried girls, the younger one being under sixteen years of age on July 24, 1967. 'The older girl was sixteen years of age at the time of trial and there is nothing in the record to indicate that she was less than that age on July 24, 1967. The younger girl lived with her parents in Hampton, Arkansas, and the older girl lived with her parents in Dallas, Texas. The two girls were cousins. The younger girl had been visiting the older one in Dallas and both girls were returning by bus to Hampton where the older girl planned to visit in the home of the younger one. A married brother of the younger girl, and an aunt of both girls, lived in El Dorado and both girls stopped off in El Dorado to visit with their relatives.
After arriving in El Dorado, the girls went with a relative to a neighbor’s house where they saw, but did not formally meet, the appellants. After returning to their relative’s home and while the relative was away from the house temporarily on a personal errand, the appellants drove by the house in an automobile and invited the girls to go out for a coke at a nearby drive-in. After having cold drinks at the drive-in in El Dorado, the two couples continued to drive around and drove to Magnolia in Columbia County. On returning from Magnolia they turned off the main highway onto a dirt side road and drove to an isolated oil well site in Columbia County, where Bandle had sexual intercourse with the younger girl in the front seat of the automobile while at the same time, Wright had sexual intercourse with the older girl in the rear seat of the automobile.
Both girls and both appellants testified at the trial. The appellants admitted the acts of sexual intercourse, but testified that both girls readily consented to the acts and engaged in the acts freely, without compulsion and strictly on a voluntary basis. Both girls testified that the acts were accomplished without their consent and through physical force and violence, attended by threats of murder as the penalty for resistance and non-compliance and both girls testified to acts of violence and brute force applied in a most revolting manner. The testimony of both girls was corroborated to some extent by medical testimony following physical examination.
If the jury had believed the testimony of the appellants, Randle would have been guilty of third degree rape, and Wright should have been acquitted. But if the jury believed the testimony of the girls, as it evidently did, the evidence was amply sufficient to sustain the convictions of first degree rape with a penalty even more severe than the minimum of thirty years imprisonment assessed by the jury. The first point relied on by the appellants, however, gives us considerable concern.
As a usual procedure, a defendant requests instructions on a lesser degree of the crime for which he is being tried, and assigns reversible error if the instruction is not given. Clark v. State, 244 Ark. 778, 427 S.W. 2d 172. But in the case at bar, not only did the defendants fail to request an instruction on third degree rape, the defendants objected to giving that instruction when it was requested by the prosecuting attorney. On this point the record is as follows:
“the court:
Mr. Chambers, attorney for the defendant, has objected to giving an instruction on third degree rape as set out in Act 362 and the State has requested an instruction on third degree rape, insisting that same is lesser degree. I am not saying in my ruling that third degree rape as previously known as ‘carnal abuse’ is not a lesser degree of first degree rape. Tbe evidence in the case, and it appears in tbe record, that one of tbe prosecuting witnesses is under the age of sixteen years, however, at this time it is the ruling of the Court that there is substantial evidence to submit to the jury as to both defendants on first degree rape and I am going to sustain the motion or objection of the defendant and not give an instruction on rape in the third degree.”
This procedure does not reflect on the competency of the appellants’ court appointed attorneys. They were assigned an unusual task justifying an unusual, but well-known trial strategy. They were assigned the task of defending a twenty-eight year old married man charged with the rape of a fifteen year old girl, and a twenty year old married man charged with the rape of an' apparently sixteen year old girl. Both girls testified as to the crimes committed against themselves and against each other, and certainly it was imperative that the appellants testify in their own defense. The appellants’ attorneys obviously adopted the trial strategy of not requesting a jury instruction on a lesser degree of the crime charged when a finding of not guilty on the greater degree would result in a complete acquittal.
In the case at bar one of the appellants had admitted facts constituting the crime of third degree rape. The other appellant had admitted the same acts at the same time and place, but under his testimony he had committed no crime, the difference being, the one year difference in the ages of the girls. So the question actually presented under appellants’ first point is whether the trial court committed reversible error in not giving an instruction on the lesser degree over the appellants’ objections. We conclude that it did not.
' ' The appellants recognize in their argument that this court has many times held that an appeal may not be predicated on an error to which no objection has been made, and the appellants agree that this rule should be adhered to except in most unusual circumstances. We do not agree that such exceptional circumstances existed in this case that reversible error occurred in the court’s failure to give the instruction over the appellant’s objection.
It is true that the exact age of the older girl on the date of the offense charged, is not clear in the record. She testified at the time of the trial that she was sixteen years of age and she was not questioned as to her age at the time the offense was committed. In the absence of proof that the older girl was less than sixteen years old, Randle was the only one who could have been found guilty of third degree rape and according to the testimony of both girls, the forceful compulsion employed by Randle was the same as that employed by Wright, except that Randle was more vicious than was Wright in the exercise of the force he employed. According to the girls Randle struck the younger girl at least three times and the older one twice, in his efforts to stop them from screaming, and Wright also struck the older girl at Randle’s request. The evidence was amply sufficient to sustain a verdict of guilty of first degree rape against Wright, and if Wright was guilty of first degree rape so was Randle.
We hold in this case, as we have held in others, that where no objections are made at the trial to the instructions of the court, we will not consider alleged errors predicated upon the ruling of the court in giving instructions. Walker v. State, 151 Ark. 394, 236 S.W. 627; Cegars v. State, 150 Ark. 648, 235 S.W. 36. An appellant cannot complain of rulings made by the court at the insistence of his own attorneys, (Sheppard v. State, 239 Ark. 785, 394 S.W. 2d 624) nor complain of invited error. Anderson v. State, 210 Ark. 548, 197 S.W. 2d 36.
So we hold, in the case at bar, the trial court did not commit reversible error in its failure to instruct the jury on third degree rape, under the facts and circumstances of this case.
