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Smith, J.
This ivas an action for the recovery of the value of a mule, alleged to have been killed b}^ a passenger-train, The defendant admitted the fact of the injury, but. denied all negligence, and alleged affirmatively that the cause of the injury was the plaintiff’s carelessness in hobbling; the mule and turning it out in the vicinity of the railroad.
The evidence tended to prove that the plaintiff had tied, the mule’s head to one of its forefeet with a halter to prevent it from breaking fences, and.had turned it-out to graze- upon the commons ; that the train was running at the speed of twenty or twenty-five miles an hour, which was not above-schedule time ; that the engineer first saw the mule in the-act of coming upon the ti'ack, about sixty yards in front of the engine ; that the brakes were immediately called for and put on, the engine reversed and the alarm whistle sounded,, but the track was wet and slippery, and the hobbled condition of the mule impeded its motion and prevented it from getting out of the way; that the train was not materially checked before the mule was siruck and it would have required not less than one hundred yards, perhaps two hundred in the existing state of the track and with only handbrakes and the other appliances then at hand, in which to stop the train.
The jury found a verdict for the plaintiff. One of the assignments in the motion for a new trial assailed the verdict as being contrary to the evidence.
Several questions have been argued here, but we notice only one. A new trial should have been granted on the merits. The statutory presumption of negligence, arising from the circumstance that the mule was run down by the train, was as completely rebutted as it is possible for evidence to rebut it in any case. The engineer and fireman, the only eye-witnesses of the accident, told a plain and consistent story. Their testimony as to the substantive facts of the injury was not discredited, nor was it even controverted by the plaintiff’s witnesses.
In Kentucky Central R. Co. v. Talbot, 78 Ky., 621, the court of appeals of Kentucky, construing a similar statute, say: “The statute is in derogation of the rule (that negligence must be affirmatively proved) and grows out of the difficulty ordinarily supposed to exist with the plaintiff in making proof of facts presumed to be peculiarly within the knowledge of the defendant or its employes. Therefore whenever the consciences of those in whose breasts the fact, if in existence, is presumed to rest, are purged, the reason for the law ceasing, the ordinary rule ceases, the prima facie case is overcome, and the plaintiff has failed to make out his case. It appears to us that the only safe and just rule in a case arising under this statute is, that the railroad company should be required, when in its power, to introduce as witnesses those employes who, from the circumstances of the particular case, would be presumed to know whether there had been any negligence on the part of the company ; and when, unimpeached, such witnesses testify that there was no negligence, and the circumstances do not contradict them, the law is for the defendant.”
We have not attached any special significance to the fact that the mule’s foot was fettered. If it was negligence in the owner to turn his beast loose in this condition, it was probably too remote to affect the case, provided the defendant could by the exercise of ordinary care have avoided injuring it. In Davis v. Mann, 10 Mees. & W., 545, the plaintiff, having fettered the fore feet of his ass, had turned it into a public highway. The ass was grazing on the side of the road, when the defendant’s wagon and team, coming down the road at a “smartish pace,” ran against the ass, knocked it down and killed it. The driver of the wagon was some little distance behind the horses, Erskine, J., told the jury that, though the plaintiff’s act, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages traveling along it, might be illegal, still if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and he directed them to find for the plaintiff, if they thought the accident might have been avoided by the exercise of proper care on the part of the driver. And a rule for a new trial, on the ground of misdirection, was refused by the court of exchequer. See also L. R. & F. 8. R’y. v. Finley, 37 Ark., 536.
Reversed and remanded for a new trial. | [
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Eakin, J.
Mary McKibbin, the owner of a half block of land in Ft. Smith, which she occupied in solido as a residence under enclosures, applied in chancery and obtained a perpetual injunction upon the city authorities, restraining them from proceeding to open an ally through the premises.
The city claimed the alley as having been dedicated to public uses, and as being already subject to its control, and was about to proceed to remove the obstructions. Although the terms of the injunction were general, the decree was not intended, and will not have the effect, to preclude the city from hereafter opening an alley there, in the proper exercise of its powers, as in case of a new alley, if the public convenience should require it.
“The city appeals.
The facts of the case are simple. The blocks of the city-are 800 feet square, with a street upon every side. They are divided each into 12 lots, fronting, 6 each, upon opposite streets, and runniug back to a 20 foot alley, which runs between the two ranges of lots. These lots are numbered from 1 to 6 on one side, and reversely from 7 to 12 on the other side. The appellee owned and occupied lots 4, 5, 6, 7, 8, 9, which composed a half of the block, taken across the supposed alley. The other half of the block was owned by two others, having each a quarter of the block on the other corners. They had also taken, each, a portion of the alley into their enclosures, so that there was really no passway there. None of the parties needed or desired one.
The alley, according to the plat of the town, extends straight for a long way, each side, through blocks in the same range, and was not in any other place obstructed. The portion of the town, in Avhich the block lies, was not thickly built; the streets Avere unobstructed, and it is clear enough, from the evidence, that there was no public necessity for the alley. It does not, in any AA7ay, appear that it would have been of the slightest convenience to any one Avhatever. It does appear that to open it would, in a great measure, destroy the utility and comfort of the premises as the appellee’s home.
The blocks, lots, streets and alleys had been mapped and platted bp the original owner of the site of Ft. Smith, which plat had been accepted by the city as detraining the streets and alleys, and Avhich had been referred to in conveyancing. All the deeds in a pretty long chain of title, under Avhich appellee held, described the property by lots, running back 140 feet to an alley. None of them expressly gave property in the alley itself. So far as these facts constituted a dedication to the public, the alley had been dedicated, and had passed under the control of the city authorities.
The enclosures had been there for a long time beyond the period of limitations, and were there when appellee purchased. The premises had been used continuously as a home, with the assent of all co-owners in the block, AA7ho themselves desired that the alley should not be opened.
It appears affirmatively, indeed, that the municipal .authorities did not consider it necessary to the public, for they had offered to, permit the appellee to maintain her enclosures, for an indefinite time, if she would acknowledge the •city’s right, and agree to open the alley at a future time, when requested. She refused, and the city Avas about to order their remoA7al by the marshal, when she invoked the aid of the Chancellor. The city, indeed, desired only to settle a right, by an effort to exercise it. Perhajas thát Avas pi’oper enough, in vieAv of the official trust reposed in the ^officers, but nothing Avould have been lost by leaving the appellee in the enjoyment of her home until the alley should have been needed, if ever. The city’s rights were as effectually barred as they could be, by time.
She claims that the action of the city was oppressive, as well as unauthorized. That the alley was never dedicated to the public, and that if it were, the right of the pality to control it had been lost by limitation.
It is convenient to consider the last question first. It is one of great importance which has been frequently considered in other states, and with regard to which there is much conflict of authority. It may be presented thus : Is a city or town corporation, with respect to property or powers which it holds in trust for the public, bound by the statute of limitations, so as to be precluded, by lapse of time and adverse holding, from claiming to control the property or exercise the power? With regard to property, or -Contract rights which the municipality claims for its own convenience as a corporation, there is little difficulty. Almost, if not quite, all the authorities concur in holding in such cases that it is amenable to the statute ; and we think it obvious that it should be, on principle. Quoad haec, it •does not represent the sovereignty of the people, but only itself, and the local interests of citizens.
The trouble arises where the powers are held in trust, not for the members of the body corporate alone, but for the whole people who may come' to the city. The most common cases are those arising with regard to the use of streets, ■squares, parks and commons which have been dedicated to the public. Appellees contend that in this respect alleys do not stand upon the same ground with streets and squares ; but waiving that for the present, we will consider the question with regard to all.
If municipalities are not bound by statutes of limitations with regard to these public trusts, that is, with regard to their powers to keep open streets, &e., it must be upon the maxim that “nullum tempus occurrit regi,” and that municipalities are the adjutants of government, and have the fianchise of sleeping upon their rights ; or, rather, that the public must not suffer from their neglect.
But municipal corporations are not really the State, nor are their functions and powers conferred principally for the benefit of the whole people of the State, although, incidentally, they hold some trusts in the exercise of which any citizen of the State may come to be interested. It may well, be doubted whether the reason of the maxim may not be strained too far in applying it to these bodies. That “the time and attention of the sovereign must be supposed to be occupied by the cares of government,” might well have excused a king from asserting his rights, but affords no reason why the officers of a corporation should not be reasonably diligent in the discharge of the very duties they were-selected to execute. Nor does it afford a reason why citizens,, daily sensible of an encroachment on their common rights, should be allowed to lie dormant for many years, and then assert them to the detriment of others. The maxim should not become the instrument of wrong. The more wholesome-rule for the citizen individually, and collectively as well, is that the laws favor the vigilant only, and not the careless and slothful.
It has been said, speciously, that municipal authorities can not grant away these public easements, and that no one-can therefore claim, “by prescription,” to impede them,, because a prescription implies an original grant. This may be, and is, the true nature of a claim by prescription, but the argument seems to rest on a confusion of ideas. One who sets up the defense of the statute of limitation does not claim technically by prescription, and cannot be met with that technical argument. He defends by statute entirely, regardless of any consideration of grant, or even lawful entry. He is allowed to go further, as a eonse quence, and say that as no suit can be brought against him, his possession shall not be disturbed in pais, and that he and his assignees shall stand upon the effect of the statute, and be respected as owners.
The authorities upon the vexed question, here presented, have been collected, and the principles discussed by Mr. Dillon in his work on municipal corporations. It is conceived that nothing important can be added to his text, notes and citations, for a full showing of the authorities upon each side and the reasons by which they are supported. See Dillon on 2fun. Corporations, sections 667 to 675, 3d ed. Whilst he himself comes to the conclusion that no laches on the part of the officers of a corporation can defeat the right of the public to its public streets and places, he yet qualifies it by saying that private rights may grow up in consequence of such laches of ‘■'■more persuasive force in the particular case than those of the public.” It seems to be a compromise between the doctrine of a statutory bar, and that of "nullum tempus, die.,” by adopting the equitable doctrine of staleness and estoppels in pais.
The authorities are reviewed at length in the case of City of Wheeling v. Campbell et. al., 12 W. Va., 36. It is a very interesting and instructive case, in support of the doctrine that municipal authorities are bound, as individuals are, by the statute of limitations. There the parties were reversed. The city sought to enjoin the defendants from building a house upon a portion of a street, concerning the original dedication of which there was no question. The defendants set up long and adverse possession, and were met by the doctrine of nullum tempus. The authorities on both sides are well arrayed, and the court held upon their decided weight, that the city was subject to the statute and was barred. The court, amongst other things, quoted the remarks of Chief Justice Dillon in the City of Pella v. Scholte, 24 Iowa, 283, which was a contest of the right of the city to a certain garden square claimed by7 adverse possession. Assuming the dedication, the learned Judge said : “To actions of this character, though brought in equity, the ten years limitation applies directly7 or by7 analogy.” Further on he says, speaking of the doctrine of nullum tern-pus, etc. : “the principle has not, so far as we know, been extended to municipal or public corporations. On the contrary it has been expressly held, that those corporations are within the statute of limitations, the same as natural persons,” citing cases in Ohio, Kentucky and New York.
We cannot but admire and commend the independence and integrity of character of the distinguished Jurist, which prompted him, afterwards, in his text book, upon what seemed to him a more enlightened view, to announce a different conclusion. Still we must accord to his utterances, as Judge, of the concurrent opinion of himself and his associates, a greater weight than to his individual views as a text-writer.
Another one of the numerous authorities cited in the City of Wheeling case (supra) is that of Dudley v. Trustees of Frankfort, 12 B. Mon., 610, a case directly in point with this. It was an injunction to restrain the marshal from removing an enclosure of Dudley off the street, as an obstruction. Dudley7 claimed by statute of limitations. The court adopted a reasoning which this court approves. Hise, J., delivering the opinion, said. “If the private citizen, at any time, encroach with his buildings and enclosures, upon the public streets, the municipal authoiities should, in the exercise of proper vigilance, and of their undoubted authority7, interefere by the legal means provided in their charter, to prevent such encroachment, in due time, and thus preserve for public use the squares, streets and alleys of the town, in their original dimensions ; but if a private individual or citizen, has been permitted to remain in the continued adverse actual possession of public ground, or of a public street, as embraced within his enclosure, or covered by his dwelling or other buildings, for a period of twenty years or more without interruption ; such citizen will be vested thereby with the complete title to the ground so actually occupied by him.”
The court in the West Virginia case conceded that the-doctrine which exempted municipal corporations from the operation of the statute of limitations, obtained in, and was supported by, the decisions of Pennsylvania, New York, Rhode Island and Louisiana, whilst a contrary doctrine was announced by the highest courts of Vermont, Massachusetts, New York, Connecticut, Maryland, Virginia, North Carolina, South Carolina, Mississippi, Texas, Missouri, Kentucky? Ohio, Illinois and Iowa, all of which, says the court, “have restricted the application of the maxim to sovereignty alone ; and most of said courts have, in express terms, in cases requiring the decision, held that municipal corporations, like natural persons, are subject to limitation statutes. ”
These views commend themselves as reasonable and best adapted to the circumstances of our country, and we adopt the line of decisions in accordance Avith them.
Affirm the decree. | [
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RITA W. GRUBER, Judge.
| ¶ Deanna and Peter Hudson were divorced in October 2005, and Ms. Hudson was awarded custody of their four-year-old daughter. Mr. Hudson, who lived in Tennessee, was awarded visitation that included two months and two weeks each summer. He filed a petition to change custody on August 16, 2010, setting forth concerns that the child’s emotional health and safety had been affected by the situation in her mother’s home, where a violent boyfriend lived with Ms. Hudson. The circuit court entered a temporary order reflecting a September 2010 agreement between the parties, which forbade Ms. Hudson from allowing Joe Chaffee (the boyfriend) to reside in her home while the daughter was present or allow him to contact the child. Mr. Hudson was also awarded, during the pendency of his action, additional 1 ¿visitation every other weekend and during school lunch once each week.
After conducting a hearing in January 2011, the court issued a letter opinion denying the change of custody. The court complimented Mr. Hudson for acting in his daughter’s best interest by bringing to light issues of concern and the child’s unhappiness with Mr. Chaffee. The court acknowledged Mr. Hudson’s substantial sacrifice of residing in Mountain Home during the majority of the previous school year and noted the benefit he had received through his visitation time. The court found that Mr. Hudson’s actions had resulted in the prior situation being substantially resolved, and it did not find a significant change in circumstances affecting the child’s best interest or jeopardizing her well being and warranting a change of custody. The court filed a subsequent written order on July 26, 2011. Mr. Hudson raises one issue on appeal, contending that the circuit court erred in finding no substantial change in circumstances sufficient to modify custody. We affirm.
Attached to Mr. Hudson’s petition to change custody was a letter from a Tennessee counselor who had seen the child, M.H., during the summer of 2010 to discuss problems she reported about her mother’s home. Among the reported problems were that she was made to stay outside while taking care of her siblings and that she watched them while her mother and boyfriend fought in the bedroom. According to the report, the daughter believed that her mother had been hit during one fight, after which the mother took the children to the grandparents’ home and the boyfriend threatened to burn the house and kill the dog; the children stayed there for three days and then returned home. The daughter had been very afraid of the boyfriend since that time — worrying while at home, fearing for her safety even |swhile away, and fearing that her house would burn while she slept.
The child explained to the counselor that she was having difficulty in school because no one would help her with school work and because, even on extremely hot days, she had to stay outside while her mother and boyfriend were inside. In mother-daughter telephone conversations during visitations with the father, according to the child, the mother made promises that things would be different at home — but they never were. The counselor had serious concerns about the emotional harm the child experienced in the mother’s home and concluded that there was a possibility the child could be in imminent danger if she were returned.
At the final hearing, testimony was given by the parties; M.H., who was then nine; the assistant principal at her school, Cassie Fowler; and Ms. Hudson’s mother, Vesta Bush. Ms. Hudson testified that she also had two young sons: a four year old whose father she married in 2006 and never divorced, despite not living with him for the three years preceding the hearing; and an eight month old fathered by Mr. Chaffee, whom she had not married. She testified that she and Mr. Chaffee began living together in the summer of 2008 but separated in September 2010 shortly after Mr. Hudson initiated court proceedings. She testified that she was afraid of Mr. Chaffee at times, but had not realized how strongly her daughter, who would have picked up on that fear, felt about him and had not realized that she was upset or uncomfortable with him. Ms. Hudson admitted that there had been weekly fighting, arguing, and yelling between the couple in the home when the children were there. She denied that |4the arguments were physical, that Mr. Chaffee threatened her or her children, that he threatened to burn the house or kill the dog, or that she told anyone he had made such threats.
Ms. Hudson testified that she previously had worked from 10:00 p.m. to 6:00 a.m. but in September 2010, around the time that court proceedings were initiated, she began working the 6:00 a.m. to 2:00 p.m. shift. Her four year old was in daycare, and the baby stayed with Mr. Chaffee. M.H. stayed Wednesday and Thursday nights at her maternal grandmother’s, where for five years she had always “spent a night or two,” and the grandmother took her to school Thursday and Friday mornings. M.H. rode the school bus from the home of Ms. Hudson’s friend other mornings and occasionally took the afternoon bus to her mother’s job, but Ms. Hudson usually did the after-school pickup. She said that she had attended every meeting requested by teachers since M.H.’s kindergarten year, was in contact about teacher meetings and progress reports, and usually spent an hour with the child on homework, a schedule that the grandmother also kept.
Ms. Hudson said that her mother had mentioned that M.H. “wasn’t real thrilled about Joe,” but summer visitation was about to begin and Ms. Hudson never discussed it with M.H. Ms. Hudson testified that she could “absolutely abide” by a court order forever prohibiting Mr. Chaf-fee from having contact with the daughter, should one be given, explaining that the couple communicated to transfer the eight month old and met during M.H.’s school hours and that pick-up could also be by Mr. Chaffee’s mother or at her home. Expressing concern about M.H.’s health and the possibility of her becoming diabetic, Ms. Hudson said that M.H. Rusually re turned from summer visitation ten to twenty pounds heavier than when she had left.
M.H. testified that she had lived primarily with her mom in Mountain Home since the divorce, first with her stepdad and then Mr. Chaffee, but he could no longer be around her because of an order of protection. She said that there was a lot of screaming and door slamming with him, and one argument was so bad she cried: he slammed the door and yelled and said a bunch of cuss words, and she overheard her mother say to her grandmother that he threatened to burn down the house. She reiterated her mother’s testimony about staying at her grandparents’ house each week, about transportation for school, and about not telling her mother that she was uncomfortable with Mr. Chaffee. She said that she liked seeing friends at her mom’s house, would rather play than watch her brother, and did not like it when he did not listen or when her mother and Mr. Chaffee fought. M.H. said she knew that she would have to move should the court change custody, she had a really good relationship with her Tennessee stepmother and six-year-old sister, there was nothing she did not like about her dad’s house, and she wanted to live with him and visit her mom in the summer.
Mr. Hudson testified that he lived in Tennessee after his 2005 divorce and always exercised his visitation, which included family activities and summer day camp. He related that toward the end of summer break in 2010, M.H. had become emotional, nervous, upset, and extremely reserved and apprehensive. He followed the advice of a friend who dealt with 16family cases to get M.H. a counselor, allowing her to talk about her problems without fear of them being expressed to anyone else. He testified that he contacted Ms. Hudson a few weeks before summer visitation ended and told her that “something was going on” and M.H. wanted to live at his home in Tennessee.
Mr. Hudson testified that he had accompanied M.H. back to Arkansas at the end of visitation, initiated court proceedings, attended a hearing concerning the order of protection, and arranged to stay in Mountain Home until the permanent hearing. He testified that he continued to observe the same emotional problems in M.H., including an hour-long emotional breakdown in October when he and she were building chicken-nest boxes: she progressed from uneasy to mad, threw the hammer, cried, and said she wanted to go home to her stepmother and stepsister. Mr. Hudson expressed concern about the amount of time M.H. spent outside her mother’s home, such as the amount of time with grandparents. He believed that Ms. Hudson neglected M.H.’s educational needs and let her rely on her grandmother to study with her. He said that he was unhappy with a C she had made, so he had been studying with her on Wednesday nights.
Mr. Hudson said he had no reason to believe that the order of protection had been violated or that M.H. had been exposed to Mr. Chaffee. He admitted that his current wife had moved in with him a few months before they married, and there had been a ten-day period when they were living together and M.H. was visiting. He said that his parents lived in Calico Rock but had no contact with M.H. except for his visitation during holidays, and that there was no more family in Nashville.
|7Vesta Bush testified that she had talked to Mr. Hudson about M.H. having difficulty doing homework close to bedtime, explaining that until three weeks ago M.H. did not have it done when he brought her over at 8:00 p.m. Wednesdays. She testified that over the last six or seven years, she had seen M.H. three to five days each week. M.H. regularly spent Wednesday and Thursday nights with her, and Ms. Bush had kept her on weekends when Ms. Hudson worked the third shift. Ms. Bush testified about becoming aware just before summer that M.H. did not care for Mr. Chaffee and about addressing the topic with Ms. Hudson, but Ms. Bush denied that M.H. was afraid of him. She said that she knew of no contact between Ms. Hudson and Mr. Chaffee except when they exchanged the baby, and she stated her belief that Ms. Hudson had made adequate arrangements to shield M.H. from Mr. Chaffee.
Ms. Fowler, the intermediate-school assistant principal, testified that she had no information that Ms. Hudson was not interested in M.H.’s progress and had no contact with Mr. Hudson before August 2010. She said that M.H.’s fourth-grade academic progress was “fine,” she was making average grades, and she had done well the previous year on benchmark standardized tests.
Mr. Hudson contends on appeal that the circuit court erred in denying his petition to change custody. He points to M.H.’s bravery in exposing the issues of domestic abuse, the existence of an order of protection against Ms. Hudson’s boyfriend prohibiting contact with M.H., and the child’s court testimony that she preferred residing with her father. He notes Ms. Hudson’s testimony confirming “the existence of domestic violence” and the fact that she resided with the offender while married to someone else. Based on testimony at the hearing |sand on case law, he concludes that there was sufficient evidence to find that a change in circumstances had occurred.
In Ketron v. Ketron, 15 Ark.App. 325, 692 S.W.2d 261 (1985), the mother was living with a man who was married but separated from his wife; the trial court ordered her to terminate her living arrangement and allowed the mother to retain custody. Cf. Scherm v. Scherm, 12 Ark.App. 207, 671 S.W.2d 224 (1984) (approving a change in custody where the custodial parent had been involved in illicit sexual relationships). A parent’s promiscuous conduct or lifestyle is never condoned when such conduct is in the presence of the child. Thigpen v. Carpenter, 21 Ark.App. 194, 730 S.W.2d 510 (1987) (citing Ketron, supra); see also Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). However, the primary consideration in awarding custody of children is the welfare and best interest of the children involved, and custody is not awarded as reward or punishment of either parent. Ketron, supra.
Although traditional equity cases are reviewed de novo on appeal, we will not disturb the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Turner v. Benson, 59 Ark.App. 108, 953 S.W.2d 596 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. Since the question turns largely on the credibility and demeanor of witnesses, this court defers to the superior position of the trial court to make such determinations; the trial court assigns the weight to be given a child’s preference, and it is not binding on the court. Id. Here, there was evidence that Ms. Hudson lived with two different men after | ^receiving custody of M.H.; that be fore M.H. left for summer visitation in 2010, Mr. Chaffee had lived in her home for two years; that the couple engaged in loud, frequent arguments; and that Ms. Hudson sometimes feared him. Ms. Hudson’s mother mentioned to her that M.H. did not care for the boyfriend, and M.H.’s father arranged for her to see a counselor in Tennessee when he became concerned about her. Mr. Hudson admirably returned to Arkansas and began court proceedings, Mr. Chaffee moved out of Ms. Hudson’s home, and an order of protection was obtained to prevent his contacting M.H. The trial court found that the situation of former concern had been resolved, and it found no significant change in circumstances affecting M.H.’s best interest or jeopardizing her well being and warranting a change of custody. Based on our de novo review and giving due deference to the superior position of the circuit court to evaluate the witnesses, we find no clear error in its decision not to change custody.
Affirmed.
HART and GLOVER, JJ., agree.
. The petition to change custody was transferred to the Circuit Court of Baxter County from the Circuit Court of Lonoke County, which had entered the decree of divorce. Pri- or to this transfer, Mr. Hudson had filed for an order of protection in Baxter County; the order of protection was later dismissed.
. Ms. Hudson was also known as Deanna Lynn Blue.
. For simplicity’s sake in this opinion, "Ms. Hudson” will refer to appellee alone. Mr. Hudson’s current wife did not testify and was not otherwise a party to these proceedings. | [
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Johnson, C. J.
This is a taxpayer’s suit instituted by appellees against appellant, county treasurer of Jefferson County, seeking to permanently restrain and enjoin him as such treasurer from paying out or disbursing any funds now or which may hereafter come into his hands as such treasurer from taxes arising under an eighteen-mill district levy voted by the electors of Pine Bluff Special School District at the annual elections of March 7, 1933, and March 6, 1934.
The cause was submitted for trial and decree upon the following agreed statement of facts:
“1. That Claude Pledger, treasurer of Jefferson County, Arkansas, is ex officio the legal custodian of the school funds of Pine Bluff Special School District of Pine Bluff, Arkansas.
“2. That there are. now outstanding bonds of said school district of Pine Bluff approximately $490,500 accruing in annual principal and interest installments.
“3. That the form and titles of the printed ballots used in the annual school elections held in the years 193'3 and 1934 were:
“ ‘For General Tax...............................................18 Mills.
For Building Tax...................................................... Mills.
Total tax not to exceed eighteen (18) mills.
Against Tax ................................................................................’
“4. All of the bonds of said Special School District were issued prior to act 169 of 1931 upon the following dates, to-wit:
“ ‘ (a) Third Mortgage Bonds, August 1,1917.’
“ ‘(b) Fifth Mortgage Bonds, December 15, 1923.’
“ ‘(c) Sixth Mortgage Bonds, September 1,1927.’
“5. All the bonds are secured by mortgages on the various school buildings and pieces of real property belonging to said district and by a pledge executed at the same time with each mortgage on the part of the district, pledging all the income of the district from all yearly taxes for the purpose of paying off and retiring said bonded indebtedness and interest thereon, in yearly installments as same should accrue.
“6. At the annual school elections in said Special School District of Pine Bluff which were held therein on the 7th day of March, 1933, and the 6th day of March, 1934, there was voted and carried ‘For General Tax 18 Mills.’ That at neither of said elections was a specific millage tax voted for the payment of ‘Bonds or Interest,’ * * * nor for ‘Building Fund,’ nor for ‘General School Purposes.’
“7. That the county board of education on March 10, 1933, after the holding of said election March 7,1933, did find and certify to the county levying court, as provided by law, that at said school election there was voted for ‘School Tax’
“ ‘For 18 mills.......................................................................1,573’
“ ‘For 15 mills........................................................................ 1’
“ ‘For 12 mills........................................................................ 7’
“ ‘For 10 mills........................................................................ 25’
as shown by the county educational board record of said Jefferson County, page 117. And the levying court of said county on November 13, 1933, made the ‘tax levy’ of said school district 18 mills, as shown by county court record BB of said county at page 209. And the county court of said Jefferson County on March 10, 1934, found, determined and adjudgéd that at the election of said Special School District held on March 6, 1934, the vote was as follows:
“ ‘For General Tax 18 mills..........................................282’
“ ‘For 10 mills............................................................................ 2’
“ ‘For Building Tax............................................................... 1’
“ ‘Against Tax ........................................................................... 14’
And also found and adjudged that the result of said election was ‘For General Tax 18 Mills,’ as shown by Record BB of the. records of the county court of said county at page 254.
“8. That there has been paid into the hands of defendant to the credit of said district from the collection of the 18 mills school taxes so voted therein for the school year 1933-1934 approximately the sum of $45,000, and that additional revenues from said source will be paid into his hands during said year. That all of said revenues are collected under the ‘general tax’ of eighteen mills mentioned herein.
“9. That during the school year 1934-1935 there will accrue and be paid into the hands of the defendant to the credit of said district revenue in like manner as that mentioned in paragraph 8 hereof.
“10. That during the school year 1933-1934 there will become due the sum of approximately $19,500 of bonds and approximately $24,500 in interest on said bonds; or in the aggregate the sum of $44,000 principal and interest. That of the $45,000 paid into the hands of the defendant, heretofore, a portion of said amount has already been expended by him for the payment of accrued bonds and interest, and further expenditures for said purposes having been pledged will be made by him. That the revenue on said 18 mills general tax approximates $218,000 each year.
“11. That said eighteen mills school tax has thus been customarily voted upon each year and likewise devoted in part to the payment of the yearly accruing installments of the outstanding bonds of the district, since the effective date of the. constitutional amendment providing for the eighteen mills school tax.
“12. That the plaintiffs, E. O. Cutrell and E. M. Long, are residents, citizens and taxpayers of Pine Bluff School District No. 3 of Jefferson 'County, Arkansas.”
The chancellor awarded a permanent injunction as prayed, and this appeal is therefrom. The school fund here under consideration arises and accrues exclusively under Amendment No. 11 to the Constitution of 1874, which provides: ‘‘ The General Assembly shall provide by the general laws for the support of common schools by taxes which shall never exceed in any one year three mills on the dollar on the taxable property in the State, and by an annual per capita tax of one dollar, to be. assessed on every male inhabitant of this State over the age of twenty-one years. Provided, that the General Assembly may, by general law, authorize school districts to levy by a vote, of the qualified electors of such districts a tax not to exceed 18 mills on the dollar in any one year for the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness for buildings. Provided, further, that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.”
It appears from the 11th amendment last quoted that it levies no taxes and that no tax may be levied thereunder save by an affirmative vote of the qualified electors of the school district in which such levy is sought, and then such levy is limited to 18 mills on the dollar in value for any one year. Therefore it definitely appears that the levy of any tax under this amendment is exclusive^ optional with the qualified electors in the school district affected. On the question here under consideration we decided in Horn v. Paragould Special School District, 186 Ark. 1000, 57 S. W. (2d) 568; “Three purposes are named in the amendment (1) ‘for the maintenance of schools’; (2) for ‘the erection and equipment of school buildings’; and (3) for ‘the retirement of existing indebtedness for buildings.’ And it is then provided ‘that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.’ This appears to be very simple language, imam biguous, and not difficult of comprehension. The electors of any school district may vote a tax at any rate they wish for any or all said purposes, provided the tax voted for all does not exceed 18 mills. For instance, they might vote 6 mills for bond and 12 mills for school purposes, as they did in this case, and, when so levied and collected, neither sum could ‘be appropriated for any other purpose * * * than that for which it is levied.’ In other words, the 12 mills voted for school .purposes could not lawfully be appropriated for payment of bonds or the interest thereon, nor could the 6 mills voted for bond purposes be appropriated for schools. Such is the plain language of the amendment. No other construction can be given, and any other in the present case would probably work disaster to both parties. For, since the voting- of any tax for any purpose is optional with the district’s electors, the taking of the 12 mills voted for general school purposes to pay bonds would close the schools and keep them closed for many years, it would seem reasonably certain the electors would not vote a tax on themselves and have no schools. The bondholders would lose the 6-mill tax now being received, a substantial loss to them, and the district would be without a free public school for years to come, which would be. disastrous to it and its people.”
It follows from what we have said that neither creditors nor any one else can acquire a vested right or interest in or to any levy of taxes under Amendment No. 11 or to any part thereof until same has been voted by the qualified electors each year. The question then arises, did the qualified electors in Pine Bluff Special School District at the elections in March, 1933 and 1934, vote a tax or dedicate, a part of the tax so voted under amendment No. 11 to the payment of outstanding bonds and interest of the school district? The agreed statement of facts heretofore copied shows that the electors in said school district at the elections aforesaid voted upon the following questions :
“For General Tax”
“For Building Tax”
“Against Tax”
At the election in March, 1933, all votes east by the qualified electors were in favor of “For General Tax 18 nulls” and none were cast in favor of “For Building Tax.” At the election in March, 1934, all votes cast by the qualified voters, save one, were in favor of “For General Tax 18 mills” and only one vote was cast in favor of “For Building Tax.”
Therefore, it definitely and certainly appears that the qualified electors of Pine Bluff Special School District did not vote a building tax at the elections in said district for either the year 1933 or 1934.
It necessarily follows that, if “For Building Tax” as it appeared on ballots east by the qualified electors in the elections for 1933 and 1934 has reference to funds for the retirement of bonds and interest thereon owed by the district, then certainly no tax was voted by the qualified electors for this purpose, and the chancellor was correct in so deciding.
Section 66 of act 169 of 1931 defines “Building Fund” as follows:
“A building fund in an amount sufficient to pay the maturities of bonds, principal and interest, as they accrue, of said issue of bonds, that said building fund shall be set aside out of the. first revenues of the district from whatsoever source derived, and shall be held by the county treasurer solely in the manner and for the purposes set out throughout this act.”
Tested by the definition of “Building Fund” as it appears above, there can be no doubt that the qualified electors of Pine Bluff Special School District at the elections held in 1933 and 1934 refused to vote or dedicate any part of the 18 mills tax for schools to the purpose of paying or retiring the outstanding bonds of said district or the accrued interest thereon.
We cannot agree that the electors by voting in favor of “For.General Tax 18 mills” intended to grant to the directors of the school district a discretion in the application of this fund to any purpose authorized by Amendment No. 11. The affirmative, vote of the electors “For General Tax 18 mills” dedicated this fund to one purpose only, and this purpose was neither “Building Fund” nor the “Retirement of existing indebtedness for Buildings.” Therefore, the only remaining purpose for which the levy could have been effected under Amendment No. 11 was “For the maintenance of schools.”
Therefore, the county treasurer of Jefferson County was without authority in law in paying- or asserting the right to pay out any of the funds arising from the 18-mill levy of taxes accruing to the school district under Amendment No. 11 for the retirement of bonds or accrued interest thereon owed by said school district, and the injunction was properly awarded restraining such misapplication of funds.
For the reason stated, the chancellor was correct in awarding- a permanent injunction ag*ain.st appellant treasurer, and the decree will therefore be affirmed. | [
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Johnson, C. J.
By complaint and amendment thereto filed by appellant in the Independence County Circuit Court in September, 1933, against the city of Batesville, Arkansas, it was alleged, in effect: That during the year 1929 the city of Batesville, a city of the .second class, caused to be paved, drained and guttered certain streets adjacent to appellant’s real property upon which his home is situated in said city; that, because of the gathering of water from a large territory in said city and throwing it into one drainage, thereby diverting and accelerating the flow thereof into insufficient openings, appellant’s property was caused to overflow, etc. The complaint continuing alleges:
“That on or about the. 12th day of June, 1933, and at other times, and from time to time, and during heavy rains, the surface drainage from a large territory adjacent to Central Avenue, being most of West Batesville east of Central Avenue and a part of the territory west of Central Avenue, has been concentrated at a point adjacent to plaintiff’s property by means of the sewers, gutters, and drains aforesaid, and then discharged in a body onto and across plaintiff’s property, thereby flooding plaintiff’s sidewalks and causing them to collapse; undermining the foundations of his buildings and the retaining walls constructed on his property causing them to collapse; has damaged his buildings by flooding them from time to time; and has washed and eroded his property by the casting of the surface water onto his property as aforesaid in a volume in excess of the capacity of the drain passing through his property.
“Plaintiff states that, because of the continuing and recurring injuries and damages to his property, the value of said property as a business location is lowered; that the rental value of his property is lowered; that his property is rendered much less desirable and valuable as a residence, or for any other use for which said property is reasonably suited. That, because of the injuries aforesaid, the plaintiff verily believes that he has suffered a damage, of twelve hundred and fifty dollars ($1,250), for which said defendant city of Batesville is justly liable.
“Plaintiff further states that the injury complained of is not the construction of the pavement gutters, drains, and sewers along Central Avenue, but is the recurring damage to said property by the discharge of surface drainage in a mass upon plaintiff’s property in a volume in excess of the capacity of the drain passing through his property, thereby causing the damage aforesaid.”
The trial court sustained a demurrer to the complaint thus filed, and appellant declined to plead further, whereupon the complaint was dismissed and this appeal follows.
The complaint and amendment thereto were dismissed because they show upon their face that the alleged cause of action was barred by the three year statute of limitations. Crawford & Moses’ Dig., § 6950. Was this error? Our leading case on the question under consideration is St. Louis Iron Mountain & Southern Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, where the rule is thus stated: “Whenever the nuisance is of a permanent character and its construction and continuance are necessarily an injury, the damage is original, and may be, at once fully compensated. In such case the statute begins to run upon the construction of the nuisance. * * * But when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damag'e which has happened ; and there may’ be as many successive recoveries as there, are successive injuries. In such case the statute of limitations begins to run from the happening of the injury complained of.”
The case just referred to fell within the latter clause of the rule. In the subsequent case of St. L. I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360, 35 S. W. 791, we had under consideration a similar question, but the facts were that the railroad ivas built across a natural drain and a trestle was constructed to permit the passage of the water thereunder, but subsequently this trestle was removed and a solid earthen dump was constructed across the drainway. Upon this statement of facts we held that it fell within the first clause of the rule announced in the Biggs case, and that the cause of action was barred by the three year statute of limitations.
In the subsequent case of Chicago, R. I. & P. Ry. Co. v. McCutchen, 80 Ark. 235, 96 S. W. 1054, we had under consideration the same question, and all the authorities on the subject were there reviewed, and in concluding the opinion we announced the distinction between the Bigg's case, supra, and the Anderson case, supra, in the following language:
“The distinction between the Anderson case and those last cited [Ry. Co. v. Cook, 57 Ark. 387, 21 S. W. 1066, and St. Louis Iron Mt. & Southern Ry. Co. v. Stephens, 72 Ark. 127, 78 S. W. 766; St. L. I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331], is that in the former there was a complete obstruction of the drain-way, thus creating a permanent obstruction which necessarily caused a permanent injury, whilst in the latter there was only a partial obstruction which rendered the drainway insufficient at times, and made the future injury dependent upon the seasons and the quantity of rainfall.”
In the subsequent cases of Board of Directors of St. Francis Levee Dist. v. Barton, 92 Ark. 406, 123 S. W. 382; Turner v. Overton, 86 Ark. 406, 111 S. W. 270, St. L. I. M. & S. Ry. Co. v. Magness, 93 Ark. 46, 123 S. W. 786; and Chicago, R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127, the rule as theretofore announced was consistently adhered to and followed. On the one hand, where the improvement or obstruction was permanent in nature and the resulting injury or damage, if any, necessarily flowed from the construction, we have consistently held that the cause of action must be instituted within three years after the construction of the obstruction. On the other hand, we have consistently held that where the structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries as there are successive injuries, and in all such cases the statute of limitations begins to run from the happening of the injury complained of. In other words, the rule is if the structure is a complete obstruction of the drain-way, thus creating a permanent obstruction which nec essarily causes a permanent injury to the realty, the suit must be instituted within three years from the date the obstruction is made; on the other hand, if the obstruction is partial and renders the drainway insufficient at times only, and makes the future injury dependent upon the seasons and the quantity of rainfall, successive actions may be instituted to compensate the injuries as they occur. •
The complaint and amendment thereto under consideration alleged, in effect, that appellant’s property was overflowed and damaged because of insufficient openings in the drainage system to carry away the excessive flow of water which falls at certain seasons of the year. It appears therefore that the suit is not grounded upon the theory that the structure was permanent and therefore the damage original, but upon the theory of a partial obstruction which rendered the drainage insufficient at times only, and this dependent upon the seasons and the quantity of rainfall.
We conclude therefore that the trial court erred in sustaining the demurrer to the complaint and amendment thereto, and in dismissing same.
For the error indicated, the case is reversed, and the cause remanded for further proceedings. | [
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Mehaffy, J.
Charles S. Thornton and Justus Chancellor owned a large tract of timber land in Clark County, Arkansas, and on June 24, 1924, entered into a contract with the Sparkman Hardwood Lumber Company to give the Sparkman Hardwood Lumber Company and its assigns the exclusive right for a period of ten years.to go upon said land and cut and remove therefrom such timber as the said Sparkman Hardwood Lumber Company or its assigns might desire, and which it or its assigns within the terms of the agreement, actually -cut and removed. The price agreed upon, and which was paid, was $70,000. The contract provided that the title to the timber when cut should immediately vest in the lumber company or its assigns. The sellers agreed not to cut or remove or permit any one else by their consent to cut or remove any of the timber from said land until it was surrendered as provided for in the contract. The contract also provided for the purchasers to pay the taxes. Another provision in the contract was that, when all the timber desired by the lumber company should be cut and removed from any sections of the land described, the purchaser should immediately designate such section in writing to the sellers and should not thereafter be permitted to cut or remove any timber from the section or sections so surrendered and not thereafter be required to pay taxes except on those tracts of land over and through which it might he operating its logging railroad or tramway, hut that it should continue to pay taxes on such lands as long as it is operating a line of railroad over and through same. The contract provided for free ingress and egress for the purpose of cutting and removing timber, and was given the right to construct, maintain and operate logging railroads and skidways, logging camps and mills, but that such use and privilege was not to interfere with the cultivation of said lands or other use to which the sellers may desire to put the same. It was provided in the contract that no representation or warranty was made with reference to the amount of timber, but that the estimates were made merely for the purpose of arriving at a basis for making deferred payments. The contract described the land and the amount of timber on each section as estimated was set out. It was also provided that the purchaser was not required to cut any part of the timber or remove any of it, but the right conferred was an exclusive privilege given to the purchaser or its assigns to remove as much of said timber as it might desire within the life of the contract.
Thereafter there was a suit in partition by Thornton against Chancellor, and the land was divided. After the division, Dougald McMillan in 1931 became the owner of that part of the land awarded to Chancellor in the partition suit, and in 1933 the appellee, Ghirdon Lumber Company, obtained an assignment of the rig’ht of the Sparkman Hardwood Lumber Company for the same lands. This suit was then brought by appellant, alleging that the Gfurdon Lumber Company had been for many weeks cutting and destroying much timber besides that which they had a right to or were entitled to cut because it was less than 12 inches in diameter, and the complaint alleged that the appellee was still cutting and intended to continue to cut all trees 6 inches and over if not restrained ; that cutting the young timber was a waste and the product an inferior quality in grade, but, if the trees were permitted to stand, they would grow and become valuable. It was further alleged that appellee’s cutting deprived appellant of the nse of his land for the purpose for which it was best suited, that of growing timber, and that this was an irreparable injury to the appellant. It was also charged that appellee was wilfully destroying appellant’s timber by causing the fallen trees to strike and break the small trees and that this caused irreparable injury; that appellee was piling and permitting piles of trees and tops to rest against young trees, thereby injuring them; that appellee had placed several mills on the land and was permitting sawdust to accumulate, which would destroy the value of the land. The complaint stated that the appellee had the right to cut all timber 18 inches and over in diameter, but that they were asserting a right to cut all trees on the land; that appellant notified appellee as soon as it obtained the assignment from the Spark-man Hardwood Lumber Company, and the appellee, instead of respecting appellant’s claim, increased its force and continued to cut timber which it had no right to cut. There was a prayer for injunction and permanent restraining order and for damages. The appellees filed answer, denying all the material allegations in the complaint. After taking the evidence, the court entered a decree dismissing appellant’s complaint for want of equity, and the case is here on appeal.
It is first contended by appellant that there is an entire absence of language in the contract which shows an intent on the part of the lumber company to claim any growth on its land. In other words, it is the contention of appellant that the lumber company could only take the timber which was of certain dimensions at the'time the contract was made, and the first case cited and relied on is Griffin v. Anderson-Tully Co., 91 Ark. 292, 121 S. W. 297. The court said in that case: ‘ ‘ The language of the contract describing the trees sold is as follows: ‘ All the cottonwood trees 20 inches in diameter and up at the stump now standing or located on the following described lands’ (here follows description of land). Thus it will be seen that the title passed according to the plain and express terms of the contract only to those trees which measured the required size at that date and not at the date of their severance. The identification of the trees by specifying their size tends to show that the intention of the parties was to include such only as at the time the contract was made answered the description. Their diameter at that time was capable of definite ascertainment.” It will be observed that the court said the identification of the trees by specifying’ their size tends to show that the intention of the parties was to include such only as at the time the contract was made answered the description. There is no such identification in the present contract. It does not mention the size of the timber and expressly states that the estimate which does contain the size of the timber is made solely for the purpose of the deferred payments.
The next case referred to is Neal Lumber & Mfg. Co. v. O’Neal, 166 S. E. 647. This is a case in which a lease and timber deed were construed, and the deed stated: “does hereby grant, bargain, sell and convey unto the said W. T. O’Neal, trustee, his successors and assigns, all of the trees and timber of every kind and description growing or being on the land.” The instrument gave to the purchaser a license and privilege at any and all times to, during the life of the contract, out and remove all trees and timber growing or being on said lands. The contract in that case was somewhat different from the contract in the present case. “'Growing and being on said lands” was held by the court to mean such timber as of the dimensions described as growing on the land at the date of the contract, but the court in the O’Neal .case said: “We are aware that our construction of the lease in question may not be in accord with the views expressed by some other courts in like cases, but it is in harmony with adjudications by this court and with the weight of authority,” and in the same case the court also, with regard to the meaning of the word “trees,” held that a plant may be called a tree before it has attained such a growth as to be useful as timber, and the court also said: “A word may have one meaning in a dictionary and an entirely different meaning in a contract.” In a case decided by the Federal court where the court was construing a lease giv ing the right to cut all timber on the lands suitable for sawmill purposes during the 20 years covered by the lease, “the lessees are entitled to cut, not only the timber suitable at the date of the lease, but all that becomes suitable during the life of the lease.” Nelson v. Americus Mfg. Co., 186 Fed. 489.
The authorities are not in harmony, and the language and terms of the contracts construed differ. The contract involved in the instant case does not mention the dimensions of the timber sold and does not in express terms provide that the timber sold is that now standing on the land, but the contract gives the purchaser the right to cut any timber it may desire, and we think, when the entire contract is considered, that it was the intention of the parties that the purchaser should have all the timber it desired on the land at any time during the life of the contract. It is claimed, however, by the appellants, that the contract meant timber which would measure twelve inches, eighteen inches above the ground, although there is nothing in the contract to indicate that this is true. Appellants state, however, that the conduct of the Spark-man Hardwood Lumber Company after the contract was consummated shows what it considered it had purchased. Without setting out the evidence, which we think is unnecessary, because we believe the contract is unambiguous, some of the witnesses testified that the Sparkman Hardwood Lumber Company cut timber 8 inches in diameter, and it does not appear that any complaint was ever made about this. Some of the testimony shows that the Gurdon Lumber Company cut timber only six inches in diameter. The appellants say that timber has a well-defined meaning, and that it does not include saplings, undergrowth and shrubs. We agree that this is true under the terms of the usual contract, but that in this instance the purchaser could cut whatever timber it desired.
Appellants cite many authorities to sustain their contention, one of which is 17 R. C. L. 1094. The text relied on states: ‘ ‘ Generally speaking, a deed to all the timber on a tract of land without reservation conveys all the timber on such tract. Contracts or deeds for the sale of standing timber frequently specify tbe size of tbe timber sold, but sometimes the term ‘timber’ is used without definition as to trees included within its scope, and,, where this is the' case, resort must be had to the definition of the term as well as to the intention of the parties as manifested by the agreement. Where there is nothing to indicate that the contract was made with reference to construction of the word ‘timber’ peculiar to the locality, and the parties appear to have used the term in its customary meaning, it is generally held that fire wood is not included. ’ ’
Appellants also call attention to 38 C. J., p. 143. It is there said: “The word ‘timber’ has an enlarged or restricted sense according to the connection in which it is employed. It may refer to standing trees, to stems or trunks of trees cut and shaped for use in the erection of buildings or other structures, and not manufactured into lumber within the ordinary meaning of the word ‘lumber, ’ or to that sort of wood which is proper for buildings, or for tools, utensils, furniture, carriages, fences, ships and the like. It has generally been held that the word ‘timber’ does not include fruit trees, saplings or undergrowth, or trees suitable only for fire wood.”
It may be, as contended by appellants, that the appellees in 1933 cut smaller trees than the Sparkman Hardwood Lumber Company cut, but there is no evidence showing that they cut any timber for any other purpose than the market, and this, under the contract in the instant case, they had a right to do. As we construe the contract, the purchaser had a right to cut any timber it desired to cut, and, in addition to this, the Sparkman Hardwood Lumber Company is admitted to have cut timber below twelve inches in diameter. On these questions of fact as to what the parties did under the contract, the lower court had a right to pass on them and determine the facts, and we cannot say that his finding is against the preponderance of the evidence. The contract in this case is quite different from the usual contract. It is not a sale of the timber, but it is a license and privilege to cut all the timber which the purchaser desired. It nowhere mentions the dimensions, nor does it state the time at which it shall be cut, except that it must be done within ,ten years.
The decree of the chancellor is affirmed. | [
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Butler, J.
The State, on relation of the prosecuting attorney of the sixth judicial circuit, brought this action against Walter E. Taylor as disbursing agent for the State Banking Department, and the Massachusetts Bonding & Insurance Company as surety on the bond of Walter E. Taylor as such disbursing agent. Both Walter E. Taylor and the defendant surety company filed their several and separate demurrers, that of Walter E. Taylor being-overruled, and that of the defendant surety company sustained. The plaintiff elected to stand on its complaint, and a decree was entered dismissing the same, from which this appeal is prosecuted.
The complaint alleged that Taylor was the disbursing agent of the State Banking Department, and, as such, executed a bond with the Massachusetts Bonding & Insurance Company as surety; that among the duties of the Bank Commissioner was the supervision of building and loan associations; that the salary of the Bank Commissioner under act No. 46 of the Acts of 1927 was fixed at $5,000 per year, and that by act No. 128 of 1929 an additional salary of $1,000 per annum was allowed him for the additional duties entailed in supervising building and loan associations; that the General Assembly for each, of the years 1929 and 1931 appropriated the sum of $5,000 per annum to pay the annual salary of the Bank Commissioner and an additional salary for said .Bank Commissioner in the sum of $1,000 for each of said years as provided by act No. 128 of 1929 aforesaid; that the bond executed provided for the payment by Taylor as principal and the surety company of $5,000 upon the following conditions: ‘ ‘ The conditions of the above bond is such that if the said Walter E. Taylor, as such disbursing agent, or any one he may designate to act for him, shall well, truly and faithfully disburse appropriations of said office according to laws governing same and especially act 781 of the 1923 General Assembly. At the expiration of his term of office he shall render unto his successor in office a correct account of all sums of money, books, goods, valuables and other property which shall be in his possession as such disbursing agent of said office. And shall further pay and deliver to his successor in office, or any other person authorized to receive same, all balances, sums of money, books, goods, valuables and other property, which shall be in his possession and due by him, then the above obligation shall be null and void ; else the same to remain in full force and virtue.”
The complaint further alleged that the Bank Commissioner, as disbursing agent, procured warrants on vouchers issued by him for the salary of $5,000 per annum as Bank Commissioner and also for the $1,000 per annum additional salary for his services in relation to building and loan associations; that the amounts so drawn on the last-named salary from and after the execution of the bond amounted to $2,125; that the disbursement of said sum to the said Taylor was unauthorized and unlawful because the act granting additional salary was in violation of § 23 of art. 19 of the Constitution and therefore void.
The statute under which the aforesaid bond was required and given is act No. 781 of the Acts of 1923. Section 3 of said act provides: “Each disbursing agent shall be required to give bond in such a manner as shall be deemed necessary by the Auditor of State, and said bond shall be protection to the State or any of its creditors in case of losses sustained by reason of the acts of said person.” And § 4 of said act provides that: “Any sucb person (disbursing agent) incurring an obligation which cannot be paid because of no appropriation or the lack of sufficient appropriation shall be liable on his bond as hereinbefore mentioned for the amount of such obligation. ’ ’
It is the contention of the appellant that, when these sections are read into the bond, it would cover the alleged unlawful payment of additional compensation by the disbursing agent to any employee, of his department, and especially where the employee and disbursing agent are one and the same. The surety in this case was a corporation conducting its business of writing fidelity bonds for a profit, and, as it is such, it is insisted that the rule strictissimi juris has no application, but that its contracts of surety will be construed most strongly against it and in favor of the indemnity which the surety has reasonable grounds to expect, and that, where the bond is open to two constructions, one of which will support, and the other defeat, the surety’s liability, that which will support liability will be adopted. There can be no doubt of the correctness of this rule, but, when the allegation of the complaint and the provisions of the bond are considered, it appears that in any view of the case there was no violation of the conditions of the bond, or the insurance company liable for any indemnity which it had reasonable grounds to expect from the language of the act and bond. It appears that the Legislature regularly passed acts appropriating the money which the disbursing agent disbursed to himself which is sought to be recovered in this action. The obligation which the surety undertook was to indemnify the State where money was disbursed for which there had been no appropriation or a lack of appropriation and the losses referred to in § 3, supra, necessarily relate to those incurred by reason of the unlawful acts of the disbursing agent in incurring an obligation where no sufficient appropriation was made therefor.
The Legislature in 1923 passed the act requiring the bond and stating its conditions. Afterwards, by act No. 128 of the Acts of 1929, it authorized the expenditures which are complained of here. The funds were disbursed by the disbursing agent in accordance with the appropriations made by the Legislature, and this is all that the insurance company, by its bond, undertook that he should do.
It follows that the trial court correctly sustained the demurrer of the Massachusetts Bonding & Insurance Company, and its judgment is hereby affirmed. | [
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Mehaffy, J.
Jesse J. Bunting and Mary M. Bunting, Ms wife, the appellant here, became the owners of the land involved in this suit, and other lands, with the right of survivorship. During the lifetime of the husband on July 2, 1930, the appellant and her husband executed a mortgage to W. J. Bennett, conveying to him lands on the southwest side of the highway shown on the diagram, to secure the payment of an indebtedness of $2,500.
On September 19, 1930, Jesse J. Bunting died, and the appellant thereupon became the owner of all the real estate in her own right. On July 2, 1931, the appellant entered into the following contract:
“Mountain Home, Ark., July 2,1931.
“This contract entered into on this the 2d day of July, 1931, by and between Mrs. J. J. Bunting and L. Harry 'Carpenter, and Mary E. Carpenter, hereinafter-wards known as part of the first and second part respectively, witnesseth:
“That the party of the first part has sold to the party of the second part a certain tract of land, situated in Baxter County, Arkansas, and fully described in deed hereto attached and made a part of this contract, containing 76 acres of land.
“The contract price of land being four thousand dollars, paid and to be paid as follows: $200' in cash, the receipt of which is hereby acknowledged, and the balance of $3,800 in the 19 promissory notes of $200 each, the first one of which is to be due on or before November 1, 1932, and one of each of the remaining notes to become due on or before November 1 each year thereafter, making the last note due on or before November 1, 1950. All of said notes are to be of even date herewith and to draw interest at the rate of 6 per cent, from date until paid, interest on all notes to be paid annually.
‘ ‘ The party of the first part is to furnish a warranty deed to said land and place same in the Farmers’ & Merchants’ Bank of Mountain Home, Arkansas, and, when one-half of the above-mentioned notes are paid, is to make an abstract of title to said land, showing a good title to same, free of all debts and incumbrances, and tbe bank at that time is to deliver to the party of tbe second part the deed and abstract, taking a lien on the land for all notes unpaid at that time.
‘ ‘ The party of the first part is to have the crop growing on the land for the year 1931 and is to give possession of the land on or before November 1, 1931, with the understanding that, if all the crop is not ready to gather at that time, she is to have a reasonable time to get same off.
“It is further understood that the party of the second part is to keep the house on said land insured, in some good insurance company, for not less than $750 after they take possession.
“The Farmers’ & Merchants’ Bank of Mountain Home, Arkansas, is hereby made escrow agent in said deal, and all papers above mentioned is to be placed in same, with instructions that when the terms of this contract is complied with, it is to deliver all of above papers in keeping with this contract. Should the party of the second part fail or refuse to make payments as above set out, then in that event the said bank is hereby authorized to return the deed and abstract to the party of the first part and all unpaid notes to party of second part, and all payments made shall be the property of the first party for rents and damages, and this contract shall become null and void.
‘ ‘ [Signed] Mrs. J. J. Bunting
“L. Harry Carpenter
“Mary E. Carpenter.”
On September 12, 1932, the appellee obtained judgment in the Baxter Circuit Court against the appellant for the sum of $310.65. On October 15, 1932, execution was issued on said judgment, and placed in the hands of the sheriff of Baxter County for levy and sale. The sheriff levied upon the personal property and on the real property north and east of the public highway, as shown on the diagram, and 6.5 acres southwest of the public highway.
On October 31, 1932, the appellant gave notice that she would, on November 7, file her schedule of exemptions before the clerk of the Baxter Circuit Court. She filed said schedule at the time mentioned, and then on November 13th filed an amended schedule, and the appellee thereupon applied to the clerk for the appointment of a board of appraisers. Certain appraisers were selected by agreement, and they fixed the value of the personal property at $890.50, whereas the appellant, in her schedule had fixed the value of the property at $419.80. The appraisers fixed the value of the real property as follows: All that part of the land shown in the diagram north and east of the highway, and the four acres also claimed as exempt, on the southwest side of the highway, at $3,500. The clerk allowed the exemptions as claimed by appellant and issued supersedeas.- The appellee prosecuted an appeal to the circuit court, and the circuit court allowed the exemptions as to the personal property, but disallowed appellant’s claim for exemptions as to the real estate, and quashed the supersedeas as to the real estate. To reverse this order of the circuit court disallowing exemptions as to real estate, this appeal is prosecuted.
As to the personal property, but little need be said. The appellant was entitled to claim as exempt personal property not exceeding in value the sum of $500. Article 9, § 2, Constitution of Arkansas; § 5545 of Crawford & Moses’ Digest.
The only question as to the personal property was its value, and, as we have already said, the appellant fixed the value at $419.80, and the appraisers fixed the value at $890.50. It appears, however, from the evidence that the appraisers placed the full value on articles selected without any regard to the amount of interest of appellant. The record shows that appellant had purchased certain property from Montgomery Ward & Company for $140, and had paid only $10. The appraisers fixed the value of this property at $140. Montgomery Ward & Company had retained title to the property, and therefore appellant had only $10 equity in the property. The same appears to be true with reference to the automobile. Appellant fixed the value of the automobile at $150, but showed that there was a $300 mortgage. The appraisers fixed the value at $450 without taking into consideration the mortgage. It appears therefore that the value fixed by the appellant was correct. At any rate, this was a question of fact to be determined by the evidence, and the finding of the lower court is conclusive here.
Appellant was entitled to claim the real property described in her schedule as exempt unless she had abandoned it, and this is the only question for our determination with reference to the real property.
Article 9 of § 4 of the Constitution provides that the homestead outside of a city, town or village shall consist of not exceeding 160 acres of land with the improvements thereon to be selected by the- owner, provided the same shall not exceed in value the sum of $2,500, and in no event shall the homestead be reduced to less than 80 acres' without regard to value. This section of the Constitution is copied as § 5540 of Crawford & Moses’ Digest.
This land, claimed as exempt as a homestead, being worth more than $2,500, prevented her from claiming more than 80 acres. The evidence shows that she thought she could claim the entire tract. She was advised by her attorney, however, that she could only claim 80 acres, and then filed her amended schedule, claiming the 76 acres northeast of the public highway, and 4 acres southwest of the highway. The following diagram or map shows the situation of the land:
the 76 acres northeast of the highway and the 4 acres southwest of the highway are the lands claimed as homestead. The land shown southwest of the highway was mortgaged to secure a debt of $2,500. The 76 acres and the 4 acres are the tract claimed as the homestead.
The appellant and her husband lived on the 4 acres southwest of the highway during the husband’s lifetime, and appellant continued to live there after his death. She, however, claimed the entire tract of land as her homestead. She had made the above contract to sell the land, and it is claimed by appellee that, having done this, she cannot claim the land northeast of the highway as a homestead, because, after the contract of sale and before it was forfeited, execution was issued on the judgment against her.
Whether a homestead has been abandoned is a question of intent to be determined from the facts and circumstances in each case. Creekmore v. Scott, 179 Ark. 1113, 20 S. W. (2d) 177.
The facts in this case are that in 1930, prior to the death of appellant’s husband, they executed a mortgage on all the land southwest of the highway to secure the payment of an indebtedness of $2,500. This debt has not been paid. It is entirely probable that, because of the depression and the decreased value of all lands in the country, it would not sell for enough to pay the indebtedness. The statement of facts shows that appellant and her husband claimed the entire tract of land shown in the diagram as their homestead, and that she claimed it as her homestead after his death. The only land that she had that vías not mortgaged was the land northeast of the highway. It is agreed that she thought that was a part of her homestead, and she entered into a contract for a conditional sale of that property, and received in cash $200. She did not convey any title and did not intend to do so, unless and until one-half of the amount was paid, and the contract expressly provided: ‘ ‘ Should the party of the second part fail or refuse to make payments as above set out, then in that event the said bank is hereby authorized to return the deed and abstract to the party of the first part, and all unpaid notes to the party of the second part, and all payments made shall be the property of the first party for rents and damages, and this contract shall become null and void. ’ ’
This court said: “The relation that thus was created and arose between the parties sprung from the contract, and began with its execution, whether it was that of vendor and vendee or of landlord and tenant. The exact nature of the relation that would exist was determined on December 1, the date of the performance or nonperformance of the condition, but the inception of that relation arose at the date of the making of the contract. So that when, by the performance or nonperformance of the condition, the relation between the parties was determined, that relation went back to the time of the execution of the contract and continued thereafter.” Murphy v. Myar, 95 Ark. 32, 128 S. W. 359.
In the instant ease the relation was created by contract. The exact nature of the relation was determined when the purchasers failed to pay the first note. The contract itself expressly provides that it shall be void if there is a failure to pay the note. While the relation was determined upon the default of the purchasers, the inception of that relation arose at the date of making the contract. There never was any absolute conveyance of this property. On the default of the purchasers, they became tenants of the appellant, and, since the relation was determined by the default of the purchasers, and that relation related back to the time of making the contract, there was never a time when a lien would attach to the homestead property, and there was no abandonment.
Appellee calls attention to numerous authorities, some of them holding that, where there is a conveyance and the purchaser is in default, the relation of landlord and tenant does not exist, unless there is something in the contract indicating that such is the intention of the parties. But the contract in this case expressly provides, not only for the contract becoming void upon the pnrchaser’s failure to pay, but it expressly provides also that the payments that have been made shall be the property of the vendor for rents and damages.
We have many times held that the exemption laws must be liberally construed. “It is the settled policy of this court that our homestead laws are remedial and should be liberally construed to effectuate the beneficent purposes for which they were intended.” Franklin Fire Ins. Co. v. Butts, 184 Ark. 263, 42 S. W. (2d) 559.
Again we said: “As we have already seen, the whole theory of our homestead laws is based upon the idea of giving a family home to debtors which is exempt from the liens of judgments and executions levied upon them except in certain specified cases. The policy of the statute is to preserve the home to the family. ’ ’ Bank of Hoxie v. Graham, 184 Ark. 1065, 44 S. W. (2d) 1099; Pemberton v. Bank of Eastern Arkansas, 173 Ark. 949, 294 S. W. 64.
In discussing the object of the homestead laws, it is said in 29 C. J. 782: “The object of the provisions is to provide a home for each citizen of the government, where his family may be sheltered and live beyond the reach of financial misfortune, and to -inculcate in individuals those feelings of independence which are essential to the maintenance of free institutions. Also, the purpose of the homestead provision is to protect the family as an entirety, and not the individual who for the time being is the head of the family. Furthermore, the State is concerned that the citizen shall not be divested of means of support and reduced to pauperism.”
If the appellant could not claim as exempt the property included in her schedule, she would be deprived of all of her property except that portion on which there existed a mortgage, which she probably could never pay.
The majority is of the opinion that the conditional sale was not an abandonment of the homestead, and that appellant is entitled to claim as exempt the 76 acres northeast of the highway and the 4 acres southwest of the highway as her homestead.
The judgment of the circuit court is therefore reversed, and the cause remanded with directions to allow appellant’s exemptions in said property, and issue a supersedeas preventing its sale under execution. | [
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Conley Byrd, Justice.
Appellants Jim Allen et al by this appeal contest the legality of the formation of a watershed improvement district under Ark. Stat. Ann. § 21-901 — § 21-934 (Repl. 1956 and Supp. 1967). For reversal of the chancellor’s decree forming the district they rely upon the following points:
I. The order creating the district does not conform to the petition.
II. The number of valid signatures on the petition as determined by the court is not correct.
III. The names of numerous signers to the petition should have been deleted due to misrepresentation amounting to fraud.
The record shows that the engineering work was done by the United States Department of Agriculture Soil Conservation Service after the petition was signed by the landowners but before the petition was presented to the Court pursuant to Ark. Stat. Ann. § 21-906 (Supp. 1967). The petition itself covered 75,183.08 acres. According to the contour lines surveyed by the engineers 31,093 acres would be benefited by the district. However when the contour lines were converted to conventional land lines by ten acre calls for purposes of publishing the required notice, the total acreage increased to 42,479.70 acres — the latter increase being due to the fact that the total land call was included even though only a portion thereof would be within the benefited area according to the contour lines.
Hearings on the petition and objections thereto were commenced on August 17, 1967, and continued for several days on the issues of whether the petition contained a majority of the landowners both in numbers and valuation.
November 28, 1967, owners of land covering 1,710.57 acres, not within the above descriptions, filed a separate petition asking that their lands be added to the improvement district if the district was formed.
December 14th, the trial court from the bench directed the formation of the district covering the 42,-479.70 acres and immediately took up the petition of the owners of the 1,710.57 acres and directed that those lands be included within the district.
The order from which appellants appeal covered only the 42,479.70 acres, but when they complained in their brief that the order creating the district did not conform to the directions of the court in forming the district, we remanded the record to the trial court, at the request of the appellee district, for the purpose of entering a nunc pro tunc order covering the 1,710.57 acre addition.
Point I. In addition to the facts set forth above, appellants contend that the 42,479.70 acre description includes 2,009.10 acres not covered by the petition. Fox-purposes of this opinion, we assume that they are correct in this assertion.
Under Ark. Stat. Ann. § 21-905 (Supp. 1967) we find that a majority of the landowners both in value and numbers may petition for the formation of an improvement district by “ ... describing generally the region which it is intended shall be included within the district____” Upon the filing of the petition the court is directed to appoint an engineer whose duties shall be “ ... to make a survey and ascertain the limits of the region which would be benefited by the proposed improvements .... ”
In Ragon v. Beakley, 145 Ark. 505, 224 S.W. 946 (1920) we had before us a drainage district in which it was contended that the formation was invalid because the district as formed did not conform to the petition. We there said:
“The original petition is tentative. The provision of the statute is that it shall describe ‘generally the region which it is intended shall be embraced within the district,’ and the engineer’s report is advisory, and not conclusive. In the case of Jones v. Fletcher, 132 Ark. 332, it is said: ‘It is clear, therefore, from the language of the statute, that the final boundaries of the district are to be determined by the court, and are not confined to the area described in the original petition, as the survey, which is made subsequent to the filing of the original petition, necessarily serves as a guide to the court in determining what property will be affected by the improvement.’ ”
In Mahan v. Wilson, 169 Ark. 117, 273 S.W. 383 (1925), it was urged that the published notice of the proposed drainage district was insufficient because it omitted certain tracts contained in the original petition. It was there pointed out that the omission was not error as the report of the engineer was the thing which was the basis for the court’s action in forming the district.
Under the statutory authority here involved, we find no error of the court in excluding lands within the petition but outside the region to be benefited as shown by the engineering report. Likewise we find no error by the inclusion of lands not within the original petition so long as they are within the benefited area and received the proper notice.
Since the trial court directed the formation of the district in accordance with the engineering report before acting on the petition of others who sought to add their lands to the district pursuant to Ark. Stat. Ann. § 21-910 (Repl. 1956), we are unable to see how this gives appellants any standing to challenge the formation of the district. Consequently we find no merit in the contention that the formation decree did not comply with the directions of the court — i.e., to the extent that the order entered by the Court did not affect the 1,710.57 acres.
Point II. The proof as to the number of land owners within the area to be benefited as shown by the engineering report was given by Mr. Fleer Harris who said that there were 423 landowners as reflected by the assessment records. To this number, appellants contend, there should be added the wives of sis landowners who owned land by the estate of the entirety. We agree with appellant that, in accordance with Gardner v. Bullard, 241 Ark. 75, 406 S.W. 2d 368 (1966), both owners of an estate by the entirety are to be counted as landowners in determining the number of landowners within a district. The only trouble with appellants’ contention here is that the testimony of T. IT. Weaver and Homer Bell fails to show whether lands owned by them by the entirety are within the district. However when we give appellants credit for the other four wives, we then have a total of 427 landowners within the district.
For the other leg of their argument, appellants allege that 33 names should be deducted from the 246 petition signatures because of duplication, failure to attest a corporate seal and unauthorized signatures. One name alleged to be a duplication is Jora Milligan, but when we review appellants’ calculation of the number of petitioners we find that on page 30 of the record, they did not include Mrs. Milligan’s name when arriving at the 246 number and that therefore they are not entitled to subtract her name as a duplication unless it is also added to the total number of signers. Appellants also complain that Adrian Boss, Sr’s name was signed by his son without authorization and that George Van Shaver did not sign the petition. We are unable to find any proof relative to Boss’s signature and the Court, in comparing the signatures of Shaver given at the trial with the signature on the petition, could have found that Shaver signed the petition. Thus in recomputing the alleged duplications, deletions, etc., not more than 30 names could be deducted from the alleged 246 signers. This would still leave 216 signers, more than half of the 427 landowners.
Thus it is seen that even if the Court did err in his calculation of the number of signers, his error is harmless since there is still a majority of the landowners on the petition.
Point III. Under this point appellants offered proof that in many instances only a single sheet of paper was presented to them for signing, not a whole petition, and in other instances that they were induced to sign the petition by the representation that the petition was to arrange for a survey to determine the feasibility of forming a district. The proof offered by appellants in this respect was contradicted by the petition circulators. Looking only at the cold record, we are not in a position to say that the Chancellor’s finding contrary to appellants’ argument is against the weight of the evidence.
In their reply brief appellants contend that we should not have reinvested the trial court with jurisdiction for purposes of entering the nunc pro tunc order affecting the 1,710.57 additional acres. As pointed out above we do not see how appellants were prejudiced by the procedure but in any event we consider the procedure to be authorized by Ark. Stat. Ann. §27-2129.1 (Repl. 1962) for purposes of making the record speak the truth.
Affirmed. | [
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Carleton Harris, Chief Justice.
Amos Stepp, appellee herein, instituted suit against his insurer, Farm Bureau Mutual Insurance Company, appellant herein, to recover the policy limit of $2,500.00 after one of his tenant dwellings was totally destroyed by fire on December 28, 1965. It is admitted by appellant that the dwelling was destroyed by fire while the policy was in full force and effect; that the amount of insurance issued under the policy was for the sum of $2,500.00; that proof of loss was submitted to the company in accordance with the provisions of said policy, and that the company’s representatives inspected the premises of the fire on December 30, 1965.
The suit was instituted on February 2, 1967, and on February 17 of the same jTear, appellant filed an answer in the form of a general denial. Appellee filed a Bequest for Admissions on February 21, and the answers filed on February 27, 1967, admitted the facts set out in the preceding’ paragraph. On October 3, 1967, a little more than seven months later, Stepp filed a motion for summary judgment, together with supporting affidavit, and gave notice to the company that he would make his application on October 27. No adverse affidavits were filed, but appellant, without leave of court, did file an unverified amendment to its answer, asserting that the company was not liable under the policy because the tenant dwelling had been vacant for more than 60 days prior to the fire damage. It was further alleged that the fire loss was of incendiary origin, caused or procured by appellee; also, that Stepp was willfully negligent in failing to initiate reasonable acts to extinguish said fire. This amendment was filed on October 25, two days before the time set for the hearing on the motion for summary judgment.
Appellee filed a motion to strike the amendment; the motion was granted and summary judgment was rendered in favor of Stepp against the company for the sum of $2,500.00, plus 12% penalty, together with attorney fees of $600.00, making a total judgment of $3,-400.00 and costs . From such judgment, appellant brings this appeal. For reversal, the company asserts that “the court erred in granting summary judgment because appellant’s asserted policy defenses of vacancy and origin of the fire constituted questions of fact.”
There is no contention that appellee did not follow the correct procedure set forth in the summary judgment statute, and appellant says the question is, “Does the filing of a motion for summary judgment preclude the assertion of further defenses not pending at the time the motion was given?”
We decline to answer this sweeping question, since other possible factors could affect individual cases, but we have no hesitancy in answering the question in the affirmative in this particular litigation.