As to appellants’ second point, the record shows that after the jury.had been in deliberation for about two hours, it returned to the courtroom for additional information. At the expense of additional length, the record on this point is set out in full in order to preserve its full context. We have italicized that portion of the record emphasized by the appellants as constituting reversible error. The record is as follows:
“At 4:40 P.M., the same day, the jury returned to the Court room, and requested through its foreman, Mr. Harold Ruble, that more evidence be presented in the case, wherefore the Court addresses the jury:
the court:
We are all in the same pursuit of justice, a fair and impartial trial to both the State and the dedendant. When we came here, I’d like to impress upon you this, now I don’t intend to point to any particular thing, but we tooh an oath that we would try the case solely on the evidence and the law. I simply tell you this and to impress upon you, that each juror should have a strong conviction of the evidence as to the guilt or innocence and as to the law as to the guilt and innocence of each of these defendants and how that law applies to the facts as to the respective parties. Ho you think if you go back and have an opportunity to deliberate further, can you reach a verdict?
mr. ruble:
[Jury foreman] I doubt that we could without seeing any other evidence. Is there any other evidence that could he presented?
THE COURT:
No, sir, they do not have a right to present evidence after the case is closed on behalf of the State, and after the case has been closed on behalf of the defendant. Further, on this point, I say that each one of you should have a strong mind and conviction to be able to determine in your own mind the guilt or innocense of each defendant. Yet, you should be willing to yield your position to one on the jury ivho can reasonably be correct. I simply tell you that in every jury and every criminal case there has to be a diversion of opinion. Yet after you have had an opportunity to discuss it fully and completely on the evidence and law and the law that is given you by the Instructions, and the evidence in the case, that I feel there can be a harmonious decision by a unity of one jury and one verdict on each case. I would like for you gentlemen to go out and reconsider it, and I do not tell you to find for the State, that is, for the guilt or the innocence, I simply tell you to go out and use good judgment according to the law and evidence. I feel that you can reach a verdict and I feel that the evidence in another case would not be any clearer that it is in this case. It would simply be a repetition. You are jurors, I don’t want to use coercion, but I feel that if you go out and deliberate these points of law or facts that you are in dispute about, you may reach a verdict. It’s fifteen minutes until five. Would you gentlemen . . . did you want to ask a question?
MR. RUBLE;
Is there a chance of being a lesser penalty of a lesser degree of guilt?
the court;
No, sir. The sentence, the guilt, is either guilt or innocence. I can instruct you this way under the laws of the State of Arkansas if all of you concurred in a judgment, or a verdict of guilt, or innocence, that would satisfy the law. In the event the defendant or each of the defendants are found ‘not guilty’ they are acquitted. In the event you elect to find either or both of the defendants guilty, you can under the Arkansas Statutes, leave the sentencing and punishment to the Court.
mr. ruble:
That clears it up. the court:
Does that help you?
(Reporter’s Note: Jurors nod affirmatively). the court:
I would further like to impress upon you that each of you are separate individuals and each of you have heard the evidence and I would not want you to give away or be swayed against your better judgment as to the justice in this Court, as to a particular party, and I am restrained from doing other than telling you the law in the case and the law that applies to any particular case as to the instruction I do not intend to sway any of you from your own judgment and decision. I simply feel that if you go back through the evidence and the law, you might reach a decision, and if you would not mind elaborating further, say, for fifteen or twenty minutes, would that be an inconvenience to any of you?
mr. ruble;
What time, sir? Fifteen or twenty minutes further ?
MR. DON ERANKS:
[Member of the jury] We would like to know if we should decide to leave the sentencing up to the judge, would the minimum still be thirty years, is that the least that the judge could sentence?
the court:
It is entirely up to the Court to sentence an individual if you want to find him guilty or innocent, if it’s innocence, just not sentence him. . If it’s a unanimous verdict of the jury to find the defendant, or either of the defendants, guilty, the sentence is entirely up to the court.
MR. DON FRANKS:
You would have to find him guilty in the first degree, right?
the court:
In this particular case, the only instructions before you are rape in the first degree, Does that answer the question?
Reporter’s Note: (Jurors Nod Affirmatively).
mr. ruble:
Could we have thirty minnt.es? the court:
You can have as long, as far as I’m concerned, as you gentlemen would like.
MR. LOUIS WILSON:
[Member of the jury] Do you have the discretion of saying what the penalty is, or to specify it thirty or over?
the court :
That is entirely up to the Court. Now, I might say this, regardless of what a jury might recommend to the Court.
MR. WILSON:
But, it’s still up to the jury? the court:
It is not binding on the Court. The sentence is entirely in the province of the Court. Do I make that clear?
JURORS NOD AFFIRMATIVELY.
THE court:
Now you may take as long as yon like, or if should you go beyond the ... I call it the supper, I think some people call it dinner ... if you go beyond the period that we eat next, if you’d like to remain together, I think that the Court could arrange to have all of you fed together. Now of course I don’t want to tell you to use any type of force or persuasion against each other, it’s just that I feel you can agree on a verdict, regardless of what that verdict might he in each case, and if you prefer to stay together a little later, that is, solely' within your province. If you’d like to stay during the night meal, I think we could arrange to keep you together, if you’d like that. I’ll let you gentlemen make that decision.
The jury retired to deliberate further at 4:50 p.m.
The jury returned into open court at 6:05 p.m., November 9, 1967, the following verdict:
the court:
Have you gentlemen reached a verdict?
MR. RUBLE:
Yes.
THE COURT;
Would the defendants stand and face the Jury? Mr. Foreman, would you read the verdicts, please?
MR. RUBLE:
'We, the Jury, find the defendant, James B. Randle, guilty of rape in the first degree, and assess his punishment at thirty years imprisonment in the State Penitentiary.’
The other case, which is 4267:
'We, the Jury, find the defendant, Clifton [sic] Laurence Wright, guilty of rape in the first degree, and assess his punishment at thirty years imprisonment in the State Penitentiary.’ ”
We are of the opinion that the appellants have interpreted the court’s remarks out of the context in which they were made. For example, the appellants argue that on page 224 of the transcript, the court said:
“I simply tell you this, and to impress upon you, that each juror should have a strong conviction of the evidence as to the guilt or innocence . . .”
what the court actually said was this:
"I simply tell yon this and to impress upon yon, that each juror should have a strong conviction of the evidence as to the guilt or innocence and as to the law as to the guilt and innocence of each of these defendants and how that law applies to the facts as to the respective parties.”