It is apparently recognized by appellant that permission to file amendments is largely within the discretion of the trial court. Brewer v. Howell, 227 Ark. 517, 299 S.W. 2d 851, and authority cited therein. Appellant argues however that, since this court has held that strict interpretation should be given to summary judgment statutes, the trial court’s action in striking the amendment was an abuse of discretion. It is true we have held that, if there is doubt whether a factual question exists, a motion for summary judgment should be denied. Kealy v. Lumberman’s Mutual Insurance Company, 239 Ark. 766, 394 S.W. 2d 629. But that is not the controlling issue on this appeal. Rather, the question simply is whether the Lee County Circuit Court abused its discretion in striking appellant’s amendment to the complaint. We hold that this was not an abuse of discretion, and did not constitute error. There are at least two reasons why this is true. For one, the controlling statute, Ark. Stat. Ann § 27-1161 (Repl. 1962), provides that the court may allow additional pleadings to be filed on motion. Here, no motion was filed seeking to amend; to the contrary, appellant filed the amendment entirely on its own, without any apparent effort to obtain the permission of the court. An equally valid reason for the striking of the amendment is the fact that this amendment was not filed until nearly nine months after the complaint was filed, and then only after appellee had given notice that he would seek a summary judg ment. Up until that time appellant had relied upon its general denial. There is nothing in the record to indicate that the alleged facts set forth in the amendment had just been discovered; conversely, it would appear that the defense raised by the amendment could have been asserted at any time after the investigation of the fire.
The trial court clearly did not abuse its discretion.
Affirmed.
Fogleman, J., disqualified.
Appellee subsequently filed a motion in support of summary judgment, wherein he offered to show to the court, infer alia, that the company had made an investigation soon after the fire occurred, taking statements more than one year prior to the filing of the suit, and that the facts relating to any defense set up in the amendment had been known to the appellant for more than 18 months prior to the filing of the amendment. | [
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Lyle Brown, Justice.
Appellant Geneva Peters was charged with second degree murder for the fatal shooting of her husband. She was convicted of manslaughter. Mrs. Peters here contends that the evidence and the applicable law establish excusable homicide.
Mrs. Peters was required to use all reasonable means within her power and consistant with her safety to avoid killing her husband. McDonald v. State 104 Ark. 317, 149 S.W. 95 (1912). If in that respect she acted too hastily and without due care, the killing amounted to manslaughter. Ellis v. State, 234 Ark. 1072, 356 S.W. 2d 426 (1962). The trial court, sitting as a jury, concluded that Mrs. Peters’ actions did not comport with the recited rule. We therefore examine the brief evidence in light of that rule.
Geneva and Douglas Peters had been married some eight years and had two children. On the day preceding the fatal shooting that night, Geneva and Douglas had a quarrel, so she testified. Geneva recounted that she went to her mother’s home nearby. The couple had a mutual friend and neighbor, Wardell Davis. When the latter learned Geneva was at her mother’s house he called Geneva, presumably and according to Geneva, to reconcile Geneva’s and Douglas’ differences. The “peacemaker” drove to the mother’s home and picked up Geneva about 8:00 p.m. They remained together for some two hours. According to Geneva, they drove around, talked, and had a drink of whiskey. About 10:00 p.m. Wardell Davis suggested that he take Geneva back to her mother’s because Davis was due to pick up his wife, who would get off work at eleven o ’clock. They returned to the mother’s home and parked, and it was at that point that Douglas Peters came to the Wardell Davis car.
Appellant and Wardell Davis supplied the testimony as to the shooting. The husband approached the car from the passenger side. If he had a weapon it was not visible. He could not open the door because Geneva had it locked. Since the car had only two doors, the husband went around the car to the driver’s side, opened that door, and reached for Geneva. In the meantime she had removed a pistol from her purse. She fired three times, all the bullets striking her husband. He died in a matter of minutes.
Appellant testified that she feared for her life because, some three months prior, Douglas had beat her. Even if she honestly possessed that fear she would not be relieved of the duty to act with due care and avoid the killing if it could be averted without serious danger to Mrs. Peters. She made no effort to retreat via the right door; she did not call for help; the unarmed husband would have to literally climb over the driver to get his hands on Geneva; and she gave no warning to her husband that she had a gun and would shoot if he approached further. The trier of facts concluded that appellant did not use all reasonable means consistent with her safety to avoid the killing.
From the testimony recited, together with the fact that the trial court could well have thought (as we think he did) that appellant’s story was woven out of whole cloth, we cannot say the court’s findings are not supported by substantial evidence.
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Paul Ward, Justice.
This is an appeal from a chancery decree involving two foreclosures. The material facts summarized below are not in dispute.
John M. Geyer, Jr. and his wife (appellants here), on February 19, 1963, executed their note for $60,000 to First Arkansas Development Finance Corporation (an appellee here, and referred to as Corporation). The note was secured by a first mortgage on certain real estate, and also by a security agreement on personal property — all belonging to appellants. Later, appellants executed their note to Southwest Factoring Corporation (an appellee and referred to as Factoring Co.) in the sum of $51,910.25, which was secured by a second mortgage lien on the land included in the first mortgage mentioned previously.
On April 18, 1967, after the above mentioned note became delinquent, Corporation filed suit for judgment for balance due, and for foreclosure of its mortgage, naming appellants and Factoring Co. defendants. Factoring Co. asserted its right to judgment and a foreclosure. Appellants admitted, in their answer, the execution of said notes and securities, but denied they were liable to pay any attorney’s fees. By way of cross-complaint appellants alleged Corporation required them (as a prerequisite to the loan) to purchase one of its debentures, in the sum of $3,000, due in fifty years, without interest — asking that the $3,000 be allowed as a credit on their note. They also contended that the Factoring Co. note was usurious. (Other parties were made defendants in the suit but they are not involved on appeal).
After hearing testimony on the issues raised, the trial court entered a Decree, holding, in material parts:
(1) Corporation entitled to judgment against appellants for balance due in the amount of $44,-554.93 and interest; for $1,407.70 — money paid on taxes, and; for $2,000 as attorney fees.
(2) Denied appellants credit for the $3,000 debenture.
(3) Gave Factoring Co. judgment against appellants in the sum of $60,475.45 and interest on the note, and $2,000 for attorney fees, and also held said note was not usurious.
(4) Ordered a foreclosure and sale of the securities, and retained jurisdiction for certain specified purposes.
On appeal, appellants rely, for a reversal, on the separate points, which we now examine in order named.
One. It is contended here by appellants that the trial court erred in charging them with an attorney’s fee, citing Ark. Stat. Ann. § 68-910 (Repl. 1957), which reads:
“A provision in a promissory note for the payment of reasonable attorney’s fees not to exceed ten per cent of the amount of principal due, plus accrued interest, for services actually rendered in accordance with its terms is enforceable as a contract of indemnity.” (Emphasis supplied.)
It is then pointed out by appellants that the notes here in question contain no such provision.
We are unable to agree with appellants’ contention. Appellants are correct in stating there is no such provision in the note, hut there is language in the note and mortgage which, we think, justified the court’s action. The note contains this language:
“All the terms, covenants, conditions, provisions, stipulations, and agreements in said Deed of Trust and in said Security Agreement contained are hereby made a part hereof to the same extent and with the same effect as if the same were fully set forth herein.”
In the Twelfth paragraph of the Deed of Trust there appears the following language:
“It is furthermore agreed that said party of the first part (appellant) will pay to parties of the second and third parts, any and all sums, including costs, expenses and reasonable attorney’s fees which they may incur ...”
In The W. T. Rawleigh Co. v. Wilkes, 197 Ark. 6 (p.9), 121 S.W. 2d 886, this Court said:
“The general rule is that in the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction, are, in the eye of the law, one instrument, and will be read and construed together as if they were as much one in form as they are in substance.”
See also Ark. Stat. Ann. § 85-3-119 (1961 add.) which, in material part, reads:
“As between the obligor and his immediate obligee . . . the terms of an instrument may he modified or affected by any other written agreement executed as a part of the same transaction . . . .”
Two. As previously mentioned, appellants contend the trial court erred in refusing to deduct the $3000 debenture from the $60,000. The thrust of appellants’ argument is that the court’s refusal violated the U. S. and Arkansas constitutions in that it deprived them of their property without due process of law. This argument is largely based on language used in Act 567 of 1957 under which Corporation was organized. Specific attention is called to language used in the first sentence in § 15 and paragraphs three and four in § 17 of said Act. We deem it unnecessary to reply to the able and forceful arguments presented on the question of unconstitutionality, because we feel that this issue was decided adversely to appellants in the case of Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 324 S.W. 2d 97.
We further point out that the constitutional guarantee of “due process” is designed to prevent abuse of personal rights by the state or federal government, and does not refer to dealings between individuals. Also, in the case here under consideration it cannot be reasonably contended that Corporation forced appellants to purchase the debenture. Appellants were free to accept or reject the conditions of the loan.
Three. It is finally contended by appellants that the note given by them to Factoring Co. is usurious, and that the trial court erred in holding otherwise. The note in question was executed on August 11, 1964 and is in the face amount of $51,910.25. It is not abstracted but is set out, as exhibit No. 8, at page 154 of the transcript. We find nothing in the abstract or the transcript which clearly explains why the note was executed, except it appears it is in some manner related to a “factoring agreement” whereby appellants were to sell and Factoring Co. was to buy certain open accounts belonging to the business being operated by them. The note specifically states that it draws “interest from date until paid at the rate of 6% per annum”, and it contains no reference to the “factoring agreement”.
In view of the above facts the burden was on appellants to prove usury — as this Court has uniformly held for many years. Holt v. Kirby, 57 Ark. 251 (p.256), 21, S.W. 432 and Cox v. Darragh Company, 227 Ark. 399 (402), 299 S.W. 2d 193. Also we point out the rule announced by this Court many years ago that ‘ ‘ The court will not presume a contract to be usurious”. Sawyer v. Dickson, 66 Ark. 77, 48 S.W. 903.
We think it sufficient in this case, in affirming the trial court, to point out that appellants, in their brief, have called our attention to no evidence that the note was usurious. The evidence deals solely with the factoring agreement. The only case relied on by appellant for a reversal is Manhattan Factoring Corp. v. Ors burn, 238 Ark. 947, 385 SW. 2d 785. However, in that case no promissory note was involved and is, therefore, not applicable to the facts in this case.
Finding no reversible error, the decree of the trial court must be, and it is hereby, affirmed. | [
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Paul Ward, Justice.
On July 12, 1967 Jack Rheuark (appellant) entered a plea of guilty to possessing stolen property, and ivas sentenced to serve fifteen years in the penitentiary. This sentence, however, was suspended and appellant was placed on probation for five years.
On August 17, 1967 appellant was brought before the court to show cause why the suspended sentence should not be revoked. After hearings on different occasions, the suspended sentence was revoked, and appellant was ordered to serve his sentence.
On April 24, 1968 Attorney Sol Russell, having previously been appointed to represent appellant, filed a petition for' a new trial. Pursuant to said petition the trial court ordered the superintendent of the penitentiary to have appellant present on May 4, 1968 for a hearing. A hearing was held, and on May 7, 1968 the trial court denied the petition, and appellant was granted an appeal to this Court.
On appeal appellant urges only one point for a reversal. It reads:
“The trial court erred in revoking appellant’s probation and sentencing at a time when appellant was not represented by counsel and was not afforded the opportunity to call witnesses in his own behalf. ’ ’
After a careful study of appellant’s exhaustive and excellent brief we feel that it is necessary to discuss and answer only two decisive questions. One, was appellant adequately represented by counsel when his suspended sentence was revoked. Two, did the trial court abuse its sound discretion in revoking the suspended sentence. For reasons hereafter stated we have concluded that no reversible error has been shown.
One. As contended by appellant, a hearing was had before a special judge on August 21, 1967 to determine whether the suspended sentence should be revoked, and it is true that appellant was not represented by an attorney. However, when this fact was brought to the attention of the special judge, no decision was reached, and the hearing was postponed to the following day — August 22. At this hearing appellant was represented by an appointed attorney — B. L. Church, Jr. of Little Rock. The record reveals that Attorney Church conferred with appellant, and :was informed of the accusation of an attempt by appellant to kill his wife. The record also reveals that Church argued to the court that this was only a family squabble and not sufficient to justify a revocation. At the close of the hearing the court revoked the suspended sentence.
Conceding, for the purpose of this opinion, that appellant was entitled to be represented by an attorney at the revocation hearing, we think it is clear and undisputed that he was so represented in this case. In the absence of any showing to the contrary, we must assume Attorney Church ably represented appellant.
Two. In our opinion the trial court had ample grounds and sufficient reason for revoking appellant’s suspended sentence. There was testimony that, after being sentenced, appellant not only attempted to commit murder, but that he was guilty of theft and disturbing the peace.
The rule applicable to this kind of a situation is that revocation is a matter that lies Avithin the sound discretion of the trial court. See the following recent decisions of this Court: Smith v. State, 241 Ark. 958 (p. 963), 411 S.W. 2d 510; Thornton v. State, 243 Ark. 829 (p. 831), 422 S.W. 2d 852, and Blake v. State, 244 Ark. 37 (p. 43), 423 S.W. 2d 544. In the Smith case Ave said:
“The suspension of pronouncement of sentence upon convictions rests in the sound discretion of the trial courts in this State . . . and the sufficiency of evidence for the revocation of such suspension also lies Avithin the sound discretion of the trial court.”
In the Thornton case we said it Avas within the sound discretion “to suspend sentences ... ”, and from the Blake case we quote:
“Furthermore, we have on many occasions held that the suspension of a sentence rests in the sound discretion of the trial court and that the sufficiency of the evidence for revocation of such sus pension also lies within the sound discretion of the trial court.”
In view of what we have heretofore said, we are unwilling to say the trial court, in this case, abused its sound discretion, and its judgment is therefore affirmed.
Affirmed.
Brown, Fogleman and Byrd, JJ., concur. | [
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Carleton Harris, Chief Justice.
This appeal relates to a collision involving five automobiles. All drivers, and two passengers in two of the vehicles are parties to this litigation. The proof reflects that this accident happened on January 18, 1966, early in the morning, before sun-up, on the Saline River Relief Bridge on Interstate Highway No. 30, just south of Benton. The collisions occurred as a reult of all drivers involved partly losing control of the cars they were respectively driving when ice was encountered on this bridge. The action was instituted by Geraldine Mills, driver of one of the automobiles, and Adelia Cooper, mother of Mrs. Mills, who was a passenger in the Mills vehicle. Four ladies, all drivers of other vehicles involved, were named as defendants. The complaint alleges:
‘ ‘ On January 18,1966, plaintiff, Adelia Cooper, was riding as a passenger in a vehicle driven by plaintiff, Geraldine Mills, traveling North on Interstate Highway No. 30. Each of the defendants were also traveling North on the same highway. Defendant, Jannie Cannor, lost control of her vehicle and skidded into a bridge rail then collided with the vehicle driven by defendant, Bernice Beck. The vehicle in which plaintiff, Adelia Cooper, was a passenger was struck from the rear by a vehicle driven by Alva Ann Hill and was also struck one or more times by the vehicles of the other defendants.”
It was asserted that all defendants were individually negligent, and the negligence of each contributed to cause the injuries and damages subsequently set out in the complaint. Thereafter, Mildred Pilcher and her husband, Murl Pilcher, counterclaimed against Mrs. Mills and her mother, and also sued Mrs. Cannor. Bernice Beck and Alva Ann Hill answered, asserting that, as to them, the accident was unavoidable. Jannie Cannor also pleaded unavoidable accident. On trial, the court gave AMI 604, which is an instruction on unavoidable accident, the giving of said instruction being objected to generally and specifically by counsel for appellees Mills and Cooper, and counsel for appellees Mildred and Murl Pilcher. The question of the negligence of each driver was submitted to the jury on interrogatories, and in answer to these interrogatories, the jury (varying from nine to eleven in the several answers) found none of the drivers guilty of negligence which was a proximate cause of the collisions. Mills and Cooper moved for a new trial, and the court granted this motion, holding that error had been committed in giving the defendants’ requested instruction, as follows:
“If you believe from the evidence that the occurrence was an unavoidable accident; that is, one which was not proximately caused by negligence of any party in this case, then you should answer interrogatories 1 through 5 ‘no’.”
Prom this order granting the new trial, appellants bring this appeal.
The proof indicates that Mrs. Cannor was the first driver to go on the bridge. The second was either appellant Beck or a vehicle driven by an individual not involved in the collision and not a party to this suit. The third vehicle was driven by Mildred Pilcher, the fourth by Geraldine Mills, and the fifth by Alva Ann Hill. Mrs. Cannor, skidded on the ice, struck the bridge and stopped on the right shoulder. She testified that she was traveling 40 to 45 miles a,n hour when she drove onto the bridge. The car driven by Alva Ann Hill struck the Mills car. Mildred Pilcher testified that she was driving 30 to 40 miles per hour upon entering the bridge. She said that she was struck by the Mills car, and Mrs. Mills testified that she was struck by the Pilcher car, the Hill car, and a brown car, the owner being imknown. Mrs. Mills testified that she was traveling about 40 miles per hour when she drove onto the bridge. Mrs. Beck thought she was hit by Mrs. Pilcher.
Appellants point out that all drivers testified that they had not previously observed any ice at any place before coming onto the bridge in question; that several of these drivers had already traveled over other bridges, and none had difficulties; that there was no evidence of excessive speed, nor evidence of a lack of proper control of the respective vehicles on the part of any driver until the ice was unexpectedly encountered on the Saline Biver Belief Bridge. It is forcefully argued that this case is a perfect example of an unavoidable accident, and appellants cite Industrial Farm Home Gas Company v. McDonald, 234 Ark. 744, 355 S.W. 2d 174. In the first place, the facts in McDonald are not in accord with the facts in the instant litigation. There, though the roadway was slick with snow and ice, both vehicle operators were admittedly driving slowly, were only about 25 feet apart when they observed each other, and neither could have seen the other earlier. Not only that, but both drivers testified that the accident was unavoidable.
Here, according to the testimony, involved drivers were traveling anywhere from 30 to 45 miles per hour. The bridge was 500 feet long, and the proof showed that there was no precipitation, no fog, nor anything to obscure the view, except that it was still dark enough to use headlights; however, there is no complaint that any car could not be seen, and apparently all had their headlights on, and taillights were burning. In fact, several of the drivers commented on seeing taillights up ahead flashing. The evidence reflected that there was snow in the fields and yards, and the weather, though clear, was very cold. There was further testimony as to signs warning drivers to watch for ice on the bridges.
Also, there is evidence in the record reflecting possible negligence on the part of some of the drivers. For instance, Mrs. Pilcher testified that Mrs. Cannor was crying, and stated that she (Cannor) “felt like she was the cause of all this.” Fay Jones, riding in the car with Mrs. Pilcher, testified that Mrs. Mills “come at quite a speed and hit us in the side.”
At any rate, we have, in our last several cases which involved this point, held that instruction to be improper, and we reversed four cases because of the giving of it, and in yet another, affirmed the trial court
in setting aside an earlier judgment wherein the instruction had been given. In Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872, the first of these cases, we discussed this instruction at length, pointing out that the defense of unavoidable accident is nothing more than a denial of negligence, or a contention that such negligence was not a proximate cause of the injury complained of; further, that to submit this issue is confusing, in that it suggests that unavoidability is a separate defense, requiring separate consideration by the jury. In Lewis v. Crockett, 243 Ark. 377, 420 S.W. 2d 89, we pointed out:
“ * * * After all, in holding that this instruction should not have been given, we are not taking away appellee’s defense, for it is his contention that he was not negligent, and before he can be determined to be liable, a jury must find that he was negligent, and that such negligence was a proximate cause of the alleged injuries complained of.”
By our decision in this case, we are again reiterating our disapproval of the giving of this instruction in damage suits arising out of automobile collisions, except in most unusual situations. What is an unusual situation? This too is commented upon in Crockett:
“Perhaps it should again be emphasized that, since Houston v. Adams, supra, we have held that an unavoidable accident instruction is only permissible in exceptional situations. In that case, we mentioned, as an example of an unavoidable accident, a collision occurring because of a driver, with no previous coronary disease, losing control of his car as a result of a sudden heart attack. Ac cidents caused by an ‘Act of God’ might well be included — but certainly, no such issue is presented here.”
We agree that the giving of the instruction in this case was error, and it may well be that the instruction was the basis for the findings of the jury.
Affirmed.
Brown and Fogleman, JJ., dissent.
There were other passengers in some of the cars, but only two are parties to this litigation.
Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872; Burton v. Bingham, 239 Ark. 436, 389 S.W. 2d 876; Rhoden, Admr. v. Lovelady, 239 Ark. 1015, 395 S.W. 2d 756; Oklahoma Tire and Supply v. Bass, 240 Ark. 496, 401 S.W. 2d 35; Lewis v. Crocket, 243 Ark. 377, 420 S.W. 2d 89.
AMI 615 points out that: “A person is not liable to another whose damages were caused solely by an act of God. If an act of God concurs with the negligence of man to proximately cause damages, the negligent person is not excused from liability by the act of God.” | [
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George Rose Smith, Justice.
This action was brought by the appellee to recover death benefits of $2,500 under an accident policy issued by the appellant upon the life of C. W. Gulledge. The trial court, hearing the case without a jury, entered a judgment for the plaintiff in the amount sued for, plus the statutory penalty and attorney’s fee. The real question on appeal is whether there is substantial evidence to sustain the judgment.
Gulledge, while at work, accidentally injured his left hand to such an extent that the surgical amputation of two fingers became necessary. Owing to the patient’s advanced age the surgeons administered a general anesthetic. The patient at once suffered a cardiac arrest; that is, his heart stopped beating. The surgeons quickly opened the patient’s chest and restored the heart beat by massaging that organ for 20 or 30 seconds. After the chest opening was closed the doctors completed the operation.
Dr. Wise, one of the surgeons, testified that Gulledge “was carried to the recovery room in fair condition. He was conscious on the operating table the last few seconds, and he was conscious to some extent in his room. He subsequently lapsed into a semi-coma and then into a coma, and he died on the 17th, four days after, without regaining any of the natural things of life, probably the result of the lack of oxygen to the brain as a result of the shock like what he underwent on the operating table.” Dr. Wise thought there was a casual connection between the heart failure and the injury to Gulledge’s hand. As he put it: “Had he not cut his hand I wouldn’t have operated on him. I would not have given him an anesthetic, and he wouldn’t have died.” The doctor, however, did not profess to be absolutely certain about the cause of death. He candidly stated that “without an autopsy, or even with it, we don’t know the cause of death.” Dr. Barrow, the other surgeon, agreed with Dr. Wise and added that the administration of an anesthetic, more than anything else, causes or contributes to cardiac arrest.
An accidental injury may be found to have been the cause of death within the meaning of a policy like this one if it set in motion the chain of events that resulted in the insured’s death, even though some other condition may also have contributed to the final outcome. Life and Cas. Ins. Co. v. Jones, 230 Ark. 979, 328 S.W. 2d 118 (1959); Union Life Ins. Co. v. Epperson, 221 Ark. 522, 254 S.W. 2d 311 (1953). It is not essential that a physician’s testimony pinpoint the cause of death with mathematical certainty; probability suffices. American Life Ins. Co. v. Moore, 216 Ark. 44, 223 S.W. 2d 1019 (1949). In the court below the trial judge could reasonably connect the heart stoppage on the operating table with the patient’s ensuing coma and with his death only four days later. Nothing in the'record suggests any other independent cause of death. We have no hesitancy in holding that there is ample substantial evidence to support the judgment.
Affirmed. | [
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John A. Fogleman, Justice.
W. J. Stocker appeals from a summary judgment against him. The cause of action was instituted on March 21,1967 by The Southwestern Company. In its complaint it sought to recover from appellant and Mrs. C. F. Dugan, jointly and severally, the amount of $500 on an indemnity agreement executed by them. Under this agreement, Dr. Stocker and Mrs. Dugan made themselves responsible for payment for books and cash furnished to one James Orion Baxter under a contract by which Baxter became a dealer in publications issued by appellee. This contract required Baxter to mail a complete report to the company at the end of each week and to remit, weekly during the selling season and daily during the delivery period, all money collected, with the exception of necessary business expenses. Stocker and Mrs. Dugan agreed to make payment if Baxter failed to do so within thirty days after the selling season. The limit of their total liability was $500. There is nothing in the record to show that process was ever served upon Mrs. Dugan, although she was named a party defendant in the complaint.
Appellant filed a motion on June 16, 1967, demanding that appellee proceed against the principal, Baxter, before proceeding against him. The only service of this notice was made upon the attorney for The Southwestern Company. Subsequently, on July 13, Stocker filed a motion demanding that The Southwestern Company proceed against both the principal and the other surety before proceeding against him. No service of this motion was had upon anyone except appellee’s attorney.
On August 23, appellant filed a motion for summary-judgment, claiming that appellee had failed to commence suit against the principal and the other surety within thirty days after notice as required by Ark. Stat. Ann. § 34-333 (Repl. 1962). He contended that he was exonerated from liability for this reason, under Ark. Stat. Ann. § 34-334. A receipt for mail addressed to Mr. Fred Landers, The Southwestern Company, Nashville, Tennessee, with a Fayetteville postmark of July 13, was exhibited. A supporting affidavit by Stocker incorporated correspondence between him and appellee. One of the letters, dated February 10, 1966, suggested to appellee that the account should be turned over to an Oklahoma City collection agency. In short, Dr. Stocker stated that he did not feel that appellee had exhausted all areas of collection until an attempt through such an agency resulted in failure. The response to this suggestion advised Dr. Stocker that a collection agency would call upon him and Mrs. Dugan when attempts at collection from Baxter were unsuccessful and that this would simply result in a 50% loss to the company. In a separate letter on the same date, appellee made a formal demand on Dr. Stocker for the payment of the $500 guarantee. Another exhibit to this motion for summary judgment was a copy of a letter from the collection manager of appellee to Baxter at Oklahoma City dated March 1, 1966, in which payment was demanded and means suggested by which Baxter might reduce the debt and pay the balance. Controverting affidavits opposing the motion were filed by appellee. They were made by Bill Swindler, who stated that he was in charge of the books, records and accounts of the company and familiar with the transaction. One of the affidavits stated that Baxter had no property in Arkansas upon which execution or attachment could be had. The other stated that, after default, Baxter left Arkansas and absconded to Oklahoma, and that appellee’s attempts to locate him only brought information that Baxter had joined the navy. According to affiant, The Southwestern Company was unable to obtain service of pro cess on Baxter and to judicially pursue the debt because of the fact that he was then in the navy. Affiant further stated that Baxter was a minor at the time of the execution of his contract and that his company could not proceed with a law suit due to the fact that Baxter had renounced liability.
Appellant’s motion for summary judgment was denied on October 23, 1967, upon the ground that the opposing affidavits created material issues of fact. Appellant contends that this action by the trial court was erroneous. While there is probably support for the action of the trial court in this regard, we need not consider this point for we have held that an order denying a motion for summary judgment is not appealable. Carl W. Widmer v. Fort Smith Vehicle & Machinery Corp., 244 Ark. 971, 429 S.W. 2d 63. Stocker filed an answer denying the material allegations of appellee’s complaint. One of his defenses was the claim of exoneration of appellant by reason of notice to appellee to enforce the obligation of the principal and other surety, and failure of appellee to act as required by Ark. Stat. Ann. § 34-334.
By reason of appellant’s failure to answer a request for admissions, it is deemed admitted that appellant signed the instrument upon which he was sued, that appellee had demanded payment and that payment had not been made. Ark. Stat. Ann. § 28-358 (Repl. 1962). On January 18, 1968, appellee filed its motion for summary judgment based on all pleadings and upon an additional affidavit of Bill Swindler. In this affidavit, Swindler stated that Baxter was indebted to appellee in the amount of $774.61 under the contract; that appellee had performed the terms and conditions of both contracts; that Stocker had signed the instrument; that appellee had demanded payment and that payment had been refused by Stocker. Shortly thereafter, appellant filed another motion for summary judgment based on the contention that he was exonerated by reason of the failure of appellee to commence suit within thirty days after Ms letter of February 10, 1966, and the notice of July 13.
On February 12, 1968, tbe trial court found that there were no issues of material fact and granted appellee a summary judgment. In the order on these motions for summary judgment, the trial court recited that Mrs. C. F. Dugan had removed herself from the state and the sheriff was unable to locate her for the service of process. The court denied appellant’s motion for summary judgment. Of course, the denial of appellant’s second motion for summary judgment was not an appealable order.
The only argument advanced for reversal is based upon the contention that appellant was exonerated by Ark. Stat. Ann. §§ 34-333 — 4. In considering tMs argument, we must give this statute a very strict construction, as we have always done. Cummins & Fenno v. Garretson, 15 Ark. 132; Sims v. Everett, 113 Ark. 198, 168 S.W. 559. Under a strict construction of the act, appellant’s letter of February 10, 1966 cannot be considered as notice in writing, requiring the person having such right of action, forthwith to commence suit against the principal debtor, and the party liable.” There was a suggestion of resort to a collection agency only. Furthermore, no mention was made of the other surety in this request, as reqMred by strict construction of the statute. The W. T. Rawleigh Co. v. Moore, 196 Ark. 1148, 121 S.W. 2d 106.
The motion and notice of June 16th was not relied on by appellant, probably because no demand for action on the other surety was included.
Insofar as the motion and notice of July 13th is concerned, appellant cannot assert any rights under the act in question because it was repealed by § 36 of Act 303 of 1967. This act did not contain an emergency clause, so it became effective on June 29, 1967, ninety days after adjournment of the 1967 regular session of the General Assembly. Fulkerson v. Refunding Board, 201 Ark. 957, 147 S.W. 2d 980.
Appellant could not, in any event avail himself of the benefit of the statute upon which he relied by reason of the fact that notice to the attorney is not sufficient notice to the creditor. The act requires the service of notice on the creditor. See Cummins & Fenno v. Garretson, supra. Appellant argues that his service of notice upon appellee’s attorney was adequate because of Ark. Stat. Ann. § 27-1210 (Repl. 1962). We do not agree. Section 27-1210 is applicable only for the giving of notice of a motion or proceeding to be taken in court or before a judge. The notice required by Ark. Stat. Ann. §§ 34-333 — 4 is not of this type. A similar statute to § 27-1210 was considered in Cummins & Fenno v. Garretson, supra, and it was held that notice of this type to the attorney, either before suit or during the progress thereof, was not sufficient.
Since we find no merit in appellant’s contentions, the judgment is affirmed.
Byrd, J., concurs. | [
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Lyle Brown, Justice.
Appellant Dennis B. Sossamon entered a plea of guilty to murder and a jury fixed his punishment at life imprisonment after finding that he had committed first degree murder. There was no appeal. Some nine months after commitment, Sossamon filed a petition under our Bule I, seeking discharge from the commitment. That petition was denied. On appeal the prisoner argues (1) that he gave a confession without benefit of the warnings required by Miranda, (2) that he was denied a fair trial because of unfavorable publicity, and (3) that the trial court failed to make a record of the proceedings of the trial.
The details incident to the homicide are not pertinent to an understanding of the points raised. In fact, appellant admits he was given a ride, that he shot his benefactor, took a number of personal possessions and deceased’s automobile, and left the body in a wooded area. Appellant gave that testimony at his Bule I hearing.
1. The Confession. Sossamon was located by Crawford County officers in Oklahoma City, where he was being held on another felony charge. The sheriff and an officer of the Arkansas State Police returned the accused to Arkansas via automobile. The trip was not a long one and was uneventful except for oral admissions made by the accused. Sergeant Oliver testified that he had in his possession a card containing the Miranda warnings; that he read the warnings to Sossamon, not once but twice; that he then explained them in detail and Sossamon appeared to understand them; and that Sossamon freely related the details of the crime. Sossamon testified that he had a ninth grade education and, on previous brushes with the law, had been informed of his rights. At the Rule I hearing, Sossamon did not attempt to repudiate the facts in the statement.
Upon arrival at the Crawford County jail, Sossamon was told to “rest up” and he would be interviewed again the following day. The next morning the officers brought the defendant to an office where a typewriter was available and Sgt. Oliver reduced the oral statements to writing. He testified that the contents of the written statement, which Sossamon signed, were substantially the same as the oral statements.
Appellant’s counsel insist that the Miranda warnings should have been repeated prior to the taking of the written statement. We cannot agree. The lapse of time was overnight and we agree with Sgt. Oliver that the second interview was a continuation of the experience of the previous day. In Kaplan v. United States, 375 F. 2d 895 (1967), the defendant was advised of his right prior to an interview with a federal agent on December 19. A second interview occurred on December 20 and the warnings were not repeated. The court there said: “A repetition of this warning on December 20, 1964, was not required under either the Miranda decision or the ruling of Escobedo v. State of Illinois, 378 U.S. 473 (1964).” To the same effect is People v. Sievers, 62 Cal. Rptr. 841 (1967). Although the time element is not the same, the principle of continued interrogation was present in Heard v. State, 244 Ark. 44, 424 S.W. 2d 179 (1968).
2. Unfavorable Publicity to the Grime. At the Rule I hearing it was testified that the local newspapers gave publicity to the crime. It was also shown that a crime story magazine carried an account of the victim’s disappearance and defendant’s arrest. No effort was made to establish the extent of circulation of the magazine in the county. No testimony was offered except the bare statement that the publicity was read by Sosfamon’s relatives. Notwithstanding diligent legal rep resentation and the trial court’s standard inquiries of the jury relative to their knowledge of the facts, we find no evidence of the question of unfavorable publicity being developed prior to the Rule I hearing. In fact, the present record shows that the matter was not mentioned in the original trial.
3. Failure to Report the Proceedings at the Original Trial. In Medley v. Stephens, 242 Ark. 215, 412 S.W. 2d 823 (1967), we emphasized the importance of recording the proceedings in criminal cases of pleas of guilty. We reiterate that position because it eliminates so many possible pitfalls which were recounted in Medley. However, excepting the confession, the evidence presented in the trial of Sossamon is not here attacked. There is a complete absence of disagreement about the context of the brief trial. A plea of guilty was entered, a jury was empanelled, and the State put on the testimony of Sgt. Oliver to establish the information given him by Sossamon. Sheriff Wilbanks testified about finding the body. The court instructed the jury and the verdict was returned. The State had available a number of key witnesses but they were not called. We find no prejudice to the defendant which could possibly have resulted from the failure to record the proceedings.
We find no error with respect to the three points argued. Also, we have examined the other points raised in Sossamon’s original petition and find no merit. We should point out that, contrary to his assertion, Sossamon was afforded able counsel. The State cooperated with his counsel in apprising them of the State’s evidence. Established facts beyond the content of Sossamon’s statements pointed clearly to his guilt. Those circumstances played an important part in the decision of Sossamon’s counsel, after consulting with him and his parents, to recommend a plea of guilty.
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Lyle Brown, Justice.
Ray Davis and wife brought this suit to recover the purchase price they paid for lands they bought from the Reynolds heirs. They alleged misrepresentation concerning gas royalties produced by two wells. The chancellor set aside the transaction and the heirs’ trustee appeals. Appellant’s principal contention is that any representation as to royalties merged in the conveyance. Secondly, they question the sufficiency of the evidence. Finally, it is argued that the Davises could not return good title because they had encumbered the land with a mortgage.
The heirs of IT. R. Reynolds owned a 100-acre tract of land in Conway County. There were two natural gas wells in a unitized block from which the Reynoldses received royalties from Humble Oil. That was because the 100 acres was included in the unit. Elvia L. Reynolds was designated as trustee by the Reynolds heirs, with authority to sell the lands in fee. Marie Reynolds Arendt, one of the heirs living in Little Rock, contacted Dan Baldwin of Block Realty Company. She and Baldwin were business acquaintances, and on behalf of the heirs Mrs. Arendt gave Baldwin a listing.
With reference to the listing contract, here is Baldwin’s version: In response to a telephone call from Mrs. Arendt, he went to her home. She described the land and related that it benefitted from two gas producing wells. The heirs received, so she said, between $1500 and $1800 per year in gas royalties from Humble. A listing with Block was prepared and Mrs. Arendt executed it for the Reynolds heirs. Baldwin’s knowledge of the property came exclusively from the interview with Mrs. Arendt. The property was advertised by Block in two Little Rock newspapers. The ad referred to the gas royalties: “Drawing $1500 a year royalty, more later as gas line conies through.” That reference com ported with a notation in the listing signed by Mrs. Arendt.
The same witness gave this version of the sale to appellees Ray Davis and wife: Davis responded to the advertisement by telephoning Baldwin. Davis then drove to the property and on his return he again contacted Baldwin and told Baldwin he was interested. The representation as to royalties was repeated. Baldwin tried to confirm it by contacting Humble, but they refused to divulge the information, which Humble considered confidential. A sale price of $20,000 was agreed upon and the offer and acceptance was drafted. In a space reserved for special conditions was typed this language: “This offer is conditioned that the producing gas wells are now paying royalties of $1,300.00 or more annually.” Ray Davis and wife signed the offer. Elvia Reynolds came to Little Rock from Morrilton and signed in his capacity as trustee. Elvia was accompanied by a brother, and Baldwin testified that both men read the offer and acceptance.
Ray Davis was the only other witness for appellees. Summarizing: He learned from his first conversation with Baldwin that Mrs. Arendt could give him details. In a telephone conversation, Mrs. Arendt told Davis that the wells were producing more than $1500 annually. She said the land had to be sold to settle the estate. Davis relied on the assurance given by Mrs. Arendt and would not have purchased the land in the absence of those representations. His royalty income for the year 1966 was $616.68. He was paid $600 in royalties for the first nine months of 1967 and the total for that year would run between $700 and $750. The royalties received by the Reynolds heirs were stipulated as follows: 1962, $1,416.24; 1963, $1,334.27; 1964, $1,220.36; and 1965, $630.06.
So much for plaintiffs-appellees ’ testimony. Appellants produced the testimony of three of the Reynolds heirs. Elvis conceded that he had no objection to his sister signing the listing; he signed the offer and acceptance; he read part of it bnt did not realize it contained a provision about royalty income; it was his idea it was paying around twelve to fifteen hundred dollars a year; each of the heirs received separate checks; it was true the payments had been on the decline in late years; and he had never made a representation about royalty production. Marie Reynolds Arendt related her conversation with Mr. Baldwin of Block Realty: She signed the listing but was not aware of all its contents ; she told him the royalties varied from twelve to fifteen hundred dollars each year; she did not realize payments had been decreasing the past several years. Lela Reynolds Venable testified; however, her testimony concerned a brief conversation of no significance with Davis, which apparently occurred after the transaction.
The points for reversal will be italicized and discussed.
I. Davis placed a condition in Ms offer; when he accepted the deed the condition ivas ended and merged in the conveyance.
Appellant relies strongly on Duncan v. McAdams, 222 Ark. 143, 257 S.W. 2d 568 (1953). That case holds, so says appellant, that a contract for the sale of lands is deemed merged in the deed subsequently executed. That assertion is only partly true; there is another chapter. The execution of the deed being established, it cannot be set aside for variance with the contract unless the grantee meets the burden of establishing a mistake, a misrepresentation, or a fraud having been perpetrated on him. The rule does not require a showing of active fraud, and, inferentially, it is not here contended that any of the Reynolds family willfully set out to deceive Mr. Davis. The Reynoldses simply made a loose assertion concerning the royalties; the total amount of those payments was peculiarly within their knowledge; Humble would not release the totals to Bald win; the latter relied on the oral and written statement of Mrs. Arendt and passed this on to the purchaser. The representations were interpreted by the trial court as constituting constructive fraud. Lane v. Rachel, 239 Ark. 400, 389 S.W. 2d 621 (1965). We cannot say the chancellor’s conclusion was against the preponderance of the evidence.
II. There was no representation of any kind by Elvia L. Reynolds, trustee, or by anyone authorised to act for him.
Elvia Reynolds signed the offer of sale which has been described in the summary of testimony; he also testified that he had no objection to his sister signing the listing. The heirs were in complete agreement about selling the land and were acting with complete harmony. The chancellor’s finding that Elvia did give written representation was amply justified.
III. Plaintiffs were not entitled to a rescission.
This point overlaps Point I with the additional argument that the Davises subsequently placed a mortgage on the land. At the time of trial the balance was approximately $2000. The chancellor decreed that the Reynoldses refund the purchase price of $20,000 and that the Davises execute and deliver a warranty deed. Thus the inference is clear that good title must be reinvested in the Reynoldses. Naturally that could not be done without the mortgage being satisfied in full.
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George Rose Smith, Justice.
The appellant, charged with the first-degree murder of Freddie Lee Jackson, age 16, was found guilty of second-degree murder and was sentenced to imprisonment for 21 years. The sufficiency of the proof is not questioned, but several other points for reversal are argued.
Rosalie Jackson, Freddie Lee’s mother, testified that a girl came by the Jackson home at College Station late in the afternoon on May 5, 1967, knocked on the door, and asked to see Freddie Lee. After a short conversation the boy and girl left the house and walked down the road. That was the last time Mrs. Jackson saw her son alive. When Freddie Lee did not come home that night she called the sheriff’s office to report that he was missing.
A search was instituted. Arthur Lewis, a deputy sheriff, testified that he and another officer drove to College Station on the afternoon of May 7, Acting on information they sought out the appellant, L. V. Haire, and his wife, Norma Jean, whom Mrs. Jackson identified as the girl who had come by for Freddie Lee. At the officers’ request L. Y. and Norma Jean accompanied them to the sheriff’s headquarters for questioning, but neither of the Haires had then been placed under arrest.
At headquarters additional information led the officers to put L. Y. under arrest, on suspicion, and to begin a search for Freddie Lee’s body in certain wheat fields near the Sweet Home community. In the course of that search the Haires were brought to the scene. In answer to an inquiry Norma Jean said that the body was to the right of the road, but L. V. spoke up and said, “No, Honey, on the left.” In similar fashion Norma Jean said the gun was under the bed, but L. Y. said, “No, it’s up in the fireplace.” The body was found on the left, as L. Y. had said. The officers obtained a search warrant and found the pistol in the chimney at the Haires’ house. Six bullets taken from Freddie Lee’s body were shown by a ballistics expert to have been fired from that pistol. There was other testimony connecting L. Y. Haire with the crime, including proof that he had warned Freddie Lee to stay away from Norma Jean and that he had threatened to kill Freddie Lee.
Counsel insist that the court erred in admitting Haire’s statements about the location of the body and of the pistol, for the reason that he had not then been given a Miranda warning. As we read the record, both statements were made voluntarily and spontaneously— not in response to any interrogation of Haire by the officers. The statements were therefore admissible. Edington v. State, 243 Ark. 10, 418 S.W. 2d 637 (1967).
It is contended that the pistol and several articles of clothing were inadmissible, for the reason that they were obtained by the officers without a search warrant. The only testimony on the point is Officer Lewis’ uncontradicted statement that the officers “got a search warrant and went to the house with it.” There was no motion before the trial to suppress the testimony. In fact, there was no proper objection even when the articles were received in evidence. All the record shows is that when the State offered the articles one by one, the trial judge, without any objection having been made, announced a ruling to this effect in each instance: ‘ ‘ Let it be introduced over the defendant’s objections and exceptions.” Thus the record contains neither a specific objection nor a showing that the exhibits were seized without a warrant.
This appeal is from a second trial, the first one having ended in a mistrial. At the first trial the jury were unable to reach a verdict. It is now insisted that the court below erred in permitting the State to introduce the testimony given by the witness Freddie Jean Porter at the former trial. ¥e find no error. There was proof that three officers attempted to find the witness during the week preceding the second trial, but they were unable to do so, it being their information that she had left the city and that her whereabouts were unknown. No abuse of the court’s discretion in the matter appears. Mode v. State, 234 Ark. 46, 350 S.W. 2d 675 (1961).
With respect to the burden of proof on the issue of justifiable homicide, the court gave the usual instruction in the language of the statute, Ark. Stat. Ann. § 41-2246 (Repl. 1964), with the customary proviso that upon the whole case the burden is on the State to prove the accused’s guilt beyond a reasonable doubt. That instruction has been approved in many cases. See Ellis v. State, 234 Ark. 1072, 356 S.W. 2d 426 (1962); Brown v. State, 231 Ark. 363, 329 S.W. 2d 521 (1959). Other points are argued, but we find each one either to be unsupported by the proof or not to have been brought forward in the motion for a new trial. Thus no reversible error is shown.
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Lyle Brown, Justice.
The Workmen's Compensation Commission denied appellant Patricia Taylor’s claim for benefits beyond six months temporary total disability. On appeal to the circuit court the Commission was affirmed. An accidental Injury concededlv arose in the course of appellant’s employment; however, it was held that she no longer suffers from that injury. The only question on appeal is whether the holding is sustained by- the evidence.
From February until early May 1966, claimant worked in a spray paint area where some type of lead paint was sprayed on air conditioners. While spraying without a mask, claimant suffered a fainting spell which she attributed to a sudden explosive feeling in her chest, caused, so she asserted, from breathing paint fumes. She was taken to a doctor for emergency but the nature of the treatment is not in the record. She was not hospitalized at that time but apparently was an out-patient for a few weeks. Thereafter and in early July, claimant was sent to Dr. IT. C. Darnall, a thoracic and chest surgeon. Physical examination showed the chest, heart, and lungs to be clear and there was no temperature. The patient continued to complain of difficulty in the bronchial tree and she was hospitalized. After a week’s observation, Dr. Darnall suspected a chemical allergic bronchitis which, after the brief period of hospitalization, had cleared. The breathing of the fumes could, in the doctor’s opinion, have been the precipitating factor in the onset of the incident in May. However, he found no disability arising from that attack. He advised that claimant desist from working around the fumes.
Since Dr. Darnall could not discern physical findings which would resolve the source of the complaints which persisted, he referred claimant to Dr. McDonald Poe, specializing in internal medicine. Dr. Poe, after seeing claimant regularly for a number of weeks, categorized her problems as three-fold: (1) poor posture and breathing habits; (2) the responsibilities of caring for an invalid husband and five children a,nd the aftereffects of a hysterectomy, all combining to create a substantial emotional problem; and (3) an apparent allergy to certain types of paint fumes, which in the doctor’s opinion could be overcome by conquering the emotional problem and improving her posture and breathing habits.
When the medical evidence which has been summarized was presented to the Commission, appellees were directed to arrange for claimant’s examination by a Little Rock doctor selected by the Commission, authorizing that doctor to call in an allergy specialist if he desired. She was examined by Dr. Grimsloy Graham, specializing in thoracic and cardiovascular ailments. Dr. Graham gained the “impression that this patient might possibly have an allergic bronchitis.” Yet there were no subjective findings to support that impression. Iiis physical findings were completely negative. Dr. Graham referred claimant to an allergy specialist. All tests, both for allergies and asthma, were negative, but it was stated that no satisfactory test for allergy to fumes has been devised. That specialist concluded that the experience with the spray paint could not be the cause of her present trouble, that is, insofar as his area of tests and experience were concerned. It was his experience that those who react to fumes get almost immediate relief when they are removed from the area.
Our summary of testimony of all the doctors is not to insinuate that no statements made by them gave credence to a possible disability resulting from the experience with the spray paint. Careful and detailed cross-examination of a medical expert will usually bring forth statements which are encouraging to the cause of a claimant. Nevertheless, with the positive testimony we have summarized we certainly cannot say it was insubstantial; in fact, we think it amply supports the Commission’s finding that claimant is not suffering from any injury resulting* from the breathing* of the fumes. Our workmen’s compensation law is to be liberally construed in favor of the employee; however, a claimant has the burden of establishing the extent of the asserted injury. And when the Commission makes a finding of fact, that finding carries the weight of a jury conclusion. These are axioms which need no citation of authority.
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John A. Fogleman, Justice.
Certain property owners who protested a rezoning ordinance of the Little Rock Board of Directors have appealed from an order of the Pulaski Circuit Court granting appellees’ motion which had questioned the constitutionality of Ark. Stat. Ann. § 19-2830.1 (Supp. 1967) Section 2 of Act 134 of 1965). The provisions of this section purport to require a de novo trial by jury of any final action taken by administrative, quasi-judicial and legislative agencies in certain matters pertaining to municipal planning and zoning.
The circuit court’s order on the motion did not dispose of appellants’ petition but left the matter pending for a review by the trial court, without a jury, to determine whether the ordinance was arbitrary, capricious or unreasonable. It was specifically alleged in appellants’ petition for appeal filed in the trial court that the action of the Board of Directors was arbitrary, capricious, unreasonable and an abuse of discretion. Even though this order did not terminate the action, dismiss or discharge the parties, or finally conclude the rights of appellants in the controversy, appellants still contend that the order denying them a trial de novo and a jury trial is appealable.
Even when the decision on a motion has been based on a determination as to the constitutionality of an act, it is not appealable unless it constitutes a final order, judgment or determination in the court from which the appeal is taken. State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S.W. 555.
Appellants rely on Parker v. Murry, 221 Ark. 554, 254 S.W. 2d 468, as authority for their position that the order in this ease was appealable. There the court held that an order holding that the Attorney General not only had the right, at his option, to intervene in a case instituted by the Commissioner of Revenues, but also had the right, as intervenor, to direct and control the litigation was a final and appealable order. The basis for the holding in that case was a finding that a distinct and severable branch of the cause had been finally determined, although the suit was not ended. Here, we cannot say that the order denying trial de novo by jury and limiting the scope of review by the trial court, constitutes final determination of a distinct or severable branch of the case.
Therefore, we have no jurisdiction and dismiss the appeal as premature.
Byrd, J., not participating. | [
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Lyle Brown, Justice.
Appellant Albert Plain was the plaintiff below. He brought this suit to reform a deed given Bobert C. Bay, appellee, contending that the conveyance was in fact a mortgage. The trial court found (1) that Plain was in court with unclean hands, (2) that plaintiff was guilty of laches, and (3) that Plain in fact knew he was conveying the property by deed.
At the time of the transaction in 1960, Albert Plain was sixty-four years of age. He had been a sharecropper most of his life. He never attended school and could neither read nor write. However, he was found by the federal government to be capable and worthy of being included in their farm resettlement program. With the aid of the government he purchased a fifty-acre farm near Earle, Arkansas, in 1944, for which he agreed to pay $5000. He continued to farm the lands until 1959. Apparently because of failing health, Plain executed a five-year lease covering cultivated lands to Eobert Gammill beginning with the crop year 1960. The lessee was not interested in utilizing the house, small barn, and truck patch, so Plain continued down through the years to reside there.
By 1960 Albert Plain was in financial distress. Two years previously he had executed a mortgage to Citizens Burial Insurance Co. for $7500 and he was delinquent. He had not paid court-ordered child support for some time, and a judgment for $870 was rendered in March 1960. Outstanding were several open accounts, mostly incurred in his farming operations. His total indebtedness approximated $8000. Plain was informed by an attorney that his property would have to be sold unless he paid the judgment for child support. Since Eobert C. Eay had helped Plain secure the loan from Citizens, Plain consulted with Eay for advice and possible help. At Eay’s suggestion, Plain garnered most of his bills and submitted them to Eay. At that point the two men gave a different version as to what shortly occurred.
Plain’s Version. He had known Eay since 1947; several times Eay tried to buy his land but he would not sell; on this occasion Eay told him some papers would have to be signed so there would be security; Eay was lending him the money; Eay agreed to lend him enough to pay the debts, about $8000; they went before a notary public; Plain signed with an “X” and there were two witnesses to his mark; and at Eay’s request, Plain delivered to Eay the old deeds which Plain possessed to the place.
Ray’s Version. In September 1960, Plain came to Eay seeking help; Plain offered to sell the land to keep Lucinda (his former wife) from getting it; Plain was instructed to gather up his bills and return; a few days' later he returned with part of his bills which totaled approximately $8000; “I believe,” so Ray related, “I can pay off all this indebtedness and put you clear for that farm.” Ray was willing to make the deal if the bills did not exceed $10,000.
There are other significant facts which are undisputed. The deed was recorded and Ray paid all of Plain’s bills. That included several open accounts and also some small cash payments to Plain. In March 1961 Plain was cited for contempt for failure to pay child support. Ray paid the judgment and Plain testified that he had sold his farm. The court made a finding that Plain no longer owned any realty. Prom 1960 until the date of trial, the cultivated lands had been leased and considerably improved. All lease monies had been paid to Ray. Although the value of the land as of 1960 is in dispute, one appraiser placed the figure as high as $20,000. Another estimate was considerably less. However, it is clear to us that Ray picked up a real bargain because within three years after the purchase he borrowed $10,500 from the Federal Land Bank. Of course that may be offset somewhat by the fact that Plain has through the years used the house, outbuilding, and truck patch free of rent.
The consideration was looked upon by the trial court as being substantially inadequate. It was also the impression of the court that Plain had not been fairly treated when that treatment is judged by moral standards. With those conclusions we agree. On the other hand, we agree with the trial court’s conclusion that the law cannot afford relief to Plain in view of his own undisputed actions:
1. He executed a warranty deed and the form of execution is not questioned. It conformed to all the solemnities required by. law. , For that instrument to now be treated as a mortgage, the evidence must be clear, unequivocal, and convincing. Kerby v. Feild, 183 Ark. 714, 38 S.W. 2d 308 (1931).
2. Plain subsequently signed a witnessed statement to protect the lessee, Gannnill, in paying the rents to Ray. That statement recited that the lands had been sold to Ray.
3. Plain accepted payments from the Welfare Department with which to pay rent to Ray. Naturally Plain had to represent that he was a tenant.
4. When Plain was cited into court for failure to pay the judgment for non-support, he convinced the judge that he owned no property whatever. As a result of that representation he was apparently relieved of further payments. The court made a specific finding that Plain had no assets.
5. Approximately seven years elapsed before Plain sought reformation.
In his maneuvers before the court in the nonsupport hearing, Plain was in much the same position as Hubert Marshall in the case of Marshall v. Marshall, 227 Ark. 582, 300 S.W. 2d 933 (1957). In 1941 Hubert executed a warranty deed to his co-heirs by which he conveyed his interest in the property. In a proceeding some fifteen years later, Hubert sought to have the deed reformed and declared a mortgage. Hubert admitted that as to his 1941 creditors he treated the instrument as a deed, but as to himself he considered it a mortgage. This court held that the “clean hands doctrine” precluded Hubert from now claiming the instrument to have been a mortgage. Another case involving the same doctrine is McClure v. McClure, 220 Ark. 312, 247 S.W. 2d 466 (1952). The evidence showed that Dr. McClure deeded a building to his wife in the liope of placing it beyond the reach of the husband’s creditors. This court held that Dr. McClure could not invoke the aid of equity to set aside the deed.
This case is distinguishable from Batesville Truck Lime, Inc. v. Martin, 219 Ark. 603, 243 S.W. 2d 729 (1951). In that case a transit permit was granted by the Public Service Commission to a dummy corporation formed by Martin and Tugwell. Martin’s name was withheld from the PSC proceedings because otherwise the permit would have been denied. Tugwell later refused to transfer to Martin any of the stock. Martin filed suit for specific performance to obtain his share of the corporation. Tugwell’s plea of “unclean hands” against Martin was denied for the reason that Tugwell participated in the fraud on the commission (if in fact a fraud was perpetrated). To have held otherwise would have permitted Tugwell to hold property which he had obtained by fraud and which was in fact not his own. In the case at bar the trial court did not find Eay guilty of any fraud. The court made a specific finding that Plain knew he was giving to Eay a deed and not a mortgage. The court pointed out that Plain had had considerable experience with the government farm agencies in annually executing crop mortgages. To this finding we would add a point of significance, namely, that Plain freely surrendered to Eay the original deed which Plain held to the place. The most that can be said of the court’s criticism of Eay was to the effect that he drove a hard bargain. In view of the other numerous acts of Plain which we have recited, together with many instances of testimonial evasiveness, we cannot say the chancellor was in error in his refusal to reform the deed.
Affirmed.
Fogleman, J., not participating. | [
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J. Fred Jones, Justice.
This appeal is from an order of the Arkansas County Chancery Court modifying a divorce decree as to the visitation rights of the father with the couple’s three year old daughter.
Sherrye and Alton Hampton were married on October 21, 1962, when she was sixteen and he was nine teen years of age. They lived together on his father’s rice farm near DeWitt for about two years when their child, Monti, was born. Alton was overseas for about two years as a member of the armed forces and while he was away Sherrye and the child lived with her parents who operate a grocery store in Des Arc, Arkansas. Upon Alton’s return from overseas, the couple continued to live on his father’s farm where Alton worked on the farm for daily wages. They obtained a divorce on December 2, 1966; the custody of the child was awarded to the mother and visitation rights of two Saturdays each month were awarded to the father. After the divorce, Sherrye entered Little Eock University. She kept the child with her part of the time in Little Eock and left it with her mother part of the time in Des Arc. Alton continued to work on his father’s farm near DeWitt and attempted to visit the child two Saturdays each month as provided in the decree.
The record indicates that much of the difficulty causing the separation and divorce in the first place had to do with the immature attitude each parent took toward the other in relation to the welfare of their child. The divorce did not soften their attitude toward each other. The child was allergic to organic dusts, particularly from soybeans and rice but this allergy was controlled by medication. The parents were allergic to each other and no attempt was made by either to control this allergy. As a matter of fact this allergy was aggravated to some extent by Sherrye’s remarriage. Alton attemped to exercise his visitation rights under the court order as if the order was directed to him and Sherrye flouted the court order as if she had not even heard of it and as if it did not apply to her at all. On several occasions Alton would drive from DeWitt to Little Eock to visit the child and Sherrye would deny him the privilege, usually on the pretext that the child was ill because of allergy or had an appointment with a doctor.
Sherrye’s remarriage contributed nothing but complications to the exercise of Alton’s rights of visitation and following a contempt citation hearing on March 17, 1967, the chancellor held Sherrye in contempt of court for failure to comply with the visitation orders, but deferred further action for a period of sixty days, during which time Sherrye was given further opportunity to comply with the previous orders pertaining to the visitation rights. Additional hearing was had on October 24, 1967, at which time the chancellor modified the original decree by authorizing Alton to have the child in his home two weekends out of each month. It is from this order that Sherrye has perfected her appeal to this court and she relies on the following point for reversal:
“The court erred in disregarding the health and physical well-being of the child by increasing the visitation rights of the father.”
Appellant’s point is not supported by the record and we find no merit in this appeal. The chancellor went to unusual length and exhibited commendable patience and understanding in arriving at his decision in this case. The chancellor made it clear throughout this entire case that the welfare of the child was his primary concern and we are of the opinion that he properly evaluated the medical evidence in this case when he said:
“Now with all this proof here, doctor’s deposition and Dr. Henderson in person, all of this proof about these allergies and one thing and the other and I don’t question that at all but there hasn’t been one scintilla of evidence offered here that the times the child did go over to the farm [of the father in DeWitt] that she luas any worse ichen she came bach. * * * 'The court has recognized the mother’s claim by giving the custody of the child to the mother and providing that the father could visit the child, have the child visit in the home twice a month. Now, I would be much more impressed by the medical proof here if it wasn’t the fact that the child is going bach and forth from Des Arc to Little Bock, which is not much less distance than to DeWitt and it is a known fact that rice and soybeans are major crops in the Des Arc area the same as they are here. [Arkansas County].” (Emphasis supplied.)
There is no rule more firmly established than the rule that chancery cases are tried de novo on appeal to this court, and the chancellor’s decree will be affirmed unless it is clearly against the preponderance of the evidence or the chancellor has abused his discretion. The oft-stated reasoning that a chancellor who sees the parties and their witnesses and observes their demeanor while testifying, is in a better position to evaluate the credibility of their testimony, applies with special force in a case where child custody is involved. Cheek v. Cheek, 232 Ark. 1, 334 S.W. 2d 669. In Holt v. Taylor, 242 Ark. 292, 413 S.W. 2d 52, we said:
“For a court to choose, in a custody case, between the mother and father, the respective personalities of the parents are vital. It is in this realm that personal observation is of inestimable value. As we stated in Wilson v. Wilson, 228 Ark. 789, 310 S.W. 2d 500: We know of no type of case wherein the personal observations of the court mean more than in a child custody case.’ ”
The chancellor’s experience with these parents began with the divorce proceedings on December' 7, 1966, and continued through two custody hearings on March 17, 1967, and October 24, 1967. The chancellor was well aware of the child’s allergic condition from the evidence of unpaid medical bills, as well as the depositions and personal testimony of the doctors presented at the court hearing. The chancellor did not abuse his discretion in this case and his order is not against the preponderance of the evidence.
The order is affirmed. | [
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Lyle Brown, Justice.
Curtis Smith was given a life sentence, having been found guilty of being an accessory to the murder of a filling station attendant. Robbery was alleged to have been the motive of the attack. There was no appeal. The matter is here on collateral attack pursuant to our Criminal Procedure Rule No. 1. The trial court refused relief and the defendant appeals. The point determinative of the appeal is Smith’s contention that the State failed to disclose evidence favorable to him and which would have been material to his defense. The trial court specifically found there had been no suppression.
Some six weeks after the crime, M. C. Talley became a prime suspect. Deputy Constable B. C. Courson of Ashley County, accompanied by the prosecuting attorney, went to Monroe, Louisiana, to interview Talley, who was in jail. He gave a detailed and written confession. He stated that he was the only participant. He related that he went to the filling station alone and that after the crime he ran and walked all the way to his home in Hamburg; and that he caught a bus the next morning and went to Monroe.
Some few months thereafter Talley repudiated the Monroe confession. His second statement still admitted his participation in the crime but the significant change from the Monroe statement was that he implicated appellant Curtis Smith. Allegedly, Smith picked up Talley in Crossett and drove him to the scene of the crime at Hamburg, parking by the side of the service station; that Talley gave most of the money to Smith; and that Smith drove him away from the station.
In December 1965, Smith was tried and Talley was a principal witness for the State. Again Talley implicated Smith as an accessory. During the post-conviction hearing at the trial level, Smith’s attorney asserted that he had no personal knowledge of the Monroe confession, that being the confession in which Talley asserted that he committed the crime alone. On appeal, counsel for Smith contends that the failure of the State to make available to him the Monroe confession, amounts to a suppression of evidence; and that the confession would have been valuable in cross-examining Talley at Smith’s jury trial, particularly in that it would have been damaging to Talley’s credibility. It should be noted (1) that there is no charge of bad faith concealment, and (2) Smith’s counsel does not contend he sought and was denied access to the statement. No evidence was introduced tending to show that Smith’s counsel even knew of the existence of the Monroe statement as of the time of Smith’s trial.
The question of concealment, or nondisclosure, of evidence by the prosecution has been the subject of considerable discussion in case law of the past decade. We shall refer to four such cases.
Brady v. Maryland, 373 U.S. 83 (1963). After Brady was convicted of murder in a state court lie learned of an .extrajudicial confession of his accomplice wherein the accomplice admitted the homicide. That confession was not made available to Brady, notwithstanding his counsel had asked in advance of trial to examine the accomplice’s extrajudicial statements. The court held that the suppression amounted to a violation of the due process clause of the Fourteenth Amendment. The United States Supreme Court said:
“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.”
Giles v. Maryland, 386 U.S. 66 (1967). Factually this case is quite different from ours. We refer to it as another case which condemns the withholding by the State of records beneficial to the accused and the denial of the petitioner’s request to examine statements given by the prosecuting* witness prior to trial which were contradictory of her later testimony. In Giles the ‘ ‘ suppressed evidence” went to the credibility of the prosecuting witness and was declared to be important to the outcome of the case.
United States v. Wilkins, 326 F. 2d 135 (1964). After conviction for robbery in a state court, petitioner’s counsel discovered the existence of two witnesses which would have been helpful to the defense. Sometime before the trial, those two witnesses had been called by the police to headquarters to identify the defendant. They replied that petitioner was not one of the men they saw at the scene of the crime. Of course the State did not use those witnesses, nor did it reveal them to the defendant. Petitioner was convicted on the testimony of the store manager and another identifying witness. This case differs from Brady in that here the petitioner never requested the disclosure of evidence from the prosecution; but in Wilkins the Court said that such a request is not an indispensable requisite to establish the duty of disclosure.
Petition of Wright, 282 F. Supp. 999 (W.D. Ark. 1968). Judge Miller’s holding in that ease is in harmony with the reasoning in Wilkins. Wright was convicted of rape in the Circuit Court of Sebastian County. The victim lost her purse on the night of the attack. After the conviction but before the presentation of Wright’s motion for new trial, the purse was found under a house in which another rape suspect had lived. 'The purse was immediately delivered to the police. At least ten days before the overruling of the motion for new trial the finding of the purse was made known to the prosecuting attorney. Those findings were not revealed to Wright’s attorneys or to the trial court. The existence of the “suppressed evidence” was not known to Wright’s attorneys until after this court had affirmed the conviction, so Wright’s only avenue for relief was by a petition for a writ of habeas corpus. In deciding that Wright’s petition should be granted, Judge Miller made this analysis of the law:
“Fairness is a requirement of due process. In United States ex rel. Meers v. Wilkins (2 Cir. 1964, 326 F. 2d 135, the court discussed the constitutional right to the revelation of material evidence to assist the defense, and outlined the prosecuting attorney’s duty in that regard. At page 136 the court said:
“ ‘The law has been established since Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935), that the conduct of state prosecuting officers may be grounds for finding a defendant’s right to a fair trial violated and to authorize the federal courts to grant writs of habeas corpus.’
“Whether or not a prosecuting attorney in a criminal case must disclose evidence in his posses sion favorable to the accused depends on many factors, and a case-by-ease judgment must be made.”
We hold that the circumstances of this case dictate that the Monroe confession of M. C. Talley should have been made available to Curtis Smith’s counsel. It certainly would have been material in the cross-examination of Talley. Not only could it have cast light on his credibility but it could well have been important to the jury in passing on the guilt or innocence of Smith. We do not have the complete trial record in the case of State v. Curtis Smith; however, the State’s brief concedes that “Talley testified on behalf of the State and implicated Smith as an accessory to the crime.” Certainly Talley’s testimony was introduced to bolster the State’s theory that Smith was guilty of the charge. Now if the jury had been informed of Talley’s Monroe statement, it could have raised a reasonable doubt of Smith’s guilt. Certainly we cannot say Talley’s credibility was unimportant to the outcome of the case.
Other circumstances should be mentioned because many factors enter into a determination of the duty to disclose. That is because every case must rest on its own particular facts. Smith was a pauper and was described by one doctor as having borderline mentality, the latter of course affecting his ability to cooperate with counsel; Smith claimed to have had very little education; the court-appointed attorney did not have the financial facilities possessed by the State to make investigations; Attorney Barker served temporarily as counsel at arraignment and for a short period thereafter; and he was then relieved but was again appointed approximately one week before the trial.
The petition for discharge is granted, but of course the State may, if it so elects, proceed with a new trial on the charges contained in the information. | [
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J. Fred Jones, Justice.
The appellants brought a taxpayer’s suit in the Union County Chancery Court to enjoin the county judge and election commissioners from signing a contract for the purchase of voting machines. The injunction was refused by the chancellor and appellants rely on the following points for reversal:
‘ ‘ There was a failure to comply with the county purchasing procedure act.
“ There was a failure to comply with the freedom of information act.”
At the general election in 1966 the people of Union County voted in favor of purchasing voting machines for that county. Several meetings were held where the procedure for carrying out the mandate of the people was discussed by the election commissioners, the county officials and other interested parties, including representatives of the League of Women Voters who had initiated and sponsored the election. Finally on July 15, 1967, the chairman of the county election com mission, the county judge and other interested citizens, including Mrs. Cash, a representative of the League of Women Voters, met and discussed the procedure to be followed in purchasing voting machines. The county judge was directed to seek bids and Mrs. Cash requested notice of the meeting when the bids would be opened. It was determined at this meeting that since there were only two eligible voting machine companies qualified to sell voting machines in Arkansas, it would not be necessary to follow the county purchasing procedure act of 1965, Ark. Stat. Ann. §§ 17-1601 through 1613, so it was decided that formal notices would be sent to the two eligible prospective bidders requesting bids which would be opened on June 29, 1967. This procedure was carried out by the county judge under the direction of the county election commission. Both of the eligible companies submitted sealed bids and sent representatives to be present at the opening of the bids on June 29.
On June 29, 1967, at the time and place agreed upon, the bids were opened and read, and at this point there is considerable conflict in the testimony as to what followed. Appellants say that the meeting went into executive session with everyone cleared from the room except the county judge, the election commissioners and the deputy prosecuting attorney, and that after the closed session, “outsiders” were again admitted to the room where it was announced that the election commission had voted unanimously to accept the lowest bid of Shoup Voting Machine Corporation. Appellees contend that after the bids were opened and read at the open meeting, identical questions were asked each voting machine company representative out of hearing of the other, and that when the voting machine company representatives were asked to step out of the room, others also left, without protest or objection, and without being asked to do so. Appellees contend, and so testified, that it was not their intention to exclude anyone from the meeting who desired to stay and that they did not hold a closed executive session to the exclusion of the public in violation of the Freedom of Information Act of 1967, Ark. Stat. Ann. § 12-2801 (Snpp. 1967).
Under the conflict of testimony on this point, we are unable to say that the chancellor’s finding was against the preponderance of the evidence. This disposes of appellants’ second point, but appellants’ first point gives us more difficulty.
The purchase and use of voting machines in Arkansas was authorized by legislative Act 53 of 1963, now Ark. Stat. Ann. 3-1701 through 1733 (Snpp. 1967). Section 3-1703 of this statute reads in part as follows:
“The State Board of Election Commissioners or the County Board of Election Commissioners shall have the authority to purchase or lease-purchase voting machines and payment may be provided for in such manner as is deemed best for the interests of the State, County or City in which an affirmative vote is cast under the provisions of this section.”
The County Purchasing Procedure Act (No. 52 of 1st Ex. Sess. 1965) was passed by the legislature two years after the voting machine act, supra. The County Purchasing Procedure Act, Ark. Stat. Ann. §§ 17-1601 through 17-1613 (Supp. 1967), is rather comprehensive in relation to all purchases by county officials with county funds in excess of $1,000.00 and is penal in nature.
Section 17-1601 is as follows:
“From and after the passage and approval of this Act [§§ 17-1601 — 17-1613] it shall be unlawful for any County Official within the several counties of the State of Arkansas, to make any purchases with county funds in excess of $1000.00, unless the hereinafter method of purchasing is followed. Pro vided, however, this Act shall not apply to any purchases under $1000.00 or purchase of commodities set forth in Section 6 [§17-1606] hereof.”
Section 17-1602 provides as follows:
“(a) ‘Purchasing Official’ shall mean any county official, individual, board or commission, or his or its lawfully designated agent with constitutional authority to contract or make purchases in behalf of the county.
(b) ‘Commodities’ shall mean all supplies, goods, material, equipment, machinery, facilities, personal property, and services, other than personal services, purchased for or on behalf of the county.
(c) ‘Purchase Price’ shall mean the full sale or bid price of any commodity, without any allowance for trade-in.
(d) ‘Purchase’ shall mean and include not only the outright purchase of a commodity but also the acquisition of commodities under rental-purchase agreements or lease-purchase agreements or any other type of agreements whereby the county has an option to buy the commodity and to apply the rental payments on the purchase price thereof.
(e) ‘Formal Bidding’ shall mean the procedure to be followed in the solicitation and receipt of sealed bids, wherein: (1) notice shall be given of the date, time and place of opening bids, and the names or a brief description and the specifications of the commodities for which bids are to be received, by one insertion in a newspaper with a general circulation in the county, not less than ten (10) days nor more than thirty [30] days prior to the date fixed for oijening such bids; (2) the furnish ing, not less than ten [10] days in advance of the date fixed for opening the bids, of notices and bid forms to all eligible bidders on the bid list for the class of commodities on which bids are to be received, and the furnishing of notices and bid forms to all others requesting the same; and (3) by posting in a conspicuous place in the County Court House, at least (10) days in advance of the date fixed for opening bids, a copy of the notice of invitation to bid.
(f) ‘Informal Bidder’ shall mean the procedure to be followed in the solicitation and receipt of bids wherein: (1) notice or bid forms shall be furnished to all eligible bidders on the bid list for the particular commodity at least (5) five days prior to the date fixed for opening the bids; and (2) notice of invitation to bid shall be posted in a conspicuous place in the County Court House at least (5) five days prior to the opening of the bids.
(g) ‘ Open Market Purchases ’ shall mean those purchases of commodities by any purchasing official in which competitive bidding is not required.
(h) ‘Trade-in Purchases’ shall mean all purchases where offers must be included with the bids of each bidder for trade-in allowance for used commodities.
(i) ‘Used or Second Hand Equipment or Machinery’ shall mean any equipment or machinery having had at least 500 working hours prior use. Any purchase of used equipment or machinery shall be accompanied by a statement in writing from the vendor that such equipment or machinery has been used a minimum of 500 hours prior to such sale, ana such written statement shall be filed with the county clerk at the time of purchase.”
Section. 17-1603 provides as follows:
“All purchases of commodities made by any county purchasing official with county funds, except those specifically exempted by this act, shall be made as follows:
(a) Formal bidding shall be required in each instance in which the estimated purchase price shall equal or exceed $1,500.00.
(b) Informal bidding shall be required in each instance in which the estimated purchase price shall equal or exceed $1,000.00 but shall be less than $1,-500.00.
(c) ‘Open Market Purchases’ may be made of any commodities where the purchase price thereof is less than $1000.00.
(d) No purchasing official shall parcel or split any item or items of commodities or estimates, with the intent or purpose to change the classificaT tion or to enable the purchase to be made under less restrictive procedure. ’ ’
Sections 17-1607-08-09 provide as follows:
“The County Purchasing Official shall establish and maintain a list of eligible bidders covering all commodities and shall furnish copies of the same to all purchasing officials of the county. Any firm which desires to bid and have its name on the list of prospective bidders shall notify the purchasing official in writing of such desire, setting forth the class and description of commodities on which it desires to bid, and the firm’s qualifications as a responsible bidder. Every effort shall be made by the purchasing official to notify all eligible bidders before purchases are made.
“(a) All bids which require either formal or informal bidding shall be opened in public and read at the time and place specified in the notice.
(b) The awarding of contracts need not be upon the day of the opening of the bids, but may be at a later date to be determined by the purchasing official. In order to assure that the bidder will accept and perform a contract under the terms of his bid the purchasing official may require bids to be accompanied by certified check or surety bond furnished bj^ a surety company authorized to do business in this state, in such a reasonable amount as the purchasing official shall determine.
“(a) No contract shall be awarded or any purchase made until the same has been approved by the County Court, and no contract shall be binding on any county until the County Court shall have issued its order of approval.
(b) The Order of the County Court shall be properly docketed, and all documents and bids pertaining to the solicitation of bids and awarding of contracts under the purchasing procedure of this act shall be filed with the County Clerk, together with the order of the court which shall be filed by said County Clerk.
(c) No claim filed with the county for payment of any commodity, the purchase of which is regulated by this act, shall be paid, or no warrant shall be issued by the county clerk for the payment of same, until the order of the county court approving same shall have been issued and filed with the county clerk.”
It is noted that numerous commodities are exempted from the provisions of the act (§17-1606), but voting* machines are not within the exemption. The proposed contract in this case involved the rental-purchase of sixty voting machines involving expenditure far in excess of $1,500.00, so there is no question that “Formal Bidding” under § 17-1602 (e) and § 17-1603 (a) would apply in this case.
The record before us sheds no light on why the appellees failed to comply with the rather simple and inexpensive procedure of publication of notice under § 17-1602 (e) (1), and we would be forced outside the record in assuming that appellees considered the county purchasing procedure act nonapplicable to the authority vested in the election commissioners by the terms of the voting machine act.
This argument is not raised in the case at bar, so apparently appellees considered the requirement for publication of notice to be wholly and exclusively for the benefit of prospective bidders and to better insure spirited competition between bidders. Such may be the primary purpose of § 17-1602 (e) (1) but such notice would also let everyone who had voted for the purchase of the machines know when the bids would be opened so that they could appear if they desired to do so, and at least hear any discussion that might arise as to the “consideration given for price, quality and adaptability to Arkansas ballot requirements” as provided by Ark. Stat. Ann. § 3-1704, supra.
When the County Purchasing Procedure Act was adopted in 1965, the legislature could not have been unaware of the limited source for supply of voting machines. As was pointed out in Walsh v. Campbell, County Judge, 240 Ark. 1034, 405 S.W. 2d 264, the constitution of the state of Arkansas was even changed in 1962 (Amendment 50) to permit the purchase of the veiy machine here involved. Yet the legislature did not see fit to exempt voting machines from the provisions of the County Purchasing Procedure Act passed in 1965.
Appellees do not contend that voting machines do not come under the provisions of the Purchasing Act, they argue that the Purchasing Act statute was substantially complied with. We are unable to agree that there is substantial compliance when there is no compliance at all. We detect no evidence of fraud or ulterior motive on the part of appellees in their performance of the thankless task thrust upon them by statute in this case, but we conclude that appellees erred in their failure to follow the “Formal Bidding” section of the County Purchasing Procedure Act, Ark. Stat. Ann. § 17-1602 (e) (1), and that the decree of the chancellor should be reversed and this cause remanded with directions to grant appellants’ motions, pending appellees’ compliance with the provisions of the act.
Reversed and remanded.
George Rose Smith, Fogleman, JJ., dissent. | [
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Lyle Brown, Justice.
This is a controversy over the custody of two small children. This appeal by Freddie D. Nagel, the father, stems from the court’s denial of his petition to set aside a custody order which had previously given the appellee (mother) custody, subject to visitation rights of the father.
The parties married in 1960 and lived together until January 1965. Judy was born to the union in September 1963, and Freddie was born in June 1964. In a contested proceeding in early 1965, the father obtained a divorce; the mother was awarded temporary custody of the children; the right of reasonable visitation was vested in the father, along with the privilege of having Judy visit with the father and paternal grandparents each weelc-end; and, provisions were made for child support to be paid the mother. Late in the same year the parties were back in court concerning custody. The mother sought modification of the week-end visitation privilege concerning Judy; the father responded that Minnie Doris Nagel had married one Travis Gibbs; that Gibbs had a drinking problem and principally for that reason the children would not be in a good environment; and that custody should be vested in the father. The trial court, after testimony, declined to modify the previous custody arrangements; however, the court did add a provision which would diminish the chances of the children being exposed to the environment of alcoholic beverages. That part of the modification which is here significant is as follows:
“. . . ; that she [mother] not allow said wards to remain at any place where alcoholic beverages are being consumed, sold, stored, or kept for human consumption. It is further ordered, that in the event of the violation of this order, this custody order be, and the same is hereby ipso facto vacated and the court will remove the custody of said wards from Minnie Doris Nagel, now Gibbs, and award custody to a qualified custodian.”
That order was entered January 25, 1966. The recited prohibition provision formed the basis of a subsequent petition for modification, this time by the father. In June 1966, Freddie D. Nagel alleged that Gibbs was drinking excessively and in the presence of Nagel’s children; that Minnie Doris Nagel Gibbs had violated the order; and, that she had permitted the children to remain in the presence of Gibbs when he was intoxicated. Nagel prayed that he, the father, be given custody of the children.
Some ten witnesses testified at the hearing. The second husband of Minnie Doris Nagel — Travis Gibbs —was the principal subject of the testimony; it concerned his drinking habits. The mother was called as a witness by the father. She conceded that since the court order of January 1966, she had on probably five occasions acceded to Travis Gibbs’ request that she pick up a bottle of whisky for him at a retail outlet; and that on two of those occasions, one or both children may have been with her. However, she insisted that she left the liquor in the pick-up truck and insisted that at no time was it taken into the home. Another witness (Mrs. Ramey) for Nagel testified that she had seen Travis Gibbs, subsequent to the court order of January, consume liquor in the Gibbs home and in the presence of the children. However, on cross-examination it developed that the witness never saw the bottle because it was in a paper sack. She conceded she was not sure it was liquor. Another witness testified that a month after the January court order he accosted Gibbs asleep in a truck by the side of the road late at night; that the truck was stranded and Gibbs was intoxicated. Freddie Nagel testified that on one occasion he came upon Gibbs on the highway and Gibbs was intoxicated and belligerent; and that on February 20, 1966, and three times thereafter, Nagel witnessed Gibbs buying liquor.
In her own behalf, Doris Nagel Gibbs denied having knowingly violated the court order. She asserted that she did not understand the order forbade her from running errands for her husband; that to her knowledge no liquor had been consumed in her house since the January 1966 court order; that she drinks no intoxicants of any kind; that if Mrs. Ramey saw her husband drink something out of a bottle enclosed in a sack, it probably was his medicine, which is non-alcoholic.
That hearing was conducted November 18, 1966. The trial court kept the matter under advisement for more than eleven months, principally in the hope that the parents would develop a more cooperative attitude over their custody obligations. In the interim the court enlisted the aid of the child welfare division of the Department of Welfare, pursuant to Ark. Stat. Ann. § 22- 136 (Repl. 1962). Child Welfare investigated “to ascertain if there was any further evidence in existence to show that he [Gibbs] was causing his wife to be in violation of the order so that the action could be reopened for further testimony.” That report was negative, that is, no additional evidence was found against the mother.
The chancellor refused to disturb the custody arrangements contained in his order of January 1966. The basic issue before the chancellor was whether the mother had permitted the children “to remain at any place where alcoholic beverages are being consumed, stored or kept for human consumption.” Specifically, it centered on the unquestioned drinking habits of Travis Gibbs — not whether Gibbs drank intoxicants in the presence of the children — but rather, whether the mother allowed these children to remain at a place where they would be exposed to the intoxicants and/or the consumption thereof. We are not unmindful of other allegations made by Nagel; we have examined the abstract and agree with the chancellor that they are without merit ; and that conclusion is not seriously questioned by appellant.
The phraseology of the January 1966 order was that of the chancellor. He knows better than any other person precisely what type of activity was included in his order pertaining to intoxicants. The chancellor stated in his findings that he had made “a careful and deliberate evaluation” of the testimony and concluded that the evidence against appellee mother did not establish a violation; at least it did not preponderate to the degree required to sustain the charge. Considering the facts that the chancellor authored the phraseology of the prohibition, heard the witnesses, had the problems of this family before him almost continuously for a period of three years, and satisfied himself that no other evidence existed against the mother — in view of those combined factors — we refuse to substitute our judgment for that of the chancellor. Holt v. Taylor, 242 Ark. 292, 413 S.W. 2d 52 (1967). At least we certainly cannot say his findings were against a preponderance of the evidence.
Appellant here confines his argument to citing the prohibition against intoxicants, directing attention to appellee’s alleged violations, and reasons that it became obligatory on the chancellor to change the custody of the children. With that reasoning we cannot agree. In a case of this nature we should cleave to the paramount concern of the chancellor — the welfare of the children. The fact that they are of tender years, and being well nutured by a mother who practices abstinence — these and other factors are certainly to be evaluated.
Affirmed.
Byrd, J., not participating. | [
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J. Fred Jones, Justice.
This is a materialmen’s lien case presented to this court on appeal by the Arkansas Louisiana Gas Company from a decree of the Cleburne County Chancery Court denying a lien on real property belonging to appellees, Ralph and Gladys Moffitt.
The record reveals the following facts: In early 1966, John E. Bryant and Sons Lumber Company, Inc. contracted with appellees, Ralph A. and Gladys L. Moffitt, to build an air conditioned motel for the Moffitts near Heber Springs, Arkansas. Bryant subcontracted the electrical and plumbing work, which included the air conditioning portion of the original contract, to appellee Hayden. On March 10, 1966, Hayden purchased from the appellant air conditioning equipment for installation in the motel. As a general policy, in the sale of its air conditioning equipment, the appellant furnished sup ervision and advice on installation without additional cost to contractors and other purchasers of equipment. The equipment sold to Hayden was delivered on June 3 and installed by Hayden. Appellant supervised and instructed Hayden in how to wire thermostats on the equipment and in connection with other items during the period of installation. The motel was open for business on July 1, 1966, and the air conditioning equipment was in operation on that date. On July 6, 1966, the equipment which controlled the regularity with which the blowers came on was recalibrated under the supervision of appellant. Hayden failed to pay the appellant for the equipment and on November 3, 1966, appellant filed a lien account claiming a materialmen’s lien against the motel property. The question presented to the chancellor was whether appellant’s lien account was timely filed. The chancellor held that it was not and the appellant relies on the following point for reversal :
“The chancellor’s finding that Appellant is not entitled to a lien is against the preponderance of the evidence and should be reversed.”
Memorandum of the transaction between the appellant and Hayden was evidenced by two instruments dated March 10,1966. One, a purchase order No. 5 was signed by Horace Hayden, and the other, designated in writing, “memo contract” was on a printed security agreement form and was signed by E. O. Allen, sales representative for the appellant. The purchase order No. 5 appears in the record as follows:
“Ref Ralph Moffitt
Motel Heber Springs Ark — Job #2402
Please go ahead with order for Equip on above job.
Thanhs
Horace Hayden
2477.00 + Tax 69.91
$ 2546.81”
The memo contract on the security agreement form appears as follows:
“ Memo Contract
Security Agreement
The Arkansas Louisiana Has Company agrees to sell and the undersigned purchaser agrees to buy the following described property:
1 — EE 42-96, AYS — 105, w/PK-WM,
1 — Model 428, AYS-86 & PK-86 & T’stat
1 — Lot Chiller Controls
6 — Lots Coil Controls 2327.00
Tax 69.81 Freight & Del. 150.00
2546.81
Two Cabildo Haslites & 2 yrs. service free # # #
Property purchased will be installed at Moffitt Motel — Heber Springs. Property will remain in possession of purchaser at the address in installation until the entire purchase price is paid.
No verbal agreements or warranties have been made by the parties hereto relative to this sale, it being ■understood that this written contract, including the conditions printed on the back hereof, embodies the entire agreement.”
The lien account, exhibit #2, bears no filing date and the record does not reveal where or when the lien account was filed, but it appears agreed that the original records revealed the filing date to be November 3, 1966. The place of filing and sufficiency of the lien account are not questioned. The lien account was dated October 27, 1966, and contained language as follows:
“That said Arkansas Louisiana Gas Company sold and delivered to Hayden’s Plumbing & Electric Service, beginning March 25, 1966, and continuing through July 6, 1966, under a single contract and continuous account, air conditioning equipment and materials for construction of buildings and improvements on [description] for an agreed price and sum and having a value of Two Thousand Five Hundred Forty-Six Dollars and Eighty-one cents ($2,546.81), after allowing all credits thereon;
That said air conditioning equipment and materials consisted of one EE-42-96 Servel Unit; one Model 428 Unit; one 105 AYS Tower; one 86 AYS Tower with coils, controls and necessary equipment and materials for installation; labor of installation.
That a copy of each invoice itemizing and describing said air conditioning equipment and materials was delivered to the said Hayden’s Plumbing & Electric Service at the time that said equipment and materials were purchased by them and that all of said equipment and materials were furnished for and used in the construction of the said buildings and improvements located on the land described above;
That said equipment and materials were delivered to said real estate for Ralph A. Moffitt and Gladys L. Moffitt, who are the owners of the fee simple title to said real estate, a verified statement of which is attached.
That the foregoing is a just and true account of the demand due and owing to said Arkansas Louisiana Gas Company by said Hayden’s Plumbing & Electric Service and that there is now justly due and owing on said account, after allowing all credits, the sum of $2,546.81 with interest thereon at 6% per annum.
That said Arkansas Louisiana Gas Company claims a lien ...”
As a part of the lien account, filed on November 3, 1966, the appellant attached an invoice or account statement on appellant letterhead stationery, as follows:
“Invoice No. 22-1-05-02-0084-0
Job 8495 Co 72097
Date: October 17, 1966 Order No. 5
Sold To: Hayden’s Plumbing & Electric Service P. O. Box 812 Batesville, Arkansas
Installed at: Moffett [sic] Motel
Heber Springs, Arkansas
Terms: Cash on Job Completion
7-6-66 1 — RE 42-96 AYS — 105 w/PKWM
1 — Model 428 ATS — 86 & PK-86 & T’sfat 1 — Lot Chiller Controls
6 — -Lots Coil Controls $2,327.00
Freight & Delivery 150.00
2 — -Years Free Service n/c
2 — Cabilo Gaslites n/c
Sales Tax 69.81
TOTAL $2,548.81
RE 42-96 Chiller — Serial No. 600184 — Rfg. 61473 428 Arida Unit — Serial 600102 — Rfg. 8152 105 AYS Tower — Serial 52781 86 AYS Tower — Serial 51876 Start up Date 7-6-66
Warranty Service Contract Expires 7-6-68
* «S #
[Signed] W. Robert Nease W. Robert Nease”
Mr. W. A. Harkey, district manager for the appellant, testified that the sale was according to regular procedure and was for cash 30 days after completion of the job.
Mr. Reedy, appellant’s plant manager, testified concerning the advice and supervision given by appellant in connection with the installation of the equipment. According to Mr. Reedy, the air conditioning equipment was delivered on June 2, 1966. The gas meter ivas set on June 7, and on June 8 the outside units were set on concrete slabs. On June 13 the plumbing and wiring were checked. On June 15 the contractor was advised on how to set air handlers in the rooms and pipe the condensate drains. On June 23 additional check was made with the electricians on the thermostat wires. On June 28 the units had been started but were not cooling properly, so the coils were refilled with water, its temperature tested, and found to be cooling to a satisfactory forty-one degrees. Mr. Reedy testified that he returned to the job on July 6 and that the installation of the equipment was finally completed on that date.
“Q. What did you do on that day?
A. I checked with the electrician and advised him how to level the thermostats and made adjustments of recalibration at that time to final completion of the job.
Q. You stated that that was the final completion of the job.
A. Yes.
Q. And it is your statement that the installation was completed on that date?
A. Yes.
Q. And that was July 6, of 1966?
A. July 6, 1966.
Q. And what is a calibration of a thermostat?
A. Well, of course, the temperature itself could be off; they could not be level; they have a mercury bulb in there that causes the fans in the fan coils to come on and go off at certain intervals; and they have to be recalibrated and leveled in order to make them function properly-
Q. After your visit out there on that day, did you then notify anyone that the job was completed?
A. Yes. Of course, Mr. Harkey, the district manager in Conway, was notified, and at that time our custom order was initialed by me and sent to him for billing.
Q. And it is at that date that the service warranty comes into effect?
A. Yes.
Q. Mr. Needy, if you know, when were these units first turned on and placed into operation for testing ?
A. On June 7, we set the meter and, of course, the plumbers and electrician at that time were on the job and doing the necessary plumbing and wiring for the testing of this equipment at that time, and we were starting them up and getting them ready for use during that time.
Q. When did you receive a deposit on your meter?
A. I got the deposit from Mrs. Moffitt. Mrs. Ralph Moffitt, on July 1, 1966.
Q. Did you set the meter on June 2 — or 7 ?
A. June 2.”
The recalibration on July 6, 1966, was the only act performed by Hayden in connection with the equipment within 120 days from the date the lien account was filed. Appellant contends that July 6, 1966, was the date on which the installation of the air conditioning equipment was finally completed and was the date on which its last item of supervision occurred, and that the time for fil ing its materialmen’s lien account started running from that date. The chancellor did not agree with this contention and neither do we.
Arkansas Statute Annotated § 51-601 (1947) provides 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 virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying -with the provisions with this act, shall have for his work or labor done, or materials, fixtures, . . . 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 ...”
Arkansas Statute Annotated § 51-613 (Supp. 1967) provides as follows:
“It shall be the duty of every person who wishes to avail himself of this act [§§ 51-601, 51-604 —51-626] to file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, and within one hundred and twenty (120) days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit.”
It is readily seen that the “memo contract” simply sets out the agreement to “sell and to buy” and makes no reference whatever to installation or supervision of installation. The appellant was a materialman under the provisions of its contract, and the material consisting of the air conditioning equipment was furnished by the appellant when it was delivered to Hayden on June 3, 1966. No work or labor was called for in the contract, no work or labor was done or performed by appellant, and appellant’s voluntary supervision and advice, without additional pay and without request or demand, did not toll the time for filing the lien for the things furnished. The date on which materials are actually furnished or work or labor is actually done or performed is the date from which lien time is to be reckoned under our statute, and not the date on which the materialman considers the construction or installation job completed by the purchaser and the account due and payable.
Appellant points out that the chancellor found that appellant’s supervision and advice in the proper installation of the equipment was a part of the agreement of sale in this case. Even so, the lien time of 120 days ran from the date when the materials were furnished or the work or labor done or performed, and not from the date the final installation was considered complete.
The appellant did not agree, and was not obligated to install the equipment it sold. It only contends that by side agreement, and general custom, it supervised the installation of the equipment it sold and was so engaged at the recalibration of the equipment on July 6, 1966. Appellant cites no case, and we have found none, in which the gratuitous time spent by the seller of equipment in advising the purchaser of the proper manner of installing it, has been held to extend the time for filing a materialmen’s lien account under a statute similar to our own. Granting that supervision over the installation was a part of the contract of sale in this case, we conclude that the recalibration of the equipment on July 6 constituted no part of the installation.
In 143 A.L.R. 1190 under annotations pertaining to mechanic’s lien — servicing of fixtures is found the following :
“With but few exceptions, it has been held, in the cases considering the question, that after the installation of fixtures, machinery, or attachments in a building, services in the form of examination or regulation of, or repairs to, such fixtures, machinery, or attachments, performed by the seller or the one making the installation, should not be regarded as a part of the act of sale or installation, so as to make the time within which to file a mechanic’s lien based on such original act run from the time or performance of such additional services. ’ ’
In the case of Breeding v. Melson, 143 Atl. 23, 60 A.L.R. 1252, a lien was filed under a contract between the parties for the furnishings of labor and superintending in the erection of a moving picture theater and for furnishing materials for the erection of the theater. The lien was filed under a statute that provided for the filing of a mechanic’s lien statement “within 30 days after the expiration of 90 days from completion of the building, house or structure contracted by him and upon which he desires to secure a lien.” In that case the court said:
“There is no conflict between the authorities as to proposition that the time for filing a claim in a mechanic’s lien proceeding is computed from the date when the last item of work, labor or materials is done, performed or furnished, and that principle is, undoubtedly, correct. But the work performed and materials furnished must be required by the contract, and whatever is done must be done in good faith for the purpose of fully performing the obligations of such contract, and not for the mere purpose of extending the time for filing lien proceed-
Therefore the performance of labor or the furnishing of materials of a trivial character which are not expressly provided for by such contract and after it has been substantially performed will not ordinarily extend the time for filing a mechanic’s lien; this is especially true if such performance has been considered and treated by the parties as final and complete.”
The record is not perfectly clear as to the exact date the last of the equipment was delivered to the motel job site or the exact date the last part of the equipment was installed, but certainly all of the equipment had been installed and was in operation on July 1, 1966, and the chancellor’s decree so finding is not against the preponderance of the ,evidence.
We do not question appellant’s good faith in this case. We simply conclude that the recalibration of the equipment by Hayden on July 6, 1966, amounted to an adjustment of equipment already installed and hold that appellant’s supervision of that operation did not extend the period for filing its materialmen’s lien account beyond the date of last delivery nor for work done beyond the date of actual installation which was complete at least prior to July 1, 1966. Turner-McCoy, Inc. v. Hardy, 230 Ark. 410, 323 S.W. 2d 562.
The decree is affirmed.
Fogleman, J., disqualified and not participating. | [
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J. Fred Jones, Justice.
This is an appeal by Arkansas Release Guidance Foundation from an adverse decree of the Pulaski County Chancery Court on a petition for a declaratory judgment filed by the appellant. The question presented is whether a “Halfway House” as proposed by the appellant, is an “institution of an educational, religions or philanthropic nature” per mitted in a class “D” apartment district under the zoning ordinances of the City of Little Rock.
The appellant, Arkansas Release Guidance Foundation, was incorporated as a domestic nonprofit corporation on October 20, 1967, for the following corporate purposes:
“To acquire and operate one or more places of residence for ex-penitentiary inmates where they may reside temporarily after having been paroled, released or after having completed their sentences and during the difficult transition period from a penitentiary inmate to a completely independent free world citizen;
To provide for ex-prisoners during this transition period room and board, individual counseling, educational and vocational training, job placement services, physical and mental health services, and other rehabilitative services of like kind and nature;
To provide rehabilitative facilities and services in kind and nature as described above for offenders placed on probation.”
The appellant purchased two adjacent two and one-half story residential buildings at 2115 and 2121 Arch Street in the City of Little Rock, and on January 30, 1968, filed with the Department of Community Development for the City of Little Rock, applications for certificates of occupancy. The applications set out that the property was located in a residential zoning district “D” of the City of Little Rock. Both applications were practically the same, and the one for 2115 Arch Street stated as follows :
“The Arkansas Release Guidance Foundation is a non-profit organization incorporated under Ar kansas law. It proposes to operate this and the adjacent property (2121 Arch Street) as a ‘group house’ for single, male, ex-prisoners paroled or discharged from prison. Probationers may also be eligible for residence. The property will serve as a temporary residence for these men until they are able to become fully self-sufficient. These men will live no more than two to an apartment unit and there will be no more than ten such house residents at this location at any given time. Breakfast and the evening meal will be served to the residents of both houses in a dining hall located in the house at the above address. The noon meal will be eaten out. This house will have resident, full-time, house parents, consisting initially of a man, his wife and their minor children. This person will be a paid staff employee of the ARGF. As nearly as possible, a family atmosphere will be created for the house residents. In addition to the house parents, the full-time, paid Executive Director of the ARGF will be on duty at the house much of the time. Inspections of the premises have already been made by municipal building, health and fire authorities and the ARGF intends to comply with all municipal code requirements in connection therewith prior to commencing operation as a ‘group house’ as above described.”
On February 2, 1968, the appellant was advised by the director of the Department of Community Development that certificates of occupancy would be issued as requested when the municipal code requirements as to inspections of the property were complied with. In the meantime thirteen property owners in the vicinity of appellant’s property filed petitions with the city remonstrating against the proposed use of appellant’s property, and the appellees threatened the appellant ■with legal action to prevent the operation of the proposed Halfway House at the proposed addresses.
On February 6, 1968, because of threatened litigation, the appellant filed its petition for a declaratory judgment in the Pulaski County Chancery Court naming the thirteen remonstrating individual property owners as defendants. The prayer of the petition was for a declaratory judgment and determination that £ ‘ said Halfway House may be properly and legally operated within said class £D’ zoning area” and that the court declare and determine the appropriate zoning classification of the plaintiff’s Halfway House facility under the zoning regulations and code of ordinances of the City of Little Bock, and that said Halfway House facility be declared appropriately located in said class “D” zoning district.
The appellees filed their answer praying a dismissal of the petition filed by the appellant, and in the alternative, that the appellant be permanently enjoined from the operation of the facility at the proposed site.
After hearing testimony on both sides of the issue, on April 24, 1968, the chancellor rendered a decree as follows:
“The Court, being well and sufficiently advised as to all matters of fact and law arising herein, and the premises being fully seen, finds that the use or proposed use to which the Halfway House facility is, among others, to be put is for the quartering, housing or keeping of convicts, including probationers and parolees, and that this is not a proper use to which the property located in Class £0’ or £H’ zoning district in the City of Little Bock, Arkansas may be put; and that the operators of the Halfway House facility should be enjoined and restrained from using said property for such purposes.
It is, therefore, by the Court considered, ordered and adjudged that the prayer of the Complaint insofar as it requests usage of said property for the above purposes be, and it is hereby denied. The Plaintiff, its agents, officers and ¡employees are hereby permanently enjoined and restrained from using the Halfway House facility on the property located at the Northeast corner of the intersection of 22nd and Arch streets in the City of Little Rock, Arkansas, designated as 2115 and 2121 Arch Street for the quartering, housing or keeping of convicts, including probationers and parolees. All costs herein are adjudged against the Plaintiff.”
On appeal to this court the appellant relies on the following points for reversal:
“The court erred in finding appellant’s proposed use of its property to be in violation of the applicable zoning classification.
To the extent that the court may have found appellant’s proposed use of its property to be a nuisance, if at all, the court erred.”
The City of Little Rock draws its zoning authority from Ark. Stat. Ann. § 19-2805 (Repl. 1968) which provides as follows:
“Cities of the first and second class are hereby authorized to establish zones limiting the character of buildings that may be erected therein. Such zones may be of three [3] classes: First, portions of the city where manufacturing establishments may be erected or conducted; Second, portions of the city where business other than manufacturing may be carried on; Third, portions of the city set apart for residence.”
Arkansas Statute Annotated § 19-2806 (Repl. 1968) provides as follows:
“When the city council shall have laid off such zones it shall not be lawful for anyone to construct or carry on within a given zone any business not authorized by the ordinance of such city establishing the same, unless with special permission granted by the council of said city, or by a commission which it may create for the purpose of determining whether an exception shall be made in the particular instance; and such exceptions shall be made only for good cause, and in ease of abuse the adjacent property owners shall have the right to appeal to the courts of chancery to protect their property from depreciation by reason of the setting up of such exceptional business within the zone.”
Little Rock Municipal Ordinance No. 5420, as amended, was passed under authority of the aforesaid statute, and § 43-4 “0” of the ordinance pertaining to “C” two-family districts provides as follows:
“In the ‘O’ two-family district no building or land shall be used and no building shall be hereafter erected, converted or structurally altered, unless otherwise provided in this chapter, except for one or more of the following uses:
(1) Any use permitted in the ‘A’ one-family district and the ‘B ’ residence district.
(2) Two-family dwellings.
(3) Reserved.
(4) Institutions of an educational, religious or philanthropic nature. * * *”
Appellant’s property is in a “D” zone district and § 43-5 of the ordinance provides:
“In the ‘D’ and ‘E’ apartment districts no building or land shall be used and no building shall be hereafter erected, converted or structurally altered, unless otherwise provided in this chapter, except for one of the following uses:
(1) Any use permitted in the ‘O’ two-family district.”
The appellant contends that its proposed use of its property as a Halfway House is permissible under the ordinance and the appellees contend that it is not. The parties seem to agree, however, that if appellant’s proposed use of its property is permissible under the ordinance, the permission is to be found under Subsection 4 of § 43-5 “C,” supra, applicable to “institutions of an educational, religious or philanthropic nature.”
Neither the appellant nor the appellees have cited any case, and our own research has revealed none, in which any state court has considered the use of property as a Halfway House for parolees and released convicts as institutions of an educational, religious or philanthropic nature within the terms of a zoning ordinance.
The ordinance involved here contains 63 definitions of the words and terms used therein, and “educational institution” is defined as follows:
“A public, parochial or private pre-primary, primary, grammar or high school; a private preparatory school or academy providing courses of instruction substantially equivalent to the courses offered by public high schools for preparation for admission to college or universities which award B.A. or B.S. degrees; a junior college, college or university either public or parochial or founded or conducted by or under the sponsorship of a religious or charitable organization, or private when such junior college, college or university is not conducted as a commercial enterprise for profit. Noth ing in this definition shall be deemed to include trade or business schools or colleges.”
“Religious” and “philanthropic” are not defined by the ordinance, nor is an institution of a “religious or philanthropic nature” defined.
The appellees were all residents of the same “D” zone or district where appellant’s -property is located, so certainly the chancellor did not err in restricting his decree to the “D” zone in which the parties defendant lived. (See Ark. Stat. Ann. § 34-2510 [Repl. 1962]). So the question here is whether appellant’s proposed use of its property is permissible under the provisions of the zoning ordinance, in the “D” zone where the property is located.
The evidence in this case reveals that the appellant’s property is located in a quiet, older residential section of Little Rock, consisting primarily of large two story homes, some of which have been converted into apartment buildings and some still occupied by the original owners as single family dwellings. The appellent does not contend that the proposed use of its property would convert the property from family dwellings to an “ educational institution” as defined in the ordinance, and there is no serious contention that the proposed Halfway House would be an institution of an educational or religious nature. So the question boils down to whether appellant’s proposed use of its property as a Halfway House would constitute an institution of a “philanthropic nature” as contemplated in the passage, and as intended by the terms, of the ordinance.
Section 43-22 (4) of the zoning ordinance fixes the jurisdiction of the board of zoning adjustment and vests it with the power to hear requests for variances from the literal provisions of the ordinance, but courts have no such authority under the statutes or under the declaratory judgment procedure. We conclude, therefore, that in the absence of an ordained definition for institutions of “religions or philanthropic nature”, we must .■examine the ordinance in the light of its purpose, and the appellant’s petition in the light of the use to be made of the property.
McQniUian, Municipal Corporations, volume 8, 1965 revised, § 25,17, states:
“The ultimate and general purposes of zoning are those traditionally associated with the police power, to-wit: The public health, safety, morals and general welfare, peace and order, and public comfort and convenience.”
In 101 C.J.S., Zoning, § 16, we find the following:
“In order to be valid as a proper exercise of the police power, especially where their application will cause a destruction of property values, zoning laws, ordinances, by-laws, regulations, and restrictions must advance, promote, or tend to be designed to promote the public health, safety, morals, or general welfare or be reasonably necessary for the protection of the public health, safety, comfort, morals, or welfare, or have or bear a real and substantial relation to public health, safety, morals, or general welfare; and it has been held that such enactments must bear the required relation with respect to the particular premises to which they are applied. Citing Kessler v. Smith, 142 N.E. 2d 231, 104 Ohio App. 213, appeal dismissed Smith v. Village of Glenwillow, 146 N.E. 2d 308, 167 Ohio St. 91.”
The case of City of Little Rooh v. Sun Building & Developing Co., 199 Ark. 333, 134 S/W. 2d 583, had to do with a zoning ordinance where it was contended that the ordinance amounted to the taking of private property without just compensation, and in that connection, this court said:
“The theory is that the owner of such property is sufficiently compensated by sharing in the general benefits resulting from the exercise of the police power. Many cases to that effect are cited in the note appearing at page 905, 12 C.J., in the article on Constitutional Law, subhead Police Power. But these and all other cases appear to be in accord in holding that this power may not be arbitrarily used, and must in all cases bear a definite relation to the health, safety, morals and general welfare of the inhabitants of that part of the city where the property zoned is situated.” (Emphasis supplied.)
Now, as to the ordinance we are dealing with in the case at bar: “Educational institution” is specifically defined by the longest of the 63 definitions in the ordinance and “educational institution” is the only institution that is defined. It is noted that the definition specifically refers to school or academy, public or founded or owned or conducted by or under the sponsorship of a religious or charitable organization. The definition also includes “college or university, public or founded or conducted by or under the sponsorship of a religious or charitable organization.” Certainly it is reasonable to interpret an “institution of an educational nature”, as set out in § 43-4 “C” (4), supra, to simply mean an “educational institution” as defined in the ordinance. But the ordinance provides no such aid in defining “institutions of a religious or philanthropic nature.” The words “religious” and “philanthropic” are broad general terms and as was said of the terms “philanthropic” and “eleemosynary” in the 1942 case of Westchester County Soc. for Prevention of Cruelty to Animals, Inc. v. Mengel, et al., Zoning Board of Appeals, 54 N.E. 2d 329, they
“. . . are not technical words of art or words which have been defined by statute or which have acquired a rigid meaning by judicial construction.
They describe a field without established land marks. Often, perhaps ordinarily, these words denote a purpose to promote the welfare of mankind by works of charity. Sometimes they are used in broader sense to denote an unselfish purpose to advance the common good in any form or manner. Such words reflect the context in which they are used and change in color and in scope accordingly.”
In Yonkley, Zoning Law and Practice, (A 19-6 — 19-7, third edition, in connection with the interpretation of zoning ordinances, is found the following statements:
“Zoning ordinances should be given a fair and reasonable construction, in the light of their terminology, the objects sought to be attained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance as a whole. A zoning ordinance must be construed reasonably and with a regard for the objects sought to be attained. * * *
An ordinance must be read to avoid, if possible, an arbitrary and capricious interpretation. The determination of the uses permitted in a zoning ordinance must be predicated on the wording thereof, and also on the context in which it occurs. In construing zoning ordinances what may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic, and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. ”
Also in Yonldey, Zoning Law and Practice, §161, p. 320, first edition, is found the following:
• “. . . [I]n determining whether or not the use to which property is being used comes within the classification of use permitted in a zone under the particular facts of any case is a question of plain fact. The use conforms or it doesn’t and each case must rest on its own particular facts.”
The objects recited in appellant’s corporate charter, as well as the testimony and other evidence before the chancellor, indicate that a maximum number of twenty men, all of them convicted criminals and parolees, would be assigned two to a room, and would he housed and boarded at the Halfway House. The record reveals that there are other so-called “halfway houses” in Little Rock, but none of them have to do with the rehabilitation of convicted felons.
So in the absence of specifically ordained definitions of institutions of a religious or philanthropic nature, we conclude that the chancellor was entitled to consider the overall purpose of zoning ordinances in general in determining whether appellant’s proposed use of its property was permissible under the provisions of the ordinance. We conclude that the chancellor’s findings that appellant’s Halfway House is not an institution of an educational, religious or philanthropic nature, as contemplated by the ordinance, is not against the preponderance of the evidence and that the decree of the chancellor should be affirmed.
Affirmed.
Holt, J., not participating. | [
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George Rose Smith, J.
This is an action for malpractice brought by the appellant, as administrator of his deceased wife’s estate, against the appellee as the insurer of a nonprofit corporation that operates a testing laboratory in Fayetteville. The trial court sustained a demurrer to the complaint on the ground that the causes of action asserted by the administrator were barred by limitations. This appeal is from the ensuing order of dismissal.
The complaint alleges that on September 6, 1964, Mrs. Matthews underwent an operation for the removal of suspect tumorous tissue. During the operation samples of the tissue were sent to the laboratory, which reported on September 14 that the tissue was not cancerous. The patient’s condition worsened to such an extent that on January 22, 1965, her attending physician ordered a re-examination of the tissue. On January 29 the laboratory reported that it had made a mistake— that Mrs. Matthews actually was suffering from a malignancy. The complaint asserted that as a result of the laboratory’s negligence Mrs. Matthews’s condition so deteriorated that she was beyond medical help ,- that she suffered great mental and physical anguish prior to her death on November 28, 1965; and that the plaintiff was thereby damaged in the sum of $100,000. The suit was filed on June 14, 1967.
In sustaining the defendant’s demurrer the trial court applied the two-year statute of limitations governing medical malpractice, which provides that the date of the accrual of the cause o.f action shall be “the date of the wrongful act complained of, and no other time.” Ark. Stat. Ann. § 37-205 (Repl. 1962). If that is the controlling statute, then the filing of the suit on June 14,1967, was too late, whether the wrongful act occurred oil September 14, 1964, the date of the first examination of the tissue, or on January 29, 1965, the date on which the mistake was corrected.
Contrariwise, the appellant insists that the case is governed by the wrongful death statutes, which provide that the action shall be commenced within three years after the death of the person alleged to have been wrongfully killed. Ark. Stat. Ann. §§ 27-906 and -907 (Repl. 1962). In that view the action was timely, because death occurred on November 28, 1965, and the suit was brought on June 14,1967.
In our opinion each statute is partly controlling. It is essential to recognize that two separate causes of action are being asserted by the appellant in his capacity as administrator of his deceased wife’s estate. The complaint seeks in part to recover compensation for the physical and mental anguish suffered by Mrs. Matthews before her death. At common law that cause of action would not have survived the death of Mrs. Matthews, but under our survival statute it may be asserted by her personal representative. Ark. Stat. Ann. §27-901. In that situation the personal representative is asserting the decedent’s cause of action and must therefore bring suit within the period allowed by that statute of limitations which would have governed if the injured person had not died. Smith v. Missouri Pac. R.R., 175 Ark. 626,1 S.W. 2d 48 (1927). That being the two-year malpractice act in this case, the administrator’s attempt to assert Mrs. Matthews’s cause of action for her physical and mental pain and suffering* is barred, because the suit was not filed within two years after the wrongful act complained of.
An administrator is also entitled to assert the cause of action for wrongful death that was created by statutes modeled after Lord Campbell’s Act. Our statute, with respect to the case at bar, creates a cause of action in the surviving spouse for his loss of consortoum and for his mental anguish. Ark. Stat. Ann. §27-909. That cause of action may be asserted, as we have indicated, within three years after the death of the person alleged to have been wrongfully killed. Here the administrator’s suit upon that cause of action was timely.
We are not overlooking the argument that the administrator’s action for wrongful death is to some extent derivative, in that it may be extinguished either by a suit for personal injuries prosecuted by the injured person to a final judgment during his lifetime, Restatement, Judgments, § 92 (1942), or by the running of the applicable statute of limitations during the injured person’s lifetime. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), app. dism. 285 Fed. 2d 427 (1960). Here, however, the two-year malpractice statute had not run when Mrs. Matthews died on November 28, 1965. We are accordingly of the opinion that the administrator was entitled to assert the cause of action for wrongful death at any time within three years after Mrs. Matthews’s death. Where the issue is doubtful our policy is to favor the longer of two statutes of limitation. Jefferson v. Nero, 225 Ark. 302, 280 S.W. 2d 884 (1955).
The appellee also argues that the complaint is defective in two other respects: (a) It fails to allege that the nonprofit corporation was not subject to suit in tort, within the statute authorizing direct action against the liability insurer, Ark. Stat. Ann. § 66-3240 (Repl. 1966); and (b) it fails to assert the amount of coverage that was afforded by whatever liability policy the appellee may have issued to the nonprofit concern. We think those matters might properly have been raised by a motion to make the complaint more definite, but we do not consider such defects in the pleading to be subject to demurrer.
The judgment is affirmed with respect to the first cause of action we have discussed and is reversed with respect to the second one.
Jones, J., dissents. | [
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John A. Fogleman, Justice.
June Allred has filed a petition for a writ of certiorari seeking to review the action of the trial court in quashing service of summons and refusing to enter a default judgment in her favor. Petitioner had filed suit in the Circuit Court of Boone County against the National Old Line Insurance Company and the Harrison Federal Savings and Loan Association on May 3, 1967. Summons was directed to National Old Line Insurance Company and Harrison Federal Savings and Loan Association and was served May 3, 1967, on Betty Yarbrough in Boone County as agent for the respondent . On July 14, 1967, respondent filed motion to quash service of summons on the grounds that Betty Yarbrough was not an officer, agent or employee of respondent and that she was not authorized to receive or accept process on its behalf.
On November 14, 1967, after a hearing was held, the trial court determined that Betty Yarbrough was not a proper agent for service and granted the motion to quash. The court found that it had jurisdiction and that new service should he had upon respondent’s admitted agent in Boone County. It also said that the respondent should have the regular statutory period within which to plead or, in the alternative, defendant could, if it so elected, plead further without requiring the expense and necessity of new service.
On November 21, 1967, respondent filed an answer and cross-complaint without any other process having been issued. On November 28, 1967, petitioner entered a motion to strike the answer and cross-complaint for the reason that it was filed out of time and that there was no basis in law for allowing it to be filed, reserving her objection to the court’s decision on November 14. Petitioner also requested that a default judgment be entered in her favor. The court held that it had been without authority in allowing respondent to answer without new service of process and that petitioner’s entitlement to default judgment had been decided in the order of November 14. The court, therefore, granted the motion to strike the answer and cross-complaint but did not dismiss the complaint or enter judgment for costs in favor of respondent.
Rather than cause new process to be issued petitioner filed this petition. We ordered the complete record brought up so that we could adequately determine the questions raised by petitioner.
Petitioner argues two points for the granting of the writ. We deem it necessary to consider only one of them. It is stated by petitioner thus: “An order sustaining a motion to quash is not final and is not therefore, an appealable order and the only remedy available to petitioner is a writ of certiorari. ’ ’
We agree with petitioner that in this case the order sustaining the motion to quash the issuance of the summons is not final and is therefore not appealable. Robberson v. Steele Canning Co., 233 Ark. 988, 349 S.W. 2d 814; Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163. There are some cases which appear upon superficial examination to be in conflict with the above, but we feel that they are distinguishable.
For an order of a trial court to be appealable to the Supreme Court it must be final. Ark. Stat. Ann. § 27-2101 (Repl. 1962). In Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 we said, “For a judgment to be final and appealable, it must in form or effect: term inate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy.” If an order of the trial court meets the above test then it is appealable.
In Hogue v. Hogue, 137 Ark. 485, 208 S.W. 579, the court allowed an appeal from an order quashing; service where the trial court had also granted a judgment that the defendant go hence without day. Commenting on the appealability of orders quashing service of summons the court said, “On the other hand if the trial court quashes the writ, the plaintiff may take an alias summons and thereby waive objection to the judgment of the court; or he may rest upon the quashal of the writ and appeal from the judgment of the court quashing the summons and permitting the defendant to go hence without day or what amounts to the same thing, dismissing the plaintiff’s action.”
In Bank of the State v. Bates, 10 Ark. 631, the order quashing the writ was held to be appealable because the trial court quashed the summons and allowed a judgment for costs, the effect of which was to dismiss the parties from the court.
The court in Berryman v. Cudahy Packing Company, 189 Ark. 1151, 76 S.W. 2d 956, allowed an appeal from an order quashing service where the trial court had subsequently dismissed the complaint.
An order sustaining defendant’s motion to quash service of summons was held to be appealable in Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S.W. 2d 919. The court there observed, “The record here reflects that appellant elected to stand upon the service of process first had and obtained, and this was tantamount to a dismissal of the complaint and a final order from which an appeal lies.”
In Safeway Stores v. Shwayder Bros., 238 Ark. 768, 384 S.W. 2d 473, the trial court sustained a motion quashing the service and the summons on the grounds that the statute under which service was obtained was unconstitutional. In holding that the order was appealable the court said, “That holding by the court amounted in fact to a judgment on the merits of the real issue raised by this appeal. Not only so, but the trial court also said, ‘this court is without jurisdiction as to’ appellee. This certainly makes it clear that appellant would not be allowed under any circumstances to try its case against appellee.”
In order to resolve any apparent conflict among previous decisions we hold that no appeal lies from an order quashing process or its service unless the party seeking review has elected to stand upon the process served and suffered an adverse judgment tantamount to a dismissal of his action, or unless the quashing of the process has the effect of preventing the trial of the action in the court in which it is filed under any circumstances.
In the case before us petitioner’s rights have not been finally determined. Her complaint has not been dismissed and she only has to cause service of an alias writ to be had upon respondent’s admitted agent in order to try her case on the merits.
It does not necessarily follow that the trial court’s order may be reviewed on certiorari, simply because it is not appealable.
The applicable rule was clearly stated in Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S.W. 1064 where this court said, “According to the well settled practice in this state the writ of certiorari can be used by the circuit court in the exercise of its appellate power and superintending control over inferior courts in the following classes of cases: (1) Where the tribunal to ■which it is issued has exceeded its jurisdiction; (2) where the party applying for it had the right of appeal, but lost it through no fault of his own; and (3) in cases where it has superintending control over a tribunal which has proceeded illegally and no other mode has been provided for directly reviewing its proceedings. But it cannot be used as a substitute for an appeal or writ of error, for the mere correction of errors or irregularities in the proceedings of inferior courts.” See also Hendricks v. Parker, 237 Ark. 656, 375 S.W. 2d 811.
In the case before us it is not contended by petitioner that the trial court had exceeded its jurisdiction or that petitioner had the right to appeal but had lost it through no fault of her own. Petitioner does contend that she has been aggrieved by the trial court’s order and that she has no other mode of review except certiorari.
Although it is true that no appeal lies from the order complained of, petitioner may elect to stand on her service and have final judgment entered dismissing her complaint from which, of course, she may appeal. This court has held that a writ of certiorari will not lie to review an interlocutory order of a lower court which has proper jurisdiction. Sanders v. Plunkett, 40 Ark. 507. See also, Williamson v. Killough, 185 Ark. 134, 46 S.W. 2d 24. We agree with the statement made in Sanders v. Plunkett, supra, ‘ ‘ The result of this doctrine, once admitted, would be that in all cases where the object of a bill would be accomplished by obtaining, or defeated by the refusal of an interlocutory injunction, an application might be made directly to this court, for original jurisdiction, to determine upon its merits a cause never presented to any court at all, nor entered upon its records. This under the Constitution can never be permissible.”
The writ is denied.
In spite of the fact that this is a petition for certiorari, we refer to National Old Line Insurance Company as respondent because they were so named in the petition and in the briefs filed.
Although an appeal from an interlocutory order relating to an injunction has now been provided for by statute, the principle stated in this case remains sound. It is significant that the statute, Ark. Stat. Ann. § 27-2102 (Repl. 1962), does not provide for review of orders such as those involved here. | [
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George Rose Smith, Justice.
This action for the wrongful death of Wandasue White was brought by her surviving husband, the appellee, who is the administrator of her estate. The appeal is from a verdict and judgment awarding $1,500 to the estate; $67,500 for the husband; $50,000 for the decedent’s stepdaughter, Karen White; $75,000 for the couple’s adopted daughter, Sherry White; and $800 to White for his property damage. For reversal the appellants argue two points of law, both of first impression, and question the liberality of the awards.
First, the appellants insist that the trial court erred in submitting the case to the jury both upon specific as sertions of negligence and upon the doctrine of res ipsa loquitur. The appellants take our prior cases to hold that when the plaintiff introduces proof of specific acts of negligence he thereby abandons his right to have the issue of res ipsa submitted to the jury.
Upon this issue the facts, at least in broad outline, are pertinent. On March 30, 1967, Mrs. White and two other women were traveling on Interstate 30, a divided four-lane highway. Coming from the other direction was a wrecker towing a dump truck. Both vehicles were owned by the appellant, Moon Distributors. Its employee, the appellant Paul Hastings,, was driving the wrecker. For some reason not shown by exact proof the dump truck came unhitched, crossed the median, and ran over the White car, killing its occupants.
The plaintiff offered proof to show (a) that the coupling mechanism of the wrecker, which had been designed by Paul Hastings, was defective; (b) that the wrecker was being driven at an excessive speed; and (c) that just before the accident Hastings swerved from one lane to the other so suddenly as to cause the dump truck to fishtail before it came loose. The defendants contested that proof with evidence of their own. The court gave AMI instructions covering speed, control, and the statutory duties of one who is towing another vehicle. The court also gave AMI 610, on res ipsa. The final paragraph of AMI 610 was omitted, in accordance with the Note on Use, because specific acts of negligence were also being submitted.
The court was correct. In Johnson v. Greenfield, 210 Ark. 985, 198 S.W. 2d 403 (1946), we held that the plaintiff did not waive the doctrine of res ipsa merely by pleading specific negligence, but we did not explicitly reach the question of whether both theories might go to the jury. Elsewhere, however, the decided weight of authority approves that procedure in a case like this one, where the exact cause of the accident cannot he proved with precision.
The landmark case is Cassady v. Old Colony Street R. Co., 184 Mass. 156, 68 N.E. 10, 63 L.R.A. 285 (1903), where the court said:
“It is true that, where the evidence shows the precise cause of the accident . . . there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumption applicable to it.”
A similar view was taken in Wells v. Asher, Mo., 286 S.W. 2d 567 (1955):
“Legally, defendant’s argument that plaintiff was precluded from a res ipsa submission by proof of specific negligence is, under the facts of the instant case, utterly self-destructive. For, it is firmly-established in this jurisdiction that, ‘even though the plaintiff’s evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the doctrine, nor be deprived of the right to rely upon it in the submission of his case, if, after his evidence is in, “the true cause is still left in doubt or is not clearly shown.” ’ ”
Many of the cases were reviewed in Weigand v. Pennsylvania R. Co., 3rd Cir., 267 F. 2d 281 (1959), Avhere the court said:
‘‘However, we have before us not only a res ipsa claim but one capable of some specific proof regarding the railroad’s alleged negligence. In these peculiar circumstances to force the plaintiff to abandon one of his theories is not only illogical but unfair. Whichever he chose might fail and the discarded contention might have convinced the jury.”
See also Freitas v. Peerless Stages, 108 Cal. App. 2d 749, 239 P. 2d 671, and the annotation thereto in 33 A.L.R. 2d 778 (1952).
The case at bar illustrates the wisdom of the rule. As a practical matter, the eyewitnesses to the tragedy could not even describe what they saw without bringing specific negligence into the case. No description of the occurrence would be complete without some reference to Hastings’ speed and to the dump truck’s fishtailing. The jury’s first question would naturally be: Was the coupling between the wrecker and the dump truck defective? Realistically, the plaintiff had to answer that question. To compel the plaintiff to choose between specific negligence and res ipsa would put him in this dilemma: If he chose specific acts, the jury might find itself unable to decide that any one of the three asserted causes of the accident had been proved by a preponderance of the evidence. Yet, if the plaintiff chose res ipsa, the jury would be completely in the dark about the duties imposed by law upon Moon to drive at a reasonable speed, to keep its vehicles under control, and to provide a proper coupling device. As the court said in the Weigand case, supra, to put the plaintiff in that dilemma would be not only illogical but unfair.
The cases principally relied upon by the appellants are not out of harmony with the rule we are adopting. In Reece v. Webster, 221 Ark. 826, 256 S.W. 2d 345 (1953), the defendant’s tractor exploded and fatally in jured a boy who was walking past it. On that proof alone tbe plaintiff could have relied on res ipsa. But the plaintiff went further and directed his entire proof to showing that the explosion was caused by a defective sediment bulb that allowed gasoline to drip upon hot metal and explode. No other cause of the explosion was suggested “either in pleadings, proof or argument.” Hence, in the language of the landmark Gassady case, supra, where the evidence shows the precise cause of the accident there is no room for presumption.
Our holding in Ford Motor Co. v. Fish, 232 Ark. 270, 335 S.W. 2d 713 (1960), is even farther from the mark. There the plaintiff testified that as he was driving his truck down the highway the brakes suddenly locked, causing the truck to leave the highway and turn over, injuring him. Unlike the situations in the Reece case, siopra, and in the one at bar, a mere account of how the accident happened did not, in the Fish case, make a submissible issue of res ipsa. That is, res ipsa involves a showing that the plaintiff himself was not negligent. That showing was not made by Pish, because, as we observed, ‘ ‘ automobiles ordinarily depart the road through negligence of the operator, rather than through negligence of the manufacturer.” Hence Pish was properly compelled to prove the specific cause of the accident, because it was really an instance of res ipsa non loqmtur\ The thing does not speak for itself.
On the first point we conclude that the trial court was right in submitting all the issues to the jury.
Secondly, the appellants contend that neither Karen White, a stepdaughter, nor Sherry White, an adopted daughter, is entitled to assert a cause of action for Wandasue White’s death. The two contentions must bo discussed separately.
Considering Sherry’s case first, the adoption statute provides that the adopting parents shall have “the right of recovery” for the child’s death by wrongful act, but there is no corresponding provision that the child shall have the right of recovery for an adoptive parent’s death. Ark. Stat. Ann. ^ 56-109 (1947). We do not agree with the appellants’ argument that the omission shows a legislative intent to deny an adopted child’s right to assert a cause of action for the wrongful death of a foster parent. In the case of the adopted child’s death the legislature had to choose between investing the cause of action in the natural parents and investing it in the foster parents. It chose the latter, specifically referring to “the” right of recovery. No similar choice had to be made with respect to the foster parent’s death; so the appellants’ argument fails.
With respect to Karen, a stepmother stands in loco parentis to the child when, as here, the two live in the same home as mother and daughter. See Dodd v. United States, 76 F. Supp. 991 (W.D. Ark. 1948), and Miller v. United States, 8th Cir., 123 F. 2d 715 (1942). Nevertheless, the appellants insist that a stepdaughter cannot recover for pecuniary injuries suffered upon the death of her stepmother, for the reason that the statute refers to “persons to whom the deceased stood in loco parentis” only with respect to damages for mental anguish and not with respect to damages for pecuniary injuries. Ark. Stat. Ann. § 27-909 (Repl. 1962). Hence, it is said, the court should not have submitted to the jury Karen’s cause of action for pecuniary loss.
We do not construe the statute so narrowly. Both § 27-908 and § 27-909 — sections of the same act- — have reference to the beneficiaries of the statute. In Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610 (1961), we held that a foster daughter was to be considered as the decedent’s “next of kin,” within the meaning of the act. The record in the Peugh case shows that the foster daughter had not been legally adopted by her foster mother; so the court was actually considering an in loco parentis relationship. Hence, on the authority of that case, we hold that a step daughter to whom the decedent stood in loco parentis is entitled to recover compensatory damages both for pecuniary losses and for mental anguish actually suffered by reason of the stepparent’s death. (We are not overlooking our decision in Fountain v. Chicago, R.I. & P. Ry., 243 Ark. 947, 422 S.W. 2d 878 [1968], which overruled the Peugh case in part. It was not, however, our intention in the Fountain case to construe the statute more strictly than we did in Peugh. To the contrary, we were careful to say: “We have no quarrel with the allowance to the foster daughter [in Peugh], although that recovery was permitted by a novel construction of the statute.” We adhere to that position.)
Thirdly, the appellants complain that the verdicts are excessive. Since we are unanimous in finding that the awards neither demonstrate prejudice on the part of the jury nor shock the conscience of this court, no useful purpose would be served by discussing this contention at great length.
Wandasue White, according to the proof, was a truly exceptional wife and mother. When she married the appellee, Tom White, in 1961, Tom’s daughter Karen was four years old and was living with his parents rather than with her divorced mother. Wandasue took Karen into her home and could not have treated her with greater affection had the child been her own daughter. “When the Whites found that Wandasue could not have children herself they adopted Sherry, then sixteen months old. Sherry was afflicted, having a cleft palate. The surgeon who was able to partly correct the deformity expressed his surprise that anyone would adopt a child with such an affliction. Yet Wandasue White not only had that compassion but also labored patiently and unselfishly with the child, teaching her to talk in a normal way. Considering what each of the children lost by Wandasue’s death, we cannot say that ¡either of their awards is excessive.
Nor do we so regard the $67,500 verdict for White himself. At her death Wandasue was 28, with a life expectancy of almost 47 years. She was earning $6,-216 annually as an employee of a Veterans Administration hospital. According to the proof her future earnings, reduced to present value, would be $119,272, without taking into account increases in salary that were to be reasonably expected. In the light of our holding in Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291 (1959), and making proper allowance for White’s mental anguish and loss of consortium, the verdict cannot be considered excessive.
Affirmed.
Byrd, J., not participating.
Harris, C.J., dissents.
Carleton Harris, Chief Justice.
This was a terrible tragedy, and I have no fault to find with the amount of money awarded appellees. However, I think we are departing somewhat from prior cases in approving the submission by the trial court to the jury of two conflicting theories of negligence. Specifically, I do not think the instruction permitting the jury to apply the doctrine of res ipsa loquitur should have been given.
In Ford Motor Company v. Fish, 232 Ark. 270, 335 S.W. 2d 713, we pointed out that one of the essential elements to make res ipsa loquitur applicable to a given case is the absence or unavailability of direct evidence of negligence. Quoting from 65 C.J.S. Negligence § 220.6, we said:
“Although, * * * the doctrine of res ipsa loquitur provides a substitute for direct proof of negligence, the rule is nevertheless one of necessity to be invoked only when, under the circumstances in volved, direct evidence is absent and not readily available. ’ ’
In the case before us there is a great deal of evidence as to specific acts of negligence. William Bailey testified that he was behind the dump truck as it approached the scene where the collision occurred, and that the wrecker and dump truck were traveling between 60 and 65 miles per hour; that the driver of the wrecker “changed sharply into my lane in front of me and I had to hit my brakes to keep from colliding with him; it was “fishtailing” around.
James Summers testified that the driver of the wrecker “whipped out,” and that it wasn’t a smooth lane change. He said that the dump truck was bouncing up and down, and kept bouncing until it broke loose .
Thomas Christenberry testified that the wrecker and truck passed him when he (Christenberry) was traveling at a speed of 60 miles per hour, and that the dump truck was weaving and bobbing up and down.
Robert Ferguson, operator of a wrecker service and body shop, testified that the hookup was not safe; that the tow bar was raised too high, permitting the towed truck upon application of brakes, to come up on the wrecker (this causing slack in the cable, which resulted in its breaking when the slack was taken up); the safety chains had too much slack, and this caused them to break after the cable broke; the weaving of the wrecker and tow truck either caused the stabilizer bar to break or weakened it. He also testified that the maximum safe speed for a wrecker rig of the size of the one involved was 40 to 45 miles per hour.
If direct evidence had not been readily available, I would certainly have permitted the use of the res ipsa instruction — but that was not the case.
My principal objection to tbe nse of instructions relating to both specific negligence and res ipsa loquitur in tbe same case is that I consider such use to be confusing to the jury. In most cases, res ipsa does not come into play, and the burden of proving negligence which caused the injury rests upon the plaintiff; however, under the res ipsa doctrine, the defendant is burdened with a presumption of negligence, and it is up to him to refute this presumption, though, on the whole case, the burden is on the plaintiff. To me, to tell a jury on the one hand, that the burden of proving specific acts of negligence is on a plaintiff — but on the other hand, under the res ipsa instruction, the defendant must prove he was not negligent (and this, in my view, is what it amounts to), can only result in perplexing the jury. It also seems to me that it becomes further confusing when the court gives the instruction, as it did in this case, “The fact that an accident occurred is not, of itself, evidence of negligence on the part of anyone.” This instruction might well appear to a layman to be the very antithesis of the doctrine of res ipsa loquitur, namely, that the very happening of the event is evidence of negligence on the part of the person having control of the instrument causing the injury.
In Reece, Administrator v. Webster, 221 Ark. 826, 256 S.W. 2d 345, we approved the rule governing the doctrine of res ipsa loquitur with which I thoroughly agree:
“Of course, in cases where the plaintiff has full knowledge and testified to the specific act of negligence which is the cause of the injury complained of, or where there is direct evidence as to the precise cause of the accident and all of the facts and circumstances attendant upon the occurrence clearly appear — then the doctrine would not apply” .
Accordingly, I would reverse, because of the giving of this instruction.
It could certainly be considered by a jury that the driver of the wrecker could have felt this bumping, and thereupon slowed or stopped his vehicle.
Emphasis supplied. | [
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Conley Byrd, Justice.
In this ejectment action both parties claim title from a common source, but under different descriptions. Appellant Mrs. H. B. Rhodes claims the property as Lot 6, Block 18 of Crystal Springs, Arkansas. Appellee Earl Gill Enterprises, Inc., claims that the proper description is Lot 5, Block 18 of Crystal Springs, Arkansas. The trial court found the issues in favor of Appellee. Mrs. Rhodes appeals, contending that appellee did not prove sufficient title to recover.
The land here involved was in Montgomery County until Act 120 of 1917. By that act the land became a part of Garland County. In Plat Book I at page 145 of the records of Montgomery County, there is a plat of the S% NE, NW and NW SE Section 34, Township 2 South, Range 22 West designated as “Crystal Springs, Montgomery County, Arkansas.” This plat shows the lots in the southern part of Block 18 to be numbered from East to West as 1, 2, 3, 4, 6 and 5. Lot 1 is bounded on the East by Vine Street and the South by Main Street (now Highway 270). Lot 5 is bounded on the West by Hill Street and the South by Main Street.
In the Garland County deed records, Vol. 272, Page 372, dated May 16, 1946, is a copy of a plat of Crystal Springs with the following notation:
“I, H. B. Smith of Hot Springs, do state on oath that the attached plat of Crystal Springs, Arkansas, is a duplicate original of the ancient plat prepared for Crystal Springs and obtained from F. N. Springer, who holds the original thereof, and the site of Crystal Springs, Garland County, Arkansas, is a duplicate original of the ancient plat pose of placing of record a plat of Crystal Springs, Arkansas, there being no recorded plat of said subdivision.”
This plat does not contain any lot numbers for Block 18, hut it does show the same lot dimensions and streets as the Montgomery County plat.
Pellie M. Smith, the common grantor received from Newt Peden by a warranty deed which reads: “Lot 1 and 2 in Block 26 and Lot 5 in Block 18 and all surplus lumber now located on these lots.” Pellie M. Smith and her husband, Hiram T. Smith, built their house on Lots 1 and 2 of Block 26 which lay immediately west of Hill Street and North of Main Street. They used the dedicated portion of Hill Street for their garden and built a service station on the lot to the east of Hill Street.
December 21, 1954, Pellie M. Smith conveyed to Mrs. Rhodes “Lot No. 6 and No. 4 in Block 18 located in the town of Crystal Springs, Garland County, Arkansas.”
In 1953 or 1954 Orville M. Smith, a son of Hiram T. and Pellie M. Smith moved with his wife, Leona Smith, into the service station property on the Southwest corner of the intersection of Hill Street and Highway 270. Thereafter, on January 31, 1959, Hiram and Pellie Smith executed to Orville a deed describing the lands conveyed as: “ All of Lots 5 in Block 18; Lots 1, 2, 4 and 8 of Block 26 of Crystal Springs, Arkansas ... as shown of record at page 372, volume 272 of the Records of Deeds and Mortgages of Garland County, Arkansas.” After divorce proceedings, Orville deeded Lot 5, Block 18, to Leona M. Smith, which she subsequently conveyed to appellee.
After Orville and Leona Smith moved on the property the building was enlarged. In 1958 it was made into a tavern. Appellee, made additional improvements. After conveying to appellee, Leona rented the tavern for a year or more. When Leona moved out Mrs. Rhodes took over through her tenant, appellant Robert T. Lee.
The Garland County tax assessment records show that Lot 5 is the only lot in Block 18 on which any improvements have been assessed. In 1932 Hiram T. Smith leased the service station to Continental Oil Company. The lease contained these words: “This is a one story frame building, with a gravel driveway, located on lot number five, block number eighteen, in the City of Crystal Springs, Arkansas.”
Leona Smith testified that Pellie M. Smith told her that the 1959 deed was a deed to the tavern. Pellie Smith testified that the gasoline pumps were on the lot in question and that it was the lot she got from Newt Peden when she got the deed to the home place in 1927. She described the tavern lot as being the hundred foot lot. It was her testimony that she intended to convey the little lot to Orville (the lot next to the lot to litigation is only twenty feet).
There was ample evidence to sustain the trial court’s finding that the lot in controversy was conveyed by Pellie M. Smith to appellee’s predecessor in title and not to appellant.
Appellant claims erron because the Montgomery County plat was introduced. In so doing she points out that there is no filing date on the plat nor any showing as to who caused it to be placed*on record. The clerk testified that it was recorded between a plat filed for record on July 5, 1889 and another instruriient filed for record on July 12, 1889. The instrument obviously qualifies as an ancient document, State v. Taylor, 135 Ark. 232, 205 S.W. 104 (1918) and was properly introduced to shed some light on the lot numbering system.
Appellant’s most serious contention is that Appellee failed to prove his title. Of course the general rule in ejectment is that the plaintiff must recover on the strength of his own title and not the weakness of the defendant’s title, but this rule is greatly relaxed where both parties claim from a common grantor. Spencer v. Pierce, 172 Ark. 108, 287 S.W. 1019 (1926). The rule is stated in 25 Am. Jur. 2d EJECTMENT § 37 as follows :
“ It is a well-established principle in the law of ejectment that where both parties to an action claim title from the same third person, each is estopped to deny the validity of the title of such third person and the one having the better title derived from the common source must prevail. The plaintiff, in the first instance, need go no further than the title of the person under whom both parties claim; and he may recover on proof of the better title from that source, even though his evidence indicated that the common-source title is bad.
“The rule is one both of convenience and justice and is based on the principle that it does not lie in mouth of one to dispute the title under which he claims. Although it debars the truth in the particular case and therefore is not infrequently characterized as odious and not to be favored, still it debars the truth only where its utterance would be the denial of a previous affirmation upon the faith of which persons had dealt and pledged their credit or expended their money.”
The deed to Orville M. Smith referred to the recorded plat in Garland County which would obviously show the dimensions of the lot and its location with reference to the street. This, together with the testimony of various witnesses describing the location of the lot, was certainly sufficient to sustain this action in ejectment.
Further, if we should hold that the reference in appellee’s deed to a lot in Crystal Springs, Arkansas does not constitute good title, the appellants are in the awkward position of having no title either. Thus appellee’s prior peaceful possession would constitute good title in ejectment against appellants’ intrusion, Vanudale Special School District No. 6 v. Feltner, 210 Ark. 743, 197 S. W. 2d 731 (1946).
For the first time on appeal, appellant makes the contention that appellee’s deed describes lands in a different forty acre tract and that before it can maintain an action in ejectment it will be necessary to have the deed reformed. We have consistently held that we will not consider a matter raised for the first time on appeal.
Affirmed.
Jones, J., not participating. | [
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Carreton Harris, Chief Justice.
Appellants complain that this court has not made clear the finding on the primary issue which, so they state, is whether they have the right to receive the fair value of their lands in the uncleared state before any award is made to appellees based upon added value to the lands by reason of the clearing of same.
The trial court held in the amended decree of August 2 that the value of the lands in their uncleared state was $150.00 per acre, or a total of $24,000.00 (this had also been the finding in the April decree). Appellants argue that this figure has now been established, and cannot be changed because (it is argued) if the amount was erroneous, the appellees led the court into the error.
The record reflects that a witness for appellants was asked whether he had an opinion as to the fair market value of the property in April, 1967. The witness first answered that, in its uncleared state, he considered the lands worth “$75.00 to $100.00 an acre.” Counsel for appellees then stated':
“May it please the court, I believe if I understood Your Honor right, you said you were accepting the value we had established earlier of $150.00 per acre before clearing.”
The court responded:
“I agree with you on that. The only thing the Court is here today to hear is the value of the land now or as of April of 1967, when the mandate was filed. The value of the land as it exists now.”
It is thus apparent that the court had previously stated that it would only hear evidence relative to the value of the land as of April, 1967, and the remark of counsel for appellees does not seem to have led the court into that finding. We have reversed this decree, and in doing so, indicated that we were of the opinion that the values established by the Chancellor were erroneous.
We do not consider the $24,000.00 value previously given the land in its uncleared state to be binding, though there is nothing, of course, to prevent the Chancellor from making this same finding again. Actually, it does not appear that appellees are really objecting to this finding, the principal question being, “Who is entitled to priority?”
We think the statute, Ark. Stat. Ann. § 34-1423 (Repl. 1962), makes clear that appellees are entitled, subject to the limitations set forth in this opinion, to the paramount right to be paid the value of the improvements made (insofar as the value of the land was enhanced), and the amount of taxes which may have been paid. Of course, one is not permitted to “improve one out of his land,” and our holdings make clear that this cannot be done.
It may be that the clearing added nothing to the value of the land, in which case there could be no recovery for improvements. In McDonald v. Rankin, supra, after pointing out that the value of the improvements is determined at the time of the recovery, and that the value is based upon the enhanced value which the improvements at the time of the recovery impart to the land, we added:
“*** The value of the improvements should not exceed the cost of making them or replacing them at the time of the recovery and in the condition in which they are at that time.”
It is so ordered. | [
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Carleton Harris, Chief Justice.
Appellant, Jack L. Leslie d/b/a Jack L. Leslie Lumber Company, received an order for a load of creosoted poles, 6 to 20 feet in length, from the White River Milling Company. The load was delivered to the premises of the milling company on November 9, 1965, in a truck driven by Earl Smith, an employee of Leslie. Ben Burrow, Jr., appellee herein, an employee of the milling company, who handled a large part of the buying for the company, directed Smith to the back of the lumber shed, where the poles were to be unloaded. Twenty-foot poles were on the bottom of the truck bed, these coming out almost to the end of the bed, and 18-foot poles and 16-foot poles were on top of those. Burrow climbed up on the back of the truck, and stood on the 20-foot poles for the purpose of counting them and ascertaining whether the proper load had been sent. Smith said nothing to appellee when the latter climbed up on the truck; while Burrow was counting the poles, Smith was engaged in pushing the 14-foot poles out through the stakes . Suddenly, three or four of the stakes broke, and part of the load fell off, Burrow falling with it. Appellee instituted suit against Leslie for injuries sustained, and on trial the jury returned a verdict in his favor in the amount of $6,000.00. From the judgment so entered, appellant brings this appeal.
For reversal, it is urged “under the undisputed proof, appellee was a licensee, not an invitee, at the time he voluntarily ascended the load and was injured. It was error to refuse motions and instructions submitted by appellant predicated on this fact.”
It is argued that Burrow climbed upon the truck of his own volition; that he was not requested to do so by appellant’s driver, and it is pointed out that Burrow readily admitted that the poles could have been counted while he was standing on the ground as they were unloaded. Having voluntarily climbed onto the truck, and this act (it is contended) being for the benefit of his own employer, appellant asserts that Burrow was a licensee and would only recover if his injury was caused by willful and wanton negligence on the part of the driver. There is no contention by anyone that Smith was willfully and wantonly negligent.
In addition to those already enumerated, the testimony reflected the following facts:
Smith testified that the stakes he had cut to haul the logs on the truck were pine. He was asked, “Is pine strong enough on that, Mr. Smith?” The witness answered that pine was not strong enough to support a load of the type delivered to the milling company, and he said that he had, at times in the past, used oak stakes. Admittedly, Smith knew that Burrow was standing on the poles, counting the load. Though from his statement he felt that the stakes could not be entirely depended upon to hold the load, Smith did not advise Burrow of this fact, nor intimate in any manner that there was danger in appellee’s standing on the logs (the danger being unknown to Burrow, who was participating in the unloading of poles for the first time in his life). Not only that, but Smith proceeded to unload these poles while Burrow was standing on the truck. In fact, it was while the driver was pushing poles through the stakes that the break occurred.
Let it be remembered that an owner who knows, or reasonably should know, that a licensee is in a position of danger, has a duty to use ordinary care to avoid injury to such licensee. AMI 1106.
Appellant objected to Instruction No. 1 offered by appellee which set out that it was the duty of all persons involved to use ordinary care for their own safety and the safety of others; there was also objection to Instruction No. 2 offered by appellee which defined ordinary care, and told the jury that the failure to use same constituted negligence; further objections were made to the giving of an instruction defining negligence. The court overruled the objections and gave the instructions. Appellant requested the following instruction:
“You are instructed that at the time plaintiff was on defendant’s truck he had the legal status of a licensee. As such, defendant owed him a duty to refrain from any act of willful or wanton negligence that might injure plaintiff. Unless you find from the evidence that defendant was willfully and wantonly negligent, proximately causing plaintiff to be injured, then plaintiff cannot recover.”
The court refused to give this instruction.
We agree that the court acted properly in refusing to give appellant’s instruction declaring Burrow a licensee, and telling the jury that appellant would only be liable if Smith acted willfully and wantonly. We think the evidence made a jury question on the issue of Burrow’s status in climbing on the truck to count the poles. The jury could have found that he was acting within the scope of his employment; that this act was for the benefit of both the milling company and appellant company, for if no count or inspection had been made until after all poles were on the ground, it might then have been necessary (if the purchased load had not conformed to the order) to reload the truck, or otherwise cause delay.