We do not attribute to the trial court’s remarks the same interpretation and effect that the appellants do. The record is no more indicative that the jury was influenced by the age of the girls, as argued by appellants, than it was by the ages and marital status of the appellants. The record is no more indicative that the jury desired to return a verdict for third degree rape than it is that the jury did not want to risk a sentence for less than thirty years in the hands of the trial judge.
In St. Louis I. M. & S. R. Co. v. Garter, 111 Ark. 272, 164 S.W. 715 we approved an admonition to the jury by the trial court “not to be stubborn and to lay aside all pride of opinion and to consult with each other and give due regard and weight to the opinion of their fellow jurors,” and we conclude that the trial court did no more in the case at bar.
We conclude that the trial court simply attempted to answer the jurors ’ questions without influencing their verdict, and when the statements are considered in their full context and in the light of the written instructions, the trial court did not commit reversible error, or abuse its discretion, in answering the questions asked by the jurors and in requesting the jury to deliberate further in their effort to reach a verdict. We do not overlook the fact that the jury did not leave the punishment to the trial court. The jury not only found both defendants guilty of first degree rape, the jury assessed the minimum penalty of thirty years in each case. If the minimum penalty provided for the crime of first degree rape is too severe, that is a matter that addresses itself to the legislature and not to a jury or this court. If the penalties assessed against the appellants, or either of them, are too severe under the facts of this case, that is a matter that addresses itself to executive clemency and not to this court.
We have found no reversible error in the record before us and we conclude that the judgments should be affirmed.
George Rose Smith, Beown and Fogleman, JJ., concur.
Byrd, J., dissents. | [
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George Rose Smith, Justice.
The question here is whether homeowners whose house is destroyed by fire can maintain successive suits upon their fire insurance policy, first to recover for the loss of the house and then to recover for the loss of its contents. This appeal is from the trial court’s holding that the successful maintenance of the first suit was bar to the second suit. We hold that the court’s conclusion was correct.
The Lisenbys obtained from the appellee a homeowner’s policy which insured their dwelling for $10,000 and its contents for 40% of that amount. House and contents were totally destroyed by fire. The Lisenbeys at first filed suit to recover $10,000 for the loss of the house and $4,000 for the loss of their personal proper ty. The insurer interposed several defenses. Before trial the plaintiffs took a nonsuit with respect to the personal property — perhaps to safeguard their claim to the statutory penalty and attorney’s fee, since the valued policy law applies only to real estate. Ark. Stat. Ann. § 66-3901 (B-epl. 1966). The jury’s verdict awarded the plaintiffs the full $10,000. They then brought the present action for the loss of the personal property, which the complaint valued at $3,300. The trial court, as we have said, entered judgment for the defendant.
In seeking a reversal the appellants cite primarily decisions of this court holding insurance policies to be severable contracts. In Globe & Rutgers Fire Ins. Co. v. Chisenhall, 162 Ark. 231, 258 S.W. 135 (1924), the policy insured a dwelling house for $2,000 and a barn for a like amount. After the house burned the insurer paid that loss and purportedly canceled the policy. The barn then was destroyed by a second fire. We held that the policy was in effect two contracts; so that the cancellation of the first, with respect to the house, did not affect the second, covering the barn. That case was followed upon analogous facts in National Union Fire Ins. Co. v. Henry, 181 Ark. 637, 27 S.W. 2d 786 (1930).
We do not consider those cases to be pertinent here, because they did not involve the matter of splitting a cause of action. That was the issue in State Life Ins. Co. v. Goodrum, 189 Ark. 509, 74 S.W. 2d 230 (1934), also cited by the appellants, where the insurer on different dates had issued two different policies upon the life of the insured. We held that the beneficiary had a separate and distinct cause of action upon each policy and therefore could maintain successive suits following the death of the insured.
This case is almost the exact opposite of that one and consequently is not governed by that ruling. Here only one policy was issued. Only one premium was paid. Under the printed contract the personal property coverage was expressed not in dollars and cents but as a fraction (40%) of the real property coverage. There was only one fire. Apart from the effect of valued policy law, the issues with respect to the real property loss were exactly the same as those with respect to the personal property loss. It is hard to conceive of a situation in which the first lawsuit would be so nearly identical with the second one.
Needless to say, the rule against the splitting of a single cause of action is intended to keep defendants from being harassed by a multiplicity of suits and to lighten the already overcrowded dockets of the trial courts. In finding the existence of a single cause of action we have placed some emphasis upon the fact that the several claims arise from a single transaction. Evermann v. Beck, 221 Ark. 138, 252 S.W. 2d 388 (1952). In the case at bar we are firmly of the view that the fire created only one cause of action and that the plaintiffs ought not to be permitted to subdivide that cause of action, thereby burdening the defendant and the courts with the waste of time and expense that attends a needless jury trial.
Affirmed.
Harris, C. J., not participating, and Fogleman, J. disqualified. | [
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J. Fred Jones, Justice.
In 1965 Abe Jones was the lessee of farm lands from Hurley Pickett Lake Farms, Inc. W. F. Sullivan was a regular employee of Jones, and while destroying a wasp nest outside a building on the leased lands, Sullivan negligently set fire to the building and it was destroyed. Lake Farms sued Jones and Sullivan in the Jackson County Circuit Court for $18,000 damages. A jury trial resulted in a judgment for $3,000 in favor of Lake Farms against Sullivan only, and Lake Farms has appealed. It relies on the following points for reversal:
“The trial court erred in overruling appellant’s motion to strike clarification of stipulation.
The trial court erred in overruling appellant’s motion for judgment notwithstanding verdict.
The trial court erred in overruling appellant’s motion for new trial.
The verdict of the jury awarding only $3,000.00 damages is contrary to the law and evidence and not supported by substantial evidence.
The verdict of the jury whereby they found W. F. Sullivan was not acting within the scope of his employment is not supported by substantial evidence and is contrary to the law and evidence.”