Appellant might well have been entitled to the use of AMI 1106, which defines licensee and invitee, and sets out the standard of care due to each. In other words, the testimony may well have presented a jury question relative to the status of Burrow, but appellant did not request this instruction; he relies upon the refusal to instruct the jury that appellee was a licensee.
Finding no reversible error, the judgment is affirmed.
Smith stated that he cut the stakes used to hold the poles on the truck, placing approximately 12 stakes on each side, the stakes being placed in small metal holders known as pockets. | [
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Lyle Brown, Justice.
Appellant Swan was convicted for violation of our overdraft law. His appeal is concerned with the sufficiency of the evidence, the admissibility of a prior insufficient check, and the propriety of permitting the prosecuting attorney to propound certain questions to the defendant on cross-examination.
Rogers Produce is headquartered at Piggott and wholesales poultry and eggs to a substantial number of merchants in a trade area in several adjoining counties. D. L. Swan, appellant here, was a merchant in Pocahontas, to whom Rogers made deliveries twice weekly. So far as the record discloses, Rogers sold Swan on a cash basis. The deliveryman would take an order the first part of the week, deliver and collect the latter part of the week, and account to Rogers on returning to Piggott.
Rogers had done business with Swan for more than two years and the collection experience had been uneventful until September 3, 1966. On that date a check for $798.16 in payment for produce was returned marked “insufficient funds.” On September 5 another check was likewise returned. Then on September 12 Rogers Produce delivered $288 worth of merchandise but refused to release it (on Mr. Rogers’ orders) unless prior checks and invoices were paid along with delivery. Swan gave a check for $1,856.40 which would have satisfied all indebtedness except that again the check was dishonored. That check is the subject of this prosecution. Swan knew his account was insufficient; in fact his largest balance during the previous two weeks was $65.46.
Appellant contends that any evidence of fraud was explained away by his presentation of evidence. lie testified that he did not intend to defraud Rogers, that it was his intention to pay off the checks “as soon as possible,” and that he had written several bad checks and had always satisfied them later. His defenses were fact questions and it was for the jury to decide whether his intentions were fraudulent. The evidence was clearly sufficient to take the case to the jury.
Swan challenges the right of the State to introduce the September 5 check for $960.16. That argument was answered in Tolbert v. State, 244 Ark. 1067, 428 S.W. 2d 264 (1968). Tolbert was prosecuted under the same statute as Swan, Ark. Stat. Ann. § 67-722 (Repl. 1966), making it unlawful to give, with intent to defraud, a cheek on an account which is known to be insufficient. In Tolbert the introduction of five other dishonored checks was approved. There are so many reasons why honest men can give an overdraft that the law requires a showing of specific mental attitude of criminality at the time the overdraft is written. The introduction of the September 5 check meets the test laid down in Alford v. State, 223 Ark. 330. 266 S.W. 2d 804 (1954) — the other conduct (giving of other overdrafts) is relevant in the sense that it tends to prove the essentiality of criminal intent which may not be established merely by showing the giving of the single check forming the basis of the charge.
Swan contends the court erred in allowing the prosecuting attorney to ask the defendant on cross-examination if he had ever been convicted of a felony, and in asking the defendant whether or not he got a fair trial in that conviction.
Over the objection of counsel for appellant, this colloquy occurred on the cross-examination of Swan:
“Q. Mr. Swan, have you ever been convicted of a felony?
A. Yes, sir, I have.
(After interruption for objections and exceptions, the questioning continued.)
Q. Have you been convicted of a felony?
A. You can call it convicted. I was railroaded in one.
Q. Do you feel like you didn’t get a fair trial?
A. Well — yes, sir, in a way.
Q. Where were you tried? You weren’t tried in this county?
A. No, sir, another county.
Q. In Lawrence County?
A. Yes, sir.”
Of course it is permissible to inquire on cross-examination whether a defendant has been convicted of a felony. Ordinarily, if his answer is in the affirmative then the inquiry is ended. But in this case the defendant invited inquiry when he volunteered the statement that he was “railroaded in one.” The statements which followed merely showed that he was claiming to have been “railroaded” in Lawrence County, not Randolph County in which he was being tried. Actually, the latter part of the dialogue could have been helpful to defendant. It revealed he was not casting aspersions on the court of Randolph County.
We cannot say the court abused its discretion in permitting the prosecuting attorney to twice ask Swan if he had been convicted of a felony. The recited interruption of the testimony could have justified the repetition as well as one of many other disturbances which are well known to interfere with the hearing of the jury.
The court erred, says Swan, in allowing the prosecuting attorney to ask the defendant leading questions. Appellant cites only one question in his brief. The prosecutor was questioning the driver who delivered the produce on September 12:
“Q. Mr. Huffman, did you make demand before you unloaded the chickens?
A. Yes, sir, I did.”
It is possible that the question could have been better phrased to avoid the prohibition against leading questions on direct examination; but we perceive no prejudice or abuse of discretion. It should be added that had the question been more appropriately worded, the answer would have been the same. That is for the reason that the previous testimony of the deliveryman reveals the same version:
“Q. Would you back up and tell us exactly what you did when you arrived at the store that day?
A. Well, first of all I went back to the meat department and told the butcher there that I would have to have the money before . . .” (answer stopped by objection).
It cannot be disputed that it was the witness’ persistent version that he first made demand for the money before unloading the produce. Later it was shown that he was so instructed by his superior.
Affirmed. | [
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Conley Byrd, Justice.
Appellant, Tbe Kroger Company, conducted a promotional game called “Double Sweepstakes Bingo”, whereby customers could win prizes ranging from trading stamps to $1,000 cash. The game was played with a card and discs distributed by the Kroger stores to their customers. Kroger’s Exhibit #3 is reproduced below to show the card and the discs placed thereon. Concealed discs, such as Burleson’s Exhibit #1-A, below, were given to customers each time they visited the store.
Exhibit #3
Exhibit #1-A
The game rules are on the hack of the cards. Rules 4 and 10 provide:
“4. When you have a row of five squares covered vertically, horizontally or diagonally on any one of the four games on each card, you have won the cash prize indicated at the top of that game. Free squares are the same as covered numbers. Take winning card to our store and have manager verify it. He will then award you the CASH PRIZE. Only one cash prize per game.”
“10. CAUTION: Cards and disc tickets VOID if altered or defaced. Game is VOID where prohibited or restricted by law.”
Appellee, Mrs. W. R. Burleson filled the $1,000 game card allegedly by acquiring the disc “G--80” in the Magnolia Kroger Store. Mrs. Burleson claims that when she presented the card and discs to the store manager, he told her “he would send it in and then they’d send me my money”. At that time she signed a form entitled “Double Sweepstakes Bingo $1,000, $100, $25 .....Submission Agreement and Publicity Release Form.”
Mrs. Burleson maintains that she did not leave the store after getting the “G--80”. Kroger subsequently notified Mrs. Burleson that she was not a winner because the “G--80” disc had been altered. When Mrs. Burleson’s counsel wrote for the return of her bingo card and discs, Kroger responded:
“Dear Mr. Crumpler:
An examination of the key bingo disc submitted by your client makes it obvious that the disc has been tampered with. Aside from any possible fraud implications, our rules state quite clearly that discs which have been altered or defaced are void. Your client clearly does not have a winning disc or card.
For your own information, I might add that your client initialed the disc in question before submitting it to us. The tampering took place before this time. You might also be interested to know that the invisible ink coding which is placed on all winning discs was not on your client’s disc.
This is not a case of simple error. It involves a deliberate effort on the part of someone to obtain a prize to which they are not entitled. I understand, of course, that this may have occurred before the disc reached your client for we know these discs are widely traded or sold.
In view of the facts, we do not intend to consider the material submitted by your client as valid.”
At trial the store manager positively identified Kroger’s Exhibit #3 as the card and discs given to him by Mrs. Burleson because of his initials on the back of the card and the alteration of the “G-80”. In a previous deposition he had stated only that it would be his opinion that this was the card submitted by Mrs. Burleson, but that as far as the marks on the card, he was not sure, but they looked like his initials; he would not say they were and he did not remember initialing the discs. He admits he had been instructed by the company to mark the cards and discs for identification so that the person sending them in could be sure it was their card and discs that were sent in, but he failed to have Mrs. Burleson initial her card and disc. The “G-83” disc on Exhibit #3 was there when submitted, but there was no explanation for its absence. He was not sure why he did not staple the “G-83” disc as he had done the other two. The “G-80” was only clipped to prevent mutilation. ■
The store manager says that it would be a matter of opinion whether Mrs. Burleson thought that he in- cheated she was a winner. It was his duty to take the card without causing any problems from her and send it to Little Rock.
Byron Crain, Kroger’s Advertising Manager for the 36 stores in Arkansas and two in Texarkana, Texas, testified that Kroger used the games so that people would respond to the opportunity to win by shopping at Kroger stores. The cards and discs were designed for 139,000 winners, but only five $1,000 winners. The $1,000 winners were handled individually by him through the use of “control” numbers or discs —■ one of which was a “Gr-80” disc. The stores receiving the control discs were in Pine Bluff, Little Rock, North Little Rock and Texarkana. A disc numbered “G--80” was not sent to Magnolia.
Mr. Crain then demonstrated with ultra violet light that the “Gr-80” disc on Kroger’s Exhibit No. 3 was not one distributed by Kroger, Le., it was not coded properly. He speculated that two discs may have been put together by using the eight in 86 and the zero in 40. However the actual decision to deny the verity of the disc was made on the basis of an alteration under rule #10 of the contest.
On cross examination Crain admitted that Kroger did not mention in its advertising that there could only be five $1,000 winners in Arkansas, and that it continued to advertise $1,000 winners in Magnolia even though no $1,000 control numbers had been sent to that store.
Another Kroger employee testified that Mrs. Burleson handed him a bingo card with “Gr-80” on the manager’s day off, Thursday, December 15, before she talked with the store manager on December 19th. He says that he told her to present the card to the manager when he got back. He testified that Mrs. Burleson ex plained that the “G-80” disc had been in her wrecked truck.
Mrs. Burleson’s complaint alleged fraud and sought damages not only for the $1,000 cash prize, but also for the expense of the trips made to shop with Kroger. From a jury verdict of $1,000, Kroger appeals urging the following points:
I. There was no substantial evidence to support a verdict of fraud.
II. There was no substantial evidence that appellee presented a valid “G-80”.
III. The court erred in refusing to declare a mistrial when the plaintiff suffered two seizures in the presence of the jury.
IV. The court erred in refusing to declare a mistrial based upon the misconduct of a juror during the trial.
V. The court erred in giving instruction No. 10, because there was no evidence of a misrepresentation by Kroger or damages sustained by Mrs. Burleson.
Points I and II, Whether any fraud was shown here depends upon whether Mrs. Burleson presented a valid disc “G-80”. Of course, if we could be sure that the “G-80” on Kroger’s Exhibit #3 was the disc with which Mrs. Burleson claims to have bingoed, we could easily find no fraud on Kroger’s part.
The record when viewed in the light most favorable to the jury’s verdict shows that Mrs. Burleson obtained a “G-80” disc from the Kroger Store in Magnolia; that she presented her bingo card to the manager as required by rule #4 above; and that the manager stated that he would send the card in and she would then get her money. After the card was turned over to the Manager, Mrs. Burleson was notified that she was not a winner because the disc “G-80” had been altered. When her counsel requested return of the card, Kroger advised him that the disc had been altered and that Mrs. Burleson’s initials were on the disc to verify that it was the disc presented by her to the manager, i.e., showing that it was altered at the time of receipt by the manager. When Exhibit #3 was presented to the manager during a pretrial deposition, he was unable to definitely identify either the card or the disc as those given him by Mrs. Burleson, but by the time of trial he was positive of the identification. Admittedly, neither the card nor the disc had been initialed by Mrs. Burleson.
The jury also had before it evidence showing that Kroger did not comply with the Bingo Game Buie #4 when the amount exceeded $5.00, but actually instructed store managers that when a $25, $100 or $1,000 cash winner was claimed, they were to get possession of the cards and discs and send them to the advertising manager for verification and payment.
Added to the above testimony is the undenied fact that Kroger continued to advertise $1,000 cash prizes throughout the thirty-eight store area in which the game was being promoted even though it claimed there were only five possible $1,000 winners and that it knew the store in Magnolia had no $1,000 winner.
Under the circumstances, we are unwilling to say that there was no evidence from which the jury could find fraud on the part of Kroger or that there was no evidence to show that Mrs. Burleson did not receive a valid disc “G-80”.
Point III. We can find no abuse of the trial court’s discretion in refusing to grant a mistrial when Mrs. Burleson suffered two seizures during the trial. Ordinarily a cautionary instruction is sufficient to remove any prejudice arising from sympathy.
Point IV. Kroger’s complaint about the comment of the juror arose during the cross-examination of Mr. Byron Crain. The record with respect thereto shows the following:
Q. Mr. Crain, you have testified that the only reason that Mrs. Burleson was not awarded a $1,000 prize was because the disc was not altered.
Mr. Eckert
That it was altered.
Mr. Crumpler
That it was altered. Now with that in mind then, the questions that Mr. Eckert asked Mrs. Burleson about her relationship to one of your employees, that hasn’t got anything to do with this?
A. No, sir.
Q. The only grounds that you all are kicking about is this ticket? This one Gr-80?
Juror
It’s the amount, too, the way I get it.
No objection was made at the time to the juror’s remark and no request was made for cautionary instructions. This is certainly not the conduct condemned in St. Louis-San Francisco Ry. Co. v. Oxford, 174 Ark. 966, 298 S.W. 207 (1967). We feel that the record here shows the juror’s remark was prompted by evidence heard in open court and we cannot see that the trial court erred in refusing to grant a mistrial.
Point Y. We find no merit in appellant’s contention that there was no evidence of a misrepresentation by Kroger or of damages sustained by Mrs. Burleson. The record shows that Mrs. Burleson did respond to the advertised opportunity to play the game by driving some 20 miles to shop with Kroger and that in accordance with Rule #4 of the game she submitted her winning bingo card to the store manager at which time she understood that she would be paid. We hold that the evidence was sufficient to sustain the $1,000 award of the jury.
Affirmed.
Brown, J., dissents. | [
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Conley Byrd, Justice.
Appellant, Wendell R. Gathright was charged, together with Charles Austin Hobbs, with grand larceny of certain copper wire belonging to the Chicago Rock Island and Pacific Railroad Company exceeding thirty-five dollars in value. A jury found Gathright guilty and fixed his punishment at three years. For reversal, he relies upon the following points:
I
The trial court erred in not granting the motion of appellant’s attorney for a continuance.
n
The trial court erred in denying motion for a directed verdict at the conclusion of the State’s case inasmuch as the State failed to establish ownership and/or identity of the property alleged stolen.
HI
The prosecuting attorney committed prejudicial error in closing argument by commenting on the appellant not taking the stand in his behalf.
IV
The court erred in giving court’s Instruction No. 1 and on refusing to give appellant’s Requested Instruction No. 1.
The record shows that the railroad had lost approximately ten thousand pounds of signal and communication wire along its right of way from January 29, 1968, through February 18, 1968, in the area from Proctor to Forrest City. The gauges of wire taken consisted of numbers six, ten and nine. The number nine wire was not coated. Some two thousand pounds of this wire was taken from the Black Fish Lake and Heth, Arkansas, area over the weekend of February 17th and 18th. The replacement value of the wire is approximately one dollar per pound and the salvage value is approximately fifty cents per pound.
The record shows the appellant and Hobbs had registered at Jim’s Motel at Black Fish Lake February 17th under the name of Johnny Williams and had shown the make of their car as being a 1947 Ford Pickup, License No. A22076. Merchants in the area had observed them driving the same pickup with knobby tires. Because of the nature of their boots, one of the merchants asked them, “Well, are you about — you boys about to get through with the wire?” The merchant says that one of them said, “Well no, we’ve got quite a little of it left.”
When Appellant and Hobbs were arrested in Hazen, they were driving the same 1947 Ford pickup except that the license number was “A-17086”. Under some bundles of rock wool insulation bats in the back of the pickup, the officers found some twenty to twenty-five roles of number nine wire, pole climbers and two pairs of wire cutters. From the pockets of both Appellant and Hobbs, the officers removed magnets. The boots worn by Appellant and Hobbs matched the boot tracks at the poles where the wire had been removed on the 17th and 18th.
On Appellant’s person at the time of his arrest was a registration for a 1964 Ford pickup bearing license No. A-17086, being the license plate then on the 1947 Ford pickup in which he was traveling at the time of arrest.
The record shows that Appellant and Hobbs were arrested on February 23,1968. The information charging them with grand larceny was filed April 9, 1968. At the arraignment Appellant and Hobbs were presented by Mr. Willis Lewis and their case was then set for trial on April 29, 1968.
I
On the trial date Mr. Holt, Appellant’s present counsel, appeared as counsel for both Appellant and Hobbs and moved for a continuance because he had not been employed until April 22nd and had not had sufficient time to prepare for trial. No showing was made why the switch in counsel and under the circumstances we find that the trial court did not abuse its discretion in denying the motion for continuance. Turner v. State, 224 Ark. 505, 275 S.W. 2d 24 (1955). We have not overlooked the fact that Appellant was in prison at the time present counsel was employed, but the record, including the motion for new trial filed June 6, 1968, shows no facts from which we can find any prejudice to Appellant because of the refusal of the continuance.
H
Under the second point for reversal, Appellant makes two arguments — i.e. (1) there is no showing do facto or otherwise of the corporate existence of the Rock Island Railroad, and (2) that the agents for the Railroad were unable to identify the property they had lost.
The first contention was not raised in the trial court nor in the motion for new trial and cannot be raised for the first time on appeal.
The second contention is not supported by the record. The evidence shows that they had in their poses sion wire of the kind and gauge removed; that they had the paraphernalia for removing the wire; that their boots matched the tracks around the poles from which the wire was removed; that the merchants in the area considered them to be “highline boys” because of their boots; that they registered under fictitious names; and that they switched license plates on their vehicle from time to time. We hold the evidence sufficient to establish the identity of the property stolen from the railroad.
Ill
In his opening statement, Counsel for Appellant and Hobbs stated:
“The defendant, Wendell Gathright, for about seventeen years was a member of the Armed Forces with a commendable record. That after he had served honorably for his country he secured a job at Little Rock Air Force Base at a salary over $9,-000.00 ■ a year. That during the acquaintance he had with defendant, Hobbs, Hobbs and his wife became separated. That Hobbs had heard that she was in Memphis, Tennessee, and he wanted to go over there and see if he could locate his wife for the purpose of trying to perfect a reconciliation.
“They went to Memphis and failed to find Hobb’s wife, then went to a beer tavern at which time a fellow told them that there was a colored man that had a bunch of copper wire he would like to dispose of. They were interested. They then went out and made a deal with this Negro to buy the wire and that is the wire that is going to be in question. After buying the wire, they stopped at a Jim’s Motel because the truck was broken down and that occasioned them to have to stay overnight before going back to Little Rock.
“This is a case being tried solely upon suspicion, conjecture without the necessary elements of facts and the law toward an honest conviction.
“They can tell this story much better than I can.”
With reference to the prosecutor, Mr. Loyd Henry’s closing statement, the record shows:
‘£ (Mention was made by Mr. Henry to the effect the jury was told by Counsel for Defendants in the opening Statement that they would be told why the Defendants were in Memphis, that something had been said relative to a separation, and there was no testimony given regarding this.)”
We are unable to find that this was a comment upon the failure of Appellant and Hobbs to take the witness stand in their own behalf.
IV
On the issue of circumstantial evidence Appellant and Hobbs asked Court to give their requested Instruction No. I as follows:
“In this case, the State relies entirely on circumstantial evidence. You are instructed that it is competent for the jury to convict on circumstantial evidence alone, but in order to do so the circumstances solely relied upon must be consistent with the Defendants’ guilt and entirely inconsistent with the innocence of the Defendants and any other reasonable hypothesis.”
The trial Court refused the instruction and gave its own instruction, to-wit:—
“ There is some circumstantial evidence introduced in this case. You are instructed that cir cumstantial evidence is legal evidence, but when tbe State relies wholly or in part upon circumstantial evidence for conviction, it must be of such a nature that it is consistent with the guilt of the Defendants when considered along with all other evidence in the case and is inconsistent with any other reasonable hypothesis.”
The trial court having given a correct instruction on circumstantial evidence, committed no error in refusing Appellant’s instruction, Smith v. State, 227 Ark. 332, 299 S.W. 2d 52 (1957).
Affirmed. | [
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Lyle Brown, Justice.
Louise Smith, plaintiff-appellant, sought recovery for damages arising out of a collision between her car and a vehicle driven by defendant-appellee, Jere Marie Alexander. The jury verdict favored Jere Alexander. Louise Smith seeks a reversal based on the court’s giving, and refusal to give, certain instructions.
Three cars were traveling in the same direction on Highway 270 near Malvern, Arkansas. The lead driver is not a party to this suit. Jere Alexander was second in line and Louise Smith was trailing. At the time of the collision, both ladies were in the passing lane, it ap parently being tlie intention of both to ultimately pass the lead vehicle. Jere Alexander contends that she was the first driver to enter the passing lane and that Louise Smith suddenly struck the rear of the Alexander car. Louise Smith argues that she was first in the passing lane and that Jere Alexander suddenly and without warning pulled out in front of the Smith car. Those highly disputed facts are all that are necessary to an understanding of our conclusions. The three points raised for reversal will be discussed as they are listed in italics.
I. The Court Erred in Refusing to Give AMI 101. That instruction is an opening statement to the jury, chiefly concerned with the respective duties of judge and jury. It is designated as a cautionary instruction. The record is silent as to why the trial judge declined to give it. On the other hand there is nothing in the record to show why it should have been given. Appellant made only a general objection. Absent a record to the contrary, we assume the trial judge decided the jury need not be instructed on cautionary matters. It could have been that those same jurors had heard this instruction repeated in previous trials. Considering the state of the record, and the discretion vested in trial courts with reference to cautionary instructions, we are unable to say that reversible error was committed. We would consider it the better practice to give the instruction when requested or recite into the record the specific reasons for refusing to give it. That is because we think the instruction covers substantive matters and a refusal to give it should be an unusual exception.
II. It Was Error to Give a Rule of the Road Instruction Taken from Ark. Stat. Ann. § 75-609(b) (Repl. 1957). Within the format of AMI 903, and at the request of defendant, the court gave this statute:
“ . . . the driver of an overtaken vehicle shall give way to the right in favor of the overtaking ve hide on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.”
First, there was no evidence of audible signal having been given by either vehicle. Therefore the instruction tendered an issue not in contention. To that extent the instruction was abstract. Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226 (1959). Secondly, under the very unusual circumstances of this case the instruction was confusing. The novel situation arises because here we do not have clearly designated overtaken and overtaking vehicles. In fact, the jury could have surmised that the overtaken vehicle was the lead car. The driver of that car is not charged with any negligence and is not a party to the suit. But how was the jury to know but that the instruction was referring to that driver? It was Louise Smith’s claim that she had pulled out to pass Jere Alexander and the latter suddenly pulled out in front of Louise Smith. To the contrary, Jere Alexander contends she was overtaking the lead vehicle and was struck from the rear. Thus we have a situation where both parties to this suit contend they held the status of overtaking vehicles. At the same time, plaintiff Smith designates defendant Alexander as an overtaken driver. With that confusion created by the testimony, we conclude that the jury could not possibly know how to apply the instruction in the form given. It should also be pointed out that this rule of the road imposes a duty on the driver being overtaken. The duty was shifted to that driver by Act 300 of 1937. There the requirement that an overtaking driver always sound his horn was deleted. Consequently the instruction should not be given unless there is evidence that the driver being overtaken failed to give way to the right on audible signal.
III. The Court Erred in Giving AMI 902 as Modified. The form of that instruction, taken from the book, is as follows:
“When two vehicles are traveling in the same direction, the vehicle in front has the superior right to use of the highway [for the purpose of ‘leaving it to enter an intersecting road’ (or other appropriate language)], and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. This does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road.”
The trial court gave the instruction exactly as written (excepting, of course, the bracketed portion). Specifically, no insertion was entered as explained in brackets. When that instruction is given the specific and applicable purpose for which the lead car has the superior right to the use of the road should be inserted. Otherwise, the instruction could lead the jury to picture the lead car as having far more rights than really exist. In every instance where the rule has been approved by this Court, the instruction or the law under discussion dealt in specific situations as opposed to a general right blanket in nature.
In Madison Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S.W. 2d 729 (1931), we held that the lead vehicle has the superior right to the use of the road “for the purpose of leaving it on either side to enter intersecting roads and passageways ... in Ward v. Haralson, 196 Ark. 785, 120 S.W. 2d 322 (1938), it was stated that the truck driver ahead had the superior right to the use of the road for the purpose of proceeding straight ahead on his right side of the road; in Cohen v. Ramey, 201 Ark. 713, 147 S.W. 2d 338 (1941), the phrase “intersecting roads and passageways” was inserted in the instruction; in Acco Transportation Co. v. Smith, 207 Ark. 70, 178 S.W. 2d 1011 (1944), the driver of the wagon was proceeding straight on his side of the road and we held for that purpose he had the superior right to the use of the road as opposed to a driver trailing him; and in Jones v. King, 211 Ark. 1084, 204 S.W. 2d 548 (1947), there was a turning movement of the lead vehicle in leaving the highway and for that purpose he was declared to have the superior right of use. There are later cases from the same general field; suffice it to say that all which have come to our attention deal in specifics when this rule of. the road is applied.
Reversed. | [
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Paul Ward, Justice.
This is an appeal by Robert Ragsdale (appellant) from a conviction of negligent homicide. The pertinent background facts are not in dispute and will be briefly set out below.
On April 29, 1968 appellant, while driving across a bridge on State Highway No. 1 located about eight miles north of Jonesboro, collided with another car in which Albert Passmore was a passenger. As a result, Pass-more was killed and appellant was injured.
At the trial, no eye-witness was called by either side, and the State's case was based on circumstantial evb dence.
On appeal, appellant relies on four separate points. However, we find it necessary to discuss only one point, which, we think, calls for a reversal. We agree with appellant that “the trial court erred in permitting evidence of a blood-alcohol test run on appellant”.
It appears undisputed that Dr. Joe Ledbetter was the only one who had a blood test made on appellant— which test showed some trace of alcohol — and that it was made for the purpose of prescribing for, and treating the injuries of, appellant. The test was actually made by Dr. Baker who stated he did so at the request of Dr. Ledbetter for diagnostic purposes, and not in compliance with the request of anyone else. Both doctors stated the test was not made at the request of Trooper Jackson or the Prosecuting Attorney.
Under the above state of the record it must be concluded that the relationship between Dr. Ledbetter and appellant was one of doctor and patient. Nevertheless, tbe result of the tests was introduced in evidence over repeated objections by appellant.
It is, and must be, conceded by tbe State that, if this was a civil action, tbe result of tbe test was a privileged communication between doctor and patient and, therefore, was inadmissible in evidence. However, it is tbe contention of tbe State such rule does not apply in criminal cases. It appears that this exact issue has never been clearly decided by this Court. For reasons mentioned below, we have concluded tbe rule does apply, under tbe circumstances of this case, in criminal cases.
(a) Ark. Stat. Ann. § 28-607 (Repl. 1962) which, in essence and parts pertinent here, provides that no doctor or nurse shall be compelled to disclose any information which is acquired from bis patient to enable him to prescribe, provided the patient can waive this privilege. It is noted that there is nothing in the statute which limits its application to civil cases. In the case of Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S.W. 720 it was held that tbe above statute was enacted as a matter of public policy.
(b) In the case of Edwards v. State, 244 Ark. 1145, 429 S.W. 2d 92, this Court bad occasion to comment on tbe application of said section 28-607 as follows:
“In some states such statutes have been construed to apply only to civil cases; other courts have held them applicable to criminal trials as well. See, for example, State v. Betts, Ore. 384 P. 2d 198 (1963), and State v. Sullivan, Wash., 373 P. 2d 474 (1962). In the past we have assumed, without expressly declaring, that our statute does apply to criminal cases. Wimberly v. State, 217 Ark. 130, 228 S.W. 2d 991 (1950); Cabe v. State, 182 Ark. 49, 30 S.W. 2d 855 (1930); Burris v. State, infra.”
In view of what we have pointed out above we are bolding that tbe statute in question applies to criminal as well as to civil cases. If that was not the intent of the legislature we prefer to let it so state.
Reversed.
Fogleman, J., disqualified.
Harris, C.J. concurs. | [
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Carleton Harris, Justice.
A motor vehicle accident, involving O. C. Morris, appellee herein, and James Stewart, occurred near Cabot on November 19, 1965. Ten days later, pursuant to the provisions of the Arkansas Financial Responsibility Law (Act 347 of 1953), Morris filed an accident report with the Commissioner of Revenues, the report reflecting' that he and his vehicle, which he was driving at the time of the accident, were covered by liability insurance with the Republic Casualty Company of Little Rock. On February 4, 1966, Stewart filed similar proof of financial responsibility, and tbe commissioner closed bis file on tbe accident. On February 27, 1967, a judgment was entered against Morris in favor of Stewart in tbe Circuit Court of Lonoke County, and in tbe amount of $7,045.00 . Appellee failed to pay tbe judgment, and Stewart’s attorney discovered that Morris’ insurance carrier, Republic Casualty Company, was in receivership ; accordingly, it was no longer financially able to pay the judgment. On August 16, 1967, in compliance with tlie provisions of Ark. Stat. Ann. § 75-1450 (Repl. 1957) Stewart filed a certified copy of tbe unsatisfied judgment and certificate of fact with tbe commissioner. Thereupon, tbe commissioner, under tbe provisions of Section 75-1452 suspended tbe license and registration of Morris. Appellee appealed to tbe Pulaski County Circuit Court (under tbe authority of Section 75-1416), and that court reversed tbe order of tbe commissioner and reinstated Morris’ license and registration. From tbe judgment so entered, tbe Department of Revenues brings this appeal.
Appellant relies upon Section 75-1455, which provides :
“No license, registration, or nonresident’s operating privilege of any person shall be suspended under tbe provisions of this article [§§ 75-1443 — 75-1477] if the department shall find that an insurer was obligated to pay the judgment upon lohich suspension is based, at least to the extent and for the amormts required in this act [§§ 75-1401— 75-1493], but has not paid such judgment for any reason. A finding by the department that an insurer is obligated to pay a judgment shall not be binding upon such insurer and shall have no legal effect ivhatever except for the purpose of administering this section . Whenever in any judicial proceedings it shall he determined by any final judgment, decree or order that an insurer is not obligated to pay any such judgment, the department, notwithstanding any contrary finding theretofore made by it shall forthwith suspend the license and registration and any nonresident’s operating privilege of any person against whom such judgment was rendered, as provided in Section 52 [$ 75-1452].”
In the case before us, the commissioner upon being' advised that the judgment was unsatisfied, made a finding that the insurer was not obligated to pay the judgment. It will be noted that this particular language is not contained in the preceding section, but appellant states that, if it is authorized to find that an insurer was obligated to pay the judgment, it certainly had the authority to find that the insurer was not obligated to pay same.
There is no point in discussing the authority of the commissioner to make the rulings provided for in the section, nor to go into the question of the procedure, or quantum of proof necessary to overturn a ruling by the commissioner, since we think it is obvious that error was made in the commissioner’s ruling at the outset.
The record reflects that Morris purchased the insurance from Republic on October 3, 1965; that this policy was in force at the time of Ihe accident which occurred on November 19, 1.965; further, it also appears that it was in force (by renewal) at the time the judgment was rendered against him on February 27,1967. Morris re ceivecl notice from the Insurance Commissioner that Republic Casualty Company had been placed in receivership . As far as the record shows, the litigation against Republic is still pending, hut, at any rate, Stewart’s judgment was apparently obtained before Republic was declared insolvent. We know of no Arkansas court decision, nor until 1959, any Arkansas statute, which holds or provides that, when an insurance company has gone into receivership, it is no longer liable for previous judgments rendered against its policyholders. Of course, a judgment creditor probably would bo able to collect only a small portion of the amount due him under a judgment — but this fact has nothing to do with the company’s actual liability. However, in 1959, the General Assembly enacted the Arkansas Insurance Code. A part of that code, Ark. Stat. Ann. § 66-4829 (Repl. 1966), deals with the allowance of claims against delinquent insurance companies. Subsection (1) deals with contingent and unliquidated claims. Sub-section (2) deals with the rights of a person who has a cause of action against an insured, the insurer having been adjudicated insolvent, and Subsection (3), pertinent hereto, reads as follows:
“No judgment against such an insured taken after the date of entry of the liquidation order shall he considered in the liquidation proceedings as evidence of liability, or of the amount of damages, and no judgment against an insured taken by default, or by collusion prior to the entry of the liquidation order shall be considered as conclusive evidence in the liquidation proceedings, either of the liability of such insured to such person upon such cause of action or of the amount of damages to which such ■person is therein entitled '”.
Tlie italicized portion is here pertinent, Stewart’s judgment having been rendered prior to the delinquency proceeding against Republic, the judgment, however, being obtained by default.
We think the language in Section 75-1455, “obligated to pay a judgment,’’ or under appellant’s reasoning, “not obligated to pay a judgment,’’ means legally obligated . Except for Section 66-4829, this would be definite, but even under that section, as of now, the judgment stands — -and will continue to stand until the receiver holds that Morris was not liable to Stewart, or Stewart was not entitled to the amount of damages awarded. Of course, the receiver’s findings are subject to review by the Circuit Court.
The department argues that an adverse ruling to its position will seriously hinder effective enforcement of the act. From its brief:
“The suspension of the judgment debtor’s license and registration for nonpayment of the judgment is a powerful lever to aid in collection of the judgment, at least to the limits provided for under the financial responsibility law. To deprive a person of his privilege to operate or register a motor vehicle is to place him under severe financial and personal handicaps. Assets may be converted into liquid form and concealed from execution, but if the defendant is placed afoot for life or until he satisfies the judgment sooner or later he will do so if at all possible.
Therefore, the Department is the last resort of any plaintiff whose unsatisfied judgment has arisen from a motor vehicle accident. If the Department indulges in the legal fiction that the insurance company is obligated to pay this judgment, then in effect, the Department has denied any recovery to the plaintiff. He, the plaintiff, will then have suffered a wrong without a remedy.”
It is asserted that when the insurance company becomes insolvent, as in the case at hand, the commissioner should find that the insurer was not obligated to pay the judgment, thus requiring the judgment debtor himself to pay or suffer the suspension of license and registration.
We agree that to deprive a person of his privilege to operate or register his motor vehicle is to place him under a severe handicap, but under the circumstances herein, the judgment debtor, like the plaintiff, will also have suffered a wrong without a remedy. Here, appellee purchased liability insurance, and thought that he was fully covered. There was no reason for him to think otherwise, for at the time he purchased it- — and at the time of the accident — and even at the time of the judgment rendered against him, Republic Casualty Company was authorized by the State Insurance Department to do business in this state. The Revenue Commissioner himself accepted appellee’s proof of financial responsibility when he reported, ten days after the accident, that he was covered by liability insurance with Republic. What did Morris do — or fail to do— that justifies the loss of his license? The average citizen does not demand a financial sheet from an insurance company before he purchases a policy. The most that could have been done would have been for Morris to make inquiry from the State Insurance Department —and, if this had been done, he would evidently have learned nothing that would have put him on guard against purchasing a policy, since the company was authorized at that time to do business.
Of course, Stewart cau still collect Ms judgment against Morris if the latter has sufficient property, or sufficient income beyond exemption, upon which to levy an execution. No protection has been afforded appellee in this respect. He has simply been restored the privilege of operating his veMcle, a dump truck used by appellee in earning his livelihood.
Affirmed.
Then sued, Morris, according to the appeal filed with the Circuit Court, notified Republic of the suit, and was advised that the matter would be taken care of. An answer was filed by Little Rock attorneys at the instance of the company. Apparently, the attorneys withdrew from the case, and Morris set out that he was never notified of the date of trial. A default judgment was rendered.
This company was apparently placed in receivership after proceedings were instituted in the Circuit Court of Pulaski County against it by the State Insurance Commissioner.
Emphasis supplied.
An exact quote of the notice is set out in appellee’s brief, as follows: “As of March 13, 1967, your insurance policy with the Republic Casualty Company is without benefit to you regarding law suits or claims occurring after the date of receivership.” Oral testimony of Morris was taken in the present litigation before the Circuit Court, but was not reported, and. this notice was; apparently introduced at that time.
Emphasis supplied.
Let it be remembered that this is not a bankruptcy proceeding in the Federal Court. However, it might be pointed out here that, under Section 75-1457, a discharge in bankruptcy following the rendering of a judgment does not relieve the judgment debtor from any requirements fround in Sections 75-1443 — 75-1477. | [
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Paul Ward, Justice.
This appeal raises the issue of usury in two separate notes. To aid in an understanding as to how the issues arose we set out below a brief statement of the facts.
On August 21, 1963 the Peoples Loan and Investment Company (appellant here) loaned B. B. Booth and his wife (two of the appellees here) the sum of $5,500 (to pay certain debts) and also the sum of $40,000 for the construction of chicken houses on land belonging to them. These two advancements are represented in one note (hereafter referred to as Note #1) a copy of which is found at page 337 of the record — marked "Plaintiff’s Ex. #1”. The two notes are referred to hereafter as Note #1 and Note #2.
Note #1. The face of the note shows a principal sum of $80,421.55, “payable in thirty-nine quarterly installments of $2,010.53 each, and one final installment of $2,010.88 ...” The note was secured by a mortgage on real estate — a copy shown at page 339 of the record and marked Plaintiff’s Ex. #2. The principal sum of the note, as shown by appellant's records, consisted of the following items:
(1) Net cash to borrower $40,000.
(2) Other payoffs 5,500.
(3) Hazard Insurance (1st year) 402.
(4) Credit Life Insurance 4,058.
(5) Total charges paid by Peoples 185.
Total Principal $50,145.
(,6) Interest @ 5.41%, ten years 27,128.
(7) Hazard Insurance after first
year — nine years 3,135.
(8) Legal Preparation and
Credit Report 12.50
Total Face of Note $80,421.55
Note #2. This note was executed by Booth and his wife to appellant on October 9, 1963 (a copy shown at p. 15 of the record) in the principal amount of $6,611.40, “payable in 47 monthly installments of $137.73 each and one final installment of $138.09; the first installment to become due and payable on or before the 9th day of October, 1963 ...” (emphasis ours.) it will, of course, be noted that the first installment of $137.73 was due on the day the note was executed. This note was secured by a chattel mortgage on cattle owned by Booths.
On August 25, 1964 the Booths conveyed their interest in the real estate and the cattle to Carl Gregory Haggard and his wife — also appellees here.
On March 21, 1966 appellants filed suit against all the appellees to recover the balances due on the two notes and to foreclose said mortgages.
After an extended hearing (set forth in over 400 pages and numerous exhibits in the record) the trial court made comprehensive findings which, in pertinent part, are summarized below.
(a) The Haggards agreed with Booths to assume both debts.
(b) Appellees contend both notes are usurious.
(c) Interest must be calculated on the reducing principal basis.
(d) Note #1 is usurious because Booths did not authorize Hazard Insurance — shown as items (3) and (7) above mentioned.
(e) Note #2 is usurious because it requires the first payment to be made on the date of execution, and the proof does not show this was merely an honest mistake on the part of appellant.
From the above findings appellant, on appeal, contends the trial court erred in holding each of the notes usurious. For reasons hereafter discussed, we are compelled to agree with appellant in both instances.
Note #1. Due to the commendable frankness by both parties on oral argument the decisive issues here are limited largely to certain questions of fact.
Since the note does not show usury on its face, the burden was on appellees to show it was, in fact, usurious. See: Baxter v. Jackson, 193 Ark. 996, 104 S.W. 2d 202; Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009. Also, usury -will not be presumed when the opposite conclusion can reasonably be reached. Cammack v. Runyan Creamery, 175 Ark. 601, 299 SW. 1023; Hill v. Jacobs, 187 Ark. 1162, 60 S.W. 2d 564, and; Brittain, Adm. v. McKim, 204 Ark. 647, 164 SW. 2d 435. In the McKim case we also pointed out that, to constitute usury, “. . . there must have been an intention on the part of the lender to take or receive more than the legal rate of interest”.
In our opinion the appellees did not meet the burden of proving usury. It is not questioned by appellees that fire and windstorm insurance was a benefit to them or that it was not a proper requirement by appellant. The thrust of appellees’ contention is that they did not know appellant required such insurance. However, this contention is completely nullified by the fact that Mr. Booth and his wife signed the mortgage (securing the note) which specifically required the insurance. This is the language used:
‘ ‘. . . said mortgagors hereby agree with the mortgages that they will keep the buildings on said land in good repair and constantly insured in some company satisfactory to said mortgagee for the sum of $40,000 . .
The mortgage also provided that if the mortgagees did not provide the required insurance, then appellant “is hereby authorized to do so . . .”
Note #2. Here, it is conceded that the note, on its face, is usurious. It is again pointed out that the first payment of $137.73 is shown (on the face of the note) to be due on the day it was executed. The evidence shows that such payment (along with the other required payment) constitutes usury. Therefore appellant tried to avoid the result of usury by showing the “date of payment” was entered as the result of an honest mis take and without any corrupt intent to exact interest in excess of the legal rate. This, appellant had a right to do. See: Cox v. Darragh, 227 Ark. 399, 299 S.W. 2d 193; Brooks v. Burgess, 228 Ark. 150, 306 S.W. 2d 104.
It is apparent from the record that the trial court, in holding the note usurious, felt it was limited to considering the face of the note. In its opinion the trial court said:
“. . . plaintiff must stand or fall on note #2 as it is written, irrespective of plaintiff’s mistake, inadvertent or otherwise, in drawing the instrument..”
The record shows that appellant offered to introduce oral testimony and also certain office records to show the first payment due date was inserted by mistake. This should have been considered by the court. In Sammons-Pennington Co. v. Harry H. Norton, et al, 241 Ark. 341, 408 S.W. 2d 487, this Court said:
“It appears, that, in determining whether a usurious charge has been made, all attendant circumstances must be taken into consideration. When this is done, we think it is plain that the overcharge in the instant litigation was the result of error, made in good faith, rather than being based on an intent to violate the usury law ...”
See also Guaranty Financial Corp. v. James Harden, et ux, 242 Ark. 779, 416 S.W. 2d 287, where we said:
“We think the chancellor fell into error in construing the promissory note all by itself, without regard to the building contract which was executed at the same time, as a part of the same transaction and which gave rise to the debt evidenced by the note. ’ ’
It is therefore our conclusion that the decree of the trial court should be, and it is hereby, reversed, and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded. | [
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J. Fred Jones, Justice.
By condemnation under eminent domain, the Arkansas State Highway Commission took 60.8 acres of a 66 acre tract of land belonging to Joe Maus in Pope County, Arkansas. The commission paid $6,140.00 into the registry of the court as estimated compensation. A jury trial in the Pope County Circuit Court resulted in a judgment for Maus in the amount of $16,400.00 and the highway commission has appealed. It designated the points upon which it relies for reversal as follows:
“The court erred in not striking the value testimony of one of the owners, Mr. Joe Maus.
‘ ‘ The verdict is not based upon substantial evidence and is excessive.
£ £ The trial court erred in allowing appellees to introduce testimony as to the substantial increase in population of Pope County to prove that the general county population increase would raise the land values in the vicinity of Atkins, Arkansas.”
When a part of an owner’s tract of land is taken by eminent domain in this state, the rule is well settled that his just compensation is measured by the difference in the value of the land, when put to its highest and best use, immediately prior to the taking and immediately after the taking. Ark. State Highway Comm. v. Fox, 230 Ark. 287, 322 S.W. 2d 81.
The appellee, Joe Maus, was 66 years of age and had lived all of his life on the property involved. He acquired the property by inheritance from his father who had likewise acquired it from appellee’s grandfather. Appellee had dairy farmed and truck farmed on the property for many years. He had planted and tended locust and pine trees on parts of the property and his overall testimony indicates a familiarity with the general land values in the area of the land taken by the appellant highway department. Certainly Mr. Maus was qualified to assert a land owner’s opinion as to the value of his land and his testimony on this point was admissible. In Ark. State Highway Comm. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1, we quoted with approval from 20 Am. Jur., Evidence § 892, as follows:
“It is generally recognized that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of such testimony is, of course, affected by his knowledge of the value.”
On direct, as well as on cross-examination, Mr. Maus testified as to different acreage values of various areas pointed out on a map or plat exhibit, and in totaling the values of the various plots his testimony indicates an error of $900.00 in his mental calculation of the value of the six acres remaining after the taking, and of $350.00 in his calculation of the value after the taking, but his testimony is clear that in his opinion the difference in the before and after value of his land amounted to $21,500.00. Even if a part of Maus’ testimony had been incompetent, if a part of it was competent, a motion to strike all of it would be properly denied. Arkansas State Highway Comm. v. Darling, 243 Ark. 386, 420 S.W. 2d 94; Ark. State Highway Comm. v. Carpenter, 237 Ark. 46, 371 S.W. 2d 535.
Maus was competent to testify as to his opinion on the value of his land and we hold that the motion to strike his testimony was properly denied by the trial court.
Appellant’s second point, as to whether there was substantial evidence to support the verdict of the jury, presents a question of law. Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S.W. 2d 738; Ark-State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S.W. 2d 791. In determining the sufficiency of the evidence to support a jury verdict on appeal, we consider the evidence in the light most favorable to appellee. Mutual Benefit Health & Accident Association v. Basham, 191 Ark. 679, 87 S.W. 2d 583; Ark. State Highway Comm. v. Carder, 228 Ark. 8, 305 S.W. 2d 330.
The appellee, Joe Maus, testified that in his opinion the difference in the value of his land before and after the taking was $21,500.00. This testimony is based upon his familiarity with the land as owner and lifetime resident.
Mr. Jackson Ross, a real estate broker of considerable experience and knowledge in land appraisals and local market values, testified as an expert for appellee. He testified that the value of appellee’s land before the taking was $24,300.00 and that after the taking its value was $3,000.00, leaving a difference of $21,300.00 as just compensation for the land taken.
Mr. Watson and Mr. Jordon testified as expert appraisers for the appellant, and on a before and after appraisal came up with a difference of $6,150.00 and $5,-715.00 respectively.
We find no evidence that the jury was influenced or prejudiced by the admission of appellant’s expert witness on cross-examination, that Pope County is the fastest growing county in the state, and we find no merit to appellant’s third point.
The jury verdict was for $16,400.00 which was $4,-900.00 less than appellee’s lowest estimate and $10,250.00 more than appellant’s highest estimate. We conclude that there was substantial evidence to support the jury verdict and that the judgment of the trial court should be affirmed.
Affirmed. | [
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George Rose Smith, Justice.
This action was brought by two of the appellees, Mrs. Bobby M. Mason and her 13-year-old daughter, Sandra Kay, for personal injuries, and by the third appellee, Bobby M. Mason, for loss of consortium, medical expenses, and property damage. The jury awarded $2,900 to Mason, $1,500 to his wife, and $200 to Mason as the natural guardian of his daughter.
The plaintiffs filed a motion for a new trial, principally upon the ground that the evidence clearly established pecuniary injuries in excess of the verdicts. The trial judge set aside all three awards, finding that the verdict “failed to do justice and enforce the rights of the parties.” This appeal is from the order granting a new trial.
In the court below there was no issue of comparative negligence. As the defendant, Mrs. Munson, was driving her car on a street in North Little Rock her brakes suddenly failed. In an effort to avoid a collision Mrs. Munson swerved to her left and over the curbing, but she eventually struck the rear end of the Mason car, which was being serviced in a filling station. Mrs. Mason and Sandra Kay were sitting in the front seat. Mrs. Mason’s neck, shoulder, and back were injured, although the extent of her injuries was a matter of much dispute. Sandra Kay suffered a fractured arm, which was set promptly and healed satisfactorily.
We find no abuse of discretion insofar as Mason is concerned. According to the testimony, his car was worth $4,400 immediately before the accident and $1,500 immediately after it. Thus the $2,900 verdict fully compensated him for his property damage. It is undisputed, however, that he also incurred medical expenses for his wife’s and daughter’s injuries in excess of $2,-375. Although the jury may have believed that not all those expenses were necessaiily attributable to the accident, unquestionably some of them were. If the trial judge found that, by the weight of the evidence, Mason’s pecuniary injuries exceeded the amount of the award, it was his duty to set it aside upon the plaintiff’s motion. Bockman, v. World Ins. Co. 222 Ark. 877, 263 S.W. 2d 486 (1954). We cannot say that the judge abused his discretion. To the contrary, in our opinion the preponderance of the proof supports his action.
A different question is presented in the case of Mrs. Mason and Sandra Kay. The controlling statute provides : “ A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.” Ark. Stat. Ann. § 27-1902 (Repl. 1962). We have construed the statute to mean that in a personal injury case a new trial cannot be granted for the inadequacy of the verdict (except one for nominal damages) when the injury, such as pain and suffering, is not susceptible of definite pecuniary measurement. Worth James Construction Co. v. Herring, 242 Ark. 156, 412 S.W. 2d 838 (1967).
That case is controlling here. Neither Mrs. Mason nor Sandra Kay asserted any cause of action for injuries that were pecuniarily measurable, nor was any such cause of action on their part submitted to the jury. The court’s order granting a new trial did not specifically mention the inadequacy of the verdicts, but no other basis for the order is to be found in the record. We are compelled to conclude that the court’s action was contrary to the statute.
In Mason’s case the court’s order was correct, but with respect to the other two plaintiffs the order is reversed and the cause remanded for reinstatement of the verdicts. | [
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Conley Byrd, Justice.
Appellant Myrtle Thompson appeals from a judgment entered upon a running account in favor of appellee AAA Lumber Company. For reversal, appellant alleges that she was entitled to a directed verdict, that the trial court commented on the evidence and that the cumulative effect of the court’s erroneous rulings unduly prejudiced her in the presentation of her defense.
The record shows that Miss Thompson had been a customer of the lumber company for a number of years. She owned some rent houses and took care of others owned by her mother’s estate. From time to time Miss Thompson would take the tenants by and authorize the tenant to make charges to her account for repairs.
Mr. J. E. Hannah, an employee of the lumber company, testified that its records were kept in the ordinary course of business and under his supervision. According to him, a credit sale would be entered on a charge ticket. Subsequently, within two or three days, the charge, showing the ticket number thereof, would be posted to the ledger sheet. When the customer was billed a copy of the charge ticket would be mailed along with a ledger sheet showing the balance due. Thereafter the customer would be billed from the ledger sheet.
The ledger sheet shows the balance brought forward as of January 28, 1964, was $294.57. The balance at the time of the trial was $331.34. Except for a paint store item, which will be discussed latex, all charges and credits were carried as above explained. Mr. Hannah admits that some of the items charged on the ledger sheet were received by Miss Thompson’s adopted brother and others. When asked what made him decide to charge such tickets to Miss Thompson, the record shows:
“A. I can’t truthfully answer that because that is not my writing and I didn’t wait on the customer when she came in. Miss Thompson in the nature of her business, she owns several pieces of property, and sometimes she would come in with a person and say that she was wanting to charge it.
Mr. Booth:
I object to that.
The Court:
He may answer. You asked him and I think that is the very heart of this lawsuit.
A. (From the witness) and sometimes she would come in and say that one of her tenants was coming in and sometimes she would come down with them as she did with her brother, Jimmy Thompson, on occasions, and his wife, at that time. She would come in with them when they would make purchases. To my knowledge she didn’t sign any tickets herself, I don’t know whether this was the occasion of the time she came or not. I don’t know and I may not have been in the office at the time of that purchase. I did not make the ticket. ’ ’
Miss Thompson testified that she had a few rental houses and often had to do light repairs on them, that she would usually go with the person doing the work to the lumber company to get the material. On a few jobs she had her brother, Jimmy Thompson, help her with some repairs while he was staying at her house.
Miss Thompson acknowledges that she made payments from time to time, but does not remember the dates.
Under this testimony we hold that the trial court properly refused to direct a verdict.
We do not reach appellant’s contention about the court’s alleged ¡error in commenting on the evidence. The matter was not raised in the trial court either by objection or a motion for mistrial. We have consistently held that we will not consider an error raised for the first time on appeal.
The appellant complains of numerous errors of the trial court, which we list as follows:
(a) The trial court erred in sustaining the lumber company’s objections to Miss Thompson’s inquiry of Mr. Hannah as to Jimmy Thompson’s reputation for truth and veracity. We find this point without merit. In the first place, it may have become harmless as a result of the other testimony introduced by Miss Thompson, and in the second place, no proffer was made as to what the witness ’ answer would have been.
(b) Appellant claims that Mr. Hannah’s answer, as set out above, is unresponsive to his question as to “what made you decide to charge Myrtle Thompson for this purchase.” We find no merit in the argument.
(c) Appellant urges that the trial court erred in permitting Mr. Hannah to infer agency by permitting him to show that Miss Thompson called in and terminated that agency. This is based on Mr. Hannah’s testimony that he allowed no charges to Miss Thompson’s account by her brother after Miss Thompson told them to make no further charges. We consider this without merit since the witness had already explained how Miss Thompson had authorized the charges to be made to her account.
(d) We can find no merit in appellant’s contention that the trial court erred in permitting counsel on cross-examination to inquire whether she had paid some of her brother’s bills. This is a matter over which trial courts have some discretion, and we can here find no abuse.
(e) Appellant complains of an item of $98.31 which the lumber company admits accrued at a paint store it operated at a separate location. A separate ledger was kept for the paint store and when the paint store was closed down its balances were transferred to the lumber company ledgers.
As pointed ont above, the lumber company ledgers were kept by posting charge tickets to the ledger sheet within a day or two following each transaction. All posting of charge tickets at the lumber company was done by a machine or typewriter. The transfer of the paint store balance was put on the ledger sheet in handwriting. Obviously, the latter entry was not made in the regular course of business. It was not transferred from charge tickets as was the custom, but was a balance or total lifted from the paint store ledger and merely added to the lumber company ledger. Nor was the entry made within a reasonable time after the purchases as required by Ark. Stat. Ann. § 28-928 (Repl. 1962). Consequently, it does not qualify as a business record.
Therefore, the $331.34 judgment entered by the trial court is reduced by $98.31 and the balance thereof in the amount of $233.03, plus interest since the date of judgment, is affirmed. Kane v. Carper-Dover Mercantile Co., 206 Ark. 674, 177 S.W. 2d 41 (1944).
Modified and affirmed. | [
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J. Fred Jones, Justice.
Appellee Warren sued Greyhound Lines, Inc. and its bus driver, Wasson, in the Conway County Circuit Court for $10,000 personal injury and property damage growing out of a highway collision in Conway County. Greyhound filed a counter-claim but a jury trial resulted in a judgment for Warren in the amount of $10,000. Greyhound and its driver, Wasson, have appealed. They rely on two points for reversal, as follows:
“The jury failed to take into account appellee’s contributory negligence.
The Court erred in giving AMI 902 because it is an erroneous statement of the law, it is confusing and it is in conflict with AMI 601.”
The facts briefly are these: On July 27,1967, Warren was driving his automobile in a direct course on Highway 64 in Conway County and appellant’s bus was traveling in a direct course in the same direction behind Warren. Appellant’s bus driver turned the bus from a direct course to the south, and his left hand side of the highway, in order to pass slower traffic, including Warren’s automobile. Warren turned his automobile from its direct course and from the north, to the south side of the highway, in order to cross the south side of the highway and enter a driveway to a grocery store and filling station on the south side of the highway. The right front corner of the bus collided with the left rear portion of appellee’s automobile and the appellee was injured.
The jury verdict was for $10,000, the full amount sued for, and appellants contend that the jury obviously did not consider comparative negligence as evidenced by a verdict for the full amount sued for. The thrust of appellants’ contention is that we should assess contributory negligence in this case on appeal as a matter of law.
We cannot agree with this contention. The verdict was general in nature and form, and no interrogatories were propounded to the jury as to the comparative negligence of the two drivers. The evidence as to damages is not abstracted and we find no evidence in the record that the jury even knew the amount being sued for. There is no evidence in the record at all, except the verdict itself, that would indicate the jury did not consider contributory negligence in arriving at its verdict of $10,000. The mere fact that a jury verdict, on conflicting evidence, is for all or more than the maximum amount for which judgment may be entered on the pleadings, does not raise a presumption that the jury disregarded its instructions on comparative negligence and failed to consider the evidence relating thereto. The presumption would be, under such circumstances, that the jury did consider contributory negligence and found none.
The question of negligence, as well as contributory negligence, are questions for the jury. Armour Co. v. Rose, 183 Ark. 413, 36 S.W. 2d 70. It is the province of the jury to pass upon the conflict in, and the weight of, the testimony, and the fact that the testimony is conflicting, and that the verdict may even appear to be contrary to the preponderance of the testimony, furnishes no ground for reversal and a question of contributory negligence properly submitted to a jury is concluded by the jury verdict. Arkansas Power & Light Co. v. Cates, 180 Ark. 1003, 24 S.W. 2d 846; Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S.W. 2d 255; Missouri Pacific R. Co. v. Henderson, 194 Ark. 884, 110 S.W. 2d 516.
The appellant bus driver testified that when appellee first drove into the highway, he, the bus driver, had to put on brakes in order to keep from hitting appellee’s automobile; that he continued to follow the appellee west on the highway at forty-five or fifty miles per hour; that another automobile got between the bus and appellee’s automobile, and that there was an automobile and a truck ahead of appellee’s automobile when he sounded the horn on the bus, deviated from his direct course and started to pass the line of vehicles. He says that when he got about even with the rear window of the appellee’s automobile, it deviated from its direct course and started coming to the south side of the highway. He says that he sounded his horn but appellee’s automobile kept on coming and continued to crowd the bus from the highway to the point of collision. The bus driver testified that he was watching appellee’s automobile for turn signals and that none were given.
The appellee testified that he was driving his automobile in a direct course west in the north traffic lane of the highway and observed, in his rear-view mirror, the appellant’s bus following him in a direct course on the north side of the highway. Appellee says that he turned on the left blinker signal of his automobile indicating his intention to turn left from his direct course and into a driveway on the south, and his left side, of the highway. Appellee testified that his blinker signal had been on for a distance of from one hundred feet to one hundred yards when he turned his automobile from its direct course to, and across, the south traffic lane of the highway. Appellee testified that he heard no horn signal from the bus and that when his automobile had almost cleared the south traffic lane of the highway as he drove it into the side road or driveway to the filling station, the appellant’s bus struck the left rear of his automobile and injured him.
This case presented to the jury the usual sharp conflict in testimony attending collisions of this kind. Appellant says he sounded his horn, appellee says he heard no horn. Appellee says he turned his blinker signal light on, and appellant says he did not.
Several of the bus passengers testified for the appellants. They had all been on a six thousand mile sightseeing trip through the northern United States and a part of Canada with the same bus driver. These witnesses were sitting on both sides of the bus and they all testified that they saw appellee’s automobile turn left into the path of the bus without giving any signal of intention to turn. As to details of related events both before and after the collision, the testimony of these witnesses was in conflict with each other and with the driver’s testimony. They all testified as to their confidence in the driver’s proficiency during the two weeks trip, as well as at the time of the collision. One of the witnesses made pictures of the vehicles following the collision and gave them to the bus driver. They all saw the accident and testified that appellee gave no signal, but none of them saw the other automobile that the bus driver said was between the bus and the appellee’s automobile.
The police officer who investigated the accident testified that he talked with some of the bus passengers in the front portion of the bus at the time of the collision, and that none of them indicated at that time that they knew anything about how the collision occurred.
The appellants argue, in effect, that we should find contributory negligence as a matter of law in this case and reduce the amount of the verdict and judgment commensurate with the comparative negligence. If the appellee had admitted contributory negligence in this case, or if he had admitted facts that would have constituted contributory negligence as a matter of law, then appellants’ argument would be valid and Missouri Pacific Rd. Co. v. Magness, 206 Ark. 1081, 178 S.W. 2d 493, cited by appellants would be in point with the case here. In the Magness case, Dr. Magness admitted that he didn’t even look as he entered upon a railroad crossing where he was injured and that fact alone distinguishes his case from the case at bar.
The case of Missouri Pacific Railroad Co. v. Zolliecoffer, 209 Ark. 559, 191 S.W. 2d 587, is more in point with the case at bar. In the Zolliecoffer case an instruction was given similar to AMI 2105 given by the court in the case at bar, and in the Zolliecoffer case we said:
“Finally, it is argued that the judgment is excessive because the jury did not consider appellee’s contributory negligence. There are at least two answers: First, it is not shown that, as a matter of law, Zolliecoffer was negligent.
«5 # #
A second answer is that the fact-finders were instructed not to return a verdict for the plaintiff ‘unless you find from a preponderance of the evidence that Zolliecoffer was not guilty of contributory negligence.’ ”
We view the evidence in this case as we did in Cohen v. Ramey, 201 Ark. 713, 147 S.W. 2d 338, and in that case we said:
“It is true that appellant testified he was driving at a conservative rate of speed and that appellees suddenly turned their car in front of his car as he was about to pass them after he had blown his horn, and that the collision was due to their contributory negligence in doing so, but the jury by their verdict adopted the version of the affair given by appellees and not that testified to by appellant.
To say the least of it the evidence was in sharp conflict on the question of contributory negligence. This issue was submitted to the jury for determination and their verdict is conclusive as the evidence upon the point was in sharp conflict.
It cannot be said, therefore, that as a matter of law appellees were guilty of contributory negligence. ’ ’
We so hold in the ease at bar.
As to appellants’ second point, we find no conflict in AMI 902 and AMI 601 given to the jury by the court in this case.
Arkansas Model Instruction 601, as given to the jury, is as follows:
“You are further instructed that there was in force in the State of Arkansas at the time of the occurrence four statutes which provided: Section 75-609 of the Arkansas Statutes, annotated, reads as follows:
The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:
(a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.
(b) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
Section 75-618 provides the following:
(a) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.
(b) A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.
Section 75-619 (a):
Any stop or turn signal when required herein shall be given either by means of the hand and arm or by signal lamps.
A violation of one or more of these statutes, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.”
The trial court also gave AMI 902, as follows:
"When two vehicles are traveling in the same direction, the vehicle in front has the superior right to the use of the highway for the purpose of leaving it to enter intersecting roads or passageways, and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. This does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road.”
In analysing the instructions complained of, as applied to the evidence in this case, we conclude as follows: Ark. Stat. Ann. § 75-609 inserted under AMI 601 governs the overtaking and passing of vehicles proceeding in the same direction. It contemplates vehicles traveling straight ahead or in a direct course. Subsection (a) applies to the driver of the overtaking vehicle, (the bus driver in this case) and contemplates the simple procedure of passing at a safe distance on the left of another vehicle traveling in the same direction. It tells the jury that the overtaking vehicle is required to stay at a safe distance on the left hand side of the highway until it has passed the overtaken vehicle and can safely return again to the right hand side of the highway.
Subsection (b) applies to the driver of the vehicle being overtaken (the appellee in this case) and contemplates the simple procedure of continuing at the same or less speed, at a safe distance on the right hand side of the highway while being passed by another vehicle traveling in the same direction. It simply tells the jury that the overtaken vehicle is to stay on its right and proper side of the highway, is not to accelerate in speed, and is to move over if necessary (when passing is not also permitted on the right) upon signal that can be heard, from the overtaking vehicle.
Arkansas Statute Annotated § 75-618 (a) and (b) included in AMI 601 tells the jury that neither driver is to turn right or left from a direct course without giving an appropriate signal in the event any other vehicle may be affected by such movement. Common sense, as well as everyday experience, dictates that this requirement applies to changing lanes as well as changing from a direct course for any other purpose.
Section 75-619 (a) included in AMI 601 merely states how the signal mentioned in the preceding section is to be made. It tells the jury that the appropriate signal required in the preceding section is to be made by means of hand and arm or by signal lamps.
We conclude that there is no conflict between AMI 902 and AMI 601 as given by the court in this case. All drivers of vehicles have the same and equal rights to enter a highway, to drive in a direct course on a highway, and to drive off of or leave a highway. It is only when these rights conflict with each other that one has superior right over the other.
Arkansas Model Instruction 902 simply tells the jury that the driver of a vehicle who is turning his vehicle from the highway into an intersecting road or passageway, has a right to the use of the highway for that purpose superior to the driver of a vehicle traveling in the same direction behind him.
In other words, the jury was told that the driver of a vehicle has a right to turn his vehicle off of the highway as well as to drive his vehicle on the highway, and in turning his vehicle off of the highway, in order to enter a side road or passageway, his use of the highway for that purpose is superior to the right of a driver who is behind him (in either lane) to continue driving his vehicle straight ahead.
Arkansas Model Instruction 902 reminds the jury that the driver who is following must use ordinary care in recognizing that the driver in front of him has a superior right to use the highway in making his turn for the purpose of leaving it, and AMI 902 reminds the jury that the forward vehicle making a turn to leave the highway must also use ordinary care and obey the rules of the road, meaning §75-618 (a) and (b) and § 75-619 (a), supra, in this case. When the two instructions are used together, they tell the jury that the lead vehicle has the superior right to the use of the road (AMI 902) provided the driver complies with those responsibilities placed on him by AMI 601.
We are of the opinion that these instructions are as fair to the appellants as to the appellee; that they correctly state the law as applies to the evidence in this case; that the trial court did not err in giving the instructions and that the judgment of the trial court should be affirmed.
Affirmed. | [
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Lyle Brown, Justice.
Leonard Husted suffered fatal injuries when a remaining portion of a burned building fell on him during razing operations. His administratrix brought this suit against the demolition contractor, Mike Richards, and his bulldozer operator, Curtis Willis. The jury verdict favored the defend ants and the administratrix appeals, alleging error in the giving and refusing of four instructions.
The deceased, age 73, worked occasionally for Mike Richards. He was not employed on the day of the accident. There were three workers on the job of tearing down the two-story Desota Cafe in Benton, which had been gutted by fire. Curtis Willis was demolishing the structure and loading the trucks with the use of a bulldozer and attachments. As the debris accumulated, Willis would load it on trucks operated by Alfred Whitfield and an unidentified driver.
Mr. Husted had been on the cafe premises the day before the accident. Assisted by Mike Richards, Husted loaded some of the loose brick in his truck. The next day Husted came on the premises shortly before noon. While Willis was in the process of loading Whitfield’s truck, Husted entered the building. From Ms position in the truck, Whitfield could see Husted using a sledge hammer and attempting to knock loose some two-by-four supports. After loading- Whitfield’s truck, Willis caught hold of a portion of the roof with the bucket of Ms loader. 'That entire portion of the roof fell. Some part of the falling debris pinned Mr. Husted. He made an outcry and the two workers immediately attempted rescue. Husted was dying when the employees reached him.
The administratrix contended that Leonard Husted was an invitee. The defendants insisted that he was a trespasser or at most a licensee. The trial court eliminated from the jury’s consideration the question of whether Husted was an invitee. Then the court gave defendants’ instruction defining licensee and treaspasser. The substance of the contentions on appeal is that the court should have submitted to the jury the question of Husted’s alleged status of an invitee and should not have permitted the jury to consider Husted as a possible treaspasser. Those contentions require an analysis of the evidence which sheds light on Husted’s status while in the building.
If Husted went upon the premises by invitation, express or implied, for a purpose connected with Richards’ operation, or for a purpose mutually beneficial to Husted and Richards, then Husted would have been an invitee. See AMI 1106. If Husted could have been classed as an invitee it would have to have been from three fragments of evidence: (1) He had theretofore been permitted to pick up scrap materials, such as bricks, at the jobsite; (2) when notified of the accident, Richards was said to have expressed regret that he ever consented for Husted to “get anything off the job”; and (3) Mrs. Husted testified that for his labors her husband was paid by Richards either in cash or in materials.
The fragmentary evidence we have recited was offered by the administratrix. Richards testified that on the day before the accident, when they were putting brick in Husted’s truck, he instructed Husted not to return for any more brick; that Richards considered it too dangerous. The bulldozer operator testified that on the day of and shortly before the accident he had warned Mr. Husted not to go near the building. The truck driver, Whitfield, was called as a witness by the administratrix. On cross-examination he testified that he told Mr. Husted that he (the driver) would not go into the building “for a hundred dollars.” He also testified that he saw Husted trying to knock out a two-by-four and yelled to him that he was going to weaken the structure.
Let us say, arguendo, that Husted had an implied invitation to pick up scrap materials around the jobsite, for which Richards would take credit as against Husted’s earnings. It is inconceivable that his invitation extended to entrance inside the building at a time when it was apparent to all present that the supporting walls were being dismantled. It has been held that when one crossed the boundaries of the invitation, “he ceased to be an invitee. His status then changes to that of a licensee or ¡even a trespasser.” Steinberg v. Irwin Operating Co., 90 So. 2d 460 (Fla. 1956).
We cannot say the court erred in holding’ as a matter of law that Husted was not an invitee. We think there was ample evidence to submit the question of whether he was a trespasser.
Affirmed.
Fogleman, J., dissents. | [
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John A. Fogleman, Justice.
This appeal is taken from a decree granting a mandatory injunction requiring appellant Solomon to remove that part of a levee which encroaches upon the south portion of appellee Congleton’s land and another levee across Power Slough at the point it empties into L’Anguille River.
Congleton owns a forty-acre tract of land bounded on the south and east by Solomon’s lands and on the north bjr the lands of one Crawford. Power Slough runs in a southerly course across the lands of all three owners into L’Anguille River as it crosses appellant’s lands. The principal question involved is whether Solomon has obstructed a natural watercourse. On disputed testimony, the chancellor found that Power Slough was a natural drain across the property of both appellant and appellee.
Ark. Stat. Ann. § 21-406 (Repl. 1956) makes it unlawful for anyone to cause any material to be thrown in any natural drain. Section 21-407 authorizes anyone interested in the free flow of water through a drain to remove any material therein which tends to obstruct the flow. The rights of the respective parties are determined under rules clearly set out in Turner v. Smith, 217 Ark. 441, 231 S.W. 2d 110. Solomon has the right to fend off surface waters, so long as he does not unnecessarily damage his neighbor Congleton. Congleton has the right to have any natural stream or watercourse flowing from his land across Solomon’s continue its southerly flow unimpeded. Otherwise, Solomon may use his land in any way he chooses, so long as he provides channels that will take care of the waters coming onto his land via any watercourse and so long as he leaves or provides channels that will take care of such waters in ordinary conditions and in times of any recurrent floods that may he reasonably expected.
The definition of a watercourse given in Boone v. Wilson, 125 Ark. 364, 188 S.W. 1160, and repeated in the Turner case, is:
“* * * A. ‘watercourse’ is defined to be ‘a running stream of water; a natural stream, including rivers, creeks, runs and rivulets.’ * * * there must be a stream, usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed and banks, and usually discharges itself into some other stream or body of water. It must be something more than mere surface drainage over the entire face of the tract of land, occassioned by unusual freshets or other extraordinary causes.”
The difficulty in this case is in determining where the preponderance of the sharply disputed evidence lies.
Funk & Wagnalls New Standard Dictionary of the English Language (1961) gives the following definitions of slough.
“slough, 1. A place of deep mud or mire; bog; quagmire. * * * slough, [local, IT.S.] 1. A depression in a prairie, often dry, forming part of the natural drainage- system; sometimes deeply miry. 2. A stagnant swamp or reedy inlet, small bayou, water-channel, or pound in which water backs up, or which is filled by freshets.”
The chancellor found that Power Slough was a “natural drain.” Since he granted a mandatory injunction requiring removal of the levee, which he found to have stopped the natural flow of water, we take this to be a finding that Power Slough was a watercourse. After weighing the evidence, we cannot say that his finding was against the preponderance thereof.
Congleton testified that Power Slough has a well-defined and visible marking that can be followed across his property at an angle and running down across the Solomon land to L’Anguille River. The Solomon levees, according to Congleton, were so built that he (Congleton) has no drainage. He admitted that the slough spreads out so that there is only a “dip” with a channel about two feet deep in places. He also admitted that he had cleared a substantial part of the slough bed for cultivation.
Orvil Thomas, a witness for Congleton, testified that Power Slough does not have any well-defined banks. He described the slough as an old river run, deep in places and shallow in places, but with no banks at all. According to him, there are places one would do well to wade in hip boots and others which are shallow. He stated that it was a sloping slough but that there was a run one could follow all the way through the area in question. He said it was a natural drain and the only drain through the area.
Jake Easter, another witness called by Congleton, cleared all of the Congleton land in the slough except for one-half acre. He said that the slough was about twenty feet wide.
Solomon testified that Power Slough is very wide and without definite banks. He added that there were several small sloughs coming south off Power Slough from the Crawford land and spreading out. According to him, the slough had no definite run at that point but spread out into three runs, one of which ran across the corner of Oongleton’s property and two of which were on his own property. He said, however, that water did not run through a channel in Power Slough, but through three little “swags” and that the slough spread out over a distance of about 500 feet. This area, he added, was very low and swampy so that one could hardly walk through it because of the “elbow” brush. He admitted that, shortly after he first acquired his land about 1956, he dammed Power Slough where it was running through as a natural drainage area and used natural water for duck hunting on his premises.
Carl Brand, appellant’s witness, stated that he thought the only drainage of the Oongleton property was through Power Slough. Willie Stropes, another of appellant’s witnesses, stated that the slough had no banks and was so flat that water six inches deep in it would cover an area 100 yards wide.
The fact that Power Slough may have intermittently flattened out and flowed without well-defined banks does not destroy its character as a watercourse or deprive an upland owner of his right to insist that the flow of water be unimpeded, if it has the essential attributes at other points. Turner v. Smith, 217 Ark. 441, 231 S.W. 2d 110.
When the testimony is so conflicting, we must accord some weight to the findings of the chancellor who saw and heard the witnesses and observed their actions and reactions throughout the trial. The most convincing ■evidence tipping the scale in favor of his finding is the admission of Solomon that he voluntarily paid Congleton in 1960 for damages to a bean crop resulting from his original dam across Power Slough after Oongleton had him arrested for stopping up a natural drain.
We are not unmindful of the decision of this court in Reddmann v. Reddmann, 221 Ark. 727, 255 S.W. 2d 668. There are fundamental differences in the fact situations in the case of Turner v. Smith, supra, and the Reddmann case. In the latter case we affirmed the finding of the chancery court and adopted the opinion of the chancellor. The facts, as found by the chancellor in this case, are closely parallel to those in the Turner case. In the Reddmann case, the chancellor specifically found that the lower owner had used the tract across which the alleged watercourse passed as a rice farm for 14 or 15 years. He said that this use of the very part of the land claimed to be a watercourse absolutely destroyed the contention that it was a watercourse. As another reason for denying the upland owner relief, the court specifically found that there were two obstructions across the so-called watercourse in the section of land downstream from the lower owner’s property. These factors clearly indicated that the watercourse did not return to a well-defined channel after spreading out into “scatters.”
Appellant also argues that the trial court erred in ordering removal of the dams or levees because its denial of damages to Congleton was based on a finding that the evidence in behalf of appellee was insufficient to show that the money damages sought by him resulted from the obstruction of the slough rather than backwater from L’Anguille River. It is sufficient on this point to state that Congleton and his witnesses testified that Congleton’s land was damaged by the existence of the obstruction and Solomon and his witnesses testified that it was not. The finding that Congleton failed to meet his burden of proof on the recovery of damages prayed for is not necessarily inconsistent with the finding that he was entitled to injunctive relief.
The decree is affirmed. | [
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Paul Ward, Justice.
The sole issue on this appeal relates to the question of venue. The facts presently summarized are not in dispute.
On January 18,1968, Clyde Carratt, d/b/a Waldron Stave Company (appellant) filed a Complaint in the circuit court of Scott County against Crouch Equipment Company, Inc. (appellee — referred to as Crouch) and Cummins Diesel Sales Corporation (appellee — referred to as Cummins). The complaint contained, in substance, the following material allegations: (a) Appellant, located in Scott County, operates a stave business and owns a truck used in long distance hauling; (b) appellant delivered said truck to appellees for purpose ‘£ of installing a rebuilt motor” and making other repairs for which work they were to receive $4,500 and which he had paid; (c) appellees carelessly and negligently installed a defective motor (supplied by Cummins), pistons and other parts, which caused the motor to break down, resulting in damages to the truck in the amount of $7,000, and also caused a loss of time to the extent of $2,990. The prayer was for judgment against appellees in the amount of $9,990.
Summons was issued by the clerk of Scott County to the sheriff of Pulaski County for service on Cummins, and, to the sheriff of Sebastian County for service on Crouch.
In proper time both appellees filed separate Motions to Quash said issuances of service on the ground that the circuit court of Scott County “lacked venue over the parties and subject matter of this cause of action”.
After the submissions of memorandum briefs the trial court sustained both Motions and dismissed the cause of action. This appeal follows.
The thrust of appellant’s argument for a reversal is that this is an action based on tort and not on breach of contract, and that, therefore, venue is controlled by Ark. Stat. Ann. § 27-611, which reads:
“Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.” (Emphasis ours.)
This construction of the statute however has been construed by this Court contrary to appellant’s contention.
In the case of Intl. Harvester Co. et al v. Lyle Brown, Circuit Judge, 241 Ark. 452, 408 S.W. 2d 504, we construed the cited statute, based on facts similar to those here, and said:
“We construe this section to apply only where there has been ‘personal injury’ or where there has be.en actual force or violence — such as a collision between two automobiles.”
Here, appellant does not even contend any “personal injury” or any “force or violence” is involved. He does however distinguish the cited case from this case on the ground that it was based on breach of warranty and not on contract — as here. We point out, however, that this distinction was obliterated by our decision in Evans Laboratories, Inc. and Elmer Pearson v. Russell C. Roberts, Circuit Judge, 243 Ark. 987, 423 S.W. 2d 271. There this same question arose, and we said:
“Regardless of whether a suit for a breach of warranty is on contract or in tort, venue for an action is not controlled by such classification, but is controlled by venue statute.”
It is our conclusion that the decision of the trial court was correct, and it is, therefore, affirmed. | [
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PER CURIAM.
This case is a sequel to Ellis v. Rockefeller, 215 Ark. 53 (Sept. 3, 1968). We treat the petition herein as one for declaratory judgment. At the trial level, petitioners (appellants) produced evidence tending to show that the State Board of Election Commissioners appointed to the County Boards of Election Commissioners in Prairie, Faulkner, and Conway Counties, men who have lately been active and loyal Democrats on the county level. At the close of petitioners’ evidence the respondents moved for, and were granted, a dismissal on the ground that the evidence did not show that the appointees could not be representative of the majority (Republican) party. The motion was granted and petitioners appealed.
If the appointees are presently loyal Democrats on the county level, then their appointment to the County Board of Election Commissioners as the third member would not comport with the expressed spirit of our holding in Ellis v. Rockefeller. There we stated in effect that, although the appointed member need not be a Republican, he should be one that would represent that party in the selection of judges and clerks, a person who would act on behalf of, and work with, the majority (Republican) party in selecting election officials.
Petitioners having made a prima facie case of ineligibility of the appointees, the trial court should have denied respondents’ motion to dismiss and proceeded to take proof to ascertain whether the appointees are still loyal members of the Democrat Party on the county level.
Reversed and remanded.
Harris, J., concurs.
Fogleman and Byrd, JJ., dissent; Justice Fogleman’s written dissent to be filed later,
Carleton Harris, Chief Justice. I am still of the view set out in my dissent in Ellis, et al v. Rockefeller, et al, 245 Ark. 53, i.e., that the third member of the several county boards of election commissioners should be one who is supporting the majority party, whatever his party status. Since the evidence in Case No. 5-4834 clearly indicates that the third party members named are not supporters of the majority party, I agree that this case should be reversed.
As far as Case No. 5-4835 is concerned, having already expressed myself to the effect that the majority party was entitled to two representatives on the county election boards (the county Republican chairman and the third member, a supporter), this enabling them to choose two judges and one clerk in each voting precinct, it necessarily follows that I would certainly agree that the Republican members of the various county boards of election commissioners are entitled, under the circumstances mentioned in the majority opinion, to name one judge and clerk.
I therefore concur. | [
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John A. Fogleman, Justice.
Petitioner, who was convicted of burglary and grand larceny in the Circuit Court of Lee County on November 2, 1966, seeks a writ of mandamus to require that court either:
(1) conduct a hearing for post-conviction relief at which he would have the assistance of counsel and the proceedings would be reported;
(2) conduct an evidentiary hearing from the record of which this court might determine whether he had been accorded all his constitutional rights; or
(3) grant a new trial.
The petition was filed on April 5, 1968. No response has ever been filed, but the brief filed by the Attorney General has adequately set out the position of respondent on the allegations of petitioner.
Petitioner is in custody at the Arkansas State Penitentiary under commitment from the circuit court to a sentence of 12 years on his conviction there. His conviction was not appealed at the time he was sentenced. He filed a petition for mandamus in the trial court 20 days after having been sentenced, asking that a record of. his trial be furnished him as a pauper without cost to him in order that he might prepare an appeal. While no formal order was entered of record, a hearing on petitioner’s pleading was held on March 8, 1967. The court’s docket entry substantiates the circuit judge’s statement that petitioner’s pleading was considered as a motion for new trial and overruled. An appeal was granted to petitioner and the court stated that he would be furnished a transcript of the record without cost to him. The attorney employed to represent petitioner at his trial was appointed to represent him in further proceedings.
At this hearing, petitioner only testified as to his poverty and the fact that he had not employed counsel for an appeal, after having identified his pleading. He stated that he had discussed the matter of an appeal with his attorney right after the trial, but that he did not then appeal because he was not able to pay the expense involved. There is nothing in the record to show why the appeal granted was not perfected. In petitioner’s brief here it is stated that the transcript was not furnished by the court reporter until May of 1968, in spite of repeated demands by the petitioner, his attorney, and his relatives. There is nothing in the record to substantiate these statements, but the court reporter’s certificate is dated April 25, 1968, and the clerk’s certificate is dated May 29, 1968.
On December 18, 1967, appellant filed a verified pleading in the circuit court labeled “Petition for Writ of Habeas Corpus,” asserting Criminal Procedure Eule I as jurisdictional authority. He advanced eight points as grounds for collateral attack on his conviction and sentence, among which was an allegation that he was, in effect, denied his right to appeal. His verification included an affidavit as to his poverty, which is not controverted. Petitioner included a motion for process for certain witnesses along with his petition for post-conviction relief. On February 16, 1968, the circuit court denied petitioner any further hearing, even in post-conviction proceedings. According to the court’s order, this denial was based upon petitioner’s failure to perfect the appeal granted March 8, 1967, and upon a finding that the record in the case disclosed that all of the rights of petitioner had been properly adjudicated in the circuit court. There was no specification by the trial court of the parts of the files or records relied upon to sustain the court’s findings, as required by Criminal Procedure Rule 1(C) whenever the record shows conclusively that a petitioner is entitled to no relief. While some of the points asserted in petitioner’s pleading do not seem to raise issues which would subject the judgment of conviction to collateral attack, we have been unable to find from the record any showing that there was no merit in some of petitioner’s contentions, e.g., that his arrest was unlawful, that he was, in effect, denied his right of appeal, or that he was denied due process of law by the court’s having permitted the sheriff to enter the jury room during jury deliberations on his case.
The United States Supreme Court has made it quite clear that any action or omission on the part of a state or any of its officers, which, in effect, denies to a defendant an appellate review because of his poverty, constitutes a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. Dowd v. Cook, 340 U.S. 206, 71 S. Ct. 262, 95 L. Ed. 215, 19 ALR 2d 784 (1950); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891, 55 ALR 2d 1055 (1955); Eskridge v. Washington State Board, 357 U.S. 214, 2 L. Ed. 2d 1269, 78 S. Ct. 1061 (1958); Burns v. Ohio, 360 U.S. 252, 79 S. Ct. 1164, 3 L. Ed. 2d 1209 (1959); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Lane v. Brown, 372 U.S. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892 (1963); Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966); Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Conclusion of a trial judge that there was no error in the proceed ings is not permitted as a substitute for full appellate review. Eskridge v. Washington State Board, supra; Lane v. Brown, supra; Anders v. California, supra.
Writ of mandamus directing the Lee Circuit Court to conduct an evidentiary hearing for post-conviction relief sought by appellant’s petition filed December 18, 1967, pursuant to Criminal Procedure Buie 1(E) is granted. In such hearing, the circuit court shall, among other things, determine whether petitioner has, in effect, been denied the right of appeal, considering developments subsequent to December 18, 1967, as well as prior thereto. The transcript of the record filed here will be considered a part of the record in any further proceedings relating to petitioner’s conviction of the charges in the matter now before the court.
Writ granted. | [
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J. Fred Jones, Justice.
This is an appeal by Charles Weatherly from a decree of the Monroe County Chancery Court setting aside a conveyance of property from Weatherly to his Avife as an effort on the part of Weatherly to defraud his creditors. Massey-Ferguson, Inc. Avas one of the creditors Avho Avas the plaintiff in the trial court and is the appellee here.
The record reveals that prior to September 22, 3962, Charles Weatherly Avas engaged rather extensively in rice and bean farming. He oAvned several items of farm machinery and equipment used in connection with the farm operations, and on that date he entered into a sales contract with Massey-Ferguson for the purchase of a rice combine. Weatherly took delivery of the combine but defaulted in the payments on its purchase price, so Massey-Ferguson filed suit in circuit court for the balance due on the combine, and judgment by default was entered on February 15, 1965. The combine was sold for $2,100.00 at public sale under the terms of the contract and this amount was credited on the judgment, leaving a balance due in the amount of $8,437.99. Upon finding that Weatherly had transferred all his property to his wife and did not have sufficient assets in his own name to satisfy the judgment, Ferguson filed the present action in chancery to set aside the sale to Mrs. Weatherly as a fraud on creditors.
The chancellor decreed a cancellation of the conveyance, and the ownership of the property involved, as Avell as title to machinery purchased and income derived from the farming operations subsequent to the sale, was decreed to be the property of the appellant Weatherly. We agree with the chancellor.
The badges of fraud are so numerous and plain in this case, we deem it unnecessary to set out all the facts in detail. Appellant purchased the combine on September 22, 1962. One week later on September 29, 1962, he attempted to transfer his interest in all his property except the combine to his wife, by signing a bill of sale reciting:
“That Charles Weatherly sells to Helen Weatherly all of his interest in all property and personal property including cars and trucks and all farming equipment, except one massey-ferguson super 92 combine serial no. *93010562 for the sum of Six Thousand 6000.00 Dollars. 12-1-62 — 3000.00 Dollars. 12-1-63 — 3000.00 Dollars.”
This bill of sale was not filed for record or recorded until December 16, 1963, but on February 3, 1963, Mrs. Weatherly gave appellant written authority to mortgage all or any of the equipment in obtaining a crop loan for 1963, and on March 3, 1963, appellant did make application and obtained a loan from the Production Credit Association all in his own name and listing seventeen items of farm machinery, including the rice combine in the security agreement. As late as September 14, 1963, appellant furnished appellee with a financial statement in connection with the additional purchase of a used combine (which he now says was for his wife) in which he lists unencumbered assets, consisting of farm machinery valued at $9,500.00 and equities valued at $4,300.00 in other farm machinery. In this statement appellant asserted that he had been farming and managing his own farm for ten years, that he did his banking with the Rice Growers Bank at Wheatley, Arkansas, and that his last years income [1962] was $50,000.00.
Additional recitation from- the record would only prolong this opinion. Suffice it to say, from the en tire record, the only change in appellant’s mode of operation prior to the execution of the hill of sale to his wife and thereafter, was that the income from the farming operations was deposited to his wife’s bank account upon which he wrote checks with her consent. Notwithstanding his wife’s testimony to the effect that he only played pool and gambled, the appellant apparently worked his wife’s crops as much as he had worked his own and she paid him nothing for his services.
Ark. Stat. Ann. § 68-1302 (Repl. 1957) provides:
“Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods and chattels, or things in action... made or construed with the intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors and purchasers prior and subsequent, shall be void.”
As was said in Harris v. Shaw, 224 Ark. 154, 272 S.W. 2d 55:
“There are certain circumstances which so frequently attend conveyances or transfers to defraud creditors that they are recognized as badges or indicia of fraud. 37 C.J.S., Fraudulent Conveyances, § 79. One of the most important of these is the insolvency or indebtedness of the transferrer. Others are inadequate or fictitious consideration, retention by the debtor of the property, the pend-ency or threat of litigation, secrecy or concealment, a.nd the fact that the disputed transactions were conducted in a manner differing from the usual business practice. 24 Am. Jur., Fraudulent Conveyances, §§ 14 and 17; Moore on Fraudulent Conveyances, Vol. 1, p. 222; Godfrey v. Herring, 74 Ark. 186, 85 S.W. 232; Fromholtz v. Trimble, 140 Ark. 282, 215 S.W. 623; Harmon v. McSpadden, 174 Ark. 184, 295 S.W. 353.”
The appellant represented himself as the owner of all the machinery, income and other assets of the farming operation when borrowing money or obtaining credit, but he represents himself as being ont of the farming business with no property or income except a small pension when called on to pay the judgment he suffered by default.
The decree of the chancellor is affirmed. | [
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Lyle Brown, Justice.
Appellant instituted proceedings in the trial court under our Criminal Rule I. He appeals from that court’s refusal to vacate sentences imposed in 1966. He alleges that his guilty pleas were induced by violations of his constitutional rights. Specifically, he contends that the pleas were coerced by (1) threats and promises of leniency, (2) mistreatment while in jail awaiting trial, and (3) possession by the Pulaski County authorities of a statement taken by the FBI without Plooton being advised of his rights.
In September 1964, Hooten and his confederate were arrested in Florida with a stolen car, for which they were sentenced for violation of the Dyer Act. The body of the car owner was found in Pulaski County. That resulted in the questioning of the two men by the FBI, following which they were brought to Little Rock and charged with the death of the car owner. While Hooton was incarcerated, a jailer was viciously attacked while the two men were trying to escape. That incident resulted in a charge of assault to kill. After a mistrial as to Hooton’s confederate and a number of other factors resulting in delay, both men entered pleas of guilty to murder and to assult to kill. They received concurrent sentences of twenty-one years each. Hooton’s appeal stems from those sentences.
Under the holding in Machibroda v. United, States, 368 U.S. 487 (1962), Hooton urges us to set aside the pleas of guilty. The facts in that case are substantially foreign to the facts here. But irrespective of the facts, that decision pronounces the law to be that a guilty plea induced by promises or threats is void. Machibroda cites with approval Kercheval v. United States, 274 U.S. 220 (1927), where it is said that a plea of guilty is as conclusive as a jury verdict. For that reason and out of just consideration for the accused, “courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” We approach appellant’s three points in light of the principles set out in the two cited cases.
Threats and Promise of Leniency. Petitioner claims that he was told his co-defendant would receive capital punishment unless he (Hooton) entered a plea of guilty; and further, that if Plooton would plead guilty, the latter would get only twenty-one years. We quickly dispose of the threat charge. Attorney Allan Dishongh, who worked diligently with both men as their court-appointed attorney, categorically denied making any such representations to Hooten. Now as to the promise of leniency, these facts are fairly undisputed. Attorney Dishongh was informed by the prosecuting attorney that the latter would be agreeable to accepting pleas of guilty from both men, whereup'on the prosecutor would recommend that the sentences of each would run concurrently. Dishongh passed this information along to the defendants for them to make the decision. Dishongh says he explained the nature of the plea and the consequences. The attorney expressed the opinion at the Rule I hearing that the offer was a good one for the defendants. They were to plead guilty to second degree murder and assault to kill and receive concurrent sentences of twenty-one years ¡each. The practical result of the proffered compromise was. that Hooton would escape the possibility of capital punishment in return for accepting a sentence of twenty-one years.
Alleged Mistreatment While in Jail. Hooton testified that after being in jail for some two years, during which time he was harassed and beaten, he entered a plea of guilty to escape the close confinement and mistreatment. Jail incarceration for two years while awaiting trial is a long time. "We have examined the record to ascertain the reasons. Hooton was timely brought before the court for arraignment. Upon entering a plea of not guilty by reason of insanity, he was committed to the State Hospital for observation. His first attorney obtained a delay to see if Hooten could raise money for ¡employment of a private psychiatrist. Those facts apparently caused a delay in trial beyond two sessions of court. A severance was asked for and granted; Hooton’s companion was tried and a mistrial resulted. Hooton became dissatisfied with his attorney and another was appointed. About midway in their incarceration Hooton and his companion attempted an escape which resulted in new charges of assault with intent to kill the jailer. The recited factors naturally caused numerous delays, particularly in a court with a congested docket. We are convinced that the delay of two years was mostly of Hooton’s own making and certainly there is no evidence that the State was dilatory in bringing him to trial.
Hooton testified to numerous acts of physical mistreatment and was corroborated in some respects by his companion and another prisoner, both being returned from the penitentiary to testify. Petitioner represented himself as a man of nonviolence. For example, he described the altercations with the murder victim and the jailer, but he insisted that all the violence was committed by Hooton’s companion. Those statements are inconsistent with the several joint ventures of lawlessness of the two men and doubtless so impressed the experienced trial judge. Furthermore, two jailers and two sheriff’s deputies, whose experiences in attending prisoners covered the full period of incarceration of Hooton, denied having mistreated the prisoners or having seen evidence of mistreatment administered by others. In fact it was testified that Hooton and his companion were good prisoners and gave trouble only once. That involved the attempted escape. The prisoners were on several occasions removed from their cells, taken to a telephone, and allowed to make long-distance calls. In the attempted escape the State’s evidence showed that one of the jailers was “beaten, stomped, and stabbed,” and temporarily blinded in one eye. That jailer was able to retrieve his gun and stop the escape. The manner in which the jailer held his temper is not only commendable but is corroborative of the State’s witnesses’ denial of mistreatment.
Hooton’s Statement to the FBI. Before Hooton was transferred to Pulaski County for prosecution, a written statement concerning the homicide was taken by the FBI and forwarded to the prosecuting attorney. In that statement Plooton maintained that his companion ‘ ‘ was the man that strangled him, struck him, and rolled him.” Hooton denied having touched the victim. The only action to which Hooton confessed was the theft of the victim’s car. Petitioner maintains that the statement was taken without his being advised of his constitutional rights and that his knowledge that the authorities in Pulaski County possessed the statement was a coercive factor in making involuntary his plea of guilty to murder. Such reasoning is wholly illogical and unimpressive. First, if the statement was taken without constitutional warnings, it could never be used against him; second, the statement was in fact a denial of complicity in the murder; and third, it was never presented to the trial court which imposed the sentences. Since the statement was never used against him the formalities of advice to the accused recited in Miranda are not of particular importance. Blake v. State, 244 Ark. 37, 423 S.W. 2d 544 (1968).
The trial court filed its findings of fact and conclusions of law reflecting a comprehensive evaluation of the proceedings. The findings of fact there made are amply supported by the evidence and, after examing the record, we conclude that those findings should be affirmed.
It is so ordered. | [
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Carleton Harris, Chief Justice.
The question in this litigation is whether the death of Carl G. George was accidental. Mrs. Ora E. George, mother of Carl, and appellee herein, instituted this action in the Circuit Court of Stone County against Mutual of Omaha, appellant herein, after the son was shot and killed by Henry Criswell on December 27, I960. On February 5, 1963, appellant had executed and issued its policy of insurance to Carl George in the amount of $5,000.00, appellee being named beneficiary. The policy inter alia insured George against death by accidental injury. The company defended the litigation on the ground that the son’s death was not accidental. On trial, the court entered its judgment for appellee in the amount of $5,-000.00 plus 12% penalty, and an attorney’s fee of $500.00. From such judgment, appellant brings this appeal. For reversal, it is contended that the death was not accidental, and appellant is thus not liable.
Henry Criswell, a resident of Stone County, married, and the father of several children, testified that he was awakened around midnight on December 27, 1965, by the constant sounding of an automobile horn in front of his house. On going outside to investigate, he found Carl George and another man that he did not know, sitting in an automobile. Criswell stated that they wanted him to take a drink of whiskey, but he told them that he had quit, and was going in the house and to bed, as he was going deer hunting early the next morning. The witness told them to “go on,” turned around and started to the house. George replied, “I’m going in, too,” and followed some 20 or 25 feet behind Criswell. The latter said that the two were drunk, and the man with George could hardly sit up in the car. The witness went inside the house, shut the door, and was in the process of “buttoning it, when he run agin’ it.” Criswell stated that George ran against the door three or four times, and he (Criswell) said, “Now if you run agin’ it anymore, why, when I get my gun, I’m going to help you tear it down.” Actually, it appears that Criswell already had the shotgun. From the record:
“When did you get the gun; was it right after you got in the house or was it sometime after?
A. No, I went and got it; I decided that he was aiming to tear it down anyway and I just grabbed my gun.”
He said that he loaded it while he was leaning against the door. Criswell never did inform George that he had gotten the gun, nor did he ever tell the latter that he was going to shoot him, but when another lunge was made at the door, Criswell fired. There were no lights burning either inside, or outside, the house when the shot was fired. The witness said that when he fired, he knew he hit George because the latter yelled, though he was not sure whether the exclamation had been “You hit me,” or “My God, you hit me,” or “killed me.” But he heard George leave the porch. Criswell said that George bore the reputation of wanting to fight when he ‘ ‘ got to drinking, ’ ’ and that entered his mind as he went into the house and locked the door. The evidence given by this witness reflected that his 21-, 20- and 14-year-old daughters were present in the house at the time, and two or three of his boys were also present. However, there is absolutely nothing in the record to indicate that the presence of the girls in the house had anything to do with George’s desire to enter.
Mrs. Beulah Criswell corroborated her husband’s testimony that George slammed against the door several times, and that her husband tried to get him to leave but was unsuccessful; she did not remember whether George said anything while this was going on. She stated that she never did hear her husband say anything to George other than for him to go on home, and she did not hear any statement made concerning a gun. In reply to a question as to whether she would have been in a position to hear everything said by her husband, she replied in the affirmative. Both witnesses testified that George had been to their home several times, night and day, and Mrs. Criswell said that George always behaved as a gentleman. She heard no loud voices, threats, profanity, or anything that would indicate any argument when her husband went out to the automobile because of the horn blowing.
Other evidence, which seems particularly pertinent to the point at issue was offered by Criswell. He said that during the four or five-year period that he had known George, they had had drinks together, and he had been on hunting trips which included George. There had never been any ill feeling whatsoever between the two men. In fact, Criswell, when asked if he intended to kill George (when he fired the shot), replied:
“No, I just aimed to scare him away from the door. I didn’t want him to tear it down; if he was, I was aiming to help him. I had another shell there in my hand.
Q. So this was a scare shot, right?
A. Right.”
After firing the shot, Criswell went to the home of a neighbor, Ralph Rorie, and informed Rorie of what had happened; the two returned to the Criswell premises, found the man not known to Criswell in the car sleeping, and then discovered the body of George lying on the ground about 10 or 15 feet from the front door of the Criswell home. A closed pocket knife and a package of cigarettes were on the ground, even with the pocket area of the body, apparently having fallen out when George fell. No firearm, or other weapon , was found. David Hodges, Prosecuting Attorney for the district which includes Stone County, testified that when he assumed office, a charge of manslaughter was pending against Criswell, and his office dismissed the charge.
We agree with the trial court that, under our decisions, the death was accidental. In Metropolitan Casualty Insurance Company v. Chambers, 136 Ark. 84, 206 S.W. 64, this court said:
“It is the settled law in this State that proof of death of an insured from injuries received by him raises a presumption of accidental death within the meaning of an insurance clause insuring against injury by external, violent and accidental means, and this presumption will continue until overcome by affirmative proof to the contrary on the part of the insurer.”
See also Aetna Life Insurance Company v. Lemay, 218 Ark. 328, 236 S.W. 2d 85. Accordingly, we start out with the presumption that this death was accidental, and the burden was upon appellant to show otherwise. In Lincoln Income Life Insurance Company v. Alexander, 231 Ark. 64, 328 S.W. 2d 266, we approved an instruction which was given to the jury as follows:
“The killing of an unarmed person by one upon whom he is moving aggressively is by accident or accidental means if the unarmed person did not know and had no reason to believe that his adver sary was armed and intended to kill Mm upon suck advance. Thus, should you find that Alexander was moving aggressively upon Lee, but was unarmed, you are instructed that the death of Alexander was by accident or accidental means unless Alexander knew or had reason to believe that Lee was armed and intended to kill Mm.”
Appellant vigorously contends that the insured was the aggressor in an affray from which he might reasonably have expected to suffer serious injury or death, and hence, there is no liability on the part of appellant, and the company relies in large measure on Aetna Life Insurance Company v. Lemay, supra. However, the facts there were far different from those in the instant litigation. Hamn, 69 years of age, rather frail, weighing 135 pounds, was just three days out of the Veterans Hospital where he had been confined for several weeks, when John Clint Lemay accosted Mm at a grocery store. Lemay had a grievance against Hamn by reason of the former’s having been charged with a misdemeanor; Le-may was drinking, and “invited Hamn out.” Later that afternoon, Hamn was in a drug store where he had gone to buy a soft drink, when Lemay entered and told Hamn that he had come there to “beat him up;” whereupon, he grabbed Hamn by the collar and tie, and attempted to strike him. The drug store proprietor then separated the two men, but shortly thereafter, Lemay ‘ ‘ came back at him like a hyena,” and grabbed and began beating Hamn. From the opinion:
“Witness was physically unable to defend himself against Lemay. His hands being sore and swollen, he could not have hurt Lemay if he had hit him. There was no way to get out of the door; he could not get loose from Lemay. ’ ’
Eye witnesses verified these facts, and one witness stated that Lemay hit Hamn and knocked him over the soda fountain; that there was no place to which Hamn could retreat. "While Lemay had Hamn by the throat, chocking him, the latter pulled his gun, fired and killed his assailant. This court, in reversing a judgment against the Aetna wherein the jury had found the death to be accidental, said:
“The sum and substance of the testimony of Seth Baker, Morris Davis, Austin Brown, and Carroll Hamn shows clearly that Lemay was the wrong-doer and the aggressor; he brought on the trouble himself, and his conduct and actions were calculated to bring about the very thing that did happen. * * *
“It is our opinion that the evidence to the effect that Lemay was the aggressor and brought on the difficulty, and persisted to the point where Hamn shot him in self-defense, is not in substantial dispute, and that the verdict, as a matter of law, is without support.”
It will be readily observed that these facts bear no similarity to the facts presently before us. Summarizing the facts in the instant litigation, we find:
1. These men had been friends for several years, and there had never been any trouble between them.
2. They had drunk together and hunted together in the same group.
3. George had visited in the Criswell home several times, and had apparently been welcomed.
4. On the night of the shooting, George tried to get Criswell to take a drink with him; there was no other point of contention, and though pounding and slamming against the Criswell door, George never at any time made any threat toward Criswell or any member of his family.
5. George was unarmed.
6. No one in the house informed George that Criswell had a gun. Criswell himself testified that he said, “When I get my gun, I’m going to help you tear it down.” However, Mrs. Criswell testified that she only heard her husband repeatedly tell George to leave. Whichever statement was correct, the fact remains that George was not advised, and apparently did not know, that Criswell had a loaded gun, and ivas intending to shoot. It might be added that in addition to being dark both outside and inside the house, there was no window in the door, and the windows in the front of the house on either side of the door were, according to Criswell, blocked off by washing machines and various assorted items. Also, it being winter time, blankets were hanging over the windows to keep the air out.
7. Criswell himself testified that he only fired the shot as a warning, and had no intention of killing George.
We think under these circumstances, that there was no reason for George to believe that Criswell would shoot him. In fact, we have held similar killings to be accidental where the testimony of aggressiveness by the deceased was far stronger than in the instant case. In Chambers, the proof reflected that Chambers and three eye witnesses left Harrison in an automobile together for the town of Capps; all testified that Chambers was drinking, and was abusive toward Ii. P. Evatt; that Chambers had a large .38 caliber pistol in his possession, and when the last stop was made to take a drink, Chambers, sitting in the middle of the back seat suddenly pointed his pistol at Evatt; one of the other occupants, George Crump, screamed, “My God, don’t do that— jump.” Evatt testified that Chambers had the pistol in his hand, pointing it at him (Evatt), and that, thinking lie was drunk and was going to shoot, Evatt grabbed his own pistol and fired, killing Chambers. Further evidence reflected that the two men had previously quarreled over a few dollars, and that during the quarrel, both before leaving Harrison and after, Chambers had applied opprobrious names to Evatt. The court, without going into detail, mentioned that there were other circumstances which indicated that Chambers was not drunk, and that the position of the body and pistol did not accord with the manner of the killing as detailed by these eye witnesses. It was then pointed out, that under the well established rule of this court, the jury is the sole judge of the weight of the evidence, and if there is any substantial evidence to support the verdict, it will not be disturbed by this court on appeal. In the case now before us, both sides moved for a directed verdict at the conclusion of the evidence, whereupon the court discharged the jury, and took the case under advisement. Of course, each party making this motion, it was entirely proper for the court to take the case from the jury and decide the issue itself. National Garages, Inc. v. Barry, 217 Ark. 593, 232 S.W. 2d 655.
We are of the opinion that the testimony heretofore set out presented a question of fact as to whether George’s death was accidental as that term was used in the policy, and we hold that there was substantial evidence to support the position taken by the trial court. The judgment is thus affirmed, and we are asked by appellee ’s attorneys for an additional fee for services rendered on appeal. We think it proper to allow an additional fee of $500.00.
It is so ordered.
Byrd, J., dissents.
Conley Byrd, Justice.
During oral argument it was conceded by counsel for appellee that the basic rule of law involved in this case is that when an insured is the aggressor in an affray from which a serious injury reasonably might or should be expected to result and he is killed, the death is not the result of “accidental bodily injuries” and the insurer is afforded a defense to a suit upon such a clause. Peoples Loan and Investment Co. v. Travelers Insurance Co., 151 F. 2d 437 (1945) ; Lincoln Income Life v. Alexander, 231 Ark. 63, 328 S.W. 2d 266 (1959); Aetna Life Insurance Co. v. Lemay, 218 Ark. 328, 236 S.W. 2d 85 (1951); Gilman v. New York Life Ins. Co., 190 Ark. 379, 79 S.W. 2d 78 (1935); Price v. Businessmen’s Assurance Co., 188 Ark. 637, 67 SW. 2d 186 (1934).
It was also conceded that George was aggressively attempting to tear down Henry Criswell’s front door over Mr. Criswell’s objections. Under such circumstances, I can think of no gentlemanly act George would have performed had he been successful in breaking down the door, nor any reason for believing that George would be treated as a gentleman once he succeeded in entering the home — he certainly would not be in the position of expecting Mr. Criswell to comply with the rules of the Marquis of Queensberry. In my opinion, a person who successfully breaks down the home owner’s front door over the objections of the man of the house has no reason to expect any treatment other than being clobbered with something.
Under the foregoing analysis, I am unable to conceive why a person should not expect “serious injury” when he persists in breaking down the front door of a residence over the objections of the man of the house. Therefore, it would follow that the death was not accidental under the authorities cited above.
Nor can I find anything in Criswell’s statement that he only intended to scare George away from the door which would make this death accidental. A person playing russian roulette has five chances out of six of not being shot. The beneficiaries under a policy issued to a duelist could recover under the same reasoning by furnishing proof that the surviving duelist was such a poor shot that it was an accident he hit anyone.
For these reasons I would hold that the death vra,s not accidental.
There is no contention on the part of appellant that George was intending to use the closed knife found by his body as a weapon. | [
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J. Fred Jones, Justice.
Mrs. Brewer brought suit in the Washington County Circuit Court against Howard Bass and Oscar Bass, d/b/a The Fayetteville Linen Supply, for overtime pay, unpaid wages and liquidated damages, under the Fair Labor Standards Act of 1938, Title 29, U.S.C.A. §§ 203-216. The trial court entered summary judgment for Mrs. Brewer on her motion therefor, and on appeal to this court Linen Supply relies on the following points for reversal:
“1. The lower court erred in finding there were no genuine issues of material facts regarding whether Mrs. Brewer was engaged in commerce or engaged in the production of goods for commerce or engaged in activities directly essential and closely related to the production of goods for commerce.
“2. The lower court erred in finding there were no genuine issues of material facts regarding Fayetteville Linen Supply’s claimed exemption from the provisions of the Fair Labor Standards Act, and thereby holding that Mrs. Brewer was entitled to judgment as a matter of law.”
The entire proof of the facts alleged by Mrs. Brewer is contained in the answer to the complaint and the answers to interrogatories she propounded to Linen Supply. These answers establish an employer-employee relationship between the parties from March 19, 1965, until April 4, 1966, on an eight hour per day and forty hours per week basis. They establish that Mrs. Brewer’s duties consisted of feeding a flatwork ironer, folding the flatwork and pressing pants for which she was paid a regular hourly wage of 75 cents, later raised to 80 cents, then to 85 cents, and finally to 90 cents per hour. Overtime work at regular wage scale was also established.
Linen Supply stated, in answer to interrogatories, that it was primarily engaged in the business of laundering and renting linens and garments consisting of such items as small towels for cleaning counters and tables, turkish towels used by barbers and beauticians, hair cloths used by barbers, turkish towels for cleaning grills, covers for dining tables, table napkins, bib aprons worn by food processors and stock replinishers, pants and shirts worn by workmen, uniforms worn by nurses, waitresses, etc., smocks worn by barbers and pharmacists, butcher coats used by food processors, steward coats worn by houseboys, waiters, etc., shop towels used by garages for cleaning cloths, sheets and pillow cases used on daybeds for rest by some customers, and dust mops and mats used for dust control in business houses. Linen Supply stated that it purchased its stock of items from various concerns outside the state of Arkansas; that its gross income from business in 1965 amounted to $125,000 and in 1966 amounted to $156,000. Linen Supply answered that its ten largest customers for 1965, in the order of highest volume of business, were Campbell Soup Company, Ralston Purina Company, Tyson’s Foods, Inc., Lewis Ford Sales, Inc., Chicken Shack, Wheeler Volkswagen, IGA Thriftway Stores, Shipley Baking Company, Buck’s Vaccination Service, Burger Broil, and for the year 1966, such customers, in the same order of business volume were, Ralston Purina Company, Campbell Soup Company, Tyson’s Foods, Inc., Lewis Ford Sales, Inc., Chicken Shack, Prince Mfg. Co., Wheeler Volkswagen, IGA Stores, 62 Truck Stop, Fayetteville Country Club Kitchen.
As to out of state business, the record reveals answers to interrogatories as follows:
“Q. In what States, other than the State of Arkansas, does the defendant do business?
A. One stop in Missouri.”
Following np on the question of out of state business, additional interrogatories were propounded and answered as follows:
“Q. Calling attention to your answer to Interrogatory number 23, has the Fayetteville Linen Supply made this stop in Missouri in both the year 1965 and 1966? If the answer is ‘No’ please state the exact dates of all stops for the year in which calls were made.
A. From May 31, 1962 through December 1966.
Q. State the full name of firm name and address of the person or firm with whom business was conducted in Missouri.
A. Ralston Purina Company, Noel, Missouri.
Q. State separately for the year 1965 and 1966 your gross volume of business with this Missouri customer.
A. 1965 — $ 557.20 1966 — $2,529.46
Q. State separately for the year 1965 and 1966 your gross volume of business, to the nearest one-hundred, conducted with the following:
(a) Ralston Purina Co.
(b) Tyson’s Food, Inc.
(c) Lewis Ford Sales, Inc.
(d) Wheeler Volkswagen
(e) Prince Mfg. Co.
(f) 62 Truck Stop
A. 1965 1966
(a) Ralston Purina Co., May-Dec.
$2,454.00 $19,496.00
(b) Tyson’s Food, Inc., Not Available 6,061.00
(c) Lewis Ford Sales, Inc., Not Available 3,452.00
(d) "Wheeler Volkswagen, Dec. 257.00 2,532.00
(e) Prince Mfg. Co., Not Available 2,840.00
(f) 62 Truck Stop Not Available 2,067.00
Dated this 30th day of May, 1967.”
This constituted the evidence of record from which the trial court, as a matter of law, found Mrs. Brewer “to be engaged in commerce and/or engaged in the production of goods for commerce” and granted summary judgment on her motion therefor. We agree that the trial court erred on both points relied on for reversal.
The Arkansas Legislature adopted Buie 56 of Federal Buies of Civil Procedure governing summary judgments in 1961. Act 123 of 1961, Ark. Stat. Ann. § 29-211 (Bepl. 1962). Subsection (a) of § 29-211, insofar as it relates to this case, provides:
“. . . A party seeking to recover upon a claim, counter-claim, or crossclaim or to obtain a declatory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits, for a summary judgment in his favor upon all or any part thereof.”
Subsection (c) of § 29-211, as amended in 1967, and insofar as it relates to this case, provides:
“. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . .
In the case at bar, Mrs. Brewer’s entire canse of action depended upon facts that were not proven. She alleged that she was an employee and that the appellant was an employer within the definition of 29 U.S.C.A., § 203. This section is broad and simple indeed. It defines employer and employee as follows:
“(d) ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such organization.
“(e) ‘Employee’ includes any individual employed by an employer.”
Linen Supply denied the employer-employee relationship within the definition of the act, but we conclude that Mrs. Brewer established that relationship by proof of record.
Mrs. Brewer alleged that Linen Supply’s establishment was engaged in the business of laundering, cleaning, or repairing of uniforms, linens, clothing, or fabrics ; that more than fifty per cent of the establishment’s annual volume of sales of service were made outside the State of Arkansas within the meaning of 29 U.S.C.A., § 213 (a) (3), and that more than twenty-five per cent of the annual dollar value of sales, or gross receipts, were derived from customers engaged in manufacturing, transportation or communications business within the meaning of the preceding’ section of the act.
Linen Supply admitted in its answer to the complaint, that it was engaged in the business of laundering, cleaning, or repairing of uniforms, linens, clothing or fabrics, but it denied the allegation that it was engaged in commerce within the meaning of the act.
Now, 29 U.S.C.A., § 213 is the exemption section of the Fair Labor Standards Act, and subsections (a) (3) of 213 are as follows:
“(a) The provisions of sections 206 and 207 of this title shall not apply with respect to—
“(3) any employee employed by any establishment engaged in laundering, cleaning, or repairing clothing or fabrics, more than 50 per centum of which establishment’s annual dollar volume of sales of such services is made within the State in which the establishment is located: Provided, That 75 per centum of such establishment’s annual dollar volume of sales of such services is made to customers who are not engaged in a mining, manufacturing, transportation, or communications business; ...”
Mrs. Brewer rested her proof, and based her motion for summary judgment, on the answers to the interrogatories propounded to the appellant. Assuming that the proof of “one stop in Missouri” with a gross business of $557.20 in 1965, and $2,529.46 in 1966, was sufficient evidence that appellant was engaged in commerce within the meaning of the act, the evidence is woefully short of proof that more than fifty per cent of the annual volume of sales of service were made outside the State of Arkansas within the meaning of 29 U.S.C.A., § 213 (a) (3) and that more than twenty-five per cent of the annual dollar value of sales, or gross receipts were derived from customers engaged in manufacturing, transportation, or communications business within the meaning of the preceding section of the act. Assuming further that the burden shifted to Linen Supply to prove the affirmative to the alleged negative, the evidence does not show what business Linen Supply customers are engaged in. In other words, the evidence is clear that Mrs. Brewer fed a flatwork ironer, folded the flatwork, and pressed pants in the course of her employment, but the record is silent as to whether Linen Supply’s one customer in Missouri, or any of its other customers as for that matter, rented or used the flatwork or pants Mrs. Brewer folded and pressed, or whether they rented or used dust mops and mats with which she apparently had no connection.
A mere glance at the footnotes under Ark. Stat. Ann. § 29-211 (Repl. 1962) will show that the office of the summary judgment, as well as its limitations, are well established and clearly announced in Arkansas:
“The theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict and any testimony which is submitted with the motion must be viewed in the light most favorable to the party resisting the motion with all doubts and inferences being resolved against the moving party. Russell v. Rogers, 236 Ark. 713, 368 S.W. (2d) 89.
“Summary judgment will only lie where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Weathers v. Springdale, 239 Ark. 535, 300 S.W. (2d) 125.
“Where the pleadings show there is a genuine issue as to a material fact, summary judgment should not be granted. United Press International, Inc. v. Hernreich, 241 Ark. 36, 406 S.W. (2d) 317; United Press International, Inc. v. Hernreich, 241 Ark. 33, 406 S.W. (2d) 322.
“Where there are essential issues of fact still unresolved the record does not justify a summary disposition of the litigation. Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W. (2d) 492.
“Where there is no doubt that there was presented a jury question as to a material fact it is error for a trial court to enter a summary judgment under paragraph (c) of this section. Kealy v. Lumbermen’s Mut. Ins. Co., 239 Ark. 766, 394 S.W. (2d) 629.
“This section is a salutary measure, designed to prevent unnecessary trials where the record shows that there is no genuine issue of fact to be litigated and where the record presents unresolved questions of fact to be resolved by the trial court it was improper to grant a motion for summary judgment. Kratz v. Mills, 240 Ark. 872, 402 S.W. (2d) 661.”
We conclude that the trial court erred in rendering summary judgment on the facts of record in this case, and that this case should be remanded for trial on the merits.
Reversed and remanded.
This section was amended on September 12, 1966, Pub. L. 89-601, Title V, § 501, 80 Stat. 842, but the amendment is not retroactive to the claim here. | [
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George Rose Smith, Justice.
Tbe appellants, Mc-Cabe and Willhite, were convicted of grand larceny for having stolen a color television set from the Broadway Motel in North Little Rock and were each sentenced to six years in prison. The principal question is whether the court correctly refused a requested defense instruction telling the jury that if they found Kenny Gross to have been an accomplice they could not convict the defendants upon Gross’s testimony unless it was corroborated by other evidence tending to connect the defend ants with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Kepi. 1964). The instruction also explained the meaning of “accomplice.”
On July 27, 1967, the defendants registered at the motel under fictitious names and paid a week’s rent in advance. After the two men departed near the end of the week, apparently without formally checking out, it was found that the television set which had been in the room was missing. As a result of routine police inquiries at pawnshops the set, identified by serial number, was discovered in the possession of Kenny Cross, who surrendered it to the police.
Kenny, who was still in school, was a part-time employee in his uncle’s pawnshop in North Little Kock. He testified that on the afternoon of August 1 the defendants came to the shop to find out if they could pawn a television set without producing any identification. Kenny told them that something such as a driver’s license or social security card would be required. The defendants were unwilling to do business on that basis.
Kenny then became interested in buying the set for himself, not knowing, so he says, that such a transaction was contrary to his uncle’s rules. That night Kenny met the defendants at a friend’s apartment and bought the set for $55, although he knew it was worth several hundred dollars. He testified that although he was not actually told that the set was stolen, “I had a good idea in the back of my mind, but I was just so . . . carried away with getting a TV set for my room for $55.00 that I just — .” The next day Kenny, upon his father’s advice, reported the incident to his uncle, -who told the police about it when they made inquiries.
The case is governed by our holding in Murphy v. State, 130 Ark. 353, 197 S.W. 585 (1917), which is exactly in point. There a department store employee stole merchandise and sold it at very cheap prices to Cynthia Carmichael, who denied having known that it was stolen. The jury, however, might not have believed her. There, as here, the court refused to give an instruction submitting the theory that Cynthia was an accomplice of the defendant. The case being one of first impression, we reviewed the authorities and concluded that the instruction should have been given. From the opinion: “The opinions on this subject are more or less abstruse and deal with learning more or less ancient, but without attempting to review all these cases, we announce our conclusion to be that the receiver of stolen goods and the thief from whom he received them are accomplices within the meaning of section 2384 of Kirby’s Digest [our present statute], which provides that a conviction can not be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense.” That case was followed in Hester v. State, 149 Ark. 625, 233 S.W. 774 (1921), and Long v. State, 192 Ark. 1089, 97 S.W. 2d 67 (1936).
A. new trial being necessary, we add that we do not agree with the appellants’ other contentions — either that the evidence was insufficient to support the verdict or that the court should have instructed the jury that Kenny Gross was an accomplice as a matter of law.
Reversed.
Haréis, O.J., and Jones, J., dissent.
J. Fred Jones, Justice.
I do not agree with the majority that the trial court erred in its refusal to give defendants’ requested instruction No. 6, as follows:
“A conviction may not be had upon the testimony of an accomplice unless it is corroborated by such other evidence as shall tend to connect the defendants with the commission of the offense.
To render a person an accomplice he must in some manner knowingly and with criminal intent aid and abet or have advised and encouraged the commission of the criminal act charged.”
The trial court also refused defendants’ requested instruction No. 5 which was as follows:
“You are instructed that the witness, Ken Gross, under the law, and facts as developed in this case, is an accomplice.”
It is my view that defendants’ requested instruction No. 6 would only have been proper if No. 5 should have been given, and to have given instruction No. 5 would have, in my opinion, constituted gross error under the facts of this case. As I interpret the effect of the majority opinion, a trial court must always give the accomplice instruction upon request, at any time one who receives stolen property testifies against the thief, regardless of the circumstances under which the witness received the property and regardless of any other facts and circumstances in the case.
The appellants were on trial for stealing a television set. They had a right not to testify, but in exercising that right the testimony against them stood uncontradicted. Had appellant contradicted any of the evidence offered against them, then perhaps the question of accomplice should have been submitted to the jury. As I view the evidence in this case, Ken Gross had nothing whatever to do with stealing the television set and the appellants did not contend, or even infer, that he did. There was simply no point in submitting that question to the jury under the testimony in this case.
I distinguish this case on the facts from the case of Murphy v. State, 130 Ark. 335, 197 S.W. 585, cited as precedent in the majority opinion. In the Murphy case the appellant was employed at the Blass department store. The prosecuting witness for some time, had been assisting the appellant in disposing of articles of merchandise which he had stolen. When the prosecuting* witness learned that appellant had been accused of larceny, and that a search was being made for goods which had been stolen, she hid certain of the stolen articles, and when they were found in her possession, she admitted that she had obtained them from appellant. She testified, however, that she sold goods for appellant at very cheap prices, he having reported to her that he was able to obtain goods at the wholesale price. The appellant denied that the prosecuting witness had obtained goods from him at all, thus leaving a question of fact as to whether the appellant or the witness had stolen the goods, and certainly leaving a question of accomplice.
The instruction requested and refused in the Murphy case told the jury that if the prosecuting witness knew when she received the goods that they were stolen, she was an accomplice, and that a conviction could not be had upon her testimony unless it was corroborated by other evidence tending to show that appellant had committed the crime charged.
In the case at bar the witness, Ken Gross, explained how he came in possession of the television set, and states:
“I don’t know if they [appellants] had any [documentary evidence of identification]. It turned out that they didn’t want to pawn it, so I inquired about buying it for myself, which was wrong of me. It is against store policy. It was wrong, but at the time I didn’t know it was wrong, and so I inquired about purchasing it for myself away from the store. * * * The next day I was talking to my father about it and he thought it best that I tell my uncle in case something did happen. I think it was two days later, Lt. Smith of the North Little Rock Police was inquiring about a stolen TV, so my uncle had to tell them that I had bought one that he knew nothing about. We turned the set over to him the next day.”
Detective Lt. Tucker testified:
“I received a call from Square Deal Pawn Shop in regard to a TY and we recovered it from Ken Gross, an employee. "We carried it to Boom 35 of the Broadway Motel where it was identified. ’ ’
On cross-examination, Detective Tucker testified that the television set was never registered on the pawn shop police register; that the television set was reported missing at 1:50 p.m. on August 2, 1967, and that he subsequently talked to James McCaa.
Summarizing the evidence as to the prosecuting witness being an accessory to the theft of the television set in this case, the witness, a school boy, was working in his uncle’s pawn shop part-time. The appellants inquired about pawning a television set. After being informed that some evidence of identification was necessary, they decided not to pawn the television set. The witness did not know whether they had the required evidence of identification or not. The witness inquired about an outright purchase of the television set. Outright purchases at the pawn shop were against pawn shop rules so arrangements were made by the witness and the appellants to meet at the apartment of McCaa, another pawn shop employee, where the television set was demonstrated by the appellants and it was purchased by Gross for $55 which he considered to be a bargain price. "When young Gross told his father of his bargain, his father advised him to tell Ms uncle at the pawn shop about the transaction, which young Gross did. According to Detective Tucker, he received a call from the pawn shop in regard to the television set and recovered it from the witness Gross.
I find no evidence in this case that yonng Gross was an accessory to the theft of the television set, his explanation of its possession was logical and nncontradicted. In the Murphy case, supra, the prosecuting witness hid the merchandise when she learned that a search would be made. In the case at bar the prosecuting witness made known to his father and uncle, and through them to the police, that he had purchased the merchandise from the appellants before he had any reason to suspect that it had been stolen, except for its bargain price and the appellants’ inquiry as to identification requirement before pawning.
Under the uncontradicted evidence in this case, I find no evidence whatever from which the jury could have found that Ken Gross in some manner knowingly and with criminal intent aided and abetted or advised and encouraged the commission of the criminal act charged against the appellants, as defined in appellants’ requested instruction No. 6. The uncontradicted evidence is to the contrary and I would affirm the judgment of the trial court.
Harris, C.J., joins in this dissent. | [
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Carleton Harris, Chief Justice.
On May 2, 1967, appellee, Mrs. Emil (Betty) Gottsponer, individually, and as mother and next friend of Marsha Gottsponer, a minor, instituted suit against appellant, Southern Farm Bureau Casualty Insurance Company, seeking a total judgment in the amount of $9,900.00. The complaint alleged that the company had issued a policy of insurance to appellee’s husband, insuring him, Mrs. Gottsponer, and their minor daughter, Marsha, against bodily injuries and property damages sustained by reason of loss incurred from any uninsured motorist. It was as serted that about the 28th of February, 1967, Mrs. Gottsponer was driving an insured automobile, within the terms of the policy, when she was negligently struck by James Boss, an uninsured motorist, and, together with her daughter, suffered serious personal injuries. The company answered, admitting that it had issued the policy of insurance to Mr. Gottsponer, that premiums had been paid, and that the coverage existed for the spouse and minor daughter. Appellant also admitted the occurrence of the accident, but denied other allegations, including appellee’s assertion that Boss was the driver of an uninsured automobile. Further, appellant filed a third party complaint against Boss, as follows:
“That under the automobile policy here above referred to the policy provides that the company upon payment of any loss covered under this policy shall succeed to all the rights of recovery of the insured or any other person in whose behalf payment is made.
“The Defendant, Southern Farm Bureau Casualty Insurance Company, alleges that if the Plaintiffs are entitled to recover anything then the company is entitled to a judgment over and against the Defendant, James Boss, for any amounts that they pay the Plaintiffs under the terms of the uninsured motorist clause and in the event that a judgment is entered against the Defendant, Southern Farm Bureau Casualty Insurance Company, the company should be given a judgment over and against James Boss in that amount.
“Wherefore the Defendant prays for a judgment over and against James Boss as prayed for in the original complaint.”
Thereafter, Boss filed an answer to this complaint, denying each and every material allegation, and also denying each and every material allegation of the Gotts poner complaint. On trial, Mr. and Mrs. Gottsponer testified, as did Richard Branch, a trooper with the Arkansas State Police. These are the only witnesses whose testimony is included in the record. At the conclusion of appellee’s case, counsel for appellant made the following motion beyond the presence of the jury:
“The defendant, Southern Farm Bureau Casualty Insurance Company, at the conclusion of the plaintiff’s case and after plaintiff having announced they rest, move for a directed verdict for the reason that there is no evidence in the record that James Ross was an uninsured motorist; and the policy specifically provides that this coverage used as the basis for this lawsuit is conditioned upon the policy holder, that insured be involved in an accident with an uninsured motorist, or an uninsured vehicle. ’ ’
Counsel for Ross also moved for a dismissal on the grounds that there was no testimony identifying him as the driver of the other vehicle involved in the accident. The court denied both motions, and no further evidence was offered. The jury returned a verdict in favor of Mrs. Gottsponer against appellant in the amount of $4,-000.00, and from the judgment so entered, comes this appeal. For reversal, it is simply asserted that the trial court erred in refusing appellant’s motion for a directed verdict.
The company’s position is predicated on the contention that there was no substantial evidence offered that Ross was the driver of an uninsured automobile within the meaning of Ark. Stat. Ann. § 66-4003 (Repl. 1966) This fact is not disputed by appellee, but she asserts that the fact that Ross was an uninsured motor ist was admitted by appellant in its answer, and further, that the third party pleading filed by the company admitted the coverage; that these admissions made out a ■prima facie case for appellee as far as this question was concerned, and the burden was on appellant to prove otherwise.
We do not agree. The answer only admits that the policy of insurance was issued, and was in force at the time of the accident, but there is nothing in the answer which admits that Ross was the driver of an uninsured automobile; in fact, this was denied by both appellant and Ross.
Nor does the third party complaint afford appellee any relief, for it will be observed that the company’s allegation is, “If the plaintiffs are entitled to recover anything, then the company is entitled to judgment over and against the defendant, James Ross. * * *” Certainly, there is nothing at all in this pleading that even alleges, let alone admits, that Ross was an uninsured motorist. The burden was on appellee to establish this fact. Though we have had no cases on this point, two cases from other states are cited by appellant, wherein the court held that it had not been established as a fact that the third party was an uninsured motorist . In those cases, some evidence was offered to establish that fact; here, there was no evidence offered at all on that question, though Ross was in the courtroom during the trial. Since the issue of whether Ross was an uninsured motorist was controverted, the burden was upon appellee to make this proof, and it is thus necessary that this judgment be reversed.
Appellant argues that the judgment should be reversed and the cause dismissed, but we do not agree with that contention. In Hayes Brothers Flooring Com pany v. Carter, Admx., 240 Ark. 522, 401 S.W. 2d 6, this court said:
“Appellant asks that we reverse and dismiss, but, after due consideration, we think it is possible that the case has not been fully developed. In fact, our ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. It is only where it clearly appears that there can be no recovery that we consider it proper to dismiss the cause. [Citing cases.] ”
We then pointed out that, though the record did not contain substantial evidence of liability on the part of appellants, it appeared that such evidence might well be completely developed, and the case was remanded for another trial. See also the more recent case of St. Louis Southwestern Railway Company v. Earl B. Clemons, 242 Ark. 707, 415 S.W. 2d 332, where we said:
“The reversal at hand is based on failure of proof. It is not impossible that the defects in proof could he supplied on retrial.”
Appellant says that the latter case, as well as the cases cited therein, “stand for the proposition that when this court is confronted with a case of such nature that simple justice would require that a cause he remanded to the trial court for further evidence, then this court will remand. The particular issue involved in the Clemons case was whether or not plaintiff had proved willful and wanton negligence. At the trial plaintiff had attempted to prove such negligence unlike the instant action where plaintiff refused to introduce any evidence on the point.”
If James Ross was an uninsured motorist, we think simple justice would require that this cause be remanded, for it is undisputed that Gottsponer paid for this coverage, and he and the members of his family are entitled to it. The status of Boss (whether insured or uninsured) can certainly be ascertained, and there is no reason why the cause cannot be fully developed on retrial.
Beversed and remanded.
Fogleman, J., concurs.
This section is a part of Act 464, enacted by the General Assembly of 1965, and entitled, “An Act to Provide Requirements for Uninsured Motor Vehicle Insurance Coverage; to Define ‘Uninsured Motor Vehicle’; and for Other Purposes.”
Levy v. American Automobile Insurance Company (Appellate Court of Illinois, First District, Second Division), 175 N.E. 2d 607; Ross v. Hardware Mutual Casualty Company of Stevens Point, Wisc. (Supreme Court, Kings County, N.Y.), 173 N.Y.S. 2d 941. | [
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Carleton Harris, Chief Justice.
This case involves the construction of an insurance policy. On April 19, 1966, Alvin Franklin Vasseau, appellee herein, purchased from Service Casualty Company of New York, appellant herein, a contract of insurance providing certain coverage on a 1966 Brookwood Mobile Home. The contract covered a five-year period, from April 19, 1966, to April 19, 1971, the total premium being $298.57. The mobile home was purchased in Memphis, Tennessee, and delivered to a location in DeWitt, Arkansas. On August 10, 1966, appellee endeavored to move the home from one location to another in DeWitt by pulling it with a IV2 ton wrecker. While attempting to cross the tracks of the St. Louis Southwestern Railway Company, the frame supporting the mobile home came in contact with the track, causing certain damage, viz., the frame was bent, certain bolts connecting the frame to the floor were torn loose, and the floor, walls and interior of the property were damaged. Appellee instituted suit against appellant, contending that the damage was covered under his insurance policy. The company denied liability, and on trial the jury returned a verdict for Vasseau in the amount of $1,405.00. From such judgment, appellant brings this appeal. For reversal, appellant contends, first, that it was entitled to a directed verdict, and in the alternative that the verdict was excessive.
The provision of the policy in question sets out that the company will pay for loss of, or damage to, the mobile home occurring during the policy period, when the loss or damage is caused directly and accidentally by one or more of the following perils: “Stranding, sinking, falling, burning, collision or derailment of any conveyance in or upon which the mobile home is being transported.” It is simply appellant’s contention that, since the mobile home was traveling on its own wheels as it was pulled over the track and damaged, there is no liability; that the policy only provided coverage if the home was being hauled on a separate and distinct conveyance; that to hold that the undercarriage or frame of the mobile home was a conveyance would be a strained and unnatural definition of the word.
We do not agree that appellant was entitled to a directed verdict, and there was ample evidence to justify the finding of the jury. The proof reflects that this property is 12 feet wide and 60 feet long, a fact known to both parties. It has 3 axles and 6 wheels, the wheels approximately 10 to 12 inches apart. This is a rather large house trailer, and would require a large vehicle to transport it; and the jury may well have considered that there would be no point in having wheels on the mobile home if it were contemplated that it would be hauled from place to place on another vehicle. It is common knowledge that these mobile homes are tow ed up and down the highways each day traveling on their own undercarriages and wheels. Appellee states in his brief:
“The undercarriage of a mobile home 12 Ft. by GO Ft. with three axles and six wheels could certainly be considered as being a conveyance in its own right. Therefore, if the construction placed on this contract of insurance by the appellant were to be accepted it would amount to a finding that the appellee had bought insurance which could never be of benefit to him for the reason that he would never be able to mount such a mobile home upon any other conveyance unless the other conveyance were large enough to be a monstrosity.”
This is apparently the view taken by the jury. The most that can be said for appellant’s position is that the language may be considered ambiguous — but this, of course is of no aid to the company, for it prepared the policy, and any ambiguity is construed in favor of the insured.
A succinct discussion concerning the construction of insurance contracts is found in 29 Am. Jur., Section 247, Page 628, as follows:
“As in the case of contracts generally, the cardinal principle pertaining to the construction and interpretation of insurance contracts is that the intention of the parties should control. If the intention of the parties can be clearly discovered, the court will give effect to that intention within the sphere of its proper and legal operation and will construe accordingly the terms used in the policy, no matter how inept, ungrammatical, or inaccurate they may appear when viewed strictly or legally. The rule is that once the intention of the parties is clearly ascertained, a policy of insurance is to be liberally construed in order to carry out that intention, especially where a liberal construction is the reasonable one and a literal construction would lead to manifest injustice.”
Here, we think the circumstances (size of the mobile home, and the undercarriage being equipped with 6 wheels) and the other evidence justified the jury in determining the intention of the parties when they entered into the contract, which, under the testimony, appears entirely reasonable.
Appellant also asserts that the verdict of the jury was excessive. This contention is based upon the fact that Howard Spurlock, whose testimony was introduced by appellant, testified that the trailer could be repaired for the sum of $814.34. Appellant states that this witness was the only person testifying who was in the business of repairing mobile homes. W. W. Smith, engaged in the general construction business, estimated the damage at $1,680.00; Lester Capps, a carpenter, estimated the repairs at $1,405.00. Capps was assisted in making his estimate by Hardy Purdy, also a carpenter. It was within the province of the jury to determine which testimony to accept, and though appellant’s witness may have had more experience in this particular line of work, it would appear that all were competent to testify. Certainly, we cannot say that the amount of the judgment was excessive.
Affirmed.
Jones, J., dissents.
Universal C.I.T. Credit Corporation, also an appellee in this case, filed an intervention, claiming a lien on the mobile home in the amount of $4,831.68.
A piece of the angle iron under the trailer became hung on one of the rails.
Coverage is claimed under this provision. | [
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J. Fred Jones, Justice.
This is an appeal by Elizabeth Sims from a decree of the Chicot County Probate Court denying her petition for widow’s allowance out of the estate of Henry W. Powell, deceased. For brevity and convenience the parties will be referred to by their given names.
Henry and Elizabeth were married in Little Rock in 1912. They lived together as husband and wife until 1926 when they separated. One child, Samuel, was born of this union and after the separation both parties continued to live in Little Rock for a short time where Iienry worked as a brick mason. About two years after tbe separation Elizabeth returned to their former home town of Eudora in Chicot County and later moved to Detroit, Michigan where she married Robert Sims in 1932.
Henry continued his occupation as brick mason in Little Rock and Memphis, Tennessee, and later returned to Eudora where on May 15, 1934, he married Edna Johnson. Two children, Henry, Jr. and Delores were born of this marriage, and Henry and Edna lived together as husband and wife in Eudora until Henry died testate on September 30, 1966. Under the provisions of Henry’s will, he nominated his wife Edna as executrix of his estate to serve without bond, and as to his first wife Elizabeth and his second wife Edna, the will provides as follows:
“I give and bequeath to Elizabeth White Sims, whom I married in 1912, and who is living separate and apart from me, the sum of Five ($5.00) Dollars, to be paid out of my estate after the payment of my debts.
“I give and bequeath to Edna E. Johnson Powell, whom I married in 1933 and who is at present living with me, the use of the home in which we now live and the property upon which it is located (namely Lot 1 Block 1 of East Side Addition to town of Eudora, Arkansas), said use to be for the remainder of her natural life or until she re-marries, whereupon it shall revert to my children H. W. Powell, Jr. and Delores Powell, said children being by her.
“All the rest and residue of my estate, whether real, personal or mixed, I give, bequeath and devise to my son Henry Powell, Jr. and to my daughter Delores Joan Powell, said children being by my second wife Edna E. Powell ...”
The will was admitted to probate and letters testamentary were issued to Edna. Elizabeth filed a petition for widow’s allowance, renouncing her rights under the will and claiming under the statute, as the legal surviving spouse of the decedent.
Prom the evidence offered in support of the petition, the trial court found that Elizabeth had failed to sustain the burden of proof necessary to overcome the presumption of the validity of the decedent’s marriage to Edna and the petition was dismissed. On appeal to this court, Elizabeth relies on the following point for reversal:
“The court’s decision is against the uncontradicted evidence of no divorce and contrary to law.”
We do not agree with appellant. A marriage conducted in legal form is presumed to be valid and the presumption stands until overcome by positive proof. In the 1915 case of Estes v. Merrill, 121 Ark. 361, 181 S.W. 136, speaking of marriage and the burden of proof required to overcome such presumption of validity, this court said:
“So strong is this presumption and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains even though it involves the proving of a negative, and although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is established by proof, it is not sufficient to overcome the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage.”
In Spears v. Spears, 178 Ark. 720, 12 S.W. 2d 875, A. W. Spears and Lesser Lee were married in Florida in 1898. About two years after the marriage, Mr. Spears left Mrs. Speas and moved to Pensacola. He later moved to Arkansas and married Minnie Temple in 1909. After Minnie died in 1911, Spears married Roena Lyles in 1913 and they lived together as husband and wife until his death in 1925.
In an unsuccessful attempt to overcome the presumption of the validity of the two subsequent marriages, Lesser Lee Spears attempted to prove that Spears had never obtained a divorce from her. The facts in the Spears case are so near parallel with the facts in the case at bar, we quote rather extensively from the Spears decision, as follows:
“The appellee knew of Spears’ marriage for several years, but she did not notify the woman who was living with him that she was his wife, and never made any claim upon him, although she knew where he was, but claims that she burned the letters that she had received from Spears. The appellee’s contention, however, is that Spears could not have obtained a lawful divorce except in Jackson or Escambia County, Florida, and that the proof showed that he did not obtain a divorce at either of these counties, and there can be no presumption that he attempted to unlawfully obtain a divorce from her.
* * #
“Appellee testified that, after she and Spears were married in 1898, they lived together in Florida as husband and wife until the year 1900, when Spears went to Pensacola and began the practice of law there; that he practiced law there until the latter part of August or the first of September, 1902, when he left Pensacola and the State of Florida for no apparent reason, and without any notice or intimation to appellee that he intended to leave, and without obtaining a divorce. That during the time he stayed at Pensacola he visited his wife and family at intervals, and frequently contributed to their support. While in Pensacola he stayed with appellee’s brother most of the time. She also testified that she had given Spears no cause for divorce or for deserting her, and had never done any of the things for which a divorce might be granted in Florida; that she had never been summoned in any divorce case brought by Spears; that she had never filed any suit for divorce herself, and that she had at all times been ready to move to the residence of Spears, but that he requested her to wait until he got his business straight and he would send for her.
“The appellee has also proved that no divorce was granted in the county of Jackson or Escambia County, Florida, the only places where it is shown that Spears lived in Florida.
“The proof further shows that Spears went to Memphis and stayed a while, and also to Covington, and that no divorce was granted in either of those counties. The proof also shows that no divorce was granted in Jefferson County, Arkansas, and that no divorce was granted in St. Bernard Parish, Louisiana.
“Appellee contends that this overcomes the presumption that Spears’ second marriages were innocent, because he could only have been absent or away from the places mentioned for a few months, and not long enough to establish a residence in any other State. Hoivever, the proof does not show that Spears did not obtain a divorce in some county in Florida besides the one whose records were searched; it does not show that he did not get a divorce somewhere in Tennessee in some cotmty other than Shelby or Tipton, and the proof does not show that he did not get a divorce in some county in Arkansas.
“While the law requires a residence in a State for a certain length of time, it is not required that the party bringing the suit reside in the county where he brings the suit for this length of time. One might reside in Jefferson, County, Arkansas, a year or more, and then establish a residence in Cleveland County, or some other county in Arkansas, where he could obtain a divorce, and then move his residence back to Pine Bluff. It is not at all impossible that he could do this without the people of Pine Bluff knowing anything about it or recalling it after so long a time. In fact, it appears very much more probable that he did something of this sort than that he would marry a woman in Pine Bluff, live with her as his wife, openly, raise children, and then, when she died, marry another woman publicly in Pine Bluff, Arkansas, and live with her many years, when, if he did not have a divorce, he would, of course, be guilt;/ of a felony.” (Emphasis supplied.)
In the case at bar the appellant knew that the decedent had married Edna Johnson; that they were living together and were raising a family at Eudora in Chicot County, Arkansas, where appellant’s mother lived and where appellant visited. Appellant denies that she ever received any support from the decedent for herself or their child, although the child visited with its father. Appellant not only failed to make any claim on the decedent as her husband during his lifetime following their separation in 1926, she married Mr. Sims in 1932 prior to the marriage of the decedent to Edna, and she testified on this point as follows:
“Q. At the time that you married Robert Sims, was it you understanding that you were still married to Henry Powell?
A. No, I was the understanding that he told me that he was going to get divorced.
Q. He told yon that he was going to get a divorce?
A. Yes.
Q. When did he tell yon that?
A. Well, when we first separated. And, we never talked of it anymore. He told me that he was going to.”
Apparently the appellant placed considerable confidence in the decedent’s having obtained a divorce as he said he would do, because they discussed it no more and she married Mr. Sims with whom she is still living. The appellant knew of the decedent’s second marriage and was bound to have known of the birth of his children by the second marriage, yet she made no claim as his lawful wife until after his death some forty years after their separation when he told her he was going to obtain a divorce. There is no evidence of anything, other than Plenry’s death, that ever caused appellant to believe that Henry had not obtained a divorce as he told her he would do.
Appellant denies that she was ever served with summons or notice in divorce proceedings. On the other hand she proved that a petition for divorce was filed and summons issued and served on two occasions in Pulaski County, but there was no record of a divorce decree having been entered in Pulaski County, Arkansas, Shelby County, Tennessee or Desha County, Arkansas. We also note, as the trial court did, that appellant did not testify that she had not obtained a divorce from the decedent herself before she married Sims.
We conclude that appellant’s proof of her marriage to the decedent, together with her proof that no divorce decree appeared of record in Pulaski or Chicot Coun ties, Arkansas, or in Shelby County, Tennessee, falls far short of evidence sufficient to overcome the presumption of the validity of the decedent’s subsequent marriage.
As was stated in Lathan v. Lathan, 175 Ark. 1037, 1 S.W. 2d 67:
“[W]e feel justified in again stating the law to be that, where a second marriage is established in form according to law, a presumption arises in favor of its validity as against a former marriage, even though the husband or wife of the former marriage is living at the time, and that this presumption is not overcome by the presumption of law in favor of the continuance of the first marital relation, coupled with the testimony of the former spouse that he or she has not obtained a divorce, and has no information as to whether the other spouse had obtained a divorce, and the testimony of the clerk of the divorce court where the deceased spouse had some time lived, that no divorce had been granted such spouse in such court.”
The decree of the probate court is affirmed. | [
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Carleton Harris, Chief Justice.