The record reveals the following facts: The appellee Jones had farm lands under lease from the appellant and on the farm was a frame building which had been built about 1960 for the purpose of housing itiner ant Mexican farm laborers and which had not been used for some time. The appellee Sullivan was a regular employee of Jones and in July, 1965, Jones instructed his employee Sullivan to clean up some cotton picking machines. Sullivan and a fellow employee moved the cotton picking machines into one end of the frame building for the purpose of working on the machines. After the cotton picking machines were moved into the building on Friday, Sullivan and his fellow employee went about destroying wasp nests inside the building. Sullivan returned to the building alone on the following Monday to work on the machines. After his lunch hour he worked on one of the machines awhile and while taking a break from his work, he noticed a wasp nest on the outside of the building. He threw some tractor fuel on this wasp nest and then lit a cigar and threw the lighted match down. The building caught fire and was destroyed.
This case was tried and verdict rendered for $3,000 on May 15,1967. Judgment was not rendered immediately by the trial court and on May 24, 1967, appellant filed a motion for judgment notwithstanding the verdict. After the motion was finally disposed of, judgment was entered nunc pro tunc for $3,000 on November 17, 1967.
As a part of the procedure on appellant’s motion for judgment notwithstanding the verdict, the attorneys entered into a stipulation on September 15, 1967, as follows:
“That counsel for defendants, Abe Jones and W. F. Sullivan, did not enter any testimony, either by witnesses or by physical evidence, contradicting or disputing the damages sustained by plaintiff.
That no witnesses for the plaintiff or defendants disputed the testimony of Bob Gardner, called as witness for plaintiff in his capacity as Manager of Hurley Pickett Lake Farms, Inc., that the rea sonable cost of replacing the building taking into consideration its depreciation was $17,524.87.”
On September 19, 1967, the attorney for appellees filed an instrument designated “Clarification of Stipulation” as follows:
“Comes Phillip D. Hout, attorney for Abe Jones and W. F. Sullivan, defendants herein, and in order to clarify the Stipulation of Facts filed herein on September 15, 1967, states:
That the defendants at no time prior to, during, or following the trial of this cause, admitted that the reasonable cost of replacing plaintiff’s building was $17,524.87; that this was a disiouted matter and an issue of the case for the jury’s determination ; that although no witnesses were called for the defense for the specific purpose of testifying as to a specific monetary amount of damages less than that to which plaintiff’s witness testified, the defense did in fact elicit testimony from Abe Jones, W. F. Sullivan, Bob Gardner and others as to the nature of said building prior to its destruction; that such testimony related to the size of the building, the materials used in the building, the construction of the building, the use of the building, and the general condition of the building prior to its destruction; that all of said testimony was such that the jury could consider in determining the accuracy of the testimony of plaintiff’s witness as to the reasonable cost of replacing the building.
The defendants, therefore, withdrew any and all stipulations in conflict herewith.”
The appellant filed a motion to strike the clarification, the motion was overruled by the trial court and appellant assigns this as error in its first point.
The stipulation, as well as the clarification, were filed within four days of each other. They were filed some four months after the case was tried and verdict rendered, and some two months prior to entry of judgment. The stipulation, as well as the clarification, had to do with what was and was not in the record pertaining to testimony on damages. The stipulation between the attorneys did not fix the amount of damages at $17,-521.87 rather than the $3,000 awarded by the jury, and the clarification filed by appellees’ attorney clearly sets out that such was not his understanding and intent. We hold that the court did not err or abuse its discretion in refusing to strike appellees’ clarification, and in looking to the record rather than the stipulation in passing on the motion for judgment notwithstanding the verdict.
The appellant’s second, third and fourth points are so closely related to the first point, and to each other, that we shall not treat them separately.
The facts in the case here are very similar to those in the case of Hall v. Gage, 120 Ark. 320, 179 S.W. 508, where the defendant’s wall fell on plaintiff’s building and damaged it. The plaintiff’s son in that case testified that the damage to the building amounted to $1,-500. The jury returned a verdict for $500, and on a new trial returned a verdict for $350. The plaintiff filed a motion for judgment for $1,500 notwithstanding the verdict, the motion was denied and judgment rendered on the verdict. In affirming the judgment this court said:
“It is true that no witness testified as to the amount of his damages except his son and that the jury might have found from the testimony of Hall’s son that he was damaged in the sum of $1,500, the amount sued for. But we do not think, under the circumstances, that it can be said that his testimony was undisputed. The plaintiff himself did not testify and it appears from the testimony of his son that the son was interested with his father in the building which was destroyed. Both the questions asked by plaintiff’s counsel and the answers made by the son indicate that the son was greatly interested in the building and was, therefore, directly interested in the result of the law suit. Moreover, the witness described the condition of the walls and the kind of building which had been erected by his father and himself. In other words, by the testimony elicited from him on his direct examination and cross-examination the jury were fully informed as to the character and kind of building erected and the probable damage thereto. ’ ’
The witness, Bob Gardner, was manager of the appellant corporation, and it cannot be said that he was a disinterested witness. He testified that on the basis of estimates procured from a lumber company, the replacement value of the building, less depreciation, was $17,524.87. He also testified that the building was constructed in 1959 to be used for the housing of Mexican laborers; that it had not been used since 1962, and that he had not attempted to determine the value of its loss of use. This court has held many times that the testimony of a party interested in the suit is not to be considered as undisputed, but the question must be submitted to the jury. Lynch v. East Arkansas Builders’ Supply Co., 193 Ark. 1004, 104 S.W. 2d 205; Zorub v. Missouri P. Rd. Co., 182 Ark. 232, 31 S.W. 2d 421; Lewis v. Lewis, 222 Ark. 743, 262 S.W. 2d 456.
In determining the sufficiency of the evidence to support a judgment, the evidence must be viewed in the most favored light to the appellee; and we must give thereto its greatest probative value in his favor, together with every reasonable inference deducible therefrom. Vaughan Hardware Co. v. McAdoo, 196 Ark. 471, 118 S.W. 2d 280.
Even though the appellant alleged damages in the amount of $18,000 in this case, the jury verdict for $3,-000 was a verdict for a substantial amount, and where a jury returns a verdict for substantial damages on conflicting evidence, a judgment entered thereon will not be disturbed on appeal ¡even though the evidence would have sustained a verdict for a greater amount. Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49.