On July 11, 1962, appellants, Tyree Philmon and wife, executed a promissory note and mortgage to Jim "Walter Corporation securing the sum of $4,464.00, payable in 120 monthly installments of $37.20 each, payments to commence on September 12, 1962, and payable thereafter on the 15th day of each month. The note and mortgage were assigned to appellee, Mid-State Homes, Inc. The money borrowed was used in the construction of a Shell home, which has been occupied by appellants since that time. On March 24, 1968, suit was filed by appellee, seeking judgment in the amount of $2,497.40, and asking for foreclosure, if that amount, together with attorney’s fee and costs be not paid. Appellants asserted that a letter dated March 7, 1967, was ineffective as far as constituting a presentment of the note and an acceleration because of the fact that they were not in default on that date; further, that even had they been in default, appellee had waived its right of acceleration, and could not assert it. After hearing evidence, the trial court found that there had been a default and an acceleration, and that appellee was entitled to the foreclosure judgment; however, the court stated that a tender of the amount due had been made in open court, but that appellee had been put to trial in order to resolve the issue, and was accordingly entitled to an attorney’s fee and the costs of the action. Thereupon, the court stated that if the sum of $698.94, together with attorney’s fee and costs of the action be tendered and paid, the petition for foreclosure would be denied; otherwise, it would be granted. Appellants were unwilling to pay the costs and attorney’s fee, and a decree of foreclosure was entered. From such decree, comes this appeal
The factual background is as follows: Appellants were frequently late in making their payments; for instance, the transcript shows that the August 15, 1966, payment was received in September; the September payment received in October; the October payment received in November; the November payment received in December, and the December payment, due on the 15th, received on January 24, 1967. After another month, the January payment had not been made. According to Herbert Clarkson, an employee of Mid-State Homes, living in Tampa, Florida, and in charge of collections for the Arkansas area, the company decided, on February 28, 1967, to exercise its right of acceleration, and the Philmon account card reflects that it was placed in foreclosure on that date. The Philmon account was sent to the company’s attorney on March 1, and the attorney directed a letter to the Philmons on March 7, advising that the note and mortgage had been turned over to him. The Philmons were informed that the company would accept payment of the past due installments, together with past due insurance premiums, and a $25.00 attorney’s fee, totaling $282.34, provided this amount was received by March 21, 1967. The letter closed by stating that, if the loan were not placed on a current basis by that time, the foreclosure would proceed.
The Philmons made no response to this demand, and suit for foreclosure was instituted on March 24, 1967.
In the meantime however, on March 3, the Philmons had mailed the payment which had been due on January 15, and on March 17, the Philmons mailed another payment to take care of the installment due on February 15 . It is the contention of appellants that these payments prevented their being in default; that when the note was presented and accelerated on March 7, there was no delinquency entitling appellee to acceleration, for, it is argued, under the provisions of the note, the February payment did not become delinquent until March 15, and when the note was accelerated, the Philmons were no longer in default.
The record reflects that appellants had lacked $10.00 of making a full payment on one occasion, contending that this shortage occurred for the payment due on February 16, 1964; also, one payment was $2.00 short. Further, insurance premiums due to be paid by appellants, but not paid, in the amount of ,$128.94, were charged to the account on August 15, 1965. Appellants seem to be under the impression that appellee is relying entirely upon these delinquencies to support its right of acceleration, and it is argued that, as to the $10.00 and the insurance premium, extensions were granted thereafter, an extension charge being made, and that in granting these extensions for consideration, appellee lost its right to accelerate the indebtedness . As to the $2.00 charge, appellants assert that the doctrine of De minimis non curat lex would surely apply.
It is not necessary to pass on the question of whether the failure to make these payments would constitute grounds for acceleration, for appellants either overlook, or ignore, the fact that the balance loas accelerated on February 28, 1967, and the file forwarded to appellee’s attorney the next day. At that time, irrespective of the three money items heretofore mentioned, appellants were delinquent in their payments, for the January 15, 1967, payment became delinquent on February 15, 1967, and, in fact, was not sent until after the balance had been accelerated. But, say appellants:
“For years the Philmons were as often in default as not, but such delinquencies seldom exceeded sixty days, or, if they did, an extension was purchased by which they paid the interest on the principal balance for the privilege of advancing those installments. ’ ’
It is true that the Philmons were often in default; the record reflects that payments were made irregularly, and 25 or 30 contacts were necessary to collect late payments, but the fact that the company had permitted the Philmons in the past to pay late did not preclude it from accelerating the balance on February 28, 1967. As stated in 59 C.J.S. Mortgages § 495(6) at 799 (1949):
“* * * The acceptance of late payments without accelerating the maturity of the debt secured by the mortgage or deed of trust does not bar the mortgagee from accelerating for default in a subsequent payment. The acceptance of defaulted interest does not prejudice the mortgagee’s right to declare the entire mortgage due on a subsequent occurrence of a similar default.”
In the instant case, the note contained the provision :
“* * * in the event of default in payment of any installment for a period of thirty days or the failure to fulfill fully and promptly the obligations of the mortgage given to secure this note, the holder of this note may, at its option, declare all of the remainder of said debt due and collectible and any failure to exercise said option shall not constitute a waiver of the right to exercise the same at any other time.”
See Johnson v. Guaranty Bank and Trust Company, 177 Ark. 770, 9 S.W. 2d 3, where we declared such a provision legal and valid, and upheld appellee’s action in accelerating the time for payment of the indebtedness.
It is also asserted that the letter of March 7 from appellee’s attorney (which appellants claim was not received until after March 17) made demand for nearly $400.00 more than was due on the principal indebtedness, and that $42.00 more was demanded for insurance than was paid out by the company. Admittedly, the mistake was made; however, when instituting suit, appellee sued for the correct amount. Appellants cannot rely upon this fact, for it was not even necessary that appellee give notice of the election to accelerate. The general rule is that, in the absence of a provision in the mortgage requiring notice, the mortgagee need not give such notice. 59 C.J.S. Mortgages § 495(5)e. at 793 (1949). Here, not only was there no provision requiring notice, hut to the contrary, the mortgage contains a provision waiving notice, and providing that the option to accelerate may be exercised at any time after default.
Complaint is made that the two payments (heretofore mentioned) sent to the company were retained five months before being returned. It appears from the evidence, however, that these payments were mailed by the company to its attorney within a short time after receiving them, but the attorney apparently overlooked sending them back to appellants for several months. At any rate, this does not affect the legal issue before us, as it had nothing to do with the January delinquency.
Of course, while one is generally inclined to be sympathetic with persons who are losing their homes, the fact remains that a mortgagee is entitled to receive its payments when due, and without going to a lot of additional trouble, and sometimes expense, to obtain its money. Here too, the Chancellor was apparently sympathetic, and he announced in open court that he was prepared to enter what he deemed to be an equitable order. From his remarks:
“* * * The Court finds there has been a default and an acceleration and that the Plaintiff would be entitled to a foreclosure judgment except for this alternate type of decree the Court will enter. It has here this morning received in open Court tender of $698.94. The Court is of the further view that the Plaintiff has been put to trial for the resolvement of the issue and in that event is entitled to the attorney’s fee and the costs of the action. Therefore, it will be the order of the Court if the sum of $698.94 with the attorney’s fees and costs of the action requested in the Complaint is tendered actually and paid over here, then the petition for foreclosure will be denied. Otherwise it will be awarded.”
Appellants declined to pay the attorney’s fee and costs, and the decree was accordingly entered. We agree with the Chancellor that the company was entitled to those two items, and the payment of same being refused, there was no error in the court’s entering the decree complained of.
Affirmed.
Thereafter, appellants paid the amounts due into the registry of the court.
The last extension was granted on November 15, 1965. | [
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Paul Ward, Justice.
This is an eminent domain proceeding, initiated by the State Highway Commission (appellant here) to condemn 11.18 acres of land belonging to A. L. Young (appellee here) for use in the construction of Interstate Highway No. 40 — in Crawford County. This is an appeal from a jury verdict in the amount of $52,000 in favor of appellee for the taking of said land. Appellant sought, in the same action, to condemn land belonging to other persons, but they are not parties to this appeal.
The only ground relied on by appellant for a reversal, is:
“The trial court erred in allowing the testimony of appellee Young and witness Ragge to stand with respect to total damages to entire tracts.”
To better understand the issue raised we set out below the necessary undisputed facts involved.
Appellee’s property consists of three separate parcels of land designated as #330, #360 and #366. We are here primarily concerned with value testimony relating to parcel #330 which consists of 6.8 acres. ■
During the trial appellee and his three witnesses each placed a total valuation on all three parcels, ranging from $65,000 to $74,050. The total valuation on the three parcels was placed at around $23,000 by appellant’s witnesses. However, in fixing said values, appellee and one of his witnesses testified (in substance): (a) that a portion of parcel #330 was best suited for residential purposes; that it could be divided into eight lots —each worth $2,000, and (b) that there were certain farm buildings worth $4,500. The trial court, over appellant’s objection, allowed the above testimony to go to the jury.
For the purpose of this opinion it may be conceded (and we understand appellee does concede) that the trial court erred in admitting the introduction of said testimony. In this connection we merely refer to the twc pertinent statements by this Court: In Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S.W. 2d 86, we said:
“Such testimony allowed the jury to compare the value of the subject lots in Lakewood Addition without any knowledge of numerous factors that would have to be considered in order to make the comparison fair and equitable. It necessarily follows then that the jury’s verdict would be based on conjecture and speculation.”
In Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495, there appears this statement :
‘ ‘ Of course a verdict rendered by a jury which was partially based on testimony relating to the commercial value of the land, and partially based on testimony relating to the land’s value for residential purposes, would not be proper, but it is for the jury to determine the best and highest use of a landowner’s property.”
It is the contention of appellee, however, that the above mentioned error was later corrected by the trial court, and we agree with that contention. At the close of the testimony given by appellee and Bagge, appellant moved the trial court to strike their testimony. Thereupon the trial court announced that it was sustaining appellant’s motion with the following limitations: (1) it would allow the testimony to stand as to the tract, but would exclude the testimony relative to lot value and the farm buildings; and, (2) “subject to my instructions to the jury...” To the above both parties saved exceptions. Thereupon the court, in material part, instructed the jury as follows:
“Now, ladies and gentlemen of the jury, I have allowed some testimony to reach you that should not have gone to you. So I instruct you at this time to disregard and not to consider the testimony of both Mr. Ken Ragge, who just testified, and of Mr. A. L. Young, with reference to the value of the buildings —the two barns, the milk shed and the loading chute' — on the land taken. You will not consider the value testimony which they gave as to those buildings, nor will you consider, and I instruct you now not to consider, and to disregard the per lot valuation which they place on the undeveloped land, the unsubdivided land where the buildings were that were taken. So you will disregard the value testimony with references to those buildings and the per lot valuation of this land which has not been subdivided and on which the buildings stood that was taken. ’ ’
After the above the court proceeded, without objection by either side, to hear testimony from other witnesses.
If the above actions of the court did not cure the previous error it was, we think, incumbent on appellant to so indicate at the time. We also point out that the court gave many other instructions to the jury which arc not abstracted and to which no objection is made.
Finding no reversible error the judgment of the trial court must be, and it is hereby, affirmed.
Affirmed.
Brown & Fogleman, JJ., concur. | [
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George Rose Smith, Justice.
The issue here is the appellee’s liability for state income tax. On May 31, 1966, the appellee, an Arkansas corporation that had done business since 1882, filed its certificate of dissolution with the Secretary of State. By the terms of the statute the corporation was thereupon dissolved. Ark. Stat. Ann. § 64-902 (Repl. 1966). Later in the same day the company, pursuant to its plan of liquidation, sold its assets for more than their book value. The company did not report the profit as income, its position being that the gain was taxable to the shareholders who received the proceeds of sale under the plan of liquidation.
The Commissioner of Revenues disagreed with that view and levied an assessment of $35,535.50 against the corporation. The Company paid the assessment under protest and brought this suit to recover the money. This appeal is from a decree upholding the taxpayer’s contention.
We think the decree must be affirmed on the authority of Commissioner of Revenues v. Willey Planting Co. 230 Ark. 815, 327 S.W. 2d 81 (1959). There, upon essentially similar facts, we held that the liquidating profit was not taxable to the corporation. That result was reached “in accordance with the statute, and regardless of the validity of Article 45 of the regulations adopted by the Revenue Commissioner.” We construe the Willey opinion to mean that the profit was not taxable to the corporation because the taxing statute levies the tax “with respect to carrying on or doing business.” Ark. Stat. Ann. § 84-2004 (Repl. 1960). A dissolved corporation, in selling its assets for the purposes of liquidation, is not carrying on or doing business within the meaning of the income tax law.
The Commissioner seeks to distinguish the Willey case on the ground that the general statute with respect to the dissolution of corporations has since been so modified that, in the language of counsel, “the effect of the legislative change, intended or un-intended, was to finally apply the levy of the corporate income tax upon the gains derived from the sale of the assets of a dissolved corporation.”
We are not convinced by the Commissioner’s argument. When the Willey case was decided the general corporation law provided that upon dissolution the directors of the corporation should be trustees of the corp orate assets for a period of three years, for liquidation purposes. Act 255 of 1931, §§ 41 and 42. By the present law, Act 576 of 1965, the existence of the corporation as a legal entity is preserved indefinitely, and the title to its property remains in the corporation rather than vesting in its trustees. Ark. Stat. Ann. § 64-904.
It seems clear that the change in the general corporation law was not intended by the legislature to alter corporate income tax liability in the manner suggested by the Commissioner. The statute that he relies upon, Act 576 of 1965, is a comprehensive corporation code covering almost' 150 printed pages. In a note to the section now cited the drafting committee explained that the prior provision limiting the effective life of the corporation to a period of three years after dissolution was being changed to avoid the difficulty that arose when the trustees of the dissolved company failed to get the title to real estate out of the corporation within three years. Note to Ark. Stat. Ann. § 64-904. "We are certain that the legislature did not intend by that trivial change, fully explained by the draftsmen, to bring about the far-reaching tax consequences now urged by the appellant.
Affirmed. | [
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Conley Byrd, Justice.
Appellee Delmar it. Smith’s suit against appellant Sylvia Bruce Smith alleged indignities to the person as grounds for the divorce granted on April 25, 1968, by the White County Chancery Court.
In support of his complaint, appellee testified that the parties were married in July, 1965, and separated in October or November; that she nagged and had a high temper; that she told him to get out, which he did, and does not intend to return.
Appellee’s mother testified that she knew little about the separation, as follows:
Q. Did you have occasion to observe how they got along?
A. For all I know they got along, I never saw them have any trouble.
Q. Do you know anything about Mrs. Smith’s temperament?
A. Well, things bother her. She gets mad rather easy I would say, gets offended at little things, I think, that should be passed over.
Q. Did you ever see her mad at your son?
A. Well, not that I know of. They had their talks in the car or up at her house.
Q. She never displayed her temper around you?
A. Oh, I saw her when she acted offended but she never got real mad.
Appellee’s other corroborating witness testified that he did not know anything about why they separated.
Appellant testified that the parties were married June 29, 1963, and separated October 7, 1965; that they had cohabited since the separation and that she did not want a divorce. She has appealed urging (1) the conduct alleged by appellee does not constitute grounds for a divorce and (2) there was no corroborative testimony or evidence to sustain the decree.
Our cases construing Ark. Stat. Ann. § 34-1207 (Repl. 1962), consistently hold that a divorce will not be granted upon the uncorroborated testimony of a party to the suit. Appellee cites a number of cases in which this court has held, slight corroboration to have been sufficient to sustain a decree of divorce. However, we find no such corroboration here.
Since we are reversing this case for lack of corroborative evidence to sustain the decree, we do not discuss the first point.
Reversed and remanded to the trial court to assess attorney’s fees and costs. | [
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John A. Fogleman, Justice.
This appeal involves-the question whether the finding of the' trial judge that ■ appellees were innocent purchasers for value of certain real property is against the preponderance of the evidence.
Appellant, Josie Bailey Mays, was the owner of Lots 6 and 7 in Block 8 .of Lincoln Park Addition to Warren on March 6, 1958 when she executed a warranty deed conveying it to Dr. H. H. Bhinehart. Appellant had previously applied for and obtained from Dr. Bhinehart an amount of money sufficient to retire an indebtedness secured by deed of trust conveying this property. The chancellor’s finding that, as between the parties, this deed was a mortgage is amply supported by the evidence. '
Dr. Bhinehart filed his deed for- record April-,8, 1958. On September 12, 1959, he conveyed the lots to appellees by warranty deed recorded on the same date. Bhinehart died in 1960. This suit was brought on August 17, 1966 by appellant to cancel appellees’ deed, and the deed that she executed to Dr. Rhinehart. After hearing all the evidence, the chancellor found that appellees were innocent purchasers for value who had no notice, actual or constructive, that appellant was claiming an interest in the land. He dismissed the action.
In February 1959, after execution of the deed to Dr. Rhinehart, appellant was called to Arizona because of the illness of members of her family and remained there until 1965, except for two visits to Warren in 1960. Her husband remained in her home on the property in question, but he subsequently surrendered it to Dr. Rhinehart. Appellant was advised of this development by her sister in Warren. Upon her first return visit she asked Dr. Rhinehart why he sold her property and furniture, but he gave no reply.
Eule Miller testified: He first found out about the property when he saw a “For Sale” sign on the porch of the house one Sunday while he and his wife were out driving. He then talked to his employer, George Smith, who made arrangements for him to borrow money to purchase it. He testified that he paid $1,300 for the place and spent $300 on the bathroom and $50 on the roof. When he moved in about two weeks after borrowing the money , there was furniture nailed up in a room, but Dr. Rhinehart asked to let it remain there for a few days. About two weeks later someone he did not know came and got the furniture. He did not know to whom the furniture belonged. He cannot read, but his wife read the “For Sale” sign. Dr. Rhinehart said that he owned the property and Mr. Smith had the title checked. He did not know appellant or know that anyone else claimed the lots until this suit was filed. No one had objected to his living in the house.
Miller’s wife corroborated his testimony. She denied knowing appellant or having any knowledge that appellant claimed the property before the suit was filed.
Tax receipts exhibited show that appellees paid the taxes on the lots in the years 1958 through 1964.
Appellant relies on three propositions developed in the testimony to sustain her contention that appellees were not innocent purchasers without notice. They are:
1. Although Eule Miller testified that he saw the “For Sale” sign on the house and told his wife that it was for sale, he admitted on cross-examination that he could not read and that his wife read the sign.
2. There is no showing that appellees examined the record title.
3. The furniture appellees found in one room of the house should have put them on notice of an adverse claim.
None of these facts, singly or in combination, would have been sufficient to show either actual or constructive notice to appellees of appellant’s claim. The slight discrepancy in Eule Miller’s testimony was explained by him. This had to do with a matter that was not significantly material to any issue. "While it might have had some bearing on his credibility or the weight to be given his testimony, it certainly did not constitute evidence of notice. Obviously, the chancellor, who saw and heard the witness, did not feel that Miller’s credibility was destroyed, and we cannot say that he was in error.
While the failure to make any examination of title might constitute a circumstance to be considered in determining a purchaser’s good faith, Miller’s statement that his employer caused the title to be examined is undisputed. The fact that a bank made a loan secured by this property tends to corroborate this testimony. An examination of the title would not have indicated that Rhinehart’s recorded deed was in fact a mortgage. There is no reason to say that the Millers’ explanation that they thought the fourniture belonged to Dr. Rhine-hart is not plausible and reasonable, or that the mere presence of the furniture and its subsequent removal at a time consistent with Rhinehart’s suggestion, by a person unknown to them, was sufficient to have provoked any inquiry by appellees. Apparently Dr. Rhinehart’s actions were consistent with his ownership of these items because appellant found her bedspread on his bed and asked him why he sold her furniture.
Appellant argues that Dr. Rhinehart could convey no title to appellees because he had none to convey. It is well settled that one who purchases property in good faith and pays a valuable consideration without notice of secret equities becomes the owner thereof. Beloate v. Smith, 214 Ark. 884, 218 S.W. 2d 361.
.One who conveys land to another upon a fraudulent representation by the latter may not have relief against a subsequent purchaser for value without notice of the fraud. Davidson v. Davidson, 42 Ark. 362.
The findings of the trial judge are supported by a dear preponderance of the evidence. Consequently, there was no reason for him to consider defenses of laches, estoppel or the statute of limitations.
The decree is affirmed.
The note evidencing the loan was dated September 16, 1959. | [
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George Rose Smith, Justice.
In the court below Lovegrove obtained judgment for $225 — the amount sued for — as the value of a calf killed by a Missouri-Pacific freight train. By appeal he contends that he is entitled to double damages. Ark. Stat. Ann. § 73-1005 (Supp. 1967). By cross appeal the railroad company insists that it was entitled to a directed verdict, because there was no proof of negligence on its part.
We turn first to the cross appeal, which if successful would be decisive of the case. The locomotive engineer testified that he first saw a cow on the track about 350 feet ahead of the train. He started blowing his whistle, and the cow left the track. When he was about 75 feet from the spot where the cow had been the calf ran onto the track and was killed. The engineer said that he did not have time either to blow his whistle or to apply his brakes before the locomotive struck the calf.
When the asserted negligence is a failure to keep a constant lookout the carrier is entitled to a directed verdict if the undisputed testimony of the train crew shows that such a lookout was being kept. Si. Louis-San Francisco Ry. v. Spencer, 231 Ark. 221, 328 S.W. 2d 858 (1959). But the jury may disregard the crew’s testimony when it is inconsistent within itself or contrary to other accepted testimony in the case. Railway Co. v. Chambliss, 54 Ark. 214, 15 S.W. 469 (1891).
Here we cannot say that the engineer’s testimony was wholly undisputed. Pie testified that he whistled at the cow, but Lovegrove, who was within earshot, stated that he heard the train whistle for a public crossing but did not hear any other whistling. The engineer’s testimony about the moderate speed of’ the train was not consistent with his statement of the time when he left Van Burén, eight miles away. In view of the dis crepancies in the engineer’s testimony the jury was not compelled to believe Ms statement that he was keeping a constant lookout and did not have time to blow the whistle when he first saw the calf. Upon similar proof we have held that there was substantial evidence to support a finding of liability. Chicago, R.I. & P. R.R. v. Williams, 221 Ark. 404, 253 S.W. 2d 349 (1952). Moreover, in the case at bar the jury could have found from Lovegrove’s testimony that the railroad’s maintenance employees carelessly damaged the fence along the right of way, allowing the cow and calf to reach the tracks.
The appellee also complains of the court’s action in giving this instruction: “You are instructed that if the operator could have seen the animal before it came upon the track in time by the use of the stock alarm or other necessary precautions, in the exercise of ordinary care, to have avoided killing it, and failed to do so, you may consider such as evidence of negligence.” The instruction was evidently based upon a sentence in the court’s opinion in St. Louis S.W. Ry. v. Costello, 68 Ark. 32, 56 S.W. 270 (1900).
We do not approve the instruction as a model of clarity, but at the trial counsel for the railroad made only a specific objection that the instruction was not justified by the evidence, because the engineer testified without contradiction that he was blowing the whistle and keeping a lookout and did not have time after the calf ran in front of the engine to avoid striking it. Wchave already shown that the engineer’s testimony was not uncontroverted; so the objection to the instruction was not well founded.
On direct appeal it is argued that the court should have entered judgment for twice the amount of the verdict, under the statute allowing double damages if the railroad company fails to post notice of the killing of livestock within a week or to pay the owner’s claim within 30 days. Section 73-1005.
There are two answers to this argument. First, the complaint made no reference to a failure to post notice or to any delay in the payment of the claim, nor was there a prayer for double damages. Those allegations are essential to a recovery under the statute, with the plaintiff having the burden of proof. Kansas City, S. & M. R.R. v. Summers, 45 Ark. 295 (1885). Second, the complaint cannot be treated as amended to conform to the proof, as in Kansas City S. Ry. v. Rogers, 146 Ark. 232, 225 S.W. 640 (1920). There is no proof whatever that the required notice was not posted. Nor is it shown that the railroad failed to pay the claim within 30 days after receiving notice from the owner. The calf was killed on April 10, but the suit was filed on May 9 and was therefore premature, that being the thirtieth day. It is immaterial that a cause of action may have accrued later, because the rights and liabilities of the parties depend upon the facts as they existed at the commencement of the action. Winn v. Collins, 207 Ark. 946, 183 S.W. 2d 593 (1944). In fact, here the statute explicitly applies when the owner of the stock “shall bring suit against such railroad after the thirty days have expired.” Section 73-1005. Thus in any view of the matter the penalty is not recoverable.
Affirmed.
Byrd, J., concurs. | [
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Paul Ward, Justice.
This is an appeal by Carl L. White, Jr. (appellant) from a chancery decree denying him a portion of his father’s property. His father was Carl L. White, Sr. who died on October 19, 1965. Appellant was one of three brothers. One brother was J. Austin and the other was Robert Gr. who died in December 1959, leaving his widow Joanne (Smith) McBride and a son named Robert L. White. Austin, Joanne and Robert L. are the appellees in this case.
On September 9, 1966 appellant filed a complaint in chancery court, alleging, in substance: (a) That his father [referred to at times as Senior] was once the owner of the stock in Breece-White Manufacturing Company (called Co.) which owned numerous tracts of land; (b) That in 1950 Senior, pursuant to a family agreement, transferred to Robert Gr. all his unencumbered stock in the Co. to hold same in trust for himself, J. Austin, and appellant, with the understanding that he (Senior) reserved the right to manage the Co. at a substantial salary as long as he lived; (c) That without appellant’s knowledge appellees converted to their own use all the stock in the Co., liquidated the Co., and that Senior conveyed the real estate (by warranty deeds) to J. Austin and Joanne, Executrix. Appellant asked the court to find that appellees were holding one-third of all assets in trust for him.
In answer to the above, complaint, appellees denied all material allegations and affirmatively pleaded the statute of frauds, the statute of limitations, and laches.
After hearing the testimony the trial court dismissed the complaint, finding appellant’s cause of action was barred by laches and the statute of limitations.
It is our conclusion that the trial court was correct and that the decree must be affirmed.
The trial court found that in 1950 there was a family agreement between Senior and his sons whereby Robert Gr. was to hold Co. property in trust for all three of them. On appeal, appellees have spent much time and effort to show there was no such agreement. Under the view we take it is unnecessary to resolve that conflict. We do point out such agreement, if any, was not in writing. Assuming, for the purpose of this opinion there was such agreement, we still are of the opinion that the trial court was correct in dismissing appellant’s complaint on the ground his cause of action was barred by the statute of limitations.
Appellant, in his brief, agrees that he had knowledge of repudiation of the trust agreement not later than April 9, 1961. The trial court found the trust was repudiated by Joanne in June, 1960. A careful search of the records confirms both appellant and the court. In view of this situation, and in view of the fact that the complaint was not filed until September 9, 1966, we think appellant’s alleged cause of action was barred by Ark. Stat. Ann. § 37-206 (Repl. 1962) which, in material parts, reads:
“The following actions shall be commenced within three [3] years . . . after the cause of action shall accrue . . . forth, all actions (of account, assumpsit, or on the case, founded on any contract or liability, expressed or implied . . . .”
The above statute was interpreted and applied in Air Leases, Inc. v. Baker, 167 F. Supp. 145 (W.D. Ark., 1958). In that opinion we find this statement:
‘ ‘ It will be noted that in the amended complaint plaintiff attempted to state two claims against the defendant: (1) A claim in tort for fraud and deceit . . . The statute of limitations begins to run as soon as the cause of action accrues. There is no allegation by plaintiff or any fraudulent concealment by defendant of plaintiff’s cause of action . . . The three-year statute of limitations, Ark. Stats. Ann. Sec. 37-206 (1947), applies to bar torts, Burton v. Tribble, 189 Ark. 58, 70 S.W. 2d 503; Field v. Gazette Publishing Company, 187 Ark. 253, 59 S.W. 2d 19. An action for fraud and deceit is, of course, a tort, and is barred by the three-year limitations. Lilly v. Simmons National Bank, 108 Ark. 342, 158 S.W. 144.” (Emphasis ours.)
Said section was also construed in Tellier v. Darragh, 220 Ark. 363, 247 S.W. 2d 960. There we said:
“By accepting a contractual lien upon this land Mrs. Tellier brought herself within . . . the three-year statute applicable to implied obligations not in ivriting (Ark. Stats., § 37-206 ...” (Emphasis ours.)
* # *
“It is familiar law that, in the absence of concealment, the trustee of a constructive trust is entitled to the benefit of the statute of limitations and the defense of laches. Matthews v. Simmons, 49 Ark. 468, 5 S.W. 797.”
The trial court also held that appellant’s cause of action was barred by laches. We agree, but deem it unnecessary, in view of the conclusion already reached, to belabor that point. We do point out the record discloses that after appellant learned he was allegedly being deprived of part of the property he waited until his father died before taking legal action. Obviously, his father would have been a material witness.
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Frank Holt, Justice.
Appellees brought suit for the recovery of damages alleged to have been sustained when a tractor-trailer, owned by appellant Ellsworth Brothers Truck Lines, Inc. and driven by an employee, struck the rear of the automobile in which appellees were riding as passengers. Appellees’ separate complaints were consolidated for trial. The jury returned a verdict in favor of appellees and this appeal comes from a judgment on that verdict.
Appellants assert several grounds for reversal, one being there was no substantial evidence that any negligence on the part of appellant driver proximately caused the injuries alleged by the appellees. Since we agree with appellants on this point, it is unnecessary to discuss the others.
The accident occurred in the early hours of the morning. It was dark and raining. Appellant’s employee was driving a tractor-trailer and following appellees, who were passengers in an automobile driven by Willie Jean Heaggan. After entering a curve, the Heaggan automobile, going 45 or 50 miles per hour, began to slide, went off the highway into a ditch on the righthand side of the road, and came to a complete stop about 5 feet off of the paved portion of the highway up against a ditch embankment. Appellant’s driver was traveling 40 to 45 miles per hour some 200 or 300 feet behind the Heaggan car, saw it go out of control, touched his brakes and shifted down to 9th gear. While his attention was centered on the car in which appellees were riding, an oncoming car struck the left rear tandem wheels of the trailer. The impact severed the air line, causing the brakes on appellant’s truck to lock. The right wheels of the trailer went off the pavement, leaving 83 feet of skid marks. Appellant’s vehicle came to rest with the right rear tractor tire against the left corner of the rear bumper of the Heaggan vehicle. Of the three taillights on the left rear side of the car, only the one on the outside was broken; the left rear door would not open; the right side was up against the embankment; the vehicle was stuck in the ditch and it was necessary to use a wrecker to remove it.
The rule is well settled that the plaintiff has the burden of proving by a preponderance of the evidence, not only negligence on the part of defendant, but also that such negligence was a proximate cause of the injuries complained of. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S.W. 2d 290; Kapp v. Sullivan Chev. Co., 234 Ark. 395, 353 S.W. 2d 5.
Appellees testified that they were thrown forward when appellant’s vehicle hit the rear of the car in which they were riding. Appellee Mildred Canady, who was sitting in the back seat, testified that she was thrown forward and hit her head against the “cross piece” that divides the two doors. Appellee Edith Clemons, sitting in the front seat, said she was thrown forward and under the dashboard. Mrs. Heaggan, the driver, testified that the impact threw her forward against the steering wheel. It is undisputed that the Heaggan car had come to a complete stop in the ditch before being struck from the rear, a “few seconds” later, by appellant’s vehicle. Appellees ’ version of their injuries is so contrary to established physical laws that no probative value can be attributed to it. It is well known, even among laymen, that when a parked automobile is hit from the rear, the passengers are thrown backward and not forward.
Of course, a reviewing court should not disregard testimony simply because it seems improbable, yet, we have said that where sworn testimony is unquestionably contrary to the laws of nature and science, we will declare as a matter of law that the testimony is insufficient to support a verdict. Payne v. Cotner, 148 Ark. 401, 230 S.W. 275, Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S.W. 2d 1062. In St. Louis Southwestern Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S.W. 768, the court succinctly stated the rule of law applicable in the case at bar:
“Appellate courts take notice of the unquestioned laws of nature, of mathematics, of mechanics and of physics. So where there are undisputed facts shown in the evidence, and by applying to them the well known laws of nature, of mathematics and the like, it is demonstrated beyond controversy that the verdict is based upon what is untrue and what cannot be true, this court will declare as a matter of law that the testimony is not legally sufficient to warrant the verdict.”
In the instant case, accepted laws of physics, as applied to the undisputed facts, irrefutably disprove appellees’ testimony and demonstrate beyond a doubt that the verdict was erroneous. We cannot treat as substantial that which has no substance.
Furthermore, appellees’ proof presents the inference that they were injured when the car in which they were passengers, traveling 45 to 50 miles per hour, went out of control, left the highway and ran into a ditch from which it had to be pulled out by a wrecker. The doctor who treated appellees testified that being thrown forward could account for the injuries he diagnosed; that when a car slides and goes off the road at the speed and in the manner in which the Heaggan vehicle went out of control, then the passengers could be thrown forward and receive the same injuries that he found the appellees to have; and that an occupant of a car is thrown backward when the vehicle is struck from the rear. It was only by conjecture and speculation that a jury could have determined that appellant’s negligence, if any, was the proximate cause of appellees’ injuries.
It is not sufficient to show that the injuries suffered might have been caused when appellant’s vehicle hit the rear of the Heaggan automobile. This causal connection between a plaintiff’s damages and the defendant’s negligence must be established by direct or circumstantial evidence, and it cannot be proved by conjecture or speculation. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S.W. 2d 290; Kapp v. Sullivan Chev. Co., 234 Ark. 395, 353 S.W. 2d 5; Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W. 2d 4.
In Henry H. Cross Co. v. Simmons, 96 F. 2d 482 (8th Cir. 1938), a decision under Arkansas law, the court said:
‘ ‘ To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other.”
Appellees’ evidence as to the cause of their injuries was opposed to accepted laws of physics, and further, appellees’ proof failed to take the case out of the realm of conjecture. In view of this, we hold that there was no substantial evidence of proximate causation to make a question for the jury.
Reversed and dismissed.
Jones, J., dissents. | [
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J. Fred Jones, Justice.
The question presented on this appeal is whether the appellant, under post-conviction relief, is entitled to a new trial as a matter of law when he was sentenced to the penitentiary on a plea of guilty at preliminary hearing on arraignment and no stenographic record was made of the proceedings, resulting in the absence of a transcript of the record. The trial court answered the question in the negative and we sustain the trial court.
On February 1, 1965, the appellant, H. A. Turner, was charged by information with the crimes of burglary and grand larceny in Miller County, Arkansas. Upon arraignment in circuit court on February 8, 1965, he entered pleas of guilty and on March 19, 1965, he was sentenced to three years in the penitentiary with two of the three years suspended during good behavior. After the appellant was sentenced, but before he was transferred to the penitentiary, he escaped from the Miller County jail, and released other prisoners in the process. He was later apprehended in the state of Mississippi, brought back to Miller County and on March 23, 1965, he was charged with the rescue of a felon, which is a crime in Arkansas, and was also charged with burglary committed after his escape and before apprehension. When arraigned on these charges on March 26, 1965, the appellant again entered pleas of guilty, and the previously suspended sentence was revoked. Appellant was sentenced to three additional years on the rescue charge and two additional years on the additional burglary charge, the three sentences to run consecutively.
On October 30, 1967, appellant filed petition for habeas corpus alleging violation of his constitutional rights in connection with his first arrest, pleas of guilty and conviction. Appellant’s petition was treated as a petition for post-conviction relief under Criminal Procedure Rule No. 1 and he was granted a trial court hearing on January 3, 1968. Appellant was represented by court appointed counsel at this hearing and he testified in his own behalf.
The substance of appellant’s testimony was to the effect that he was arrested by a Miller County, Ai’kansas, police officer on the Texas side of Texarkana without a warrant and placed in the Miller County jail; that he was not mistreated or threatened in any manner, but that some two or three weeks after his arrest, and after he was interrogated eight or nine times, he signed a written confession to burglary and grand larceny in connection with breaking and entering the Elks Club in Texarkana, Arkansas.
On cross-examination appellant testified that he was not guilty of the Elks Club burglary but pleaded guilty because of the confessions he knew that two co-defendants had signed and one he had himself signed, and the further fact that the sheriff and the prosecuting attorney indicated that he would get less time under a sentence on a plea of guilty than if convicted on a plea of not guilty.
In this connection appellant testified in part as follows :
“Q. Why did you enter a plea of guilty at that time, Mr. Turner?
A. Because I had two statements signed against me, and I thought I was going to the penitentiary, and they told me I was going to get off lighter if I pled guilty.
Q. When you are talking about two statements signed against you, are you talking about your own statements, or the statements of other persons ?
A. Statements of other people that were involved in th'e alleged event.
Q. Did yon at any time sign a statement evidencing your guilt?
A. Yes, I did.
# ft #
Q. Who did the interrogating, Mr. Turner?
A. Yirgil Faulkinbury, the sheriff at the time, and Mr. O’Neal, was the ones that was questioning me.
Q. Did they ever at any time advise you. whether or not you had a right to an attornev?
A. Well, I have never yet been told that I had a right to an attorney.
Q. Were you told by Judge Brown at the hearings, or do you recall?
A. I don’t recall.
Q. Were you told when you went to Mr. Good-son’s office whether or not you had the right to an attorney, or whether or not you could remain silent?
A. He told me I could remain silent. He did not tell me I could have an attorney. ■
Q. All right, why did you give this statement, again?
A. Because they told me I might get off lighter if I give them a statement.
Q. Who told you this?
A. Well, the sheriff, and the deputy sheriffs, and the prosecuting attorney.
Q. All right, what happened after you were formally arraigned and entered pleas before Judge Brown?
A. Well, they locked me back up, and I went to court, I don’t remember the date I went to court, but they give me three years.
Q. Tou went back to court for sentencing?
A. I believe it was.
Q. At that time what was your sentence?
A. Three years, two suspended and one to do.
Q. All right, tell the court what subsequently occurred after that?
A. I broke out of jail, and I was caught in Mississippi, and they brought me back and charged me with another burglary, and give me three years on it. They revoked the suspended sentence and give me the full three years, and give me another three years, and give me two years for jail escape.
Q. For rescue of a felon?
A. Yes.”
The prosecuting attorney testified that he advised appellant of his constitutional rights, including right to counsel, before taking his written confession and that the trial court always advised every defendant of his constitutional rights, including right to court appointed counsel, before accepting a plea of guilty. The prosecuting attorney admitted that he very often made recommendations of clemency to the trial court upou pleas of guilty, but that in no case did he ever bargain with a defendant to trade his influence with the court for a plea of guilty and that he did not do so in this case.
In the cases of Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908; Medley v. Stephens, Supt., 242 Ark. 215, 412 S.W. 2d 823, and Oldham v. State, 242 Ark. 479, 414 S.W. 2d 610, we clearly pointed out the desirability of having stenographic records made of proceedings on preliminary hearings and arraignments when pleas of guilty are to be accepted, but we have not gone so far as to hold that the absence of such record entitled a defendant to a new trial as a matter of law, and we refuse to do so now.
The absence of such record simply places a tremendous, and sometimes embarrassing, burden on the state, when it is forced to rely on the memory of court officials to rebut the evidence of a petitioner. The court official’s memory is sometimes clouded by many other routine cases that have intervened, whereas the petitioner, though immensely interested in the outcome, is under no such handicap. It should not be necessary for a trial judge to leave the bench and match memories with a prisoner as to facts and circumstances surrounding a sentence imposed by the judge a year or two years previously. There is no evidence that the right of a prisoner to a hearing on petition for post-conviction relief is not here to stay, so we assume that by now, the importance of a stenographic record is obvious to every trial judge in the state.
Now as to the case at bar, appellant’s confession, either written or oral, was not used against him. He entered his plea of guilty in open court. He says that he entered his plea of guilty because he and his co-defend ants had signed written confessions and because he was promised a lighter sentence than he would likely receive if convicted on a plea of not guilty. The penalty for burglary in Arkansas is not less than two nor more than 21 years, and for grand larceny not less than one nor more than 21 years — so a sentence of three years with two years suspended was certainly no heavy penalty for burglary and grand larceny. The appellant testified that he knew he would have been released in four months.
The record made on arraignment, when the suspended sentence was revoked, lends credence to the prosecuting attorney’s testimony as to the procedure followed by the trial court. This record is as follows:
“BY THE COURT: How old are you?
BY DEFENDANT TURNER: Twenty-four.
THE COURT: Would you like to have the advice of counsel, or attorney, before you tell me whether you are guilty of this charge?
DEFENDANT TURNER: I am guilty, sir.
THE COURT: All right. I wanted to offer you the advice of an attorney if you so desired.
DEFENDANT TURNER: Yes, sir.”
From the overall record in this case, we are of the opinion that there was substantial evidence to support the trial court’s finding of fact that appellant’s constitutional rights had not been violated and that appellant’s petition should be denied.
The judgment of the trial court is affirmed.
Brown, J., disqualified. | [
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J. Fred Jones, Justice.
The appellee, Wesley O. Pearrow, purchased a fire insurance policy from the appellant, MFA Mutual Insurance Company, under the terms of which, appellee’s house and furniture were insured against loss by fire. The house was insured for $4,000 and the furniture for $2,000. Appellee’s house and furniture were damaged by a fire and he made demand upon the appellant for the policy limits of $4,-000 on the house and $2,000 on the furniture. Appellant refused payment and appellee brought suit in the White County Circuit Court for $6,000, plus statutory penalties and attorney’s fees. The appellant defended on the ground that appellee had either burned his house, or had conspired with others to have it burned, and that the fire did not result in such total loss as to require payment of the face amount of the policy.
After hearing the evidence at the trial, the court instructed the jury that there was no substantial evidence upon which a finding of arson or conspiracy to commit arson could be based, and the case was submitted to the jury solely upon the question of extent of loss and how much appellee should recover from appellant. The jury returned a verdict in favor of the appellee for $4,000 for loss of the house and $1,000 for damage to the contents. A judgment was entered on the jury’s verdict, and appellee was awarded an attorney’s fee of $1,000 and a statutory penalty of $480.
Upon appeal to this court, appellant relies on the following points for reversal:
“The trial court committed error (a) in instructing the jury that there was no substantial evidence on which to base a finding’ that appellee had either burned his house or conspired with others to have it burned and (b) in refusing to give defendant’s requested instructions No. 1 and No. 2, which instructions would have submitted these issues to the jury.
The trial court committed reversible error in permitting appellee to give hearsay testimony which was so prejudicial as to prevent appellant from obtaining a fair and impartial trial.
The trial court committed reversible error in allowing appellee to recover an attorney’s fee and a statutory penalty when the jury’s verdict was for less than the amount which appellee sought to recover.”
The appellant’s defense of arson, or conspiracy to commit arson, was based on circumstantial evidence of a very unusual nature. The house involved was a vacant rent house facing east on the west side of the highway about one mile from the town of Balb Knob. Mr. and Mrs. Harrell lived across the highway from appellee’s house and a Mr. Loueks lived about two hundred and fifty yards west of the house. Mr. Loueks’ private road leaves the highway just north of the appellee’s house aiid runs from the highway along the north side of appellee’s house.
Mr. Loueks testified that between 1:00 p.m. and 2 -.00 p.m. on August 3, 1905, he had started to his home from Bald Knob and as he passed along the side of appellee’s house, one Raymond Feagin whom he knew, and another man rushed from the rear door of the house into some drooping limbs of a weeping willow tree; that he saw the tree limbs shaking’ and thought the men were fighting. He drove on home and went to work on his tractor. About 5:00 p.m. he heard that there had been a fire in the appellee-’s house.
Mr. and Mrs. Harrell testified that as they were eating a late lunch between 1:00 and 2:00 p.m. on August 3, they saw appellee’s definitely identified truck drive into the road beside his house and turn into the drive in the back of the house. It only stayed a very short time during which its horn sounded, then it left in a hurry as it had come. About thirty minutes later, the Harrells observed smoke coming from the Pearrow house. The city fire department extinguished the fire and found a five gallon oil can, the odor of gasoline about .the premises and ample evidence that the fire was of incendiary origin. About midnight, members of the .fire department extinguished another fire at the same house and this time they found sponges soaked in gasoline, or other flammable fluid, on the roof of the building and a strong odor of fuel oil or gasoline was about the premises, the same as detected on the afternoon of August 3.
Raymond Feagin and Ronald Anthony Turpin were convicted of arson on pleas of guilty in connection with the fire. Turpin was sentenced to five years in the penitentiary and Feagin was given a suspended sentence. They both testified at the trial. Turpin testified that he did not know the appellee, but that on the morning of- August 3 he discussed burning the house with Feagin at a cafe across the street from a used car lot, and then Turpin testified as follows:
“Q. Did you have an opportunity to discuss the burning’ of'the Pearrow home at any place or at any time other than the discussion at the bus stop cafe?
A. Yes.
Q. Where did the other conversation take place?
A. At the used ear lot across the street.
Q. Whose used car lot?
A. Billy Ward’s used car lot.
Q. Where, in that used car lot, did the conversation take place?
A. Raymond and I talked about it in the trailer. Q. Y/hose trailer?
A. Billy’s.
Q. What is that trailer used for?
A. I believe just a business office.
Q. Is that where he conducts his business?
A. Yes, sir.
Q. Was anybody else present when the conversations was had?
A. On one occasion.
Q. Who was present?
A. Only it was between he and I, not between me and Raymond.
Q. Who did you discuss it with? Not what was said.
A. I talked with Billy about it.
Q. Where did you talk to Billy about it?
A. In the trailer.
Q. "What day did these conversations take place? A. The same day I burned the house.
Q. How did yon know where the house was?
A. Raymond took me and showed me the house. Q. Had yon ever been to the house before?
A. No, sir.
Q. Why were you going to burn it?
A. I was going to burn it for one hundred dollars. I don’t know what he was going to burn it for.
Q. Who was going to give you the hundred dollars?
A. Raymond.
Q. Did Billy know it?
A. There was no way he could know it.”
According to this witness he and Feagin left the ear lot in Feagin’s automobile and drove by and saw the house. They then returned to the cafe and talked about it some more and then went to Billy Ward’s used car lot and obtained a five gallon gas can from behind the trailer. Turpin then drove Feagin’s automobile to a gas station, had the can filled with gasoline, then returned and picked Feagin up and they both drove out to appellee’s house in Feagin’s black and white Buick automobile. According to this witness, they arrived at the appellee’s house with the gasoline about 1.30 or 2:00 p.m. They saturated the rugs and walls of the building with gasoline. The electricity had been turned off in the house, but the pilot light to the hot water tank had been left burning and an explosion occurred, blowing out one window of the house and blowing the witness into another room of the house. He says that he had to fight with Feagin to get him out of the house, that Feagin was on fire and that he extinguished the fire on Feagin out in the back yard. They then drove back to town. They then drove back to the house and saw that it ha.d not burned.
“A . . . I know we drove back and saw we hadn’t accomplished anything and he said he was through with it.
Q. You and he drove back that afternoon?
A. Yes, sir, I had enough beers in me that I decided I would finish the job.
Q. Raymond had enough after the first trip?
A. Yes, sir.
Q. "When did you go back out there?
A. I guess about ten o’clock at night, I thought it ■was earlier, but everybody said it burned later that night.
Q. What did you do about burning it the second time?
A. I had bought a bunch of sponges at Vaughan’s Super Market and I saturated them and threw them on top of the house and I let the gas run down the walls and set the blaze from the side of the house and it went up in flame.”
This witness testified that he had never heard of the appellee. On recall he testified that he sent his wife to Feagin for the $100 Feagin had promised to pay him, but that Feagin had no money. He denied that he sent his wife to appellee for money and denied that he knew anything about his wife going to appellee for money.
Feagin testified that he had known appellee for a number of years but had not talked with him except to speak when passing. He says that he did not know that the appellee had a house where it was located; that Turpin told him that he had a score to settle with the Pearrows and requested him to drive Turpin out to appellee’s house.
“A. He just asked me to drive him out there, that he had a score to settle with the Pearrows.
Q. What did you do?
A. I went out there, I didn’t know this gas was in my car, and he jumped out and run in the house and I sat in the car a couple of minutes and I went to the door and about the time I got to the door the thing exploded.
Q. Where were you?
A. I just got to the door and Eon was back in the house.”
Feagin denied that he promised to pay Turpin anything, denied that Turpin tried to collect from him and testified that he later apologized to the appellee for the part he played in burning the house.
We are of the opinion that the trial court erred in instructing the jury that there was no substantial evidence on which to base a finding that appellee had either burned his house or conspired with others to have it burned. Appellee was not being prosecuted for burning his house. He was the plaintiff in a civil action to recover on an insurance policy and the preponderance of evidence rule applied.
In Meyers v. Hobbs, 195 Ark. 1026, 115 S.W. 2d 880, this court said:
“ ‘The settled rule, which has been many times approved by this court, is that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions.’ Hanna v. Magee, 189 Ark. 330, 72 S.W. 2d 237; Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S.W. 2d 798; 23 C.J. 48.”
and earlier in St. Louis, I.M&S. Ry. Co. v. Owens, 103 Ark. 61, 145 S.W. 879, we said:
“... it is ... well settled that any material fact in controversy may be established by circumstantial evidence, and that, though the testimony of witnesses may be undisputed, the circumstances may be such that different minds may reasonably draw different conclusions therefrom. Such a state of case calls for a submission to the jury of the questions at issue; and where the circumstances are such that different minds may reasonably draw different conclusions therefrom, and the result is not a mere matter of conjecture without facts or circumstances to support the conclusion, then it is the duty of an appellate court not to disturb the finding of the jury.”
Also in Burcher v. Casey, 190 Ark. 1055, 83 S.W. 2d 73, we said:
“ ‘If the evidence is conflicting, it is error for the court to grant a nonsuit or direct a verdict.’
In determining whether a case should be submitted to the jury, all evidence which is introduced by the party who asked that such evidence be submitted must be regarded as true, and every inference which can fairly be drawn from the evidence must be drawn in favor of such party.”
and in Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S.W. 328, we said:
“In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. Williams v. St. Louis & S.F.R. Co. 103 Ark. 401, 147 S.W. 93; Phoenix Cement Sidewalk Co. v. Russellville Water & Light Co., 101 Ark. 22, 140 S.W. 996; Curtis v. St. Louis & S.F.R. Co., 96 Ark. 394, 131 S.W. 947.”
It is perfectly obvious, from the record before us, that there were a lot of loose ends left at the conclusion of the trial in this case. Most of the appellant’s evidence, as well as its argument, is directed at appellee’s lack of inquiry and apparent lack of concern about the fires in his house during the time of the fires and after the loss. He made no inquiry of the neighbors or of the police or fire department. Lack of inquiry or apparent interest standing alone would not support a verdict against him, but from all the circumstantial evidence, both ¡explained and unexplained in the record before us, we conclude that if the jury had returned a verdict for the appellant there would have been some substantial evidence to have sustained the jury verdict.
The appellee testified that he moved from the house in April or May and even though a real estate agent testified that the house was rented at one time while he was showing it for sale, no one testified how long it had been vacant yet the pilot light was burning on the hot water tank, on the 3rd day of August when Turpin saturated the place with gasoline between 1:30 and 2:00 p.m. in broad daylight and in sight of neighbors on that day. Indeed from some vague reference in the record as to another fire in which Turpin was implicated, the jury might even have found that a bold and vicious system was developing in the community of burning houses for profit.
The most damaging circumstantial evidence against appellee in this case, however, is that appellee’s own pickup truck was positively identified by the neighbors as being at the house at the same time Turpin says that he and Feagin were there attempting to burn the house. The fire occurred only a few minutes after appellee’s truck left the premises and Turpin and Feagin were seen rushing from the back door of the house by still another neighbor who was close enough to recognize Feagin. Apparently no one saw Feagin’s black and white Buick automobile on the premises at any time.
Turpin testified that he did not know the appellee and had never heard of him. Feagin testified that he casually knew the appellee, but that he didn’t even know appellee owned a house at the location where he drove Turpin. Feagin admits that he drove Turpin to the house, but says that he did not know that Turpin had a five gallon can of gasoline in the back of Feagin’s Buick automobile. The appellee testified that he had known Feagin for twenty years but he was not asked if he knew Turpin. The fire in the early afternoon was extinguished by the fire department and the five gallon can was found. Turpin knew where he purchased the sponges he used that night when he returned alone and finished the job, but he -was not asked where he obtained the gasoline with which he saturated the sponges on that occasion.
Turpin said he discussed burning the house with Feagin, as well as Billy Ward. He says that he purchased an automobile that same day from Billy Ward and used it in his final trip to burn the house that night. Ward was not called as a witness.
There is no evidence here that either Turpin or Feagin were pyromaniacs, and there is no evidence at all that the house was burned for spite or out of malice toward the appellee. Uncontradicted evidence places appellee’s truck at the scene of the fire within the same period of time Turpin and Feagin were there in the commission of arson. This evidence is uncontradicted and remains unexplained.
We conclude, therefore, from the overall evidence in this case, that the trial court erred in directing a verdict for the appellee on the question of arson, and that the cause should be reversed and remanded for a new trial for that reason.
We also take note of appellant’s second point since this case is being remanded for a new trial.
On cross-examination Turpin testified as follows:
“Q. You sent your wife to Wesley Pearrow?
A. No. I didn’t. I sent my wife to Raymond to collect the hundred dollars and Raymond told her he didn’t have any money.
Q. She didn’t report to you about going to Wesley Pearrow?
A. Did she go to Wesley Pearrow?
Q. I ask you if she did go to him?
A. Not that I know of.”
On. direct examination of the appellee, the record is as follows:
“Q. You heard the testimony about Mrs. Turpin, tell us about it?
A. She tried to blackmail me.
mr. pollard: I object to this. Counsel for plaintiff was informed when he called Ron Turpin back and he was informed after he explained about him sending his wife to Mr. Pearrow that he would not be in position to plead surprise. Mr. Lightle said he knew what Mr. Turpin’s answer would be, for that reason he was not surprised at what Mr. Turpin’s answer would be. It is not proper rebuttal for that reason.
mr. lightle: For impeachment purposes I have a right to it.
the court: On this issue, your own defense.
Q. What did his wife tell you?
A. She told me to give her a hundred dollars to get Ron out of jail or he was going to smear me and my friends all over if I didn’t give her the hundred dollars. She came to my house on a Sunday morning.
mr. pollard:
I object to that. Mrs. Turpin is not a party to the law suit.
the court:
The objection is overruled.
me. pollard:
Note my exception.”
This testimony was elicited and admitted under the guise of impeachment, but we hold that the trial court erred in admitting it over appellant’s objections. Mrs. Turpin had not testified at all, the appellee had not testified on the point involved, and Turpin only testified that he did not send his wife to see the appellee and that if she did contact the appellee he didn’t know anything about it. The testimony of appellee on this point clearly does not impeach the testimony of any witness. It is clearly hearsay testimony and is clearly inadmissible. We assume, however, that since this case is reversed on appellant’s first point, the other points raised on this appeal will not arise again at a new trial.
Reversed and remanded. | [
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Conley Byrd, Justice.
Appellants on rehearing argue that it is error to accept the assessment records as evidence of the ownership by the landowners within the district.
The record, as abstracted, shows that evidence was taken for four days to determine the number of landowners within the district. The evidence on this issue was closed on August 31, 1967. The court determined the number of valid signatures and the total number of landowners on October 6, 1967. The only abstracted objection touching upon the use of the assessment rec ords arose at the final hearing held on December 14, 1967 and is as follows:
mr. cole:
Your Honor, I understood that subsequent to the filing of the second petition (Tr. 95-103) we would be given time to present evidence as to the ownership of the lands involved. (Tr. 898).
the court:
That opportunity was given in those 4 days. mr. cole:
I understood that possibly the Court would be willing to give us additional time.
THE COURT:
No, that was taken up pretty thoroughly.
mr. cole;
It is my understanding that the Court has accepted a tabulation that was prepared setting out the names of the assessed owners. I think it has been referred to, and should be made a part of the record.
I am raising this point as I feel that a wife is as much an owner of the lands as the husband in a conveyance to husband and wife. The testimony we have heard today makes it clear that in many such instances, the wife has not been included. The ownership has been taken from the assessment records which generally shows the husband’s name— it is no evidence whatever of the ownership of the wife where it is owned by them as tenants by the entirety. I feel that in order for the Court to pass on whether there is a majority of ownership, we should be permitted to present that.
the court;
There was ample opportunity; the gate is closed. That is the ruling of the Court.
mr. cole;
So then we are denied the right to bring in instances of where a husband and wife ...
the court;
That is right; proof has been taken on that score.
mr. cole;
I don’t want to be in the position of arguing with the Court, but as I understand, the only proof which has been taken is protesting the formation of the district; not the question of ownership involved.
the court;
Ample opportunity was had to bring that out; it will not be gone into from here on.
mr. cole;
Please note our objections to the ruling of the Court on the question of bringing in the ownership of the wife in estates by entirety.
In their petition for rehearing, appellants refer to a motion that raised the issue of the probative value of the assessment records for purposes of determining ownership. The only abstracted motion that we find is as follows:
RESPONSE AND MOTION
The opponents, appellants here, filed a Response and Motion, (Tr. 106-107), contending that the proponents had failed to make a prima facie showing that the petition had been signed by the majority in number of the landowners within the proposed district; that they had failed to obtain the valid signatures of a majority of the landowners, nor a majority of the lands involved.
That the petition contained names of persons who did not in fact own lands in the proposed district.
That the petition did not in fact contain the signatures of 243 persons owning lands in the affected area.
That there were duplications in some of the signatures and these were counted twice.
That the petition filed contained a large area of land which was not included in the area sought to be incorporated in the proposed district, nor were these excluded lands contained in the Notices published.
This petition then suggested the appointment of a Master in Chancery to make a detailed study of the matter, and to make a report of its findings to the Court.
As we read the abstracted record, the issue here argued with reference to the acceptance of assessment records as proof of ownership was never raised in the trial court. We consistently hold that we will not reach an issue raised for the first time on appeal. For this reason, the petition for rehearing is denied.
While we must recognize from common experience that the ownership of lands shown by the assessment records is certainly not conclusive as to the persons who own the lands, yet we are not in a position to say that the assessments records are no evidence of ownership, especially when the proof with respect thereto is brought into the record without objection.
Petition for rehearing denied.
Holt, J., not participating. | [
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J. Fred Jones, Justice.
Tommy, Bhoda and Michael Hooten filed suit in the Sebastian County Circuit Court against Joseph B. Marlow and Noble McChristian for personal injuries and property damages sustained as a result of an automobile collision in Madison Comity, Arkansas. McChristian cross-complained against Mar-low for contribution as a joint tort feasor, and Marlow cross-complained against McChristian for his property damage. Tommy Hooten alleged damages in the amount of $35,000.00 for personal injuries and $3,500.00 for property damages to his automobile.
A jury trial resulted in a verdict against McChristian for $40,000.00 in favor of Tommy Hooten; for $1,-200.00 in favor of Bhoda Hooten and for $118.00 in fav- or of Michael Hooten. Tommy Hooten only proved $1,-400.00 damage to his automobile, so upon a voluntary remittitur of $3,600.00, judgment was entered in his favor for $36,400.00. Judgment was entered on the verdict for Bhoda and Michael Hooten. McChristian has appealed and relies on the following points for reversal:
“The court should have granted the request for a directed verdict.
Only eight jurors found McChristian liable for all of the $40,000.00 verdict, and the answers to the interrogatories are inconsistent and conflicting.
The verdict is excessive and the result of passion and prejudice, and a new trial should have been granted.”
The record reveals that on February 12, 1967, Tommy, Rhoda and Michael Hooten were riding in an automobile belonging to Tommy and being driven by a friend, Jerry Parker. . They were traveling west and slightly upgrade on state highway 74 near Huntsville, Arkansas. Marlow was driving his automobile east and downgrade on the same highway, meeting the Hooten automobile. McChristian drove his pickup truck south from a side road into highway 74 and turned east onto the highway between the oncoming Hooten and Marlow automobiles. In an effort to avoid colliding with the McChristian vehicle, the Marlow vehicle skidded approximately 462 feet from the crest of a hill, went off the pavement into the gravel on the south side of the highway behind the McChristian vehicle. It then cut back across the south side of the highway immediately behind the McChristian vehicle; went around the McChristian vehicle, and collided head-on with the Hooten automobile on the north side of the highway a few feet east, and in front of, the McChristian vehicle.
The testimony is in conflict as to whether the McChristian vehicle stopped before entering the highway and whether it had completely cleared the north side of the highway and had completely straightened out on its south and proper side of the highway when the collision occurred. McChristian testified that he stopped his vehicle and looked both ways before entering the highway and that he saw no vehicle approaching from either direction. He testified that he had completely crossed the north side of the highway and had turned his vehicle straight into the south lane and his proper side of the highway when the collision occurred. Marlow and the driver of the Hooten automobile testified that they saw McChristian drive slowly from the side road out into the highway between the two oncoming automobiles and that they did not see him stop before ¡entering the highway. They testified that the left rear wheel of his pickup was about on the center line of the highway when the collision occurred.
The case was submitted to the jury upon interrogatories signed by jurors as follows :
“1. Do you find from a preponderance of the evidence that James Marlow was guilty of negligence which was a proximate cause of the occurrence?
Answer: No (yes or no)
/s/ Mrs. N. D. Lawrence
/s/ Mrs. Phil Hatcher
/s/ Mrs. L. Hobbs
/s/ Mrs. E. G-. Dooley
/s/ Floyd E. Evans
/s/ Mrs. Leland Duncan
/s/ Dale Moore
/s/ Harley A. Wilson
/s/ Robert L. Taylor
2. Do you find from a preponderance of the evidence that Noble McChristian was guilty of negligence which was a proximate cause of the occurrence?
Answer: Yes (yes or no)
/s/ Mrs. N. D. Lawrence
,/s/ Mrs. Phil Hatcher
/s/ Mrs. L. Hobbs
/s/ Mrs. E. Gr. Dooley
/s/ Floyd E. Evans
/s/ Mrs. Leland Duncan
/s/ Luther H. Hodges
/s/ Dale Moore
/s/ E. Y. Swift
/s/ Harley A. Wilson
/s/ Robert L. Taylor
3. If you have answered ‘yes’ to either interrogatory 1 or 2 then answer this interrogatory:
Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between Mr. Marlow and Mr. McChristian.
Answer: Mr. Joseph R. Marlow %
Mr. Noble McChrisiian 100%
/s/ Mrs. N. D. Lawrence
/s/ Mrs. Phil Hatcher
,/s/ Mrs. L. Hobbs
/s/ Mrs. E. Gr. Dooley
/s/ Floyd E. Evans
/s/ Mrs. Leland Duncan
/s/ Dale Moore
/s/ Harley A. Wilson
/s/ Robert L. Taylor
4. State the amount of any damages which you find from a preponderance if the evidence were sustained by Tommy Hooten.
Answer: $40,000.00
/s/ Mrs. N. D. Lawrence
/s/ Mrs. Phil Hatcher
/s/ Mrs. L. Plobbs
/s/ Mrs. E. Gr. Dooley
/s/ Mrs. Leland Dnncan
/s/ Luther PI. Hodges
/s/ Dale Moore
/s/ E. V. Swift
/s/ Harley A. Wilson
/s/ Robert L. Taylor
5. State the amount of any damages which you find from a preponderance if the evidence were sustained by Rhoda Hooten.
Answer: $1,200.00
/s/ Robert L. Taylor Foreman
6. State the amount of damages which you find from a preponderance if the evidence were sustained by Michael Hooten.
Answer: $118.00
/s/ Robert L. Taylor Foreman
7. State the amount of any damages which you find from a preponderance if the evidence were sustained by James Marlow.
Answer: $ NO
/s/ Robert L. Taylor Foreman”
We now discuss appellants’ points in the order designated. The appellants’ motion for directed verdict was presented in the form of requested instructions which were denied by the trial court. In passing on assignment of error in refusing to direct a verdict for the defendant in Hawkins v. Missouri Pacific Railroad Company, Thompson, Trustee, 217 Ark. 42, 228 S.W. 2d 642, this court said:
“A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury. ’ ’
And again in St. Louis, I.M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W. 786, we said:
“The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury. ’ ’
We conclude that the trial court was correct in denying appellants’ motion for a directed verdict.
In arguing his second point the appellants would disqualify two of the ten jurors who found that Tommy Hooten’s damages amounted to $40,000.00, because these two jurors failed to sign interrogatories 1 and 3 finding Marlow not guilty of negligence and apportioning the negligence all to the appellant McChristian. The appellants cite cases from Wisconsin in support of their contention, but we conclude that the laws of Arkansas make no such distinction.
The Wisconsin constitution, as cited by the appellants, authorizes the legislature to provide £ £ that a valid verdict in civil cases, may be based on the votes of a specified number of the jury not less than five-sixths thereof(Emphasis supplied.) The legislature of Wisconsin by statute provided ££a verdict, finding or answer agreed to by five-sixth of the jurors shall be the verdict, finding or answer of the jury.” (Emphasis supplied.)
The number of jurors required to return a verdict in Arkansas is fixed by the constitution, Amendment 16 to Art. 2, § 7, which provides:
££ ... [I]n all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.”
As to special verdicts, Ark. Stat. Ann. § 27-1741.2 (Eepl. 1962) provides:
££A court may require a jury in a civil action to return only a special verdict in the form of a special written finding upon each issue of fact.”
We shall not attempt a fine distinction between the constitutional provisions and statutory laws of Wisconsin and those of Arkansas for the reason that the difference in the language used makes the distinction obvious; and for the further and primary reason, that we find no conflict between the findings of the jurors under the interrogatories 1, 2, 3 and 4 in this case. Interrogatory No. 4 simply asks for a determination of the damages sustained by Tommy Hooten. It stands alone and is not dependent upon answers to any other interrogatories at all. Certainly there was no conflict, and actually no connection, in assessing’ the amount of damages sustained by Hooten in the collision and apportioning the percentage of negligence between the parties causing the collision. There might be considerable damage without negligence in an automobile collision, and there might be considerable negligence without damage. The crus of appellants’ argument is that all interrogatories in special verdicts must be signed by the same nine jurors before that part of the verdict becomes legal and binding.
The trial court gave the jury the following instruction:
“Ladies and gentlemen, as you know, this case is being submitted to you on interrogatories, and you- should consider each of these interrogatories as a separate verdict. If your answer to any interrogatory is unanimous, then only your foreman need sign it. But if nine or more of you agree on a particular answer, then each of you who agrees must sign the answer, and those of you who disagree need not sign. You will understand that in order to answer any interrogatory, at least nine of you must agree. And I feel that I should tell you, you should, of course, take No. 1 and go right straight on through.” (Emphasis supplied.)
We are of the opinion that this instruction was proper. We construe “as many as nine of the jurors,” as used in constitutional Amendment 16 to Art. 2, § 7, supra, to mean any nine of the jurors and not necessarily the same nine jurors where more than one issue of fact is presented on special verdict to be returned by the jury. We, therefore, hold that the answer to each interrogatory in special verdicts is to be considered as a separate verdict on that particular issue of fact, and that where as many as any nine of the jurors agree upon the finding as to the particular fact in issue, such agreement constitutes the verdict of the jury on such issue.
As to appellants’ third point, the jury returned a verdict for $40,000.00 damages which was properly reduced by a remittitur of $3,600.00 on the motion of appellee, and judgment was entered for $36,400.00. The verdict of the jury was based upon evidence that the appellee Tommy Hooten suffered a skull fracture and was rendered unconscious; that he suffered a severe fragmentation fracture of the head of the left humerus and spent some twenty days in the hospital, the first week of which was in intensive care. There was evidence that the appellee Hooten underwent surgery by open reduction for the repair of the fractured humerus and that he had difficulty sleeping and remained under medication for pain in his arm for approximately two months after leaving the hospital. There is uncontradicted evidence that approximately sixteen weeks following the initial surgery, the appellee was rehospitalized and surgery again performed in order to remove the rod which had been inserted in the humerus during the initial surgery, and that the open reduction surgery resulted in extensive scar tissue winch was still draining at the time of trial. The X-ray exhibits clearly show that the head of the humerus was fragmented and displaced. There was medical evidence that there would be permanent partial disability of 15% in the loss of use of appellee’s left arm.
Appellee’s medical expenditures amounted to $2,-636.00, his loss of wages amounted to $2,300.00, and his property damage amounted to $1,400.00. The remainder of the $36,400.00 was necessarily apportioned to pain and suffering, future medical expenses, physical disfigurement, permanent injury and loss of future earning capacity. The appellee was twenty-three years of age at the time of his injury.
As was said in the similar case of Fred’s Dolla Store v. Adams, 238 Ark. 468, 382 S.W. 2d 592:
“In a case of this kind precedents are of scam value. No two cases are so nearly identical that essential points of difference cannot be found. The ultimate question is whether the verdict shocks the conscience of the court or demonstrates that the jurors were motivated by passion or prejudice. ’ ’
Upon consideration of all the evidence before the jury in this case, we are unable to say that the verdict of the jury, as reduced by the remittitur, was excessive.
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George Rose Smith, Justice.
The appellee, Great Southern Coaches, Inc., is a comparatively small bus company that was organized in 1942. Its headquarters are in Jonesboro. When the present application for a certificate of convenience and necessity was filed, Coaches was operating intrastate in northeast Arkansas and interstate to St. Louis and Memphis. Among its schedules were two round trips daily from Paragould to Jonesboro to Newport.
In the case at bar Coaches applied to the Interstate Commerce Commission and to the Arkansas Commerce Commission for permission to extend the line in question from Newport to Little Rock, down U. S. Highway 67, thereby providing through service from Paragould, Jonesboro, and most intermediate points to Little Rock, and to increase its schedules upon the new route to four round trips daily. The application was resisted by the appellant, Midwest Buslines, Inc., which was the only bus company operating from Little Rock to Newport along the route that Coaches proposed to enter. By consent the interstate and intrastate applications were heard together, the Interstate Commerce Commission appointing the Honorable David Panich, a member of the Arkansas commission, as its hearing officer in the case. This appeal, which of course involves only the intrastate application, is from an order of the Arkansas Commerce Commission (affirmed by the circuit court) granting Coaches’ application to extend its service.
Coaches introduced one company witness and almost a hundred public witnesses to establish its contention that the proposed single-line through service from Paragould to Jonesboro to Newport to Little Rock will benefit the general public. Midwest’s only testimony was given by two company witnesses. They testified in substance that: (a) Midwest, as a part of its interstate and intrastate service, operates six trips daily in each direction between Little Rock and Newport; (b) Midwest’s seating capacity is sufficient to meet the demand for transportation between those two points; (c) Midwest’s equipment is of excellent quality; and (d) the granting of Coaches’ application will create a competitive situation substantially reducing Midwest’s revenues from this particular part of its transportation system. It is fair to say that Coaches does not seriously dispute any of the four assertions of fact that we have just enumerated.
The pivotal issue before us, emerging from an extensive record, is really a narrow one. Did Coaches sustain its burden of proving that, should its application be granted, the ensuing benefits to the general public will outweigh the ¡ensuing loss of revenue to be suffered by Midwest?
Upon that vital issue Midwest’s contentions are simple. Midwest says — and we agree — that Coaches’ ninety-odd public witnesses are not complaining about the quality or adequacy of Midwest’s bus service between Little Rock and Newport. Instead, says Midwest, the witnesses’ real grievance centers upon the inconvenience of having to change bus lines at Newport and of having only two daily trips by Coaches to connect with Midwest’s six trips. Coaches, for example, provides no night service to or from Newport, so that its passengers cannot conveniently ride the Midwest buses that reach Newport at night.
Midwest insists, first, that Coaches could improve the over-all service in the area by increasing its round trips from Paragould to Newport, so that Coaches’ patrons could take full advantage of the six round trips provided by Midwest between Newport and Little Rock. Second, Midwest contends that its suggested solution of the problem — for Coaches to increase its daily round trips from Paragould to Newport — would leave as Coaches’ only complaint the inconvenience suffered by its passengers and shippers in having to change buses at Newport. That inconvenience, argues Midwest, is not alone a sufficient basis for granting Coaches’ application for a through-service permit.
We are not convinced by either aspect of Midwest’s argument. Midwest, a subsidiary corporation, is part of an integrated bus system, composed of various companies known collectively as Continental Trailways, which is shown to be the second largest bus carrier in the world. Under Midwest’s suggestion, Coaches would apparently become in part a feeder line to serve Continental Trailways at the Newport terminal. Uncontradicted, however, is the testimony of Coaches’ company witness that it would lose money if it attempted to increase its round trips to Newport only. “It is impossible to provide such service and secure people to ride the bus when you start out and have to change in fifty miles.” According to this witness, the longer trip to Little Rock is essential if the expanded service is to be economically justified.
Second, the difference between single-line service and interline service is not the only point of contention here, as it was in cases cited by Midwest. Among the authorities cited is Continental Southern Lines v. United States, 265 F. Supp. 218 (W.D. La. 1967). There the court, in sustaining the Interstate Commerce Commission’s denial of Continental’s application for a permit to extend its service, approved this excerpt from the Commission’s opinion:
“In our opinion, applicant has failed to show a need for the proposed service. Applicant has the burden of establishing by clear and convincing evidence that available carriers cannot or will not meet a substantial public demand or need. The public witness support arises from a desire for single-line transportation. Although present service is not as convenient as that proposed by applicant, we do not believe that the evidence of record reveals any material deficiencies in existing service sufficient to justify the operations proposed herein. The public witnesses in support of the application use bus service infrequently. Moreover, we are not convinced that the proposed operation would produce any substantial increase in its use.
‘ ‘ Although the public is normally entitled to the best available transportation facilities, the additional convenience of persons residing adjacent to or in the immediate vicinity of the proposed route must be measured against the effect such facilities would have on existing transportation service. Protestant is able to handle additional passengers and meet the reasonable transportation requirements of the supporting shippers. We conclude, therefore, that applicant has failed to meet its burden of proof, and that no public need has been shown for the service proposed. To grant the application would merely result in the introduction of a single-line operation between Meridian and Tuscaloosa in competition with a carrier whose service has not been shown to be either inadequate or unsatisfactory.”
It will be noted that the Commission attached importance to the want of proof that the proposed single-line service would produce any substantial increase in the demand for bus service. By contrast, in the case at bar there is an impressive volume of proof adduced to show that the granting of Coaches’ application will generate new business for the bus industry in northeast Arkansas. Among the public witnesses, college officials and parents explained the transportation problem of college students in the area. Others who will utilize Coaches’ expanded passenger service include veterans traveling to and from Government facilities in Little Rock, at least eight witnesses who will regularly use the new schedules to visit members of their families, and many others. Equally persuasive is the testimony about the increased use of motorbus parcel-delivery service that can be expected from banks, utility companies, auto parts suppliers, surgical supply companies, florists, architects, and others who need a quick and reliable means of obtaining small but essentially important packages from Little Rock and elsewhere.
In holding that the Arkansas Commerce Commission’s decision is not against the weight of the evidence we do not imply that the issues are so simple as to be free from doubt. But, as we pointed out in Wisinger v. Stewart, 215 Ark. 827, 223 S.W. 2d 604 (1949): “A point not to be lost sight of here is that de novo review . . . must not proceed as though the Public Service Commission [Commerce Commission] did not exist and had never held a hearing. A hearing' has been held, and the Commission which held the hearing has had the advantage of seeing and hearing the parties and witnesses face to face, whereas the Circuit Court and this Court review the evidence from the record only.” Moreover, as we went on to say in that case, “it is the duty of the courts to accord due deference to the finding of the Commission, since it is the agency upon which the General Assembly has placed the duty to investigate and determine, in the first instance, the need for any proposed motor carrier service.” After a careful study of this record we cannot say that the challenged order is against the preponderance of the proof.
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Conley Byrd, Justice.
The probate judge found that the real estate description in paragraph 3 of the first codicil to Mrs. Mattie Pipkin Smith’s will was defective and refused to amend the description to conform to the description that the testatrix allegedly gave to her lawyer. Appellant Mary Juanita Meyers Hardy, the sole beneficiary of paragraph 3 of the codicil, appeals alleging that the probate court erred in declaring void paragraph 3 of the codicil.
Paragraph 9 (b) of the will, executed on August 22, 1953, provides:
“Upon the death of the last surviving of my said sisters and brother, my niece Mary Myers Hardy, or her natural lawful children in equal shares if she be not then surviving, shall have in fee title absolute that certain one hundred (100) acres upon which my deceased husband, W. I. Pip-kin built our home, the same being bounded:
On the north by the Old Lockett Place (since owned by Merritt or Grobmyer and more recently by Hammond)
On the east by Tnni Creek
On the south by the Old Garner Place (now owned by Buford, I believe) and
On the west by the gravelled road which runs southerly or southwesterly from Crow Creek to Old Linden. ’ ’
The codicil executed on December 4, 1956, provides :
“3. In paragraph 9 (b) of my said last will and testament I devised to my Niece Mary Juanita Myers Hardy or to her lawful natural children if she should not survive me, a remainder title in fee to the tract of land by boundaries which I then estimated to contain about one hundred (100) acres. I am convinced now that those boundaries would not contain 100 acres, and I do hereby amend the description therein given by addition to that description the following, whether it shall make a total more or less than 100 acres, to-wit:
From the Northwest corner of the description in said paragraph 9 (b) run northwesterly in the West (or Southwesterly) line of Survey No. 2390 to the east line of the tract of land described in Deed from Hazel Powers and others to Oscie Hardy and Mary Hardy, dated September 29, 1956, and recorded at page 199 of Deed Record 202 in St. Francis County; thence South along the east line of said tract of land to the east and west center-line of Section 29, Township 4 North, Range 4, East: thence southeasterly to the Northwest corner of Survey No. 2413; thence northeasterly in the North (or Northwest) line of said Survey No. 2413 to the Southwest corner of Survey No. 2390 j thence Northwesterly in the West (or Southwesterly) line of said survey No. 2390, to the point of beginning,
which said additional tract is hereby given and devised in all respects the same as, and together with, the tract described in paragraph 9 (b) of my said Last Will and Testament.”
The record shows that Mrs. Mattie Pipkin Smith owned several hundred acres of land in T 4N, B 4E, some of which were held by United States Government survey descriptions and some of which were described according to “private surveys” numbers 2390 and 2413. For assistance in following the descriptions, the plat below is included showing the lands of Mrs. Mattie Pipkins Smith bounded by the heavy lines. The lands devised to appellant by paragraph 9 (b) of the will are shown in the shaded area.
For purposes of locating the lands devised in paragraph 9 (b), there was proof introduced showing the location of the Hammond property, the Buford property, Tuni Creek and the gravel road. In her brief, appellant admits that the description of the land purportedly devised in the codicil actually describes nothing. Taking the most favorable proof to appellant as to the location of the NW corner of the property described in paragraph 9 (b) of the will as the point of beginning, one cannot follow the land calls given in the codicil so that the description will close. To remedy this defect appellant relied upon the testimony of her husband, who went to the lawyer’s office with the testatrix for the purpose of assisting her in drawing the codicil. From notes he made in the lawyer’s office at the time the codicil was drawn, Mr. Hardy gave a description which would describe some 150 acres and which does not purport to be an explanation of the description, or any of the terms used in the codicil.
In McDonald v. Shaw, 92 Ark. 15, 121 S.W. 935 (1909), it was shown that Mary A. Hare had devised “one-half of all of my estate” to the Catholic Church for the purpose of taking care of her imbecile daughter, Ella Hare. The record further shows that Ella Hare was a pretermitted child under the will of her father, John Hare. Since John Hare’s will left all of his lands to Mary Hare, proof was sought to be introduced to show (for purposes of requiring Ella’s guardian to make an election) that the described “one-half of all my estate” included the lands devised by the will of John Hare. In holding that such proof could not be introduced, we said:
“In the present case the devise was for the benefit of Ella Hare, and was in the language, ‘one-half of all of my estate,’ and the testator owned property which fitted the language. We find it nowhere announced that evidence is inadmissible to show the circumstances with which the testator was surrounded in order to explain the language which he used or to identify property which he intended to devise. But the description of the property cannot be entirely supplied by evidence dehors the will, where there is nothing in the language of the will itself to point out what property is meant; nor where the language does point out the property, and some is found which answers the description, can the description be enlarged by parol testimony. We are therefore of the opinion that the parol testimony was inadmissible for the purpose of showing that Mrs. Hare intended to convey the property which Ella Hare held by inheritance from her father, and that no case was made out for an election.”
Appellant, however, contends that such proof is admissible under our decision of Eagle v. Oldham, 116 Ark. 565,174 S.W. 1176 (1915). However, in Jackson v. Wolfe, 127 Ark. 54, 191 S.W. 938 (1917), in answer to a similar contention, we said:
“Counsel for plaintiff insist that the case comes within the rule of this court announced in Eagle v. Oldham, 116 Ark. 565, and that under the rule there announced the will of Isaac Adair ought to be construed as devising the north half of the northwest quarter of Section 21, instead of the south half of the northwest quarter of said section, as set forth in the will. The doctrine of the case relied on is stated in the opinion as follows: ‘But while we may feel sure of the testator’s intention, we must gather that intention from the will itself. This idea has been expressed in a variety of ways by all the courts. But extrinsic evidence is generally held admissible in the interpretation of wills, not to show what the testator meant, as distinguished from what his words express, hut for the purpose of showing the meaning of the words used.’
“There were circumstances in that case surrounding the execution of the will which enabled the court to correct what was deemed by the majority of the judges to be an obvious error, but the rule stated above was adhered to. In the present case we find no circumstances whatever which would justify this court in declaring that the testator meant by the description used, to convey a tract other than the one which was specifically described. This tract was the homestead of the testator, and his wife had a life estate in it by operation of law, and that may have been the reason why the testator omitted it from the devise to her. To hold with the plaintiff in this case would be purely a reformation of the instrument, which in all the cases on that point this court has held could not be done.”
Here the language of the codicil does not point out the property devised nor does the testimony of Mr. Hardy enable this court to correct an obvious error by placing it in the position of the testatrix. It may be that the testatrix intended to convey the lands described by Mr. Hardy, but we are not at liberty to write the will as the testatrix may have intended. All of the cases are to the effect that oral testimony is admissible for the purpose of showing the meaning of words used or for the purpose of placing the court in the position of the testator at the time of using the words, but no case has gone so far as holding that oral testimony is admissible for the purpose of showing what the testator intended. Therefore, we hold that the language of paragraph 3 of the codicil is defective for lack of a valid description.
Affirmed. | [
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JOHN MAUZY PITTMAN, Judge.
| Appellant was a passenger in a vehicle struck by a pickup truck. She filed a complaint seeking damages from the truck’s driver and insurers for personal injuries that she allegedly sustained in the accident, including severe injury and pain in her right hip. The driver of the pickup truck admitted that the accident was his fault, and trial proceeded on the question of damages. The jury, finding that appellant sustained no injury and incurred no damages in the accident, returned a verdict in favor of appellees. Appellant filed a post-trial motion for judgment notwithstanding the verdict pursuant to Ark. R. Civ. P. 50(b), asserting that the jury’s finding that she incurred no damages was not supported by substantial evidence. The trial court denied that motion, and appellant argues on appeal that the trial court erred in so doing. We do not agree, and we affirm.
lijThe facts necessary to an understanding of the issues are few. Appellant was a front-seat passenger in an automobile driven by her friend, Mrs. Mundell, when the vehicle was struck in the front passenger-side fender by a pickup truck driven by appellee Shawn McAnulty. There was substantial evidence that the truck was moving at approximately ten miles per hour at the time of impact and that property damage to Mrs. Mundell’s vehicle was limited to a small dent in the passenger door. Both appellant and Mrs. Mundell indicated to Mr. McAnulty that they were uninjured, but they were taken to the emergency room as a precaution. Evidence was presented by appellant to show that she suffered severe injury to her hip and pain as a result of the accident. During his opening statement, defense counsel stated that appellant sustained no injury in the accident but acknowledged that the emergency room and ambulance bills were “appropriate.” In closing argument, defense counsel reiterated that all that Mr. McAnulty had been shown to be responsible for was the bill for the ambulance and emergency room and added that “now, if you feel like [appellant] hasn’t been totally honest with you today, then you can simply find for [Mr. McAnulty].” Appellant did not object to this statement. The jury returned a verdict for Mr. McAnulty.
In her brief, appellant summarizes her argument for reversal as follows:
In the instant case Dr. Rudder testified at length about [appellant’s] injuries and treatment and that they were reasonable and were caused by the accident aggravating a preexisting condition. Counsel for the defense adeptly cross-examined Dr. Rudder. As stated previously, under these circumstances the jury may disregard this testimony if they feel it is controverted or unreliable, etc. However, appellant respectfully submits that they can not disregard it based on 'prejudice — or an arbitrary punishment based upon their perception that appellant was less than candid. That is the narrow issue on this appeal.
| aIn essence, appellant is arguing that the jury was erroneously permitted to rely on defense counsel’s statement that, despite appellee’s responsibility for ambulance and emergency room expenses, the jury could find for appellee if it felt that appellant had testified dishonestly. We cannot address this argument, however, because it was never presented to the trial court. Arkansas has long held that there must be an immediate objection to any perceived error in closing argument so that the trial court might take such action as is necessary to alleviate any prejudicial effect on the jury. See, e.g., Butler Manufacturing Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987). Appellant made no such objection below, either at trial or in her post-trial motion for judgment notwithstanding the verdict, and the argument cannot be raised for the first time on appeal.
Furthermore, appellant has failed to preserve and thus establish the premise for the above-stated argument, ie., that appellees, through counsel, admitted liability for the emergency room and ambulance fees. Although it is true that appellees’ attorney did make such statements, they were made entirely within the context of opening statement and closing argument, and the jury was instructed without objection that opening statements and closing arguments of attorneys were not evidence. Given that appellant was seeking damages for injury to her hip, we think that counsel’s statements might fairly be interpreted as an argument that, although emergency room and ambulance costs could be seen as generally reasonable, the jury could find that they were unreasonable if appellant incurred these expenses with the intent to establish a fraudulent injury claim. In the absence of any | assertion below that defense counsel’s statements constituted an admission of fact rather than argument in mitigation of liability, or any request by appellant for an instruction to that effect, we cannot say that the jury was required to regard these statements of counsel as admissions of fact as a matter of law.
The only issue properly before us is the sufficiency of the evidence to support a finding that appellant suffered no injury and sustained no monetary damages as a result of Mr. McAnulty’s admitted negligence. Our supreme court recently enunciated the applicable standard of review:
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Similarly, in reviewing the denial of a motion for JNOV, we will reverse only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter of law. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. It is not our place to try issues of fact; rather, we simply review the record for substantial evidence to support the jury’s verdict. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions.
The Medical Assurance Co., Inc. v. Castro, 2009 Ark. 93, 302 S.W.3d 592.
Viewing the evidence in the light most favorable to the jury’s verdict, the record shows that appellant had suffered for many years prior to the accident from chronic hip pain resulting from multiple surgeries in which bone from her hip was harvested to obtain material for grafts to her cervical spine. It is true that Drs. Rudder and Pace opined that appellant’s | fihip pain was proximately caused by the vehicle accident, but there was evidence that these opinions were based on histories given by appellant that denied any hip pain prior to the accident and an immediate onset of pain thereafter. These histories were directly contradicted by extensive medical documentation of chronic pain prior to the accident and the emergency room report immediately after the accident stating that appellant was restrained during the accident, did not hit anything in the vehicle, and reported no pain to the pelvis or hips. Finally, Mrs. Mundell testified that she knew appellant well, that appellant was her best friend, that appellant had complained of hip pain for years prior to the accident, that appellant complained of no increased hip pain following the accident, and that appellant was in fact able only a few weeks after the accident to travel to New York and to New Zealand where she engaged in tourist activities and returned with the same complaints that she had prior to the accident. On this record, we cannot say that the jury was compelled to find that appellant established injury to her hip as a result of the accident and concomitant damages as a matter of law.
Affirmed.
ROBBINS and GRUBER, JJ., agree. | [
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ROBERT J. GLADWIN, Chief Judge.
hln this no-merit appeal, the Pulaski County Circuit Court terminated appellant Paul Criswell’s parental rights to his daughter, E.C., on September 5, 2013. Appellant filed a notice of appeal on September 20, 2013. Counsel for appellant filed a motion to withdraw as counsel on appeal and a no-merit brief in accordance with Linker-Flores v. Arkansas Department of Human Services (I), 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup.Ct. R. 6 — 9(i): (2013), listing several adverse rulings and explaining why there are no non-frivolous ^arguments to support an appeal. We affirm the order terminating appellant’s parental rights and grant counsel’s motion to withdraw.
In Linker-Flores, the supreme court described the procedure for withdrawing as counsel from a termination-of-parental-rights appeal:
[A]ppointed counsel for an indigent parent on a first appeal from an order terminating parental rights may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Counsel’s petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. The indigent party must be provided with a copy of the brief and notified of his right to file points for reversal within thirty days. If this court determines, after a full examination of the record, that the appeal is frivolous, the court may grant counsel’s motion and dismiss the appeal.
Linker-Flores, 359 Ark. at 141,194 S.W.3d at 747-48. Subsequently the supreme court elaborated on the reviewing court’s role in reviewing a petition to withdraw in a termination-of-parental-rights appeal, holding that, when the trial court has taken the prior record into consideration in its decision, a “conscientious review of the record” requires the appellate court to review all pleadings and testimony in the case on the question of the ^sufficiency of the evidence supporting the decision to terminate, and that only adverse rulings arising at the termination hearing need be addressed in the no-merit appeal from the prior orders in the case. Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005).
Termination-of-parental-rights cases are reviewed de novo. Hune v. Ark. Dep’t of Human Servs., 2010 Ark.App. 543. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526, 2010 WL 2522197. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J. T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007).
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration the (1) likelihood that the juvenile will be adopted if the termination petition is granted; and (2) |4the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark.Code Ann. § 9-27-341 (b)(3)(A)© & (ii) (Supp.2009). Additionally, the trial court must find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark.Code Ann. § 9-27-341(b)(3)(B). However, proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, 374 S.W.3d 205.
An order for emergency custody of E.C. (d.o.b. 8/29/08) was filed on March 16, 2012, based on a petition and affidavit alleging that the child’s parents were unable to care for her because appellant, who had been keeping the child, was incarcerated in the Saline County jail, and the mother continued to have a substance-abuse problem. The mother had admitted in December 2011 that she had recently used methamphetamine, and E.C., who had been given a hair-follicle test, was positive for methamphetamine in November 2011.
On July 23, 2013, an adjudication order was entered finding E.C. to be dependent-neglected due to neglect and parental unfitness. The goal of the case remained reunification. Appellant was ordered to contact DHS upon his release from prison; complete services including substance-abuse treatment; refrain from illegal drug use; notify DHS when he is living in stable housing and request a home study; and submit to random drug screens and provide urine and hair as requested by DHS. A review hearing was set for June 26, 2012. | ¡¡The review order from that hearing was filed on July 27, 2012, and custody of E.C. was continued with DHS. Appellant was still in prison, and the court continued its orders for him.
The permanency-planning order was filed on December 12, 2012, and it contains a finding that the case plan was not moving toward an appropriate permanency plan for E.C. Further, the order reflects that the parents were not in compliance or making significant measurable progress toward achieving reunification. In regard to appellant, the circuit court found as follows:
In light of his release, his prior court-appointed counsel is relieved. He has been visiting with E.C., had negative drug screens, and wants to be considered for placement. The Court considers that placement a long shot, but will still order additional services consistent with Dr. Deyoub’s recommendations including individual counseling, parenting classes and anger management. Mr. Criswell still has pending unresolved charges in federal court for which he awaits sentencing. If Mr. Criswell obtains a stable home, he is ordered to notify the Department so a home study can be completed which shall include a central registry and criminal background check on all adult occupants.
The' circuit court authorized DHS to pursue termination of the parents’ parental rights, but ordered DHS to offer reunification services “as termination is not a foregone conclusion. The parents must demonstrate that they are in compliance with services and are fit and appropriate parents. In light of this authorization, the Court will appoint new counsel to represent Mr. Criswell at the termination hearing.”
At the termination hearing held July 23, 2013, the prior orders and appellant’s psychological evaluation were admitted into evidence as exhibits. The circuit court also heard testimony from Shanesha Arbor, appellant, and Kasheena Walls. Ms. Arbor is a family ^service worker employed by DHS and assigned to this case. She testified that E.C. had been in DHS custody since March 16, 2012, which is more than twelve months. She said that appellant was incarcerated at that time and was released in August 2012, and he completed a psychological evaluation, participated in counseling, and completed parenting classes on March 21, 2013. Appellant visited with E.C. every week once he was released from prison, and he was living with his son during that time. He obtained employment with Precision Tune. However, Ms. Arbor opined that neither parent had made substantial, measurable progress toward reunification. She said that, although appellant had completed services, he had to go back to prison to serve a thirty-six-month term. She stated that it was not in E.C.’s best interest to wait for her father to complete that term for permanency. She testified that she had concerns about appellant’s anger issues and reports from E.C.’s sibling that appellant had abused him. She also noted other reports from E.C.’s mother of domestic violence by appellant. She stated that DHS recommended that appellant’s parental rights be terminated.
On cross-examination, Ms. Arbor explained that Kim Gibson, appellant’s cousin who lives in Memphis, had expressed an interest in custody of E.C. A home study was completed and approved, although Ms. Arbor had not received the documentation for that. She claimed that she was concerned about placing E.C. with Ms. Gibson because Ms. Gibson did not know E.C., having met her only one time, and had been contacted by appellant from prison. She believed that Gibson’s intent, stated at a prior hearing, to take the child to visit appellant in prison, was potentially harmful. She also stated her concerns, which were based |7on statements made to her by the child and her mother, regarding appellant’s anger issues.
Appellant testified via telephone conference from federal prison that he believed he would be released from prison on April 30, 2014, under the Second Chance Act, which would put him in a residential drug-treatment program. That release date was contingent upon good behavior. If he did not get released early, his release date would be December 2015. He testified that if he were to obtain release in April 2014, he would go to an apartment in Little Rock and would be required by the terms of his parole to get a job and abstain from drugs and alcohol. He said that he would have employment with Precision Tune; that he would be living in the apartment with his wife and a third person whom he did not know yet; that he had been arrested in 2006 or 2007 for aggravated assault; and that he had been previously arrested on a drug offense in 2002.
Kasheena Walls is an adoption specialist for DHS, and she testified that E.C. was adoptable. She said that she had identified potential adoptive homes for E.C., and that she was not aware of anything that would prohibit adoption.
The circuit court found that DHS had proved that the child had been outside the parents’ care for more than twelve months and that the parents had failed to remedy the conditions that caused the removal. The court noted that appellant had been incarcerated at the time of removal and was still incarcerated at the time of the hearing. The court found that subsequent factors had arisen in that appellant was incarcerated during the pendency of the matter and that, even if he were to be released in April 2014, he would not be ready to receive custody right away. The court declined to base termination on appellant’s failure to | ^support the child or on abandonment, but did find that he had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the child’s life. Also, the court found that aggravated circumstances had been proved by clear and convincing evidence. The court noted again that appellant was not due for release until April 2014 under the best-case scenario. The court found that E.C. was adoptable and that it was in the child’s best' interest that parental rights be terminated. The court stated that adoption did not preclude consideration of relatives for placement of the child. The order terminating parental rights was filed on September 5, 2018.
Counsel contends that there are no issues of arguable merit for appeal. At the time of the hearing on DHS’s petition to terminate parental rights, E.C. had been in DHS custody for almost sixteen months. Appellant was incarcerated when E.C. was removed, he was incarcerated during much of the pendency of the case, and he was incarcerated at the time of the termination hearing. Thus, appellant had spent the majority of E.C.’s life in prison, and had appellant maintained his parental rights, E.C. would continue in foster care for significantly longer. Counsel cites Hill v. Arkansas Department of Human Services, 2012 Ark. App. 108, 389 S.W.3d 72; Barber v. Arkansas Department of Human Services, 2010 Ark. App. 881, 2010 WL 1790770; and Fields v. Arkansas Department of Human Services, 104 Ark. App. 37, 289 S.W.3d 134 (2008), each involving a parent’s prison sentence that constituted a substantial period of a child’s life. Here, E.C. is about five years old. Appellant has been incarcerated since February 2013 and is set for release in December 2015, when E.C. will be seven years old. Counsel contends that it would be wholly frivolous to argue that DHS failed to prove | flaggravating circumstances based on appellant’s incarceration. Further, the circuit court’s finding of adopta-bility was supported by testimony from the DHS adoption specialist. See Reed v. Ark. Dep’t of Human Servs., 2012 Ark. App. 369, 417 S.W.3d 736. Counsel addressed other grounds; however, proof of only one statutory ground is sufficient to terminate parental rights. Gossett, supra.
Counsel addressed appellant’s objection to Ms. Arbor’s testimony regarding appellant’s alleged physical abuse of E.C.’s mother. The circuit court overruled the objection and advised appellant that he was represented by counsel and not allowed to address the court. No grounds were stated for the objection, and failure to argue a specific objection precludes its consideration on appeal. Hewitt v. State, 317 Ark. 362, 877 S.W.2d 926 (1994).
During Ms. Arbor’s testimony, the attorney ad litem objected that appellant’s attorney was testifying. The circuit court sustained the objection, which was proper pursuant to Arkansas Rule of Evidence 611(a) (2013).
Finally, the circuit court denied placement with relatives at the termination hearing; however, the circuit court stated that termination of parental rights does not preclude relatives from being considered. The court noted that relatives may not be approved because he had seen cases where children had been placed with relatives who then returned the children to the parents; however, the court concluded its remarks by stating that it would not prejudge what the best adoptive placement for the child would be and that the agency was not precluded from considering an appropriate relative.
ImBased on our examination of the record and the briefs, we find that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit appeals in termination cases, and we hold that an appeal would be wholly without merit. Consequently, we grant counsel’s motion to withdraw and affirm the order terminating appellant’s parental rights.
Affirmed; motion to withdraw granted.
GLOVER and HIXSON, JJ., agree.
. Appellant filed a response to his counsel’s motion to withdraw on February 10, 2013. He claimed that his counsel did not contact him before filing the record with this court. He claims that there are several inaccuracies in the "reports and information” relied on by the lower court to terminate parental rights. He contends that his counsel could not have made a conscientious review without all the correct facts. He alleges that if his counsel had sent him a copy of the record as filed for him to review and discuss, meritorious issues could have been presented. Alternatively, he states that he is incarcerated until at least May 2, 2014, is indigent, and wants a new lawyer to be appointed. This motion was denied by this court by order dated March 12, 2014.
Submitted with this appeal is appellant’s motion for reconsideration, entitled "Notice of Interlocutory Appeal," where he seems to seek review of the denial of his motions. We hereby deny appellant’s motion for reconsideration.
. The parental rights of the mother, Victoria Criswell, were terminated by separate order, and she is not a subject of this appeal. | [
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KENNETH S. HIXSON, Judge.
_JjThis is the second appeal between divorced parents, appellant Robert (Bob) Bamburg and appellee Lisa Bamburg regarding orders issued by the Pulaski County Circuit Court. The parties were married for over twenty years and had two children — daughter EB born in 1995 and son JB born in 1996. JB suffers from significant disabling non-verbal autism. The July 2010 decree awarded the parties joint custody of the minor children, but determined that Lisa was to be the primary custodian and awarded Bob liberal visitation. Pertinent to this appeal, the decree provided that when the minor children were present, neither party was to have “an overnight guest with whom the party has a romantic relationship” including “vacations | ¡¡or any trips.” In the first appeal, Bob contended that the trial court clearly erred in awarding primary custody of the parties’ two minor children to Lisa, and both parties appealed the trial court’s findings on division of specific marital assets. We affirmed the award of custody and the majority of marital-property-division findings in an opinion handed down on September 21, 2011. See Bamburg v. Bamburg, 2011 Ark. App. 546, 386 S.W.3d 31. In that opinion, our court recounted the extensive history of the parties’ divorce proceedings and the evidence leading to the custody decision.
While the first appeal was still pending, the parties continued to vociferously litigate multiple matters relating to their divorce and filed numerous competing motions for contempt. Each party accused the other of being noncompliant with issues that included child-related reimbursements, child support, educational decision-making, property exchanges, payments for various debts, and asset distribution. Relevant here, Bob sought to have Lisa held in contempt for violating the “overnight guest” provision of the decree by having her romantic partner, Mary Alice Hughes, accompany her and the children on overnight trips to Hawaii, Texas, and Tennessee, all within six months of the divorce decree. Bob’s motion for contempt was filed in December 2010.
After a hearing on these issues in March 2011, the trial judge found Lisa in contempt of court for violating the “overnight guest” provision of the decree. In an order dated April 15, 2011, the trial court found that the “out of town trips with Mary Alice Hughes staying in another room different from [Lisa] and the children is merely splitting hairs and is an attempt by [Lisa] to circumvent the court’s order.” Further the trial court stated: “This court latías no interest in controlling the romantic interests of either the defendant or the plaintiff, but it does have an interest in adhering to established case law when it concerns the children.” Lisa filed a motion for reconsideration and for clarification. The trial court thereupon clarified the “overnight guest” provision in a June 14, 2011 order:
2. The court has given considerable thought to this issue and acknowledges that because of the specific facts of this case, it is necessary to be- as clear as possible regarding the contact either party may have with a romantic partner while in the presence of the minor children.
3. The parties have a distinct difference of opinion as to what is in the children’s best interest regarding the contact of the Plaintiffs romantic partner with the children on both a daily basis and an overnight basis. They have an intense distrust of each other which has heightened the animosity between them.
7. The court finds that a clear bright line rule must be established in this case so that the parties will understand their limitations. It is not the intent of the Court to punish either Plaintiff or Defendant for having romantic partners in their lives, as it is normal to bring romantic partners around the children. However, it is the responsibility of the Court to ensure that the sole emphasis remains on what will be in the best interest of the children, especially in a case like this where the parties cannot agree and constantly debate about what is best for their children. The Court does this by setting out guidelines and limitations that apply until the children turn age 18 and graduate from high school.
9. The Court, therefore, orders that when the children are present neither party shall allow an overnight guest with whom the party has a romantic relationship. This prohibition also includes taking a romantic partner on any vacations or any trips when the children are present, regardless of whether the romantic partner has separate accommodations, lodgings or sleeping arrangements. The Court is aware that it has no jurisdiction over the romantic partners and they are free to travel as they desire. The Court does have jurisdiction over the Plaintiff and Defendant and will view any variation of this ruling as a violation of not only the spirit of this Order but the specific prohibitions contained in the Order.
| thereafter, Lisa filed a timely notice of appeal designating an appeal of the contempt order and clarification order. Ultimately, though, Lisa filed a motion to dismiss her appeal in September 2011, just prior to our court’s decision in the first appeal.
In April 2012, Lisa filed a “Motion to Modify Summer Vacation and Travel Restrictions.” In her motion, Lisa requested that the court modify Bob’s summer visitation schedule with JB due to the fact that JB was currently enrolled in a year-round school and that the existing summer visitation plan was not compatible with year-round schooling. Lisa also requested that the court lift the “overnight guest” prohibition because the eldest daughter was going to attend college at Baylor in the fall and “because of the severity of the younger child’s disability, [JB] is unable to understand romantic relationships and will not be negatively impacted by an overnight guest in his presence.” Further, Lisa requested the court to allow her romantic partner to move into the same residence with her and her son because “the younger child cannot understand the implications of overnight guests.” And, thereafter in an amended motion, for the same reasons, Lisa requested that the court remove the prohibition against Mary Alice Hughes traveling with her and JB.
In May 2012, Bob filed a motion to dismiss Lisa’s motion to modify, contending that it was barred by res judicata and collateral estoppel, along with a request that custody be changed to him based on Lisa’s “continued illicit behavior and noncompliance with Court orders.” Bob formally denied Lisa’s allegations that there needed to be any changes to his visitation schedule or to the rules of behavior related to travel or cohabitation.
Is After a hearing in October 2012, the trial court denied Bob’s motion to dismiss, finding that because Lisa had alleged a material change in circumstances, she would be given an opportunity to establish those asserted changes. By the time these issues were fully litigated by the trial coui't, the parties’ daughter EB had graduated high school, moved to college in Texas, and reached the age of majority. JB, then sixteen years old, remained legally impacted by the trial court’s orders.
The trial court took evidence and testimony in January 2013 over these issues. Testimony was given by Tim Thomas, clinical administrator at Pathfinder Academy, who holds a master’s degree in early childhood special education. JB attends Pathfinder Academy, and Mr. Thomas stated that the year-round school schedule at Pathfinder was implemented for the benefit of children with autism and that routine and consistency are very important for autistic children. He opined that JB understands relationships as they relate to himself but has limited understanding of relationships between other people. Lindsey McDaniel, one of JB’s speech-language pathologists, affirmed that JB remained nonverbal, but said that he uses an electronic device to help communicate. Ms. McDaniel testified that JB could answer more concrete or visual questions but had difficulty answering abstract questions. She stated that JB exhibited anxiety-ridden behaviors when he would be going to, or coming back from, his father’s for extended periods of time. JB’s occupational therapist, Alisa Hooper, testified that she worked with JB on a daily basis to improve his ability to perform self-care activities like | fibrushing his teeth, taking care of money, dressing, and going to the bathroom. Ms. Hooper confirmed that JB has great difficulty with changes in his schedule and, like others with autism, needs consistency.
Lisa testified at length about how much she had come to depend upon Mary Alice Hughes as a vital part of JB’s daily-care team. She stated, by way of example, that it was very difficult for her to handle JB’s recent stomach illness all on her own without help. She stated that to some degree, she was dependent on Mary Alice to help with caring for JB because he had certain things that he wanted only Mary Alice to do for him. Lisa said that Mary Alice arrived early in the morning to help get him up, fed, and ready for school, and she helped with transportation to and from school, as well as with playtime, meals, and bedtime, after which Mary Alice would leave. She described Mary Alice Hughes as “one of his caretakers” and “part of his routine.” She said that JB was accustomed to spending time with her, that he loved and adored her, and that Mary Alice was a big part of JB’s life. Lisa amplified what the professionals at Pathfinder Acad emy had stated, as it concerned JB’s regression in academic and social settings when there was extended visitation with his father.
Bob testified that he was actively engaged in his children’s lives and educations, and he expressed concern that he was being replaced as a parent by Mary Alice. Bob reaffirmed his concerns that he expressed from the very beginning of the divorce proceedings, commenced in 2009. Bob denied that he was anything other than a positive, structured parent, just as JB needed. Bob said that his mother lived with him and assisted some with JB’s care, but that he did not require his mother’s assistance. He was strongly opposed to MaryJjAlice spending more time with his son than he did, and he was opposed to the women’s relationship on a personal, religious, and legal level. Bob was resistant to any changes in his visitation periods, unless it was to increase them.
After taking the evidence under consideration, the trial court modified Bob’s six-week summer-visitation schedule, originally set in three two-week intervals, changing them to six one-week intervals spread over six months (one week in June, July, August, October, February, and April). The trial court rejected any reduction in visitation with Bob, who was found to be a concerned parent willing to spend the time with and effort for his son. The trial court found that this modification would accommodate JB’s need for year-round consistent scheduling and schooling, specifically acknowledging the testimony of Pathfinder Academy personnel. The trial court refused to remove the “no overnight guest” clause or to permit unmarried cohabitation but did modify the travel restriction by finding that Lisa was permitted to have Mary Alice accompany her on vacation or trips in JB’s presence but only if Mary Alice slept in separate accommodations. The trial court remarked that Mary Alice was JB’s caregiver on a daily basis, from approximately 6:00 a.m. until 9:00 p.m. on typical days, helping JB with dressing, meals and snacks, transportation to and from school, and playtime, and it noted that EB had left for college. A nine-page order was entered by the trial court on January 29, 2013, commemorating these findings. Bob’s subsequent motions for reconsideration and for additional findings of fact were denied.
Bob appeals the changes to his visitation schedule and the order regarding Mary Alice Hughes traveling with Lisa and JB. Bob contends that Lisa was procedurally barred from | ^seeking any modification and that the trial court’s findings are clearly erroneous and not supported by any material change in circumstances. The trial court also ordered Lisa to reissue a $9000 check to Bob in order to compensate him for previously awarded sums due as a result of the first appeal. Lisa cross-appeals this portion of the order. We affirm on direct and cross-appeal.
With regard to custody and visitation, the primary consideration is the welfare and best interest of the children involved; all other considerations are secondary. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699; Hicks v. Cook, 103 Ark.App. 207, 288 S.W.3d 244 (2008). A party seeking a change in visitation has the burden to demonstrate a material change in circumstances that warrants a change. Baber, supra. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id. Modification in a custody order also requires a showing of a material change in circumstances affecting the child’s best interest. McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91. The factors a trial court may consider in determining what is in the best interest of the children include the psychological relationship between the parents and children, the need for stability and continuity in the relationship between parents and children, the past conduct of the parents toward the children, and the reasonable preference of the children. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997). On appeal, we perform a de novo review, but we will not reverse unless the findings are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003); Ross v. Ross, 2010 Ark. App. 497, 2010 WL 2404168. This necessarily turns in large part upon credibility determinations, and we give special deference to the superior position of the trial judge to evaluate the witnesses, |fltheir testimony, and the children’s best interest. Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007). There ai'e no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving children. Keith v. Keith, 2013 Ark. App. 700, 430 S.W.3d 845, Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007).
We first dispose of Bob’s procedural-bar arguments, wherein Bob argues that the trial court was precluded from entertaining Lisa’s motion because custody and visitation had already been the subject of litigation. The doctrine of res judicata is not strictly applicable in child-custody matters, Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). Our supreme court favors a more flexible approach to res judicata in these settings to allow a trial court to respond to asserted changes in circumstances and the best interest of the child. Id.; see also Hanna v. Hanna, 2010 Ark. App. 58, 377 S.W.3d 275. The trial court’s retention of jurisdiction over child-custody and visitation matters, and the requirement of a showing of materially changed circumstances, support the logic behind a more flexible approach in child custody and visitation cases. Chiolak v. Chiolak, 99 Ark.App. 277, 259 S.W.3d 466 (2007). Bob’s arguments concerning collateral estoppel and law of the case are likewise not strictly applicable to this litigation for the same reason. See id. We hold that the court did not err in denying Bob’s motion to dismiss. See also Atkinson v. Ledbetter, 2014 Ark. App. 245, 2014 WL 1661503 (explaining the doctrine of continuing jurisdiction specifically as it relates to child custody matters).
|inMoving to the substantive arguments, we first address the modification of the exercise of summer visitation. We affirm on this point because Lisa established material changes in the circumstances related to JB’s educational and emotional needs, and because the trial court did not clearly err in deciding that JB’s best interest was served with this alteration in the timing of Bob’s visitation periods.
As we have explained, JB is a severely autistic non-verbal teenager. Bob is an actively involved parent, but Lisa is the primary caregiver. JB requires specialized education and structure in his daily life. Since the parties’ divorce, JB became a student at Pathfinder Academy, which changed from a typical school year to a year-round educational setting. Psychological professionals and special-education professionals testified that autistic children need the least amount of disruption in their schedules, that JB in particular had that need, and that there were signs of anxiety and regression when extended visitation was about to commence or had just ended. Lisa added that JB behaved more appropriately and settled back into his educational environment when he was out of her custody for shorter periods of time. Bob resisted any changes to the previously-ordered schedule, but we find it impor tant to note that at the conclusion of the hearing, his attorney stated to the trial judge that Bob was agreeable to a “week on week off’ schedule.
We are hard pressed to find clear error when the alteration in the schedule did not deprive Bob of time with his son but only reallocated that time, and further, Bob appeared to manifest assent to this change in the end. We hold that the trial court’s decision on this point is not clearly erroneous and is compatible with JB’s best interest. Compare Maley v. Cauley, 2010 Ark. App. 850, 378 S.W.3d 808 (affirming a trial court’s slight alteration in appellant’s visitation schedule compatible with child’s educational needs and best interest).
Bob’s primary argument focuses on the trial court’s removal of the “no traveling” provision. Bob contends that Lisa has failed to show a material change in circumstances sufficient to modify the prior order on this topic, and that the trial court failed to explain what those changed circumstances were. We disagree that the trial court clearly erred.
Bob correctly states that Arkansas law has historically prohibited, as a matter of public policy, children being exposed to a parent’s unmarried cohabitation or a parent’s promiscuous conduct or lifestyle. E.g., Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). There is some question whether that stated policy has been relaxed as far as unmarried cohabitation is concerned, see Moix v. Moix, 2013 Ark. 478, 430 S.W.3d 680; however, we need not reach that issue. Here, the trial court did not lift the prohibition against unmarried cohabitation; nor did the court lift the prohibition of a romantic partner being an “overnight guest” of a party. Lisa did not appeal the continuation of those prohibitions. On the issue of traveling, the trial court simply determined that Lisa’s relationship with Mary Alice was not illegal or illicit such that “regarding JB, the Court orders that until he reaches his majority, Mary Alice Hughes may go on vacations with the plaintiff and her family, but she must sleep in a separate apartment or accommodations.”
Bob asserts that the trial court erred by failing to provide specific findings of fact on the issue of “materially changed circumstances.” We disagree because even if the trial court had failed to provide specifically enumerated material changes in circumstances, we would be |12permitted on de novo review to determine that there is evidence from which such changes can be found. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999); Chaffin v. Chaffin, 2011 Ark. App. 293, 2011 WL 1496000.
We hold that the evidence here established material changes because over time Mary Alice Hughes had become an integral part of JB’s daily care routine including feeding, dressing, transportation, educational support, and emotional comfort. Moreover, EB’s emancipation and move from Lisa and JB’s residence to college in Texas significantly reduced Lisa’s small pool of available, consistent, and loving caregivers to help with JB. This evidence supported the existence of a material change in circumstances sufficient to remove the prohibition of Mary Alice Hughes being present, other than overnight, during travel with Lisa and JB. We cannot determine that the trial court was clearly erroneous to decide as it did on this issue. Nor can we conclude that this modification was not in JB’s best interest, acknowledging JB’s best interest could be served only by continuity in his daily routine and availability of his caregiving team.
The trial court retains the authority to protect the child’s best interest, and there is no case in which greater deference should be given to the trial court’s posi tion, ability, and opportunity to see and evaluate the evidence than those involving the welfare and best interest of minor children. Faulkner v. Faulkner, 2013 Ark. App. 277, 2013 WL 1857687. In our de novo review of the evidence presented to the trial court, we are not left with a distinct and firm impression that a mistake was made in the trial court’s removal of this restrictive condition.
| ,sLastly, Bob contends that we should hold him entitled to petition for attorney fees and costs in pursuing this appeal, under the authority given by Ark. Sup.Ct. R. 6 — 7(c) (2013). We decline to so hold. He asserts foremost that he should prevail on appeal, which would support such an award. Having affirmed the appeal, this moots his argument. Regardless, Bob is free to file any petition he may choose with our court or with the circuit court, and the merits or lack thereof will be decided upon the appropriate petition.
Moving to Lisa’s cross-appeal. In the first appeal, our court agreed with Bob’s argument that he had been deprived of his marital half of the value of Lisa’s gift-store inventory, his part being $9000. Although Lisa purportedly tendered a check to pay what she owed Bob, it was not for the full amount of $9000. The parties disagreed over whether this check constituted the correct amount. Bob did not cash the check, allowing it to become “stale.” At the hearing on the most recent competing motions, Bob asked that Lisa be ordered to reissue a check and remit the $9000 payment to Bob. The trial court agreed and ordered Lisa to remit the $9000 in a March 2013 order, which Lisa cross-appealed. She contends that it was error for the trial court to do so. We disagree.
Lisa does not, and cannot, argue that she does not owe Bob $9000 as delineated in our prior opinion. The trial court was well within its authority to order her to pay this amount to Bob. Her argument to the contrary is without merit, is not supported by any convincing legal authority or argument, and we reject it.
Affirmed on direct appeal and on cross-appeal.
GLADWIN, C.J., and GLOVER, J., agree.
. Bob's visitation schedule included every other weekend; three hours on a night each week; alternating spring break week; alternating major holidays; every Father’s Day; and the first two weeks in June, July, and August. Liberal contact was encouraged for each, parent, to include participation in the children’s educational, medical, and extracurricular activities, as well as liberal electronic communications between each parent and children.
. At present, JB is seventeen years old. He will reach the age of majority in December 2014. | [
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Griffin Smith, 0. J.
M. A. Williams wrote his will in 1887. It has been construed twice by this court and is here a third time.
That part of the will necessary to a consideration of the instant case is:
“I bequeath all my lands, tenements and hereditaments and all household furniture, ready money, securities for money, goods, chattels and all other parts of my real and personal estate and effects whatsoever unto my wife, Georgianne ft. Williams, and the heirs of her body to and for their absolute use and benefit for her lifetime subject only to the payment of my just debts. funeral and testamentary expenses and the charge of proving and recording this, my will.”
In 1908 — twenty-one years after execution of the will — M. A. Williams died. No children had been born to his union with Georgianne. The wife died in 1937, without issue. Elsewhere in this opinion she will be referred to as Mrs. Williams.
In 1924 Mrs. Williams, through the Sebastian Chancery Court, undertook to have her title confirmed in certain lots located in the city of Fort Smith, such lots having been owned by M. A. Williams at the time of his death. The complaint alleged that Mrs'. Williams had title to the lots under the will of her husband; that in an ex parte proceeding had in 1908 it was decreed that she took a present absolute estate.
The demurrer of the heirs of M. A. Williams was sustained.
In Williams v. Williams, 167 Ark. 348, 268 S. W. 364, this court said: “The devise is to ‘my wife, Georgianne R. Williams, and the heirs of her body.’ If this was all the will said, it is clear, under [ Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S. W. 518, Ann. Cas. 1912A, 540] and numerous other cases cited in the briefs, that the wife would have taken only an estate for life, with remainder over to the heirs of her body, or her children, but, as no children were born to her, this life estate would expire, failing- children, upon her death, and the remainder would pass in fee simple absolute to the heirs-at-law of the testator. The will, however, does not end with the words quoted, but these are followed by the words ‘to and for their absolute use and benefit for her lifetime. ’ Do these last words enlarge the estate devised to the wife to a fee simple, subject to be opened up to let in children born to her who would share this fee simple title with her? The decision of this question is determinative of the testator’s intention, and we do not answer it with the assurance of inerrancy. We have concluded that only an estate for life was granted to the wife, and even this estate was to be shared by her children during’ her lifetime, if any were born.”
In 1937-’38 interested parties were again in court, this time seeking a construction of the will with respect to personal property. See Williams v. Chambers, 195 Ark. 654, 113 S. W. 2d 722. After reviewing the holding in the Williams v. Williams Case, the opinion states: “It is true that real estate only was involved in the [former] case, but that does not in any way change the rule applicable to the personal property. . . . There is nothing in [the language of the will] to indicate that the testator intended to devise and bequeath a different estate in the real estate and personal property. The same intent on his part governed the disposition of both the real estate and personal property.”
This decision, therefore, is- authority for the proposition that a life estate only was bequeathed in the personal property. At the death of the life tenant the remainder descended to the heirs of M. A. Williams. The question is, What were Mrs. Williams ’ rights during the life period?
The will executed by Mrs. Williams left to devisees and legatees all of the property to which she had title at the time of her death.
Upon remand of the Williams-Chambers Case (February 21, 1938), the chancellor appointed a. master who stated an account of the personal property. The report showed that Mrs. Williams received $20,388.13 through her husband, and $14,315 from independent sources. Residue of both estates was $8,601.25. No exceptions were filed to the master’s report.
On behalf of those who stood to benefit through Mrs. Williams’ will it is contended that she exhausted the whole of her husband’s personal estate, and that the item of $8,601.25 is her separate estate.
Consonant with this court, the chancellor held that Mrs. Williams had but a life estate in the personal property which constituted the item of $20,388.13 identified in the master’s report. Judgments were given in favor of the remaindermen, as their interests appeared, for amounts aggregating $20,388.13. A lien was declared to secure the judgments. This appeal is from action of the chancellor in refusing to hold that the. residue of Mrs. Williams’ estate and that of her husband’s estate-represented holdings other than values arising through M. A. Williams.
Mrs. Williams did not keep separate accounts. Her own funds were mingled with moneys received from her husband. . There was no thought, apparently, that an accounting would be required. Certainly no imputation of intentional bad faith is shown or suggested. On the contrary it is quite obvious that Mrs. Williams honestly believed the personal estate was hers to do with as she thought proper. However, this fact itself renders segregation impossible. No one can say, with any degree of conviction, that all or any appreciable part of the balance unexpended in 1937 was residuary in respect of the estate of M. A. Williams, or that it was, or was not, a personal acquisition. The nature of the transactions and the very fact of good faith make accounting impossible.
The weight of decisions, as stated in Buling Case Law, vol. 26, § 214, is that when a person' mingles trust funds with his own funds so that the former cannot be segregated from the latter, the cestui que trust is entitled to a charge upon the new investment to the extent of the trust money traceable to it.
An interesting discussion of this subject is found in vol, 3 of Scott on Trusts, § 517, beginning on page 2470. It will be noted that the text writer in the section referred to deals with one who is a “conscious wrongdoer” for it is said: “Where a person who is a conscious wrongdoer mingles money of the claimant with money of his own and thereafter withdraws and dissipates a part of the mingled fund, the claimant is entitled to enforce an equitable lien upon the part of the fund which remains. . . . If the balance is equal to or greater than the amount of his claim, he will obtain full satisfaction. If the balance is less than the amount of his claim, he is entitled to the whole of the balance, ...”
At page 2471 of the same text there is this comment: “Unfortunately, however, the courts have frequently dealt -with the rights of the claimant as though they depended on the determination of the question whether the part withdrawn or the part remaining is the claimant’s money. In the attempt to answer the question, since it is impossible to determine as a matter of fact which part is the claimant’s money because his money has been inextricably mingled with that of the wrongdoer, the courts are driven to employ presumptions and fictions. They have assumed that the rights; of the claimant depend on the intention of the wrongdoer in making withdrawals. They recognize, however, that his actual intention, at least where he is a conscious wrongdoer, is immaterial. They therefore resort to artificial rules as to his presumed intention. At various times the courts have applied the following presumptions: (1) The withdrawals are presumed to be in the same order in which the contributions were made to the fund; (2) the wrongdoer is presumed to have withdrawn his own money first; (3) the wrongdoer is presumed to have acted honestly, and [to have] taken whatever course is more beneficial to the claimant. ’ ’
The question is asked by appellant, Was Mrs. Williams required to maintain herself from her separate property, if such proved sufficient, or was she permitted to use a part (or all, if necessary) of her husband’s estate, at her discretion?
Our answer is that pertinent decisions of this court seem to hold that where money or its equivalent was bequeathed in circumstances similar to those pertaining to the case at bar,' only the interest or income could be consumed, unless there were words in the will authorizing greater latitude of use. Dillen v. Fancher, 193 Ark. 715, 102 S. W. 2d 87; Galloway v. Sewell, 162 Ark. 627, 258 S. W. 655.
We do not maintain that this is the universal rule. Other jurisdictions, in construing the rights of a beneficiary bestowed by wills wherein the language was somewhat similar to that appearing in the instant document, hold that title immediately vests absolutely. Oases cited by appellant apparently contrary to our decisions are shown in the margin.
In all of the cases results turn on particular words used in the will; but there is a lack of harmony in the result.
Since we have twice held that Mrs. Williams took only for life, with remainder to her husband’s heirs, and since the method of accounting precludes any intelligible seperation of the sources from which expenditures were made, we must again hold that appellants are without provable equities, and the decree must be affirmed. It is so ordered.
Further commenting on the rule, it is said in Scott on Trusts, v. 3, p. 2473: “Although the presumption that withdrawals are in the same order as that of the deposits has been abandoned, many courts still seem to think it necessary to apply a presumption in order to determine whether the part withdrawn is the claimant’s money or the wrongdoer’s money. Accordingly, it is stated in many cases that the wrongdoer is presumed to have withdrawn his own money first. In some of the cases this is simply stated as a rule of law. In others the court seems to take the view that the rights of the claimant depend upon the intention of the wrongdoer in making the withdrawals, but they invoke a presumption that he intends to withdraw his own money first. It seems clear, however, that his intention is quite immaterial where he was a conscious wrongdoer in mingling the funds. . . .”
The rule was stated by Chief Justice McCulloch in Powell v. Missouri & Arkansas Land & Mining Company, 99 Ark. 553, 139 S. W. 299. Quoting from a discussion by Sir George Jessel and his associates in the case In re Hallett’s Estate, 13 Chan. Div. 696, which was referred to by Mr. Justice Riddick in Oswego Milling Co. v. Skillern, 73 Ark. 324, 84 S. W. 475, there is the following: “The simplest case put is the mingling of trust moneys in a bag with money of the trustee’s own. Suppose he has a hundred sovereigns in a bag, and he adds to them another hundred sovereigns of his own, so that they are mingled in such a way that they cannot be distinguished, and the next day he draws out for his own purposes one hundred pounds, is it tolerable for anybody to allege that what he drew out was the first one hundred pounds, the trust money, and that he misappropriated it, and left his own one hundred pounds in the bag? It is obvious he must have taken away that which he had a right to take away, his owii hundred pounds. . .
Board of Trustees of Westminster College v. Dimmitt, 113 Mo. App. 41, 87 S. W. 536; In re Nichols Estate, 93 Neb. 80. 139 N. W. 719; In re Richey’s Estate, 251 Pa. 324, 96 Atl. 748; Edwards v. Williamson, 202 Ala. 483, 80 So. 867; In re Welsh’s Estate, 239 Pa. 616, 86 Atl. 1091; Rountree v. Dixon, 105 N. C. 350, 11 S. E. 158. | [
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Humphreys, J.
Appellee brought this suit against appellant in the circuit court of Crawford county to recover damages for personal injuries received by him and for damag’es to his automobile growing' out of a collision between appellant’s truck and his automobile on Rogers Avenue in Fort Smith, Arkansas, through the alleged negligence of appellant’s driver (1) in driving at a high, reckless and dangerous rate of speed; (2) in failing to keep a lookout; (3) in failing to use reasonable care after discovering appellee at a place of peril.
Appellant filed an answer denying the material allegations contained in the complaint and pleaded as a complete defense that appellee was guilty of contributory negligence which was the proximate cause of the damages sustained by him.
• The cause was submitted to a jury upon the pleadings, the testimony introduced by the respective parties and the instructions of thé court, resulting in a verdict and judgment against appellant in the sum of $300 for damag’es to the automobile and $200 for personal injuries received by him.
Appellant contends for a reversal of the judgment on the alleged ground that there is no substantial evidence in the record tending to show that the truck driver was guilty of any negligence. We can not agree with this contention. According to the undisputed evidence the collision occurred at about 8 o’clock on the morning of July 3, 1939, on Rogers Avenue which runs east and west in Fort Smith, Arkansas, and is sixty to seventy feet wide; that appellee had parked his automobile on the north side of Rogers Avenue at a usual parking place in an angling position in front of Morris-Morton Schaap Drug Co. between 3rd and 4th Streets for the purpose of making a special delivery of mail for the Post Office Department by whom he was employed; that after making the mail delivery he returned to and entered his car for the purpose of making other deliveries; that he looked up and down the street and observing no cars coming or going in either direction he. began to back out from the curb.
At this particular time a dispute occurs in the testimony. Appellee testified that after backing about two or three feet he observed the truck coming west toward him as a speed of about twenty-five miles an hour some sixty or seventy-five feet east of him when he stopped backing and waited for the truck to pass him, there being ample space for him to do so, but instead of passing him the driver of the truck ran into the rear of his car and caved in the door, knocked off the bumper and mashed the gas tank and the' left fender; that the impact knocked his automobile across three parking spaces and threw him against the door injuring his neck and arm from which he suffered about thirty days.
Ed Mannan, the truck driver, testified that he was driving west toward the river at a speed of about fourteen miles an hour; that he had been to the Crane Candy Compa.ny which was about two blocks from where the accident happened; that he was in front- of Morris-Morton Schaap Drug Company’s place of business when he first saw appellee’s car backing out; that he tried to miss it and cut his front wheels over to the left and' appellee’s car caught his rear dual-wheel; that when'he first saw the car it was only four or five feet from him backing toward him; that if "appellee had not moved his car backward there would have been four feet or more clearance, but that he did not stop before striking the truck; that when he saw him backing out lie pulled his steering wheel to the left; that the truck moved about five feet after-the impact; that appellee’s car was coming out from the curb at an angle which made the left rear nearer the truck than the right rear; that no part of the truck body hit the car, but the car hit the rear wheel of the truck; that there were no bent places on the truck.
Other witnesses testified in the case, but none of them were as close to and could not testify with the same particularity as these two witnesses concerning the collision. The testimony of these two witnesses as will appear from reading the substance thereof is in conflict, the one blaming the other for the collision, as is usual in such cases, which clearly made the issues of negligence and contributory negligence one for the determination of the jury.
The court did not, therefore, err in refusing to in- . struct a verdict for appellant.
A number of instructions were given by the court to which general objections were made by appellant criticizing certain language used in them. No specific objections were made to the language used in them.- We will pass the general objections over for a moment and discuss instruction No. 4 requested by appellee and given by the court over appellant’s general objection. That instruction is as follows:
“You are instructed that if you find and believe from a preponderance of the evidence in this case, that the defendant’s driver, while acting in the scope of his employment, discovered the perilous situation of the plaintiff, or by the exercise of ordinary care could have discovered the perilous situation of the plaintiff and failed to use ordinary care to avoid running into and injuring the plaintiff, then your verdict must be for the plaintiff unless barred by other instructions given you herein. ’ ’
Appellant argues that this instruction is abstract because it submits the issue of discovered peril when there is no evidence tending to show that he discovered the perilous position of appellee in time to have prevented the injury by the exercise of ordinary care there after. The driver of the truck says that he did not discover appellee backing his car out until within four or five feet of him and that he immediately swerved to the left to prevent striking appellee’s car, but that appellee’s car continued to back and struck the rear dual-wheel of his truck. Appellee testified that he saw appellant coming toward him some seventy-five feet east of him and that he stopped his car and waited for the truck driver to pass him, but that instead of passing him he ran into his car. Another witness testified that the truck driver blew his horn when within forty feet of appellee which would indicate that he saw him, and other witnesses testified that there was ample room for the truck driver to have passed, around the south side of appellee’s car. We think there is ample evidence in the record from which a jury might infer that the truck driver discovered appellee in time to have stopped his truck or to have driven around appellee’s car after discovering that appellee was backing away from the curb.
It is also argued that the instruction is erroneous in saying that appellant would be liable if in the exercise of ordinary care the truck driver could have discovered the perilous situation of appellee and failed to use ordinary care to avoid running into and injuring appellee. Appellant is correct in saying- that this was an incorrect declaration of law.
The main objection to this instruction is that it was in open conflict with another instruction given at appellant’s request, which instruction is as follows:
“You are instructed that the plaintiff has failed to prove his allegation that the defendant’s truck driver was negligent in that he failed to use ordinary care to avoid striking and injuring the plaintiff and his car after said driver discovered or should have discovered the plaintiff’s peril, and as to this allegation your finding must be for the defendant.”
It is doubtful whether the trial court intended to withdraw the issue of discovered peril from the jury or to instruct upon it as an issue in the -case. To say the least of it these two instructions are so conflicting that the jury was probably misled by giving both of them.
The court should not have confused the jury by giving both the instructions and for that reason the case must be reversed.
Since the case must be tried again, we think the trial court should strike out of instruction No. 3 “fail to keep a proper lookout” and insert therein “fail to use reasonable and ordinary care to keep a lookout.”
We think instruction No. 7 on a retrial of the cause should be modified by stating'■•■that the jury must be guided by the evidence' in the case. This 'court said in the case of St. Louis I. M. & S. Ry. Co. v. Bright, 109 Ark. 4, 159 S. W. 33, that: “An instruction on the matter of damages, is defective, which does not require the jury, in case of a verdict for the plaintiff, to base their findings as to amount of damages, on the evidence in the case.”
There is no necessity of discussing whether the. verdict is excessive as that issue goes out of the case in the reversal of the judgment.
On account of the error indicated, the judgment is reversed and the cause is remanded for’ a new trial.
Mehaeey, J., dissents; McHaney, Holt, JJ., concur. | [
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McHaney, J.
On August 17, 1938, there was filed with the clerk of the county court of Union county a petition signed by thirty-five qualified electors of appellant district, purporting to be a majority of the qualified electors therein, and also signed by the school directors of appellee district, praying an order of the county court dissolving school district No. 3 and annexing the territory therein to school district No. 47. Notice of the filing of said petition and that a hearing thereon would be had on September 19, 1938, was published for the time and in the manner prescribed by law by the county examiner. The matter was heard on said date and the court made a finding that it was to the best interest of the persons therein concerned that such consolidation be effected, that proper notice had been given and that a majority of the qualified electors in district No. 3 had joined in said petition, and made and entered an order in accordance with the prayer of the petition, to become ef fective June 1, 1939. Thereafter, on October 1, 1938, the school directors of district No. 3 filed affidavit for appeal to the circuit court, which was granted and the appeal taken. On March 28, 1939, the day the case was called for trial in the circuit court, said directors of district No. 3 filed a response, alleging it would not be to the best interest of appellant to dissolve said district and annex it to No. 47 for the reason it has a new school house, has sufficient funds to operate its school on a 15 mill tax and that district 47 has no better facilities. They also attacked the sufficiency of the petition on the ground that a majority of the qualified electors therein did not sign same. Trial resulted in an affirmance of the judgment of the county court.
For a reversal of this judgment appellant first contends that the petition filed in the county court did not contain a majority of the qualified electors in district No. 3. Section 11481 of Pope’s Digest provides: “When a petition is filed for . . . the annexation of territory to any district, purporting- to be signed by a majority of the qualified electors in each district affected, notice thereof shall be given by publication in a newspaper having’ a bona fide circulation in the county, to be given by the county examiner on order of the county court, and published once a week for two weeks giving the date of the hearing of such petition. At such hearing the county court shall consider whether the petition is signed by the requisite number of electors . . . and if it finds that it is, it may grant the prayer of the petition if it deems it best for the interests of the inhabitants of the territory affected. Provided that any elector signing said petition may have his name stricken from said petition, upon written demand, at any time prior to the final action of said county board (court) upon said petition. Appeals may be taken to the circuit court from the finding's of the court on. the ground that the requisite number of electors have not signed the petition, or. because the notices herein required were not given. The findings of the county court otherwise will be conclusive. ’ ’
The petition as filed contained thirty-five names of qualified electors of school district No. 3 and the court struck therefrom the names of Risinger, Pepper, and Pratt leaving thirty-two names. The clerk of the county court certified to- a list of qualified electors in district No. 3 showing there were 63 electors therein. By agreement of counsel the court struck therefrom the names of Brazzell, W. P. Hall, Reacie Hall and Sid Pepper, because they did not reside in district No. 3. although they had paid their poll tax in said district, and the name of Bob Smith from the certified list for the reason that Bob Smith and R. W. Smith are one and the same person. This left 58 names on the certified list to which the court added the names of Lyons, Clarence Pepper, and Warren Pepper, making a total of 61 electors, of which 32 on the petition would be a majority.
We think the court erroneously, perhaps, permitted the withdrawal of the names of J. C. Risinger and C. A. Pepper from the petition for the reason that they had not made a written demand so to do prior- to the final action of the county court upon the petition. But whether this was erroneously done or not the petition still had a majority of the qualified electors, after permitting those names to be withdrawn.
It is also suggested that a petition presented to the circuit .court, signed by a number of the signers of the original petition, who asked that their names be stricken from the original petition, should have been granted. This was not error. Under the plain provisions of § 11481 of Pope’s Digest, it came too late in the circuit court. Milsap v. Holland, 184 Ark. 996, 44 S. W. 2d 662.
It is next contended that the cause should be reversed because the name of C. P. Davis should have been added to the list of ■ qualified electors or that his name should have been stricken from the original petition. Assuming that appellant is right in this contention it would not call for a reversal of the case as his name added to the petition and also the list of qualified electors would not change the situation as the petition would still have a majority. As said in School District No. 18 v. Grubbs Sp. School Dist. No. 43, 184 Ark. 863, 43 S. W. 2d 765, “Where the proof shows that an unquestioned majority of qualified persons signed the petition to con solídate - certain school districts, alleged erroneous rulings concerning the qualification of other signers were immaterial. ’ ’
It is next said that the court erred in striking from the list of electors the name of R. W. Smith and in holding’ that R. W. Smith and Bob Smith were the same person and it is said there was no evidence to support that finding. We cannot agree with appellant in this con- ■ tention. There was ample evidence to sustain the court’s finding that they were one and the same person.
It is finally said that the court erred in refusing to permit appellants to introduce testimony to show that it would not be for the best interest of School District No. 3 for it to be dissolved and annexed to district No. 47. This was not error because the statute above quoted provides that, “Appeals may be taken to the circuit court from the finding's of the court on the ground that the requisite number of electors have not signed the petition, or because the notices herein required were not given. The findings of the county court otherwise will be conclusive.”
Therefore, since there was no question that proper notices were given, the only question that could be raised in the circuit court on appeal was the sufficiency of the petition as to the requisite number of electors signing same.
We find no error, and the judgment is accordingly affirmed. | [
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Baker, J.
Robert Hood who will be referred to in this opinion by name, or as the appellee, or plaintiff, sued the Missouri Pacific Railroad Company and Guy A. Thompson, Trustee, called defendants or appellants, for damages alleging that he was injured while driving his truck south across railroad tracks at the intersection of Arkansas avenue in the city of Russellville on December 19, 1937. In his complaint he alleges that he stopped his truck and looked both ways for trains and started to cross the tracks and was struck by the train with such force that the truck was completely demolished, and he was seriously injured. The defendants denied the allegations of the complaint and asserted that a regular passenger train was pulling into the city of Russellville when the appellee ran his truck into the side of the rear end of the locomotive, breaking or knocking off the steps from it that lead up into the engine cab. There was also a plea of contributory negligence.
There was a recovery for the plaintiff in the sum of $500' for personal injuries and $300 damages to the truck. Prom the judgment entered comes this appeal.
It is argued first that there was an error by the trial court in its failure to instruct or direct a verdict for the defendants; second, there was error in the cross-examination of A. W. Dean, the engineer, in control of the engine at the time of the accident, and third, that the court erred in permitting one of the attorneys for the plaintiff to argue matters relative to the plaintiff’s daughter .making a support for the family, such matters not appearing in the record. The fourth ground of error is in the giving of certain instructions. The 5th, 6th, 7th, 8th, 9th, 10th, and 11th assignments of error arise out of the giving of other instructions or the refusal to give instructions requested by the appellants, and the 12th matter argued is that the verdict ivas excessive.
In order to dispose of the first of these assignments of error, we will undertake to set forth and discuss testimony offered by the plaintiff in the light most favorable for a recovery in his favor. We do not mean by this statement that we intend to accept blindly every matter presented by way of argument in the plaintiff’s behalf or alleged facts as they are taken from evidence of the plaintiff or maybe other witnesses. There are some matters in this record that have been presented and are argued seriously that are contrary to physical facts, inconsistent with ordinary every-day experiences, and so unreasonable that they may not be accepted as true. This statement is not made in the spirit of harsh criticism, but for the reason only that there is no other method whereby all of the evidence in this case pertinent to the right of recovery may be discussed and analyzed, and the plaintiff have every advantage which the law accords to him after a verdict by the jury.
We begin with the plaintiff’s testimony stating part of it and quoting other portions as may appear necessary. The plaintiff lived in Russellville all of his life.He was 50 years of age. His truck had been at a shop on the north side of the railroad only a block away from it. He had gotten into the truck, closed all the doors and windows of the cab and drove south going towards his home. He says he “drove up to the end of the tract.” We assume that he meant he drove along the street until he came to the railroad tracks. He did not see a train or hear a whistle. The railroad tracks were running east and west; Arkansas avenue, the street upon which he was driving ran north and south. It was a street carrying rather heavy traffic; at that particular point highways 7 and 27 merged and crossed the railroad. For some time the railroad company had maintained gates at this railroad crossing, but these gates were not operated at night, but only during the daylight hours when traffic was evidently heaviest. The plaintiff insists that before he drove on to the railroad tracks he looked both ways, to the right and to the left, and repeats again that he did not hear any train whistle or see any lights upon the train. He then states that after the train hit him, he did not remember much for a while. On cross-examination he identified a picture of the location of this railroad crossing stating that he “ guessed” he had to cross over five tracks before he reached the main line track, that he looked, but did not see any trains. He denied that he could look down the railroad tracks to his left and see for a distance of a quarter of a mile. He also states that the gates were maintained or operated by a man in a house during the daytime. He repeats again that the cab windows were up, and he could not hear any whistle or see any lights. He knew he had to cross about five tracks before he reached the main track, but denied that he knew a train was due at about the time he reached the crossing. Again he asserted that he looked both ways, but did not see any trains and could not tell what prevented him seeing the train. He stated he could not explain why the automobile or truck ran into the cab of the engine and broke or knocked the step off. He was in the hospital several days, but did not remember giving Mr. 'Beattie, the claim agent, a statement. At the time he testified he stated that he had not entirely recovered his memory. While this particular witness was not very definite as to distance he could see as he approached the main line of the railroad track, the one upon which the accident occurred, we accept his estimate which we think is perhaps a reasonable one. On account of a curve in the railroad tracks one could see perhaps only 300 or 400 feet east in the direction from which the train came. It is insisted and argued by appellant that the way was clear for approximately one-quarter of a mile. It happened that several witnesses were in the vicinity and saw the accident. It was already dark, and the undisputed proof is to the effect that the train approaching Russellville from the east stopped to re-coal at a point perhaps a quarter of a mile east of the depot, maybe not more than 900 feet or a thousand feet from the depot. After leaving the coaling station it proceeded toward the depot at Russellville. It ran over two crossing’s, and the accident occurred on the third crossing which was, we understand, a block east of the depot building. Mr. Hood was very positive in his statement that he looked both ways, that he did not hear the whistle blow, and that he did not see the train. The proof, not only by employees operating the train, and none of these was sued, was to the effect that crossing signals were given by the whistle at each of the crossings before the accident occurred, that is to say, there were at least three crossing signals by the whistle. The employees also say that the bell upon the engine was operated by an automatic ringer and that this was started before the train left the coal chute, that it rang continuously from that point until after the accident had happened. Every witness in the vicinity who saw the accident or any part of it saw the approaching train with the headlight burning. Mr. Hood, who was driving alone, states that he did not see this train until he was so close to it that there was no way to avoid the accident although he struck it behind the engine cab where the step was broken and knocked off, a point which, the engineer says was 45 feet back from the front end of the train. If we assume, and we think we should, that Mr. Hood was driving his truck upon the right-hand side of the street as he approached the railroad tracks at the time he struck or ran his truck into the rear end of the locomotive, the front must have been approximately 40 feet east of that part of the street upon which Mr. Hood was driving. No doubt there ■may be instances wherein one driving an automobile or truck might find-himself in such dangerous proximity to the train, though exercising due care that he might not strike the train, and be without serious fault or negligence. We recall two or three instances of this kind. Mo. Pac. Rd. Co. v. Powell et al., 196 Ark. 834, 120 S. W. 2d 349.
In the case above cited the jury properly found under the evidence that the train was suddenly shot or projected into the passage way without lights or signals and the accident became inevitable, not by reason of the fault of the driver of the automobile, but because those operating* the train failed to give due notice of the approach to the point of collision.
We have tried to accept understandingly Mr. Hood’s statement calling to our aid our own observations and experiences on occasions such as he has described. If the train was east of this crossing,' say 900 feet, as Mr. Hood approached the track, although he was driving at a most reasonable rate of speed, he would certainly have crossed over in safety before the locomotive reached the crossing. On the other hand, if the train was so close to the crossing* at the time Mr. Hood approached the main line of the railroad that he failed to see the headlight because it was somewhat higher than the cab of his truck, he could not, at the same time, had he looked, have failed to see the locomotive rolling upon this crossing Had it been possible for the locomotive of the train to approach the crossing without a souhd and without a light, Mr. Hood’s own headlight gave notice to him of the danger of driving into the side of the locomotive.
Mr. M. T. Yick was a witness called by the plaintiff. He witnessed the accident. He saw the headlight of the train as it came around the curve, he. was within 20 or 25 feet of .the crossing when .the train came over it running at about 35 miles an hour. He says he did not hear the bell ringing, but he had heard the whistles blow. He testified that the gates at the crossing were not operated after 6 o’clock.
Carl Bearfield and his wife were a short distance south of the railroad crossing at the time of the accident. They had been visiting Ralph Bearfield and his wife and the four of them were together about 25 or 30 feet south of the crossing, and they heard the train approaching the crossing from the direction of Little Rook. They heard the whistle blow, and the train stopped at the chute. They saw the engine approaching with the headlight burning as the train approached the Arkansas avenue crossing, they saw the truck approaching the same crossing from the north, they heard the crash after the train passed. Carl and Ralph ¡Bearfield left their wives, went through one of the coaches of the train to the other side where they found the truck and the plaintiff, who had been thrown out by reason of the impact of the truck against the side of the locomotive. They say there was nothing to the east to prevent his observations and from seeing the train as it approached, that the whistle was blown so loud that they could not talk. Such was the effect of the testimony of these four disinterested bystanders, none of whom had any interest so far as this record shows in the outcome of this suit. There is not a single statement made by any one of them that is contradicted by Mr. Hood or by anyone else. Mr. Hood does not say that the whistle was not blown nor that the bell was not sounded, he does not even urge or argue that the headlight was not burning. He does say that he did not hear the whistle. We do not think the manner in which he makes this statement was intended by him as a dogmatic assertion that it was not sounded. We are more inclined to think that when he testified that the doors and windows of the cab were all closed, he was offering an excuse or reason why he did not hear any noises' outside of his own vehicle. But that still does not answer the proposition of his failure to see the approaching headlight on a passenger train less than a quarter of a mile away. It might not reasonábly be argued that the train covered this 800 or 900 feet, which he admits lay between the crossing and the point at which the locomotive could have been seen, in such short time as to project itself almost like a cannon shot immediately in front of him as he drove carefully upon this crossing looking’ both ways.
The proof is also undisputed that when the engineer, who had observed Hood’s approach, became aware Hood could not or would not stop before driving into the side of the locomotive, brakes were put on in emergency and a part of the train was still on the crossing when it stopped. The speed had been so checked at the moment of the collision that the truck was not moved very far. It was suggested that, as Mr. Hood has explained, the carburetor was giving trouble and that his choke had to be operated in order that he might drive, that he may have been busy with his own motor troubles and for that reason failed to look up when he should have looked. To appellant’s argument in that regard, the appellee replies that there, is no snch record as this. We are compelled to agree.
Ordinary experiences and observations show conclusively that trains do not operate without the accompanying noises of grinding wheels, clanking steel and the puffing blasts of locomotives. In addition to these accompanying sounds on this occasion, we think it may be said that this record is without substantial dispute that the whistle was sounded at each of the crossings. There is, in fact, no dispute that the bell was ringing from the time the train left the coal chute until after the accident had happened. We make this statement fully cognizant of the fact that two or three of the witnesses stated that they did not hear the bell ring, but not one of these witnesses who did not hear it testified that he was giving particular attention to signals, bells or whistles. In other words, these statements differ from those positive and direct statements in other cases. wherein the witnesses stated that such signals were not given, and they also stated that they were giving attention to that fact. The highest value that can be given to statements of witnesses in this case who failed to hear the signal sounds is that such testimony is evidence in itself that they were inattentive. These witnesses’ were perhaps more engrossed in what they saw than anything they heard.