Now as to the appellant’s fifth point, the test of the master’s liability for the negligence of his servant is not whether the act complained of was committed while the servant was in his employ, but whether it pertains to something incident to the employment and which it was the servant’s duty to perform, or was for the master’s benefit. C. J. Horner v. Holland, 207 Ark. 345, 180 S.W. 2d 524; United Transport, Inc. v. Wilson, 228 Ark. 1058, 312 S.W. 2d 191.
Both the appellant and the appellees have cited two cases close to the border line of the point involved in this case. Lindley v. McKay, 201 Ark. 675, 146 S.W. 2d 545, supports the appellees’ position if the facts are parallel and Vicennes Steel Corp. v. Gibson, 194 Ark. 59, 106 S.W. 2d 173, supports appellants’ position if the facts in the case at bar coincide with the facts of that case. In the McKay case, Lindley operated a fleet of trucks from Memphis through Arkansas into Missouri. Some of the trucks were operated by independent contractors and some were driven by regular employees. Britt Pierce, one of the regular employees, while driving through Arkansas to Missouri, picked up a hitchhiker, Ace Garrett, in Little Rock who requested a ride to Springdale, Arkansas. The truck Pierce was driving met one of the leased trucks being driven by Wilson and the two trucks stopped for the purpose of the hitchhiker, Garrett, interviewing the leased truck driver, Wilson, about employment. The two trucks were stopped about thirty or forty minutes during which time the three occupants of the two trucks ate a watermelon produced by Wilson, and one of the three cast aside a lighted cigarette which started a fire causing damages which resulted in a suit for damages against Lindley.
The jury found that the Lindley employee, Pierce, started the fire and this was not disturbed on appeal, however, a judgment rendered on a jury verdict against Lindley was reversed by this court in the following language:
“It is, however, earnestly insisted by appellant that even though we should conclude the evidence sufficient to establish that appellant’s employee, Britt Pierce, actually started the fire, there can be no recovery for the reason that, at the time of starting the fire, Britt Pierce was not in the performance of the business of his employer, appellant, Lindley, but had stepped aside from his employment.
We think this contention of appellant must be sustained. The undisputed proof in this case discloses that the purpose for which these trucks stopped on the side of the road was to afford Ace Garrett an opportunity to contact Reece Wilson in an effort to secure employment. After stopping for this purpose, Wilson produced a watermelon which the three men proceeded to consume. On the record here, no act was performed during this stop that could be deemed in the furtherance of the master’s business or done by appellant’s employee, Britt Pierce, while in performance of any duty required of him. The stop was made without appellant’s knowledge or consent and solely, we think, for the accommodation of Ace Garrett.
In a case of this kind the test is not whether the negligent act was committed while the servant was in the employ of the master, but whether it was committed at a time when the servant was perform ing an act in furtherance of the master’s business or in line with the servant’s duty.”
In the Gibson case supra, the appellant, through its employees, was getting out rocks from the land of appellee and a fire was started by one of the employees lighting a cigarette. It was argued that the lighting of the cigarette was not in the prosecution of the master’s business, and that the employee had departed from the prosecution of the master’s business and was accomplishing his own personal desires, solely for his own personal satisfaction. In affirming the judgment against the employer in the Gibson case, this court said:
“The fire having been set out by one of the employees, the question is whether the master was relieved from liability because this act of the employee was not within the scope of his employment. ’ ’
Then citing from Rex Oil Corp. v. Crank, 183 Ark. 819, 38 S.W. 2d 1093, the court continued:
“ ‘It is the law of this jurisdiction, as settled in numerous decisions, that the master is responsible for the negligent act of his servant, if such act occurs during the time the servant is engaged in the service of the master, although the act itself might have been unauthorized; but it is essential to the master’s liability that the wrong complained of must have been occasioned by the negligent conduct of the servant who, at the time, was acting within the scope of his employment.’
* * * ‘. . . as there is no definite rule by which it can be said that the acts of a servant are within or without the scope of his employment, each case of necessity depending upon its own peculiar facts and circumstances.’
* * *-
In the instant case, however, although the fire was set out by one of the employee’s smoking, there is no evidence that he, at any time, departed from the business of the master. In this case the master sent his employees onto the land of the appellees to get rock, which he was permitted to do by the appellees. If the master himself had gone on the land of another to get rock and while engaged in getting it set out a fire by smoking or otherwise, he would be liable for the damage caused thereby. He has the right to go on the land to get the rock, but with the obligation that no damage will be done to the landowner in getting rock. Of course, if he would be liable himself for doing the act complained of here, he would be liable if the act was done by an employee whom he had sent there. He takes the right to go on another’s land with the obligation that he will remove the rock without committing damages to the landowner.”
So in the case at bar, Sullivan was engaged in working on cotton picking machinery for his employer, Jones. We cannot say, as a matter of law, that he was still engaged in the service of his employer when he went outside appellant’s building, threw fuel oil on a wasp nest on the outside of the building, and then lit a cigar.
We conclude, therefore, that there was substantial evidence to support the jury finding that Sullivan was outside the scope of his employment and was not engaged in the service of his employer, Jones, at the time of appellant’s damage caused by the negligence of Sullivan, and that the judgment of the trial court should be affirmed.
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Carleton Harris, Chief Justice.
On January 17, 1967, J. W. Mabry purchased a 1967 Mustang from Rebsamen Motor Company, agreeing to pay Rebsamen the sum of $3,060.00 in equal monthly installments beginning on March 1. The contract was assigned to Worthen Bank and Trust Company in the usual course of business. Mabry defaulted in his payments, and on April 22, 1967, the bank filed a suit to replevin the above described automobile, which had been wrecked, and prayed that it have judgment against Mabry in the amount of $3,060.00, less the sales price of the replevined ear, and less all other credits due Mabry. Mabry answered, admitting that he had executed the conditional sales contract, and that he had agreed to pay the amount set out above in equal monthly installments, continuing until the principal sum was discharged. Other allegations were denied. A third party complaint was filed against American Colonial Insurance Company, appellant herein, alleging that he had insurance coverage with this company. It appears from this pleading, and the answer of American Colonial, that the coverage was originally on a 1963 model Ford automobile, which Mabry had previously purchased from Capital Motors, the policy contains a provision that if the insured acquires ownership of another automobile, and notifies the company within 30 daj^s following delivery to him, the insurance afforded by this policy will apply to the new automobile as of the delivery date. Apparently the 1963 Ford was traded in on the 1967 Mustang, and the Mustang was wrecked on February 6, 1967. In his pleading, Mabry asserted that he had turned his policy over to Jim Hodges, an agent of Bebsamen Motor Company at the time of the sale, since Hodges would not permit him to drive the new car off the lot otherwise; that he had made demand upon the company for the value of the car, $3,060.00, but that appellant had refused to make payment. Judgment was sought in that amount, plus 12% penalty, reasonable attorney’s fee and costs.
The company admitted that Hodges was an employee of Bebsamen, acting within the scope of his em ployment at the time of the purchase of the Mustang by Mabry. It was further asserted that at the request of Mabry the appellant cancelled a policy of insurance that it had issued to him covering the 1963 Ford purchased from Capital Motors, said policy being cancelled on January 28, 1967; further, the unearned premium of $128.75 was returned to Mabry at the time of the cancellation, and American Colonial therefore denied any liability. On trial, the court held that the company, having admitted the original issuance of the policy, had the burden of proof to show that said policy was not in effect on the date of the wreck. The court told the jury that, if the policy had been cancelled, there would be no liability on the part of the company. It was then stated:
“* * * The sole question the jury has to decide today is whether or not the policy which admittedly existed was cancelled within that thirty day period, or before the accident occurred that caused the damage to the automobile. That is the sole question for you to decide.”
Counsel did not desire to make an opening statement to the jury, and the attorney for the company stated:
“As I say, in order to discharge that burden of proof, American Colonial at this time introduces the original policy that was issued to Mr. Mabry, which is the original of the copy in the file.’’
Counsel for Mabry objected to the introduction, because of marks appearing on the policy, which were not on it at the time of its issuance, stating that the notation on the policy was in the nature of a self-serving declaration, and that whether the policy was cancelled was the matter presented for determination. In the right hand corner of the face of the policy there appears a stamp mark:
CANCELLED
Date .......................
How -________________________________
Bet. Prem. -.......................
For “Date,” there has been inserted with a pen, “1-28-67.” For “Flow,” there has been inserted with pen, “SB.” For “Bet. Prem.,” “$128.75.” The attorney for the company stated, “With the introduction of that instrument, American Colonial Insurance Company rests.” Counsel for Mabry then stated, “If the court please, we move for directed verdict at this point.” Counsel for the appellant responded, “Your Honor, please, we move for directed verdict at this point.” a directed verdict.” The court then directed the jury to find the verdict in favor of appellee, stating, “I am going to direct the jury to find the verdict in favor of the cross-complaint. When each side moves for a directed verdict then it becomes my responsibility to decide the ease. In the absence of proof, I am finding in favor of the cross-complainant against the insurance company.” From the judgment so entered, appellant brings this appeal.
For reversal, it is asserted that the court erred in failing to direct a verdict for appellant, and also that the court erred in directing a verdict for Mabry.
Of course, it is well settled that when each litigant asks for an instructed verdict, and no other instructions are requested by either side, they, in effect, agree that the issue may be decided by the court. National Garages, Inc. v. Barry, 217 Ark. 593, 232 S.W. 2d 655.
We agree with the trial court that the issuance of the policy not being disputed, the burden was on appellant to show that the policy was no longer in force — and that the cancellation was in accordance with the provisions of the insurance contract. The introduction of the policy did reflect that the company had issued same on May 28, 1966, but we think that is the only fact established by the introduction of this instrument. The policy provides that the insurance may be cancelled by a surrender of the purchaser’s copy of the individual policy, and also provides that the company may cancel any individual policy by mailing a written notice setting out when the cancellation becomes effective, such period to be not less than five days before the cancellation is to take effect. In each instance, it is provided that the unearned premium shall be returned to the holder of the policy or certificate.
In the present instance, there is insufficient evidence to show the policy was cancelled; the reason given under “How” is “SR,” which may or may not mean “Surrendered.” If that is the meaning of this notation in ink, this in itself does not establish such a fact. Cancellation could not properly be established without testimony (or a stipulation) showing that Mabry had surrendered the policy, and that same had been cancelled by a proper officer of the company. The stamp does not show how the company received the policy (mail or personal delivery), or who turned it over to American Colonial . These facts were essential to appellant’s case. Interrogatories propounded by appellee, and answers given by appellant appear in the transcript which shed light on these questions, but the interrogatories were never offered into evidence; nor could they be offered by appellant, since it was the party making answer. The answers to interrogatories are inadmissible if offered on behalf of the party making answer, as self-serving declarations. Callaway v. Perdue, 238 Ark. 652, 385 S.W. 2d 4.
Accordingly, the only evidence in the record is the certificate of insurance which reflects that it was issued to Mabry on May 28, 1966, to remain effective for a period of two years. The evidence was insufficient to show that the insurance was properly cancelled under the provisions of the policy.
Affirmed.
Actually, the instrument was an “automobile certificate of insurance,” issued under a master policy, the certificate providing that an insured is covered under the master policy for the term specified (two years in this instance), but that the company shall not be liable for any amount except the actual cash value of the property insured.
It will be remembered that Mabry’s allegation in his pleading was that the policy had been turned over by him to an employee of Eebsamen Motor Company at the time he purchased the Mustang. | [
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John A. Fogleman, Justice.
This appeal is taken from a deficiency judgment rendered against appellant on a note representing the deferred purchase price of an automobile sold him by appellee. Error in granting the judgment on appellee’s complaint and in failing to grant a judgment in favor of appellee on a counterclaim is asserted.
The thrust of appellant’s argument on the deficiency judgment is that notice required by Ark. Stat. Ann. § 85-9-504(3) (Add. 1961) was not given.
The automobile was repossessed by appellee. Appellee testified that he told Barker the next day after the repossession that he was going to sell the car to the highest bidder. There is no evidence that any mention was made of the time or place of sale. On cross-examination, appellant denied that he received a letter from T. E. Martin on September 9, 1966 by registered mail. He identified Nina Barker as his wife. He denied that his signature appeared on a card exhibited to him. If this was a return receipt for registered mail, it was never introduced. Appellee stated that T. E. Martin was Ms attorney and apparently sought to testify that he had a copy of a notice Martin had sent. The copy was not introduced when objection was made on account of lack of personal knowledge by the witness. Thus, there was no evidence upon which to base any finding that notice was given. There is no contention that such notice was not required in this case. The statute requires notice of the time and place of public sale. While only reasonable notification of the time after which a private sale will be made is required, appellee’s oral notice was of a sale to the highest bidder without specification of any time. For this reason, it cannot be said to constitute reasonable notice.
Section 85-9-507(1) provides that a debtor has a right to recover any loss caused by a failure of the secured party to comply with §§ 85-9-501 — 7 in disposing of collateral. There is a presumption that the collateral is worth at least the amount of the debt in such eases, so that the secured party has the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law. Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W. 2d 538. The only evidence offered by appellee on this point was that he sold the car to Arnold Ed wards for $275.00. No effort was made to show that this was the value of the vehicle or the amount it should have brought. Thus, there is no evidence to support any judgment in favor of appellee.
Appellant’s counterclaim was for new tires he claimed to have put on the automobile and tools he left in the trunk thereof. Appellee repossessed the car from a repair shop where it had been left by appellant. Appellee testified that there were no tools in the car at that time and that the tires on it were “rags.” We cannot say that the finding of the trial court on the counterclaim was not based on substantial evidence.
The judgment of the circuit court in favor of appellee on his complaint is reversed and the cause dismissed. The judgment on appellant’s counterclaim is affirmed.
Byrd, J., not participating. | [
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RITA W. GRUBER, Judge.
|,Ann Shull Bell and her son Nelson Bell bring this pro se appeal from an order of the Lonoke County Circuit Court that approved a final accounting by appellee Bank of America, N.A., upon its resignation as trustee of the Shull Family Revocable Trust. The Bells argue that they are entitled to the detailed billing records of a law firm that represented the bank during its time as trustee. We affirm the circuit court.
The Bells are the beneficiaries of the Shull Family Revocable Trust. In De cember 2009, the bank notified Ann Bell that it was resigning as trustee and that she had the right to appoint a successor trustee. The trust instrument did not require court approval if the bank |2gave sufficient notice.
On January 13, 2010, the Bells filed a petition seeking to terminate the trust. The petition alleged that the attorney who drafted the trust instrument had unduly influenced the settlor. The petition also alleged that the bank had mismanaged the trust, resulting in a loss of approximately $250,000. The Bells amended their petition to also allege that the purpose of the trust was unlawful and imposed unreasonable restrictions on the trust property. The bank answered and denied that it had mismanaged the trust. It also asserted that it had complied with its duties under the trust instrument and applicable law, that the Bells had received all payments as provided by that trust, and that the Bells had not suffered any damages.
Following a March 31, 2010 hearing, the circuit court entered an order on April 20, 2010, denying the petition to terminate the trust, finding that the Bells failed to meet their burden of proof. The court, finding that the bank fully and properly accounted to the Bells, approved the bank’s accounting. The bank was to remain as trustee for another twenty days and then be discharged. The court allowed the Bells ten days from the date of the hearing to appoint a successor trustee, and the court entered an order appointing BancorpSouth as successor trustee on April 12, 2010. The Bells did not appeal from the order denying their petition to terminate the trust.
By letter dated October 13, 2010, the Bells requested that Bank of America account |sfor all fees paid to the law firm of Wright, Lindsey & Jennings, LLP (WLJ or the law firm) and sought full invoices showing all billable hours.
On November 2, 2010, BancorpSouth filed a petition asserting that Ann Bell had exercised her authority under the trust instrument to remove it as trustee. The transfer of assets from Bank of America to BancorpSouth was completed on November 4, 2010. On November 22, 2010, the circuit court entered an order discharging BancorpSouth as trustee and confirming Ann Bell’s appointment of herself as successor trustee. The court found that Ban-corpSouth had properly accounted to the Bells and awarded it an attorney’s fee of $6,798.
The present case began when the Bells filed a petition against Bank of America on January 24, 2011, seeking an accounting of the fees paid to the law firm, including the detailed billing invoices submitted by the law firm. Bank of America responded, alleging that it had fully accounted to the Bells and had been discharged by the circuit court. It further alleged that much of the delay and consequent fees resulted from actions taken by the Bells.
A hearing on the petition for accounting was held on April 21, 2011. Although no testimony was taken, the Bells argued that they were entitled to the invoices from the law firm. The bank argued that it had already accounted to the Bells and been discharged by the circuit court. The bank also submitted the itemized statements for the circuit court’s in-camera review. After reviewing the documents, the court approved the payment of the fees to the law firm. The circuit court’s written order was entered on April 29, 2011. The court also released and discharged the bank for all periods of its administration of the trust. The court further found that, should the Bells initiate further actions against the bank relating to |4its administration of the trust, the bank would be entitled to its attorney’s fees in defending such claims. The Bells timely filed their notice of appeal.
Probate proceedings are reviewed de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Edmundson v. Estate of Fountain, 358 Ark. 302, 189 S.W.3d 427 (2004). Pro se appellants receive no special consideration of their argument and are held to the same standard as a licensed attorney. Hayes v. Otto, 2009 Ark. App. 654, 344 S.W.3d 689.
The Bells’ main contention appears to be that they are entitled, under both Arkansas law and the trust instrument, to the detailed invoices provided to the bank by the law firm. We disagree. In Salem v. Lane Processing Trust, 72 Ark.App. 340, 343, 37 S.W.3d 664, 666-67 (2001), we held that a trust beneficiary “is always entitled to such information as is reasonably necessary to enable him to enforce his rights under the trust or to prevent or redress a breach of trust.” Id. (quoting the Restatement (Second) of Trusts, § 173 cmt. c (1959)). In that case, we affirmed the denial of unlimited access to all of the records of the trust by the beneficiary because the beneficiary failed to articulate a need for the documents other than a vague need Rto prevent or redress a breach of trust. We noted that “Arkansas law presumes a trustee has acted in good faith and places the burden of proof upon those who question his actions and seek to establish a breach of trust.” 72 Ark.App. at 343—44, 37 S.W.3d at 667. The Salem court also agreed with the trial court’s statement that the beneficiary was “not particularly interested in vindicating his own rights under the trust,” but was interested in continuing a pattern of “vexatious lawsuits” derived from “second-guessing everything that [the trustees] have done.” 72 Ark.App. at 342-43, 37 S.W.3d at 666.
The Bells’ request for the WLJ billing records falls squarely within the circumstances of Salem. In their brief to this court, the Bells assert that they need access to the invoices in order to ascertain whether they were overcharged and to determine whether there has been a breach of fiduciary duty. However, in its April 20, 2010 order denying the Bells’ petition to terminate the trust, the circuit court found no indication that the trust had been mismanaged. The Bells do not assert that there is any new evidence of mismanagement by the bank. Moreover, at the hearing on the petition for accounting, the Bells did not specify any reason other than that the trust was paying attorney’s fees to WLJ and two other law firms, Friday, Eldredge & Clark, LLP and the Rose Law Firm. Although Ann Bell ac knowledged that she had a statement from the bank showing the amounts paid to WLJ, she still wanted the detailed billing invoices. Bell also said that she was trying to protect the trust.
IfiWhat is reasonable is generally a question of fact. Salem, 72 Ark.App. at 344, 37 S.W.3d at 667. Because the Bells were reasonably informed as to what the bank was paying WLJ, we cannot say that the circuit court clearly erred in denying the Bells access to the detailed billing invoices. The statement provided by the bank covers the period of January 1, 2010, through November 20, 2010, shortly after the bank transferred the trust assets to its successor trustee, BancorpSouth, and shows that the trust paid fees of $22,905.29 to the law firm during that period. This period included the litigation over the termination of the trust. The statement also shows the receipts, disbursements, and distributions made by the trust, thus complying with the requirements of Ark.Code Ann. § 28-73-813 (Supp.2011) and the trust instrument. Contrary to the Bells’ argument, this statement also shows that they were receiving regular distributions from the trust, as well as having expenses such as medical bills, insurance premiums, mortgage payments, and household repairs paid by the trust. The expenses for which the Bells sought reimbursement were expenses associated with the litigation they instituted and in which they did not prevail and for certain veterinary bills.
The Bells also raise arguments concerning the circuit court overruling a hearsay objection regarding an email from Nelson Bell that the bank’s attorney characterized as threatening to continue the litigation if the bank did not pay the Bells $7,000. Nelson Bell objected on hearsay grounds, which the circuit court overruled. In their brief on appeal, the Bells have changed the basis of their objection to argue that the email was inadmissible as a 17proposed offer of settlement. It is a basic rule of appellate procedure that an argument cannot be changed on appeal. Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996).
The Bells also raise arguments about the fees paid to WLJ being excessive under the model rules of professional conduct, the bank engaging in self-dealing and thereby forfeiting its compensation, as well as the circuit court preemptively awarding the bank its attorney’s fees should the Bells initiate further litigation against the bank over its administration of the trust. However, these arguments concerning the fees were not raised below and it is axiomatic that we will not address an argument that is raised for the first time on appeal. City of Ft. Smith v. McCutchen, 372 Ark. 541, 279 S.W.3d 78 (2008).
Additionally, the Bells argue that the circuit court was biased against them. This argument is not preserved for our review. To preserve a claim of judicial bias for review, an appellant must have made a timely motion to the circuit court to recuse. S. Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003); Ashley v. Ashley, 2012 Ark. App. 230, 2012 WL 1111381. After the court announced its ruling, Ann Bell asked to approach the bench. When the court denied the request, Bell said she wanted another judge. Bell then said that “[tjhere are other recourses that I have too.... You have no idea.” Assuming ar-guendo that it is a proper motion, we have held that recusal is not required where, as here, the motion did not come until after the circuit court ruled against the party seeking recusal. Powhatan Cemetery, Inc. v. Colbert, 104 Ark.App. 290, 292 S.W.3d 302 (2009).
Affirmed.
PITTMAN and HOOFMAN, JJ., agree.
. We previously ordered supplementation of the record and rebriefing. Bell v. Bank of Am., N.A., 2012 Ark. App. 104, 2012 WL 286582.
. The trust instrument was titled a "revocable trust.” The Bells, however, labeled it an "irrevocable trust” in some of their pleadings.
. The attorney was named in the trust instrument to serve as an advisor to the trustee or any successor trustee following the death of the settlor.
. Although this case was originally filed in the probate division of circuit court, it should have been filed in the civil division because the exclusive jurisdiction in cases involving trusts, and the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity, Ruby G. Owen Trust ex rel. Owen, 2012 Ark. App. 381, 418 S.W.3d 421, and courts of equity have inherent and exclusive jurisdiction of all kinds of trusts and trustees. Id. The same standard of review applies. See id.
Amendment 80 to the Arkansas Constitution abolished chancery courts and vested jurisdiction for actions in equity and law in the circuit courts. First Nat'l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005). The designation of divisions is for the purpose of judicial administration and caseload management and is not for the purpose of subject-matter jurisdiction. Ark. Sup.Ct. Admin. Order No. 14.
. The bills from the Friday Firm involved the attorney who drafted the trust instrument for the settlor and was named in the trust instrument to serve as advisor to the trustee or any successor trustee. The bills relate to the attorney's involvement in the litigation over the Bells' petition to terminate the trust. The Rose Law Firm represented BancorpSouth during the period when that bank served as trustee.
. It appears that the premiums were for medical insurance, automobile insurance, and homeowner’s insurance.
. We believe that the circuit court’s statement concerning attorney's fees, although an unfortunate choice of words, was in the nature of an admonition to the Bells of the consequences they faced should they institute further litigation against the bank over these same issues. | [
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