The one thing conclusive in this case, if there were nothing else, is that every witness upon the scene or in the vicinity where the accident occurred testified the engine approached the crossing with headlight burning. The conclusion is irresistible that Mr. Hood either failed to look east, the direction from which the train came and on that account did not see the train or headlight, or that he looked and saw the headlight just as everybody else did. St. Louis-San Francisco R. Co. v. McClinton, 178 Ark. 73, 9 S. W. 2d 1060; Gillenwater v. Baldwin, 192 Ark. 447, 93 S. W. 2d 658; Missouri Pacific Railroad Co. v. Brewer, 193 Ark. 754, 102 S. W. 2d 538. In the last cited case plaintiff, Brewer, said he did not see the headlight of a locomotive driving straight toward him.
There is no doubt about the fact that Mr. Hood sustained a very severe jar or jolt, that for a time he was unconscious. He insisted that at the time he testified he did not remember anything that occurred for the next two or three days after the accident. These statements need not necessarily be deemed untrue. The facts stated are not impossible, they may be probable. If so, there is an explanation, not inconsistent, that Mr. Hood probably does not remember what occurred. If he was a man with faculties sufficiently normal to drive a truck in traffic and upon railroad crossings, he must'be regarded as having seen what others saw, hearing what others heard, observing what others observed when he occupied a position relatively the same as was occupied by all the other witnesses.
Under the circumstances it could make little difference whether the statutory signals were sounded or not. The giving or failing to give a statutory signal at the time when one may observe all the conditions would not be deemed the proximate cause of an injury.
The appellee argues that in this case there was negligence in failing to maintain and operate the gates over the crossing at the time of the injury. The maintenance of the gates at the particular place was not required by any law to which our attention has been called. The placing of such gates and the operation thereof during heavy traffic was an additional precaution exercised by the railroad company, perhaps, in recognition that statutory signals such as the ringing of bells and the sounding of whistles must be regarded as the minimum requirements of law in the avoidance of injury to people at crossings where there is heavy traffic and that such gates were placed and operated in the exercise of the most thoughtful discretion which did not require the maintenance and operation of same after night-fall. Even if Mr. Hood did not know that the gates were not operated at night, it gave him no warrant or license to drive into a moving train that occupied the crossing before he reached it.
The next matter in this connection that is argued by the appellee is that the railroad or its employees were negligent under the look-out statute. We do not think so. In this cáse the engineer was upon the north side of the train, the side from which Mr. Hood approached. Mr. Hood had started toward the railroad tracks at a point not more than a block away, was most likely not driving very fast. There was no evidence that he was attempting to beat the train to the crossing. The engineer says he was looking straight ahead, and he saw Hood when he approached the track, but at the time he observed him, there was nothing- to indicate that he would drive into the train. As soon as it became- apparent to him that Hood would not stop, he set the brakes in emergency, made the quickest stop possible, and the circumstances indicate that- this statement is true. The train went only a short distance, perhaps, was barely moving at the time the truck was driven into it, at least, there was no such jerk or pull upon the truck as to turn it over, and the front end was turned only a short distance to the west. It seems highly probable that in the exercise of this judgment on the part of the engineer, damages were minimized. He not only kept a look-out, but under the evidence acted in accordance with the dictates of good judgment. That was not negligence.
The appellee also argues rightfully and very forcefully that when one is injured by the operation of a train, there arises, as a matter of law, a presumption of negligence. Presumptions must yield to facts as shown in the evidence which are reasonable, undisputed, and not contrary to ordinary experiences and understanding. Such evidence will prevail if opposed to a mere presumption arising out of the injury.
We submit that there is not a single factual statement in this record tending- to show negligence in the operation of the train upon the particular occasion and the only negligence present which was the proximate cause of the injury was the failure of Mr. Hood to see what everybody else saw, to observe what was plainly observed by others, and to act as a prudent person would under the same circumstances. Such is the substantial evidence in this case and only one result can follow.
The interesting questions arising out of the alleged improper instructions must pass without comment. The court erred in not directing a verdiet for the appellant.
The judgment is, therefore, reversed and the case having been fully developed is .now dismissed. | [
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Mehaeey, J.
This action was begun in the Sevier circuit court by appellees against the appellant to recover damages for a car load of cucumbers which it is alleged were delivered to the carrier at De Queen, Arkansas, on June 15, 1936, in first class condition, and when the car arrived at its destination, the cucumbers were in a damaged condition, had become soft, bruised, overripe and rotten, and had so deteriorated they had greatly depreciated in value, and after selling said car of cucumbers at their market value in Milwaukee, appellees suffered a loss of $424.69; that there were 463 bushels of cucumbers delivered to appellant at DeQueen to be carried by appellant to Chicago, Illinois. The appellant issued its bill of lading, and undertook to transport said cucumbers to Chicago, Illinois. On June 18, 1936, at request of appellees, the appellant diverted said car of cucumbers from Chicago, Illinois, to Milwaukee, Wisconsin, and at 4:15 p. m. on June 20, 1936, appellees again directed appellant to divert said shipment of cucumbers from Milwaukee to Morris Fruit & Produce Company at Minneapolis, Minnesota, and to put 3,000 pounds of ice in each bunker of said car; but that appellant failed and neglected to move said car from Milwaukee to Minneapolis, and failed and neglected to put any ice in the bunkers of said car, and the appellees learned on June 22, 1936, through their agents at Milwaukee, that appellant had not diverted said car, and had not put ice in the bunkers of said car, and that the cucumbers were becoming yellow, soft at the ends, and fast decaying, and depreciating in quality and value, and canceled their order to divert and move said car from Milwaukee to Minneapolis, and directed C. H. Robinson Company at Milwaukee to unload and sell said cucumbers at the best obtainable price on the market at Milwaukee, and this was done by said Robinson Company. Appellees alleged that said load of cucumbers were damaged and injured while in the course of transportation, so that when unloaded and offered for sale on the market at Milwaukee, they had so deteriorated that they had greatly depreciated in value, and after selling them for their market value in. Milwaukee, appellees were damaged in the sum of $424.69. It was alleged there was an unreasonable and unlawful delay in .diverting said oar and that appellant was negligent in failing to divert said car as directed on June 20th and in failing to put 3,000 pounds of ice in each bunker of said car. If the appellant had diverted said shipment and moved same from Chicago to Milwaukee without unreasonable delay the car would have, reached Milwaukee in time for the market on June 19th, when appellees could have sold them at $1.00 per bushel.
Appellant filed answer denying each and every material allegation in appellees’ complaint, and further answered stating that if said cucumbers were in a damaged condition when delivered in Minneapolis, said condition was due to the inherent quality of said cucumbers, and to the fact that they were becoming yellow and soft, at the ends, and fast decaying and .depreciating in quality and value when shipped by appellees; that if said cucumbers were in a damaged condition when delivered, it was not due to the improper handling or any fault on appellant’s part or to any fault of the connecting carriers, but was due solely to the fault of appellees.
Thereafter appellees filed an amendment to the complaint, striking from their original complaint all of paragraphs five and six, and striking all allegations which charged appellant and its connecting carriers with specific acts of negligence, except allegations set out in paragraph three of the complaint. They further amended their complaint by striking therefrom paragraph four and substituting the following:
“Plaintiffs allege that said defendant, Kansas City Southern Railway Co., and its connecting common carriers, allowed and permitted said car of cucumbers', while in their possession and in the course of transportation, to become bruised, yellow, over-ripe, rotten, and otherwise deteriorated, thereby greatly depreciating the market value of said cucumbers, all to plaintiffs’ damage in the sum of $424.69.”
The evidence tended to show that the cucumbers were shipped on June 15, 1936, and the uniform bill of lading named appellees as consignors and Robinson Company, Chicago, consignee. It specified 416 bushels of cucumbers were placed in car N. R. C. 9947 and requested only initial icing, with plugs out and vents open. There was printed on the reverse side of the bill of lading that the carrier shall be liable, as at common law, for loss or damage except that resulting from an act of G-od, or act or default of the shipper, or for natural shrinkage. Carriers are not liable for damage while property is stopped by shipper or owner, or for damage resulting from the vice in the property.
The car was diverted, as shown on bill of lading, to C. H. Robinson Company, Milwaukee, Wisconsin, on June 18th. The car was again diverted from Milwaukee to Minneapolis at 4:25 p. m. June 20th. The car was loaded by Hoogler and Durham who assisted in grading the cucumbers. They were in good condition when loaded. The car contained 462 bushels. Appellees sold the car while they were on the track in Milwaukee for $1. per bushel f. o. b. DeQueen. The sale order to Morris Fruit Company, Minneapolis, was introduced in evidence, and witnesses testified that the car was diverted and railroad requested to ice the bunkers. The car was ordered diverted on Saturday afternoon, June 20th at 4 p. m. Wire was received by the shipper from C. H. Robinson that the car had not been diverted or iced and thereupon appellees authorized Robinson to sell the car in Milwaukee. Appellees paid $257.42 freig’ht. Chicago is 84 miles from Milwaukee. Appellees had been shipping vegetables and cucumbers since 1922. The first diversion order was filed June 18th at 6 p. m. at DeQueen. Appellees did not have the car sold when it left DeQueen. They sold it on June 20th after it arrived at Milwaukee to Morris & Company at Minneapolis. The car was iced June 15th at DeQueen, the day it was loaded. Testimony showed that the cucumbers were in good condition, as good as were shipped through the season; good, green cucumbers. They were placed in baskets the day they were shipped; it took one day to load the car. Witnesses testified that they had been shipping fruits and vege tables for years, and that shipments to Milwaukee ordinarily • reached there in good condition with only the original icing. When the cucumbers were sold, the shippers realized $67.31. The ice bunkers were empty. The evidence'tended to show that prime, firm, green cucumbers in Milwaukee from June 18th to June 20th sold for around $1.55 to $1.65 per bushel. Evidence showed that the cucumbers in the car at Milwaukee were very much damaged.
Appellant introduced testimony about the orders to divert the car, and evidence tending to show that it was not guilty of negligence, and it also'showed that on June 20th they received an order to divert the car, and to add 3,000 pounds of ice to each bunker. Appellant’s witness, Kowitz, testified that he was the perishable fruit inspector in Chicago in June, 1936; he inspected the car in question on June 18, 1936, at 9:10 a. m.; his report showed that the bunkers were dry; that 11 bushels in “A” end of the car tipped and stuck next to “B” end of the car and jammed; the cucumbers were at that time in damaged condition.
A jury was waived and the case was tried before the circuit judge sitting as a jury, and judgment was rendered for the appellees in the sum of $424.69. The case is here on appeal.
The appellant requested certain findings-of fact and conclusions of law, which were denied by the court.
Appellees were permitted to file an amendment to their complaint, and the court held that when this motion was granted appellant moved for a continuance, insisting that the effect of appellees’ amendment was an elimination of the specific acts of negligence charged in the original complaint, and the conversion of the action into one based upon appellant’s common law liability, and that appellant should, therefore, have time to meet the changed nature of the action. Appellees agreed to appellant’s construction of the intent and purpose of the amendment, and appellant’s motion for a continuance was granted.
. The court further held that the trial proceeded without objection or comment as to the nature of the action on the theory, on the part of the court at least, of appellant’s common law liability. The court stated that since the trial the appellant contends that it was an action ex contractu, rather than one in tort based upon its common law liability as a carrier. The court further said: “Since no objection was made to the character of the action until after trial, the issues will be determined and the pleadings construed in the light of the construction which the parties placed upon them.”
The court further held: 1 ‘ The evidence shows that the cukes were sold in Milwaukee by the shipper’s agent as peddlers’ stock and netted $37.31 after payment of transportation charges. It is also shown that the cukes had been sold by plaintiffs for $1 per bushel f. o. b. DeQueen, and this price seems to be in line with the market value of cucumbers of like character and quality of those involved, from the testimony. Plaintiffs have, therefore, been damaged in the sum of $424.69. . Judgment will be entered for the plaintiffs for said sum together with their costs.”
When appellees were granted permission to amend their complaint, and did amend it, a continuance was granted to appellant because it claimed that the amendment changed the complaint from an action ex contractu to an action ex delicto, that is to an action on the common' law liability of appellant. Thereafter the parties and the court considered and treated it as an action on the common law liability of the carrier.
It is then contended by the appellant that the appellees failed to prove, a case against the appellant. The undisputed proof shows that the cucumbers were in good condition when delivered to the carrier on June 15th, and some of appellant’s own witnesses testify that on June 18th at 9:10 a. m. the bunkers were dry and the baskets shifted, and the cucumbers were damaged.
But appellant says that appellees charged specific acts of negligence. As we have already said, the parties themselves treated the complaint as stating a cause of action under the common law liability of the carrier.
The Supreme Court of Georgia said: “If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded upon a contract. In such a case the liability arises out of a breach of duty incident' to and created by the contract, but is only dependent upon the contract to the extent necessary to raise the duty. The tort consists in the breach of duty.” Ellis v. Taylor, 172 Ga. 830, 159 S. E. 266.
Wherever an interstate shipment is delivered to a carrier in good condition and the goods arrive at their destination in a damaged condition, or fail to arrive at all, the burden of proof is on the carrier to show that the loss resulted from some cause for which the initial carrier was not responsible in law.
“The burden of proof that the loss resulted from some cause for which the initial carrier was not responsible in law or by contract was then cast upon carrier. The plaintiffs were not obliged both to prove their case and to disprove the existence of a defense. The carrier and its agents, having received possession of the goods, were charged with the duty of delivering them, or explaining why that had not been done. This must be so, because carriers not only have better means, but often the only means of making such proof. If the failure to deliver was due to the act of God, the public enemy or some cause against which it might lawfully contract, it was for the carrier to bring itself within such exception. ’ ’ Galveston, H. & S. A. Ry. Co. v. Wallace, 233 U. S. 481, 32 S. Ct. 205, 56 L. Ed. 516.
The undisputed proof in this case shows that the goods were in good condition when delivered to the carrier and in a damaged condition at the destination. While the burden was upon appellees to make out their cause of action, when they have once shown that appellant received the shipment in good condition and issued its bill of lading for the shipment, consigned to some person in another state, the relation of common carrier was shown, and burden shifted to appellant to show that the damage did not result because of its negligence. St. L., I. Mt. & So. Ry. Co. v. Cunningham Comm. Co., 125 Ark. 577, 188 S. W. 1177.
Appellant next contends that it disproved negligence. The trial court found that it was guilty of negligence, and there was substantial evidence, as set out above, to sustain the finding. When a case is submitted to the court sitting as a jury, his finding on facts has the same effect as the finding of a jury.
In this case, as we have already said, the undisputed proof shows the delivery of the goods to the carrier in good condition. It also shows that the goods arrived at the destination in a damaged condition. The evidence shows that when the car was inspected on the morning of June 18th, the bunkers were dry; that the baskets had shifted and were damaged in that way, and the appellant gives no explanation for that. The evidence shows that the shipper had a sale for the cucumbers for $1 per bushel, plus freight. They were not sold before shipment, but they were sold after the goods were shipped. The measure of damages is the difference between the price for which they were sold and the price actually received on the market.
We find no error, and the judgment is affirmed. | [
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Holt, J.
Appellant brings this appeal from a judgment of $2,000 awarded appellee in the Grant circuit court for damages occasioned by tbe burning of appellee’s residence alleged to have been caused by defective electric wiring.
The negligence alleged in the complaint is:
‘ ‘ That in installing the wires to plaintiff’s residence over which electricity was to be transmitted, the defendant, its agents, servants, and employees, attached wires to plaintiff’s house with brackets and neglectfully and carelessly strung said wires underneath overhanging limbs. That the defendant, its agents, servants, or employees carelessly and negligently, and without due regard to plaintiff’s rights, failed to attach said brackets to said house in a safe and secure manner.
“That in a short time after brackets were attached to the building they became loosened from the house by reason of one of the overhanging limbs falling on same, permitting or causing the electric wires to come in manual or forceful contact with each other on the 15th day of April, 1938, causing plaintiff’s house to be set on fire and totally destroyed.”
The Home Insurance -Company of New York carried insurance on appéllee’s residence in the sum of $1,000, and intervened in the cause, setting up that it had, in accordance with the terms of the contract, paid to plaintiff $1,000, and asked that it be subrogated to any rights of the plaintiff to the first $1,000, or any part thereof, recovered by the plaintiff in the cause, and further adopting the pleadings of the plaintiff.
Appellant answered denying every material allegation in appellee’s complaint and pleaded contributory negligence and assumption of risk on the part of appellee.
On a jury trial, there was a verdict for appellee for $2,000 and awarding intervener $1,000 out of this sum.
From the judgment of the court on the verdict comes this appeal.
The evidence stated in its most favorable light to appellee is to the following effect: That appellee’s residence burned on April 15, 1938. Sometime in 1935, appellant ran a two-wire service from the highway to a pole approximately 100 feet from appellee’s house. Running from this pole was a concentric cable which ran through a sycamore tree to the northwest corner of the plaintiff’s house where it was attached to a bracket screwed on the corner board, from where it came down through the ■ conduit into the meter box. A concentric cable is composed of two wires. The center wire, commonly called the “hot wire,” that is, the wire which carried the electricity, is covered with rubber insulation. Wrapped around this insulation is the “cold wire” which is in turn insulated with some sort of weather-, proofing insulation. The concentric cable was brought from the bracket on the corner board, through a metal pipe called the conduit pipe at the head of which was placed a “service head” made of bakelite. The wire ran through the conduit pipe into the meter box where connection was made and from which a ground wire was sent into the ground.
On March 30th a windstorm broke a limb from the sycamore tree referred to, which limb fell on the service line leading to appellee’s house and broke the corner board off the house, caused the wire to fall down and rest directly on the conduit pipe leading to the meter. Shortly after, appellee observed that when the wind blew his lights would flicker and his radio would.not work.
About April 1st, and again between.that date and. the fire on April 15th, appellee notified appellant. that the limb had' fallen on the wire, and of its unsafe condition and requested appellant to make immediate repairs. No repairs were made in response to these requests.
On the day the house burned there was no one at home. There was no fire in the fireplace of the chimney which was within about four feet of the point where the electric wire' entered the residence.
A Mrs. Sheehigh, on behalf of appellee, testified: “Q. Did you.see Mr. Bollen’s house the dáy it burned? A. Yes, sir. . . . Ql When you discovered the smoke, what did you do? A. I could see the bláze.' Q. How big was it when you saw it? ' A. Something like a number three wash tub. . . . Q. How far was it from the fireplace? A. Something like three or four feet.”
A Mr. McMahan testified: “Q. Do you know how the electric wire came into Grady’s house? A. I know where they went into the house. Q. "Whereabouts did they go into the house? A. In the northwest corner about four or five feet from the chimney. . . . Q. These wires connected on the northwest corner? A. Yes, sir. . . . Q. You saw the fire? A. Yes, sir. Q. What part of the house was burning when you saw it? A. Right in there where the wire went in. Q. How big was the blaze? A. Something like eighteen or twenty inches high. . . . Q. About where. the upstairs would be ? ... A. Right direct from the place where the wires went in. . . . Q. You saw that it was where the wires went into the house? A. Yes, sir, right direct. Q. The roof was not on fire at that time? A. No, sir.”
A Mr. Cox, witness for appellant, testified as an expert as follows: “Q. Ernest, did you tell the jury that this wire got together and melted in two? A. I did. Q. There was enough heat to burn it in two ? A. There was a short circuit there, yes. Q. Enough to burn that wire in two? A. Yes, sir. . . . Q. Mr. Cox, you tell the jury that electricity going over that wire burned it in two? A. I did. Q. What degree of heat would it take to melt copper? A. The 'best I remember it takes about 2,200 degrees. Q. 2,200 degrees Fahrenheit? A. Yes, sir. Q. What degree of heat would ignite wood? A. I would say it would not take over a couple of hundred degrees. Q. You tell the jury that two hundred degrees will burn wood? A. Yes, sir.”
Appellant introduced expert electricians who testified that a concentric cable, such as was used in the instant case, could not have caused the fire, and that a short circuit in the concentric cable would immediately have kicked off the transformer switch 'by blowing the transformer fuse, and further that it would be impossible for friction to cut through a concentric cable to such an extent as to leave sufficient space between the hot and cohl wires to allow the formation of- an arc, and further that when two wires, such as in the instant ease, came together they immediately weld and there is no spark.-
Appellant first contends that the trial court erred in refusing to direct a verdict for it for the reason that the testimony was not sufficient to take the case to the jury.
We, however, are of the view, after a careful consideration of all the evidence, reflected by the record, that there is evidence of a substantial nature that warranted submission of the case to the jury.
While it is true that appellant produced expert witnesses who testified that the origin of the fire could not have resulted from the electric wire which it had constructed into appellee’s residence, lay-witnesses testified positively that thej7 saw the fire coming from the house at the exact point and corner where the wire entered the building. The two wires had burned in two; they had rubbed against the top of the conduit pipe on account of the fallen limb. The wires were broken and welded together which required a heat of 2200 degrees Fahrenheit. 200 degrees would ignite wood.
Appellant urges that because the testimony of its experts was not contradicted, their testimony should be given conclusive effect over that of the non-expert witnesses of appellee and in support of this contention rely strongly on the case of Boomer v. Southern California Edison Co., 91 Cal. App. 375, 267 Pac. 178, a case presenting facts very similar to those in the instant case. That case, however, does not control here for the reason that in California the courts adhere to the following rule on the effect to be given expert testimony: “That whenever the subject under consideration is one within the knowledge of experts only, and is not within the common knowledge of laymen, the expert evidence is conclusive upon the question in issue.”
This it not the rule followed in this state. The rule here is very clearly stated in Western Union Telegraph Company v. Turner, 190 Ark. 97, 77 S. W. 2d 633, where this court said: “Moreover, were it conceded that all the expert witnesses introduced in the case agreed upon conclusions as argued by appellant, the jury would not necessarily have 'to so find the facts to be, because such testimony may be controverted by any other competent evidence. St. Paul Fire & Marine Ins. Co. v. Green, 181 Ark. 1096, 29 S. W. 2d 304. Not only this, but, were.it conceded that all the expert testimony offered by both parties was in full accord and agreement and not contradicted by any other expert evidence, yet the jury would not be bound by such testimony. 11 R. C. L. 586 states the rule as follows: ‘Even if several competent experts concur in their opinion, and no opposing expert evidence is offered, the jury are still bound to decide the issue upon their own fair judgment’. See Zimmer v. Kilborn, 165 Cal. 523, 132 Pac. 1026, Ann. Cas. 1914D, 368 and note; Fowle v. Parsons, 160 Ia. 454, 141 N. W. 1049, 45 L. R. A., N. S. 181 and note”.
We have many times held that it is the duty of one supplying electricity to the public to exercise ordinary care in the construction of its service lines to see that they are installed in a reasonably safe manner and to make inspections at all reasonable times, and to see that its equipment is kept in a reasonably safe condition, and this duty is a continuing one.
In Arkansas Gen. Utilities Company v. Shipman. 188 Ark. 580, 67 S. W. 2d 178, this court said: “ ‘The duty of an electric company in reference to keeping its appliances in safe condition is a continuing one. Not only must it exercise a high degree of care in the original selection and installation of its electric apparatus, but thereafter it must use commensurate care to keep the same in a proper state of repair. The obligation of repairing defects does not mean merely that the company is required to remedy such defective conditions as are brought to its actual knowledge. The company is required to use active diligence to discover defects in its system. In other words, an electric company is bound to exercise due care in the inspection of its poles, wires, transformers and other appliances.’ Curtis on Elec tricity, 699; Arkansas Power & Light Company v. Cates, 180 Ark. 1003, 24 S. W. 2d 846.” See, also, Arkansas Power & Light Company v. Cullen, 167 Ark. 379, 268 S. W. 12.
Appellant next contends that the evidence shows conclusively that appellee was guilty of contributory negligence as a matter of law, and that the court erred in giving an instruction on behalf of appellee which ignored appellant’s defense of contributory negligence.
The record reflects that the court, at appellant’s request, submitted to the jury as an issue the contributory negligence of appellee, and also at the request of appellee submitted an instruction which ignored appellant’s plea of contributory negligence on the part of appellee, and instructed the jury to make its findings on a certain state of facts without taking into consideration appellant’s defense of the contributory negligence of appellee.
It is our view, however, that the evidence in the in-_ stant case fails to show that appellee was guilty of any contributory negligence. Considering the known and latent dangers in the live electric wire in question, we think the appellee, when as the evidence shows, on two different occasions, notified appellant of the dangerous situation of its wires, he had then done all that ordinary care required of him, and that no negligence, can, therefore, be chargeable to him.
This court in Southwestern Gas & Electric Co. v. Murdock, 183 Ark. 565, 37 S. W. 2d 100, said: “Appellant contends first, that the court erred in giving instruction No. 5, because it did not take into consideration the defense of contributory negligence. After a careful examination of the record, we have reached the conclusion that there is no evidence tending to show that appellee was guilty of contributory negligence, and there was, therefore, no error in giving the above instruction.”
There was no error, therefore, in giving appellee’s instruction No. 1.
On this entire record, finding no errors, we conclude that the judgment should be affirmed, and it is so ordered. | [
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Mehaffy, J.
This action was instituted in the Crawford circuit court by Chester Talley, appellee, against the Missouri Pacific Transportation Company, appellant. The appellee alleged that he was injured by reason of the negligence and carelessness of Gr. E. Miller, driver of the bus for the transportation company, and alleges several acts of negligence; alleges that as a result of the negligence of the appellant, he was injured, describes his injuries, and prays for judgment in the sum of $3,000.
The appellant filed answer alleging that the appellee had filed an action'on May 27, 1938, against the appellant for' the same cause of action as set forth in this complaint ; that said cause was removed to the United States District Court, and thereafter took a non-suit; that thereafter appellee filed another suit upon the same cause of action, and that this second suit was removed to the United States District Court, and thereafter, on January 7, 1939, the appellee again voluntarily dismissed his cause of action in the Federal court. Further answering, the appellant alleged that the dismissal of said cause of action operated as an adjudication upon the merits of appellee’s cause of action and appellant pleads said dismissal as a full and complete bar to appellee’s action, and that the same is res judicata. Further answering, the appellant denied each and every allegation of appellee’s complaint, except that it is a Delaware corporation operating a bus line in the state of Arkansas, and that one of its buses was struck by an automobile driven by Flay Shipp at the time and place alleged in the complaint, and that if appellee was injured, as alleged, his injuries were the direct result of his own negligence and that of the driver of the automobile in "which he was riding at the time, and that such negligence was the sole •and proximate cause of any injuries which the appellee may have sustained, and pleads contributory negligence of the appellee as a bar to recovery.
Dr. Hugh 0. Turrentine testified in substance that he lives in North Little Rock, is a graduate of the Kansas City College of Medicine & Surgery and specialized in eye, ear, nose and throat at the Chicago Polytechnic Clinic; had two years and 11 months in the Hospital for Nervous Diseases, and six months at the University of Berlin and University of Vienna; treated Chester Talley on November 17, 1937; found an edemá of right upper and lower lid. He then describes specifically the injury to the eye and said if the abrasions got well, it would leave scar tissue and impair the vision, and that the condition of the eye was permanent; that the impairment is fifty per cent; he was injured on the 13th and witness saw him on the 17th.
Dr. W. R. Richardson testified that he is a graduate of Vanderbilt University, post-graduate of Tulane University, and has been practicing since 1921; examined Chester Talley on December 10th, about three weeks after his injury; found his right leg blazed and could not flex the nerve of the thigh; complained of tenderness in the lower part of lumbar region; found partial paralysis of right leg, with some atrophy; the cause of the partial paralysis is an injury somewhere along the lumbar vertebrae and the atrophy is caused by an injured nerve; he may improve some, but it will be permanent to a certain extent; did not treat appellee, merely examined him.
Bill Shipp testified that he is 17 years old, lives at Lonoke, was riding in the car driven by his brother on November 13, 1937, when a collision occurred with a Missouri.Pacific bus at Third & Locust streets, in North Little Rock; the automobile in which witness was riding was going east, and when they entered the intersection at Locust street, attempted to turn north; they had been to Levy and met the other hoys at the foot of the bridge; had just come from the curb market and had had nothing to drink; if any of the other men had, he did not know about it; witness’ brother was not drinking; Talley did not appear to be drinking; they entered the intersection, and driver threw out his-hand to turn, shifted gears;. the car jumped a time or two; saw the bus coming and figured they had time to make it, and the bus hit the automobile; saw the bus about a block away when they were making the turn; were just entering Locust street when the bus hit the automobile on the north side of Third street; bus traveled about 50 feet before it stopped; the car witness was in was going about 15 miles an hour; has been riding in automobiles practically all of his life and is familiar with the speed of automobiles; has driven automobiles; the bus was going about 40 miles an hour; they came from Lonoke and got to North Little Bock about- 6 o’clock; it was dark; Chester Talley, Clarence Licty and witness ’ brother were in the car; the accident occurred about 11 o’clock; they were at the curb market about a half an hour; nobody drank any beer or soda water; witness saw no liquor at all; did not know anybody had any liquor; Clarence told him later that they did; did not know that his brother was fined for reckless driving; thought the judge forfeited his brother’s bond; his brother was knocked unconscious in the accident ; had been driving ten or fifteen miles an hour; the wreck happened in Pulaski county; his brother was driving on the right side of the street and witness was watching; they were going east and the bus was coming west; the collision took place about five feet before they got to Locust street.
At this point, appellant introduced exhibits 1, 2, 3, 4 and 5, which were photographs of the place where the accident occurred. Witness was not hurt much in the accident; saw Talley that night and again the next day; did not tell the police anything about who was in the car; saw the police taking measurements; police asked him if he was in the wreck, but did not ask bim how it happened; he was looking out when the accident hap pened; saw the bus down the street when they started to make the turn; the collision took place on the north side of Third street about 15 or 16 feet east of the electric light pole; the driver entered the intersection before he started to turn; the car was on the south side of the curb turned around after the collision; the bus ran 50 or 75 feet from-where the collision happened; the bus was running 40 or 50 miles an hour and ran 40 or 50 feet after it struck the car; the bus is about 30 feet long and weighs about ten times as much as a Chevrolet car; there was a light at the intersection and no obstruction in either street; did not hear Talley make' any statements after the accident; did not hear him say anything about being drunk, but he said one of his eyes and one of his legs were hurt.
Play Shipp, the driver of the automobile, testified in substance that he was driving the automobile that figured in the collision with the Missouri Pacific bus November 13, 1937; Bill Shipp, Chester Talley and Clarence Licty were with him; had been to the curb market and had started to carry Talley home; was fixing to turn north on Locust from Third street when the accident happened; had been going about fifteen or twenty miles an hour, but was then going about five miles an hour; threw out his hand and started to pull in after he reached the intersection; the bus was 75 or 100 yards down Third street; his car jumped when he started changing gears and the bus hit him; judged the speed of the bus to have been about fifty miles an hour; had not had anything to drink; was not tried in the North Little Rock court, were' supposed to have had the trial on Monday and he did not go up there so they put it off until Wednesday; they did not try him and the bond was forfeited; witness and Miller were both arrested on a charge of reckless driving; did not have any liquor; did not see any liquor and did not smell any and was not drunk; was not tried for reckless driving; had -a lawsuit against the company himself and did not get anything.
There was at this time introduced a transcript of the judgment of the conviction in the case of the City of North Little Rock v. Flay Shipp, showing witness had been tried for reckless driving and fined $25.
Witness further testified that the accident happened about 11 o ’clock; he had been going five to fifteen miles an hour, but would have gone faster when he got out of town; they had been in the cafe a few minutes; there was some drinking in there; knew that under the laws one had to drive on the right side of the street; did not remember anything after the collision for a while; does not remember that the officers testified from the marks of his car that he went down the north side of the street; the only way he had of fixing the speed of the bus is that he was there and the car turned up; also from where the bus was and where he was and the time it was bound to have got there; could have stopped his car in two feet; it would have been no use because he would have been hit any way; does not know when he put his hand out; supposed it was when he saw the bus coming with its lights on; it was 75 or 100 feet away when he saw it; by the time he had gone 10 or 15 feet it had gone 75 or 80 feet; he saw how fast it was going.
R. D. Knight testified that he was a pipe fitter and lived in Little Rock; he was down town at a tourist cafe about 11 o’clock on November 13, 1937; when he came out of the cafe he heard a noise; it was a bus coming up the road; he turned his head and saw a car coming from the west going east; as the car reached the Locust street intersection it turned about halfway into Locust from Third; the bus passed on down where he could not see it or the.oar any more; they followed on down where it struck the car; in his judgment the bus was-traveling 40 or 50 miles an hour; the other car started to turn north into Locust; it was about 100 feet from the cafe to the intersection; he was out in front of the cafe which is not located on the corner, but about the middle of the block; had just stepped out when the bus passed; his car was between him and the bus for an instant; saw the other car turning into Locust and heard the collision.
Mr. Talley, the appellee, testified in substance as follows: He is 22 years of age; was riding in a car driven by Flay Shipp on the night of November 13, 1937, when a collision occurred with a Missouri Pacific bus at the intersection of Third and Locust streets in North Little Rock; the bus was 75 or 100 yards away when witness first observed it; they started making the turn just as they were entering the intersection; the car was going about five miles, an hour; the driver almost stopped; changed gears when the car started jumping; lacked about five feet being at Locust street when the impact occurred; he had had nothing to drink; neither had Flay Shipp; hé did not act like a drunk man and he did not smell any on him; has been treated by a physician since the accident; suffered pain, and still does; has had four different doctors; the injury to his left eye affected his eyesight. He was then handed exhibit No. 1, a picture representing the condition witness was in a few days after the accident. His leg gets better and then gets.-bad again; has not been able to carry on farm work; his eyesight was good beforehand and nothing was wrong with him; could do manual labor and was working for John Frizby at $1.50 a day; has not been able to work since; if he had not been injured he could have continued in the same work; he was bruised all over and could not walk on his foot; his eyes were skinned and swollen; Dr. Mitchell at Lonoke sewed up his eye and face; when he came to himself after the accident he was out of the car; had been unconscious for some time; he hit the pavement and that is where he received the cuts and bruises; has a scar on his left eye; had been to the curb market cafe, but had not been drinking; did not have any liquor on him and did not see the pint bottle of liquor the other boys had; heard it was Clarence that had it; was at the scene of the accident when the officers came up; Francis Jones took him to Lonoke; picked him up at the scene of the accident; the picture that was introduced was made about three days after the accident; has not been in any fights and has not broken up any parties and has not been getting drunk; has carried a cane since the accident; has not been treated by a doctor for any other sort of diseases and has not had gonorrhea; does not drink whiskey; was not drunk after the accident ; they carried witness to the side of the pavement, but he does not recall anything he said that night; this is not the third suit he has brought; does not know anything about the case going to federal court and being dismissed; Flay Shipp was driving 15 or 20 miles an hour before the accident; could not tell how fast the bus was going until he got up to the intersection close to it; Shipp held out his hand. Witness testified that Dr. Mitchell’s bill was $25, Dr. Eason’s bill was $50, Dr. Turrentine’s bill was $150 and Dr. Bichardson’s bill was $25.
At this point in the trial the appellant renewed its request to the court to declare a mistrial because of the question asked by counsel for plaintiff as to whether any jurors were stockholders or representatives of any liability insurance company. The motion was overruled, and appellant excepted.
Appellant then introduced several witnesses and the evidence of these witnesses was in conflict with the evidence introduced by appellee.
Appellant also offered in evidence the papers in the case of Talley v. Mo. Pac. Trans. Co., including the complaint which alleged the identical cause of action now being tried; the petition and bond and order of removal, and order dismissing the cause showing that plaintiff entered a voluntary non-suit. Appellant also offered in evidence a second case that was removed to the federal court, the cause of action being identical with the one before the court now, and offered in evidence the order of dismissal of the second suit filed.
We do not copy the evidence that is in conflict with the evidence introduced by appellee because it is a settled rule of this court that if there is any substantial evidence to support a verdict, the fact that there is evidence in conflict with it does not justify a reversal.
The late Mr. Justice Butler1 said, in discussing this question: “The verdict must rest on the uncorroborated testimony of the appellee. The question as to where • lies the preponderance of the evidence is not for us to say. That is the duty of the trial judge, who, by his refusal to set aside the verdict, has set his seal of approval upon the truthfulness of the testimony given by the appellee. This conclusion, under settled principles of law, we are forced to adopt. We, therefore, treat the testimony of appellee as true and view it in the light most favorable to him, and if it appears from that testimony that there is substantial evidence to support the verdict, we, too, must approve it.” Missouri Pacific Transportation Co. v. Jones, 197 Ark. 79, 122 S. W. 2d 613; Norton & Wheeler Stave Co. v. Wright, 194 Ark. 115, 106 S. W. 2d 178.
The late Chief Justice Hart, speaking for this court, said: “In considering whether or not the court should have directed a verdict for the defendant, every fact and inference of fact favorable to the plaintiffs, which the jury might believe to be true, must be accepted as true, and every fact unfavorable to the plaintiffs which the jury might reject as untrue must be rejected.” Hines v. Betts, 146 Ark. 555, 226 S. W. 165; Mo. Pac. Trans. Co. v. Jones, supra.
It is contended, however, that the. court erred in refusing to direct a verdict for the appellant because, it says that' Bill Shipp filed an action in White county against the bus company and failed to recover, and that this court affirmed the case. The fact that Bill Shipp failed to recover is no reason why the court should have directed a verdict against Talley; and the fact that this case comes from Crawford county and that- case came from White county is immaterial. Certainly it could not be claimed that because Bill Shipp lost his suit, the appellee is not entitled to recover. Appellant then cites the case of Sparks v. Chitwood Motor Co., 192 Ark. 743, 94 S. W. 2d 359. The facts in that case are wholly different from the facts in this case.- As to whether anybody was drinking or was drunk was a question of fact for the jury, and their verdict settles the question. The jury evidently did not believe the evidence of appellant’s witnesses, who swore that some of the persons in the automobile were drunk.
The rule of law announced in the ease of Sparks v. Chitwood Motor Co., supra, is a correct statement of the law, but has no application in this case.
It is next contended by appellant that the court erred in refusing to declare a mistrial. The reason urged for a mistrial was because Mr. Partain, attorney for appellee, was permitted to ask the.jurors wh'ether any of them were stockholders or in the employ of a liability insurance- company. The attorney had a right to ask this question,' because he had the right to exercise certain peremptory challenges, and he would probably want to know whether any of them were connected with liability insurance companies.
In the'case of Pekin Stave Co. v. Ramey, 104 Ark. 1, 147 S. W. 83, relied on by appellant, this court said: “If counsel for plaintiff honestly and in good faith thinks that any of the'veniremen is in any way connected with a casualty company insuring the defendant against loss for the injury complained of in the case, he can ask the jurors on their' voir dire relative to' this.”
Appellant then quotes from Rambo v. Rambo, 195 Ark. 832, 114 S. W. 2d 468, as follows: “It has often been held that in a personal injury, case it is prejudicial error to permit counsel for -plaintiff unnecessarily to advise -the jury by questions'-or otherwise of -the fact that-defendant carries indemnity insurance.”
■ •' The question involved here was not involved in the laist case quoted from, but the court said- in that case: “The next question is, whether the fact that appellant carried public liability insurance, authorized the maintenance of this action. In the first place, it may be said that the question of whether appellant had liability insurance had no proper place in this action, and the court •should have granted appellant’s motion to strike all mention of insurance held by him from the amendment to the complaint as well as to have excluded all proof regarding same offered in evidence.”
The quotation copied by appellant was from a case decided before the statute was enacted requiring bus companies to carry liability insurance. The law now, § 2025 of Pope’s Digest, requires companies of this character to carry liability insurance, and surely no one would claim that an attorney would not be permitted to ascertain whether any of the jurors were connected with a liability insurance company, so that he might exercise his challenges.
Section 8343 of Pope’s Digest provides that each party shall have three peremptory challenges, which may be made only orally. Jurors are required under the law, § 8312, Pope’s Digest, to be of good character, of approved integrity, of sound judgment and reasonable information.
Appellant next contends that the court erred in refusing to dismiss the case on the grounds, of former adjudication, and relies on rule 41 of the Rules of Civil Procedure adopted by- the Supreme Court of the United •States pursuant to the act’ of June 19, 1934. In the first place it may be stated that the rule has no application. It does not declare that dismissals or non-suits, as were had in this case, are an adjudication on the merits, as contended for by appellant. Rule 41 may be found in Ohlinger’s Federal Practice, ,.vol. 3, p. 526. Our statute provides for non-suits and- -this statute was construed in the case of Sims v. Miller, 151 Ark. 377, 236 S. W. 828, where this identical question was involved. There had been two non-suits in that case.
It is next contended that the court erred in permitting counsel for plaintiff to make improper argument to the jury. • Without setting out the remarks of the attorneys for either side, it is sufficient tó say that if there were any error committed by the appellee’s attorney in his argument, it was invited by appellant. Nothing was said in the argument of appellee’s attorney except to answer the statements made by the attorney- for appellant.
No other questions are argued by appellant. We find no error, and the judgment is affirmed. | [
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Baker, J.
This is a second appeal of this case. The opinion in the first appeal appears in 196 Ark. 1104, 121 S. W. 2d 65. The evidence is not essentially or materially different from what it was as set out and argued in the first case. It, therefore, becomes unnecessary to take up and reconsider upon this appeal the evidence tending to show-liability and to support the judgment rendered.
The law of the case, as announced upon the former appeal is binding here. The second matter argued by appellant is that the court err.ed in refusing the defendant’s request for a directed verdict. This contention is based upon the proposition that the appellants now contend that after a judgment for $800 was procured against the Malvern Brick & Tile Company it was set aside, and the plaintiff executed a covenant not to sue and was paid $600 therefor. If there be any essential difference in the evidence presented upon this same question at this time from what appeared in-the former, suit, the opinion of which is above cited, counsel, though extremely diligent, has not pointed out to us that distinction. We will content ourselves with the remark that the original suit against the Malvern Brick & Tile Company was dismissed; that there appears now a covenant not to sue. The defendants insist and contend most seriously that the conditions under which this instrument was made and entered into were tantamount to a settlement, wherein the full extent of liability for the injuries was compensated and the defendants discharged. These matters have not been so presented to us as to become a question of law, but they still appear as they did upon the former appeal as a question of fact, properly to be determined iby a jury trial. We find no error, therefore, in the submission of these facts to the jury. We cannot understand how it would be of any particular advantage to set forth in detail all of the evidence in this regard in consideration of our former announcement in this respect and the action of the jury in regard thereto.
The next objection is made to instruction No. 3, given at plaintiff’s request. The effect of that instruction was to tell the jury that it was the duty of the railroad company to use ordinary care to furnish the shipper a car in such state of repair that same could be loaded by the shipper with reasonable safety. It further told the jury that if the railroad company knew of the use to which the freight car was going to be put it was their duty to furnish a car in a reasonably safe condition. It is arguéd that this instruction is inherently wrong for the reason that it ignores the negligence of the plaintiff while working’ in the car. There is no merit in that objection. The instruction given by the court to the jury was not one declaring negligence and fixing liability on account thereof. It was a short and simple declaration of the duty of the carrier. It is true there may have been in the use of this car a correlative duty owing by those who made use of it, but even if that be conceded to be true that fact certainly to no extent decreases the full duty and obligation of the carrier to exercise ordinary care to furnish the shipper a car in such state of repair that the same might be loaded with reasonable safety; that the instruction fairly stated the duty and obligation on the part of the railroad company has been determined by numerous decisions. Missouri Pacific Railroad Co. v. Sellers, 188 Ark. 218, 65 S. W. 2d 14.
In that case plaintiff stepped into a hole and was injured while unloading merchandise from a car. In another case, the court said: “An obligation rested on a carrier to exercise ordinary care to furnish cars in such repair that they could be unloaded in reasonable safety to those engaged in the work.” C., R. I. & P. Ry. Co. v. Lewis, 103 Ark. 99, 145 S. W. 898.
An investigation of that case determines that the negligence in furnishing this defective car was shown by facts that justified the jury in finding that no proper inspection was made to discover a defect in the floor.
The defendants also objected to instruction No. 4. The objection is that it invaded the province of the jury. It told the jury that it was not the duty of the Malvern Brick & Tile Company, the corporation, which was having the brick loaded into the defective car, nor the duty of the plaintiff, Thomas J. Burks, to search the car in question for defects, but that the plaintiff and the Malvern Brick & Tile Company, had the right to assume that the car furnished them had been inspected and was in reasonably safe condition. Counsel has not been careful enough to designate for our comprehension that portion of the said instruction that invades the province of the jury. It does not assume any fact nor decide any issue properly to be submitted to the jury. It merely defines certain correlative rights and duties. The plaintiff and shipper, Malvern Brick & Tile Company, might properly assume that the railroad company had not been negligent. That assumption, if indulged, made it unnecessary for the plaintiff or the Malvern 'Brick & Tile Company, the shipper, to make a new inspection. It might be said in reply to the argument made that the railroad company has not now the right to insist that Burks, the plaintiff, and Malvern Brick & Tile Company should have inspected the car before they attempted to load it, Such insistence amounts to a confession of negligence in the failure to make an inspection and to correct such defects as might have been found thereby. This announcement of the law is supported by authority. C., R. I. & P. v. Lewis, supra. Another case covering the same point is Waldron v. Director General, 266 Fed. 1966; see annotations 41 A. L. R. 123.
We think it must necessarily follow that the plaintiff was not guilty of contributory negligence if he failed to make an inspection that would have discovered the defective condition beneath the piece of tin nailed over a hole in the floor of this car. If the tin had not been placed there by the railroad company and its agents, its location and use in covering a hole, through which the wheelbarrow Burks was operating fell, was approved by those who made the inspection before the ear was furnished, and the proof shows that it was so marked as to indicate that it had been inspected. There was either no inspection or it was one that was ineffectual. Certainly no greater duty devolved upon Burks than that imposed by law upon the railroad company and its agents. Counsel point out that there were two holes at the other end of the car. That is true and these were covered by hoards and nobody was hurt on either one of them. To argue that that was notice of the faulty condition of the floor is equal to an argument that ordinary care' had not been exercised to furnish a~car suitable for the purposes for which it was to be used.
It is argued as to instruction No. 6, which told the jury that it was the duty of the railroad company if it furnished a car other than a Missouri Pacific car, to see that such car was reasonably safe for the use to which it was intended to be put. The objection to this instruction is that it makes the railroad company an insurer of the safety of plaintiff while working for the Malvern Brick & Tile Company, and it ignores the fact that there were two holes in the other end of the car. There were no citations sustaining appellants ’ contention in this regard, and if is a contention, perhaps unique in that the carrier should be permitted to furnish 'a defective instrumen-. tality, provided only it does not own that instrumentality though it knows the purposes for which it will be employed by those whom it serves. The analysis of this contention makes authority unnecessary.
The trial court submitted to the jury as a question of fact to be determined by it whether the payment of $600, alleged to have been a consideration for a covenant not to sue, was a settlement or discharge of liability. If there was error in this respect, it came from the former trial wherein the appellant sought a reversal of the case and this was one of the very issues urged upon that appeal properly to be submitted in a new trial. Appellants forget or ignore the evidence on the part of all those who took part in this so-called settlement with the Malvern Brick & Tile Company. Nobody who was- a party to that suit contends now that it was intended to be a settlement of full compensation to Burks for his injury. The railroad company had nothing to do with it, was in no sense concerned with it and if the conduct of the parties was not such that the payipent of the $600 could be declared to have been paid and been received as full compensation for the injuries suffered, then certainly the payment of $600, $200 less than the judgment that had been rendered, and which had been set aside, might properly have been found by the jury to have been the consideration for another contract, the covenant not to sue. At most, it was not a question of law, so there is no merit in this objection to that instruction.
• We do not state the effect of instruction No. 5A as requested by the appellant, nor as amended by the trial court, for the reason that we do not understand from the abstract what the original instruction was nor what the court struck out or eliminated. We agree with the appellants that under ordinary conditions it was not incumbent upon the railroad company to exercise care to supply the plaintiff, employee of another company, with a reasonably safe place to work, but if the duty to exercise ordinary care to furnish a car reasonably safe and suitable for the purposes for which it was intended is coincident with the other condition, then certainly the carrier might not evade that,first diity because it did no owe a second duty to the particular individual.
The court refused to give instruction No. 6A, requested by the defendant, which was to the effect that if the foreman of the Malvern Brick & Tile Company, having knowledge of the defects in the car, that is of the holes in one end of it, put the man to work therein, after having made this observation and after having told them to put boards over these holes, then there could be no recovery.
Appellants also argue that because there were holes observable and which were covered by employees of the Malvern Brick & Tile Company, this was notice of the defect concealed beneath the square of tin. The fact that there were holes there that were covered with boards was not in any sense the proximate cause of the injury and certainly gave no notice of any defects that may have been concealed by the tin placed over a more dangerous hole or location. Again no authority is cited to the effect that the plaintiff or his employer should be required to take notice of concealed or hidden defects because others were observable. Appellants seem to forget not only that there must be defects, but these must be present to effect the injury as a proximate cause, before there is actionable negligence and the fact that some defect may have been covered or concealed so that it was not discovered, possibly not discoverable by ordinary observa tion, prior to the injury does not break the chain of causation, but the injury is traceable to the original negligence. Ark. Power & Light Co. v. Marsh, 195 Ark. 1135, 115 S. W. 2d 825.
Lastly, it is argued that the verdict is excessive. The argument is far from convincing. No facts are really stated tending to show that a $1,000 verdict is excessive in a case wherein a man, young and active, has suffered an inguinal hernia. This reduces him almost to a cripple, unable to do labor in the usual and ordinary way, his only means of a livelihood, and who may be cured only by a major operation, the results of which are always in doubt until a cure shall have been effected, or until worse results may have followed. It is true that there is some evidence that the operation itself would cost only about $100. There are other expenses attendant upon such operation, perhaps two or three hundred dollars more. If the results should not turn out successfully, and no reputable surgeon would guarantee the success of such operation, the appellee would be left in worse condition than before, after having suffered intolerably, with the amount of his recovery depleted. '
There is nothing in the recovery to indicate passion or prejudice, or bias of any kind. ■ The injuries were serious. The objection is without substantial merit. The judgment is affirmed. | [
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Smith, J.
The Bryant Truck Lines, Inc., hereinafter referred to as appellant, is a Missouri corporation engaged in the operation of a line of' trucks between and through the states of Missouri and Arkansas. It received, as a carrier, a safe consigned to Neal Peebles in Searcy, White county, Arkansas. The truck upon' which the safe was loaded and shipped was driven by Henry Bennett. While the safe was being unloaded at Peebles’ place of business in Searcy, it was allowed to fall from the truck, and appellee Nance was injured.
Nance brought suit against Peebles, Bennétt and appellant, The Bryant Truck Lines, Inc., to recover damages to compensate his injury. This suit was defended upon the ground that Nance was a mere volunteer in unloading the safe, and had been injured as a result of his own negligence. But before interposing this de fense by answer, appellant, Truck Lines, Inc., filed a motion to dismiss as to it, upon the ground that it had not been properly served with process, in that, its agent designated to receive service resided in Poinsett county, and that the suit had been brought in White county (in which county Searcy is located), and its agent had not been served by delivery of summons to him in Poinsett county.
Appellant has reserved throughout the case the question of the sufficiency of the service on it, and filed its answer only after the motion to dismiss had been overruled.
The motion was properly overruled, when made, for the reason that Bennett, the truck driver, was also made a defendant, and personal service had been obtained on him in White county. A judgment was recovered by Nance, which was reversed in the opinion on a former appeal on account of error 'in certain instructions, and the case was remanded for a new trial. Bryant Truck Line, Inc., v. Nance, 196 Ark. 1177, 116 S. W. 2d 1047.
The cause of action was dismissed as to Peebles, and a verdict was returned in favor of Bennett at the trial from which this appeal comes, but there was a verdict and judgment against the appellant Truck Lines, Inc.
It is insisted that, under the authority of § 1400, Pope’s Digest, this judgment must be reversed, inasmuch as no judgment was recovered against Bennett. On the other hand, appellee, Nance-, insists that proper service was had upon appellant. Over the objection of appellant the sheriff was permitted to amend his return to show that, at the time service was had upon Bennett, personal service was also had upon him as the agent of the appellant Truck Lines, Inc. Appellant maintained no place of business and kept no agent in White county.
A verdict having been returned in Bennett’s favor, the case stands as if appellant alone had been sued in White county, and we have for decision the question of the sufficiency of the service upon appellant to confer jurisdiction upon the circuit court of White county.
Appellee insists that the service is sufficient under the provisions of § 1 of act 70 of the Acts of 1935, which appears as § 1377, Pope’s Digest, and reads as follows: “When the defendant is the owner or the operator of any motor bus or buses, motor coach or coaches, or motor truck or trucks, engaged in the business of carrying and transporting either passengers, freight, goods, wares or merchandise over any of the highways of this state, the service of summons may be had upon any such owner or operator by serving same upon any clerk or agent of any such owner or operator selling tickets or transacting any business for such owner or operator, or may be upon any driver or chauffeur of any bus, coach or truck being operated or driven by such driver or chauffeur as a servant, agent or employee of any such owner or operator, and service so had upon the agent or agents of any such owner or operator or had upon any such chauffeur or driver of any such bus, coach or truck being operated or driven by such driver or chauffeur as a servant, agent or employee of any such owner or operator shall be deemed as good and valid service upon such owner or operator whether such owner or operator be a person, firm or corpoation.”
We do not agree with this contention, for two reasons, the first of which is that appellee’s injury was not occasioned by the operation of the truck. There was no allegation or proof of negligence in that respect. The second headnote to the case of Coca-Cola Bottling Co. of Southwest Arkansas v. Bacon, Judge, 193 Ark. 6, 97 S. W. 2d 74, reads as follows: “Act 70, Acts 1935, p. 157, providing that in actions to recover for damages done to persons and property by certain motor vehicles operated on highways of this State 'by the employees of the owners thereof, when engaged in carrying passengers, freight, goods, wares, or merchandise, the owners may be sued in any county in the state by serving a summons on the drivers of such motor vehicles, applies only to actions for damages to persons and property occasioned by negligent operation and has no application to an action for damages resulting from drinking a bottle of Coca-Cola containing a spider.”
In that case a writ of prohibition issued against the Nevada circuit court upon the holding that act 70 did not confer jurisdiction upoii serving the driver of a truck in a cause of action which did not arise out of the negligent operation of the truck on the highways of the state.
The second reason for holding this service insufficient under act 70 is that service could otherwise have been had without serving the truck driver.
In the later case of Dixie Motor Coach Corporation v. Toler, Judge, 197 Ark. 1097, 126 S. W. 2d 618, a writ of prohibition issued against the Hot Spring circuit court, where it was attempted to entertain jurisdiction through service obtained under the provisions of act 70. In that case it was held that an assault upon a passenger by a bus driver was an injury caused by the operation of the bus within the meaning of act 70, but it was, nevertheless, held that the Hot Spring circuit court was without jurisdiction, for the reason that the plaintiff was a resident of Garland county, in which county the bus company maintained an agent upon whom service could be had. It was there said:
“No necessity existed for filing the action in a county other than Garland. There was ample legal facility for service of summons.
“It is our view, therefore, that act No. 70 was intended to afford service rights only in those cases where adequate provisions had not been made by previous statutes, and that it has no application to the case at bar.” So, here. Appellant has an agent in Poinsett county, upon whom service might be had. See, also, Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S. W. 2d 919; Safeway Cab & Storage Co. v. Kincannon, Judge, 192 Ark. 1019, 96 S. W. 2d 7; Coca-Cola Bottling Co. of Southeast Arkansas v. O’Neal, 193 Ark. 1143, 104 S. W. 2d 808; Jonesboro Coca-Cola Bottling Co. v. Bolt, 194 Ark. 992, 110 S. W. 2d 535.
It is insisted, however, that the agent for service resident in Poinsett county was served in that county, and that the appellant was, therefore, properly served with process.
The opinion in the case of Chapman & Dewey Lbr. Co. v. Means, 191 Ark. 1066, 88 S. W. 2d 829, is opposed to that view. ' Thé facts in that case were that the Chapman & Dewey Lumber Company, a'foreign corporation, had designated one Stayton, a resident of Craighead county, as its agent for service. The lumber company was sued upon an account in the Hot Spring circuit court, and summons was issued to the sheriff of Craighead county directing him to serve Stayton as the agent of the defendant. But Stayton had ceased to be a resident of Craighead county, and had become a resident of Poinsett county, and the sheriff of Craighead county was unable to serve the summons-, and thereafter a summons was served upon the Secretary of State for the lumber company. This was held sufficient, but the question was asked, in the opinion, whether, upon this service, the action might be maintained in Hot Spring county. That was the question presented for decision, as it was sought to prohibit the Hot Spring circuit court from entertaining jurisdiction of the cause of action.
As an incident to the suit the plaintiff had an attachment and a writ of garnishment issued upon the allegation that the lumber company owned property and had debts owing to it in Hot Spring county, and for that reason the writ was denied, as it was there said that the Hot Spring circuit court had jurisdiction of the case “to the extent of an action in rem,” otherwise the writ would have issued.
The opinion in that case states that ‘ ‘ The applicable statute relating to service upon foreign corporations doing business- in the state is found in § 1827 of Crawford & Moses Digest. Under its provisions two methods for' service are provided: One, upon any agent of the company, and the other by service of process upon the Secretary of State.”
There being no defendant before the court in the trial of this case in the court 'below, after the rendition of the verdict, except appellant, the provisions of § 1400, Pope’s Digest, which were invoked in apt time and in a proper manner, apply, and appellant stands as if it had been sued alone in the White circuit court. But it was not sued in the county in which -its agent for service resided, and to hold that service sufficient would offend against the rule announced by the Supreme Court of the United States in the case of Power Mfg. Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 71 L. Ed. 1165. The opinion of the Supreme Court of the United States overruled the opinion of this court appearing in 169 Ark. 748, 276 S. W. 599 (Power Mfg. Co. v. Saunders), our holding having been • that a foreign corporation might be sued in any county in the state upon a transitory action under authority of § 1829, Crawford & Moses’ Digest. The effect of the decision of the United States Supreme Court was to invalidate that section of our statute under the construction which we had given it.
It follows, therefore, that the motion to quash the service should have been sustained, and as that question has been properly reserved throughout the trial, the judgment of the court below will 'be reversed and the cause remanded with directions to quash service- upon appellant. | [
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Humphreys, J.
A decree was rendered in the chancery court of Pope county, wherein the parties in this case were parties plaintiffs and defendants in consolidated cases numbers 3767 and 3577, from which an appeal was duly prosecuted to this court and tried under the style of Robertson v. Chronister, reported in 196 Ark. 141, 116 S. W. 2d 1048.
Upon a trial de novo in this court of the consolidated cases the findings and decree of the chancery court were affirmed. The issues and facts involved in the consolidated cases are set out in the case of Robertson v. Chronister, supra. We deem it unnecessary to set them, out again as they are fully set out in the Chronister case referred to above. A bill for a review of the decree in the consolidated cases in the chancery court was subsequently filed by the appellants herein against the appellees. Practically all the pleadings, exhibits and the testimony introduced in the consolidated cases were attached as exhibits to the bill for the review of the decree in the consolidated cases. The complaint for a review of the chancery decree in the consolidated cases has not been abstracted in appellant’s brief so as to set out the substance thereof; but, in reading same in connection with the bill of review set out in the transcript, we find no statutory ground alleged for vacating or modifying judgments, nor do we find any facts alleged that appellants have a meritorious defense to the cause of action in case the judgments were set aside as required under 8248 and 8249 of Pope’s Digest. In fact, the substance of the bill for review relates to procedural matters or issues involved in the cases which were consolidated. For example, it is alleged in the bill of review that- the chancery court had no right to consolidate the cases and no .jurisdiction to try them after consolidating them. Both these issues were raised in the trial of the consolidated cases and also raised on appeal from the decree in the consolidated cases, and the order of the circuit court transferring the ejectment suit to chancery and the order consolidating it with the chancery suit, which was one for partition, was affirmed.
Another issue in the consolidated cases was whether the deeds could be reformed so as to describe the lands intended to be conveyed by the grantors to the Chronisters. This court held that the deeds were susceptible of reformation and that even if it should be conceded that the description of the lands in the deeds was too vague and indefinite to pass title, the heirs of the vendor could not avoid the consequences of the deed; that even if the deed were void for misdescription, still, in equity, it would be good as an executory contract to convey the lands intended to be conveyed.
It does not appear from allegations in the bill of review that the decree in the consolidated cases is void on its face nor does it appear from allegations in the bill of review that testimony or evidence was discovered after the rendition of the decree which would avoid same. This court said in the case of Smith v. Rucker, 95 Ark. 517, 129 S. W. 1079, 30 L. R. A., N. S., 1030, “Such bill (referring to bills of review) may be based upon error in law which is apparent on the face of the decree, or on account of new facts discovered since the decree was entered.” Under this rule the bill of review is insufficient to .justify setting aside the decree in the consolidated cases and the tidal court was correct in dismissing the bill for want of equity in so far as it sought to set said decree aside.
No error appearing, the decree is affirmed. | [
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McHaney, J.
Appellee is the named beneficiary in a policy of life insurance issued by appellant on the life of Sanford Croley in the principal sum of $1,000. Said policy contained a provision for double indemnity in event of the death of the insured by accidental means, as de: fined therein. On October 11, 1937, the insured was injured as the result of an automobile accident near Deming, New Mexico, on a cold'rainy day, and was taken to a hospital in Deming, about an hour after the accident, after being exposed to the inclement weather. He died with lobar pneumonia eight days later on October 19, 1937. Proof of death was made and appellant paid the principal sum of $1,000, but refused to pay under the double indemnity clause, and this suit followed to collect the additional sum of $1,000, with interest, penalty, and attorneys’ fees.
Appellant defended on the ground that the death of the insured did not result, directly or indirectly, through bodily injury, nor was it effected solely through external, violent and accidental means. It relied on the provisions of the double indemnity clause that such benefits shall not be payable if death results, directly or indirectly, from bodily or mental infirmity or disease in any form, and asserted that the insured, in violation of instructions, shortly after entering the hospital, exposed himself to the elements a second time, and, as a. result, contracted pneumonia from which he died. Trial before the court, sitting as a jury, resulted in a judgment for appellee, hence this appeal.
The policy contains this clause:
“Accidental death benefit shall be payable upon receipt of due proof that the death of the insured occurred ... as a.result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means,' of which . . . there is a visible contusion or wound on the exterior of the body. Provided, however, that no accidental benefit shall be payable if the death of the insured resulted . . . directly or indirectly from bodily or mental infirmity or disease in any form.”
For a reversal of the judgment against it appellant insists that the insured did not die of bodily injuries. It concedes that there were bodily injuries and a visible contusion on the exterior of the body, but it is insisted that such injuries had nothing to do with the death of the insured. This argument is based on the testimony of Dr. Colvard who treated insured in the hospital in Deming-. His testimony is summarized in a letter to T. H. Malone, manager of the Adjustment Bureau, El Paso, Texas, which was introduced by agreement and treated as his deposition, and is as follows:
“GEO. T. COLVARD, M. D.
“118 East Spruce Street
“Deming, N. M.
“10-28-37.
“Mr. T. H. Malone, Manager,
“Adjustment Bureau,
“El Paso, Texas.
“Dear Sir:
“In reply to your request for report on the accident and death of Mr. Sanford Croley, who was injured October 11, 1937, and who died on October 19, 1937, wil.l give you the following:
“Injuries:
“1. Contused right upper chest with no fracture of ribs which was verified by X-ray. Subcutaneous hemorrhage under area of contusion.
“2. Lobar pneumonia, acute developing Wednesday,.. October 13, 1937, which was evident by Thursday, October 14, 1937.
“3. Exposure which included getting wet on the day of the injury had some bearing on the later development of the pneumonia.
“4. A pre-existing asthmatic bronchitis also had some influence in /the incidence of the pneumonia and also its prognosis.
“5. Had Mr. Croley followed instructions and remained in bed on Tuesday instead of getting dressed and coming out of the hospital into the rain walking to town I feel that he would have had much better chance handling the pneumonia should it have developed otherwise..
‘ ‘ This is so far as I can make out the true statement of facts in the case and am forwarding a copy of this report to Mr. Smith as well as a copy of the letter which I am writing him regarding the case.
“I believe that you both will feel that this be the proper course to follow.
“(Signed) George T. Colvard, M. D. ”
Dr. Colvard testified by deposition in addition to the foregoing letter, and the substance of all his testimony is that the insured received a visible injury in an automobile accident which he regarded as sufficiently s.erious to justify an X-ray examination which disclosed no broken bones; that this injury together with his exposure at the time of the accident had some bearing on the later development of pneumonia; and that if he had not exposed himself again on Tuesday, the day after the injury, “I feel that he would have had much better chance handling the pneumonia, should it have developed otherwise.”
We think this testimony sufficient to justify the jury or the court sitting as a jury in drawing the conclusion that the cause of death was the injury received in the automobile accident and the resulting exposure which was necessarily incident to the accidental injury. But for the accident, there would have been no injury, and no exposure and the injury and consequent exposure “had some bearing on the later development of the pneumonia,” according to Dr. Colvard, and this was sufficient to justify the jury in finding that the injury and exposure caused the pneumonia from which he died. The doctor does not say the second exposure caused the pneumonia, but only that he felt the insured would have had a better chance to get well had the pneumonia developed otherwise. As we view the doctor’s statement, the only speculation or conjecture was as to the probable effect of the second exposure.
What we have said disposes, in effect, of appellant’s contention that the accident was not the proximate cause of death. In this connection both parties cite Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A., N. S., 493, where it was held, to quote the first syllabus: “When an accident insurance policy limits liability to ‘bodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes of death,’ and it appears that death resulted from an aggravation of a latent disease to which the deceased was subject, an instruction is correct to the effect that the defendant insurance company is liable, under the contract if death resulted when it did on account of the aggravation of the disease from the accidental injury, even though death from the disease might have resulted at a later period, regardless of the injury.”
In that case the late Chief Justice McOullooi-i quoted from Freeman v. Mercantile Accident Association, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753, as follows: “The law will not go further back in the line of causation than to find the active, efficient, procuring cause of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause or causes beyond seeking the aforesaid predominant cause, which, following it no farther than these consequences that might have been anticipated as not unlikely to result from it, had produced the effect. An injury which might naturally produce death in a person of a certain temperament or state of health is the cause of his death, if he dies by reason of it, even if he would not have died if his temperament or previous health had been different. ’ ’
Here, as we have said, the evidence is sufficient to justify the jury or the court, sitting as such, in finding ithat the active, efficient or procuring cause of death, which means proximate cause, was the automobile accident in which he suffered both injury and exposure.
We cannot agree with appellant on the other two propositions argued, that is that the judgment is based on speculation and conjecture, and that the insured suffered with bronchitis which co-operated with the exposure in causing pneumonia to develop, which under the terms of the policy defeats the claim for double indem nity. As to the latter proposition, the evidence that assured’s bronchitis had anything to do with his development of pneumonia was speculative or conjectural and not conclusive so as to require the jury or the court to so find. If the accidental injury and resulting exposure were the proximate cause of death, as we have already held, then the fact that insured had chronic bronchitis which made insured more susceptible! to pneumonia would not relieve appellant of liability. Fidelity & Casualty Co. v. Meyer, supra; Pacific Mut. Life Ins. Co. v. Smith, 166 Ark. 403, 266 S. W. 279; Pacific Mut. Life Ins. Co. v. McCombs, 188 Ark. 52, 64 S. W. 2d 333.
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Smith, ,J.
The Arkansas Water Company and its predecessors supplied the cities of Little Rock and North Little Rock, and the inhabitants thereof, with water as a waterworks public utility under franchises granted by those cities respectively until 1920, when the franchises were exchanged for indeterminate permits. Prior to 1913 the source of water supply for Little Rock was the Arkansas river, from which stream water was pumped to the company’s reservoirs within the city of Little Rock. Deep -wells in the city of North Little Rock supplied the water for that city.
Later the Water Company entered into a contract with the Broadway-Main Street Bridge District for a pipe line across a bridge connecting the two cities, and for some years 'both cities derived their water supply from the Arkansas river, which was first pumped into a reservoir in the city of Little Rock, where the water was treated and settled. Water from this reservoir was carried in pipe lines across the bridge, being metered immediately adjacent to the bridge through a Venturi meter located on the Little Rock side of the river.
In 1935, the city of Little Rock desired to secure another source of water supply, and negotiations with the Water Company to that end were begun. Proceeding under act 131 of the Acts of 1933, as amended by act 96 of the Acts of 1935, the city and the Water Company worked out a plan whereby the city would construct a dam on Alum Pork of Saline River, about forty miles from the city, with a pipe line leading to the existing reservoirs and treatment plant of the Water Company in the city of Little Rock. Under the proposed plan the city agreed to sell water to the Water Company at a price sufficient to retire bonds which the city proposed to issue to construct the dam and the pipe line.
The project was contingent upon receiving aid from the federal government to the extent of about a million dollars, and in anticipation of receiving this aid a written contract was entered into between the city of Little Rock and the Water Company setting forth the terms of their agreement. But approval of this contract by the federal government was denied on the ground that the government had no authority to contribute to a project of that kind, but aid was promised upon condition that the city of Little Rock buy the plant of the Water Company serving the city of Little Rock.
In 1935, the officials of the city of Little Rock negotiated with officials of the Water Company to purchase all of the plant and property of the Water Company serving Little Rock and its vicinity south of the river. The source of supply for North Little Rock was then in the city of Little Rock, and would not need to be purchased by the city of Little Rock, and the Water Company would be required to secure another source of supply for North Little Rock, either from wells, the river, or impoimding reservoirs, any of these methods involving substantial expense.
It was apparent that on the purchase of the Little Rock plant by the city, it would have a surplus beyond its need, and could supply the company with water for distribution in North Little Rock, with only the added expense of pumping and treating the water so long as the water was pumped from the river, and of treating the water when it flowed by gravity, the expense being about IY2 cents per thousand gallons when the water was pumped from the river, and about % cent per thousand gallons when it flowed by gravity from the new source of supply.
In these circumstances the officials of Little Rock and the Water Company agreed that the contract of purchase of the Little Rock plant should provide that the city would furnish the Water Company with water for its North Little Rock plant for the price of 5 cents per thousand gallons so long as the water was pumped from the river, and thereafter at 4 cents per thousand gallons when it flowed by gravity from the new source of supply on Alum Creek; and in consideration of that agreement the Water Company made a substantial reduction in the sale price of the Little Rock plant, and waived the severance damages. A contract to that effect was duly signed and approved by an ordinance of the city of Little Rock passed February 17, 1936, in which it was recited that the Water Company would pass all resolutions by its board of directors and stockholders necessary, and the city should pass the necessary ordinances to make the agreement effective on the part of the city to sell water to the company for North Little Rock.
The city passed an ordinance which recited the agreement for the sale of water to the company for North Little Rook, and setting forth the details for meter readings and monthly settlements. The ordinance contained the emergency clause, which recited that the Water Company was an important customer for water to be supplied by the city, and that the contract was necessary for the financing of the. project by the city, and that the financing of the project was necessary to be consummated immediately for the city to receive the promised, federal aid. The contract to purchase the plant embodying the agreement to sell water to the Water Company for North Little Rock was duly approved by the Department of Public Utilities on March 17, 1936.
Following all this, formal deeds and assignments, reciting a consideration of $1 and other considerations, were executed by the Water Company to the city, conveying all of'the plant and properties, accounts receivable, agreements with improvement districts, and all other things and matters relating to the property conveyed, and were delivered to the city, and possession of the Little Rock plant was turned over to the city on April 1, 1936, and the indeterminate permit of the Water Company to serve Little Rock was terminated, the order of the Public Utilities Department expressly reciting that its permit to serve the city of North Little Rock and vicinity north of the river was continued in full force and effect.'
Since that time, and for about one year, that part of the contract for supplying the company with water at the rate of 5 cents per thousand gallons was performed without interruption. During this time the city was engaged in constructing its dam, and water was pumped from the Arkansas river. When the dam was completed, and water flowed by gravity, it was charged for at the rate of .4 cents per thousand gallons.
The dam and reservoir were made sufficiently large to be ample to serve the city of Little Rock for a longtime in the future, and there was every indication that there would be a surplus of water not needed to supply Little Rock, and, unless used, would waste over the dam or remain in the lake or reservoir behind it and this surplus could be supplied under the contract with the Water Company for Norih Little Rock with only the added expense of treating it, which is y2 .cent per thou sand gallons, the city thus realizing a profit of 3y2 cents per thousand gallons on all water sold to the company for use in North Little Bock.
Under act 215 of the Acts of the 1937 general assembly, p. 795, the city appointed a waterworks commission shortly after March 8, 1937, which has since managed the municipal waterworks plant and'collected the charges on the sale of the water to the company for use in North Little Bock.
On March 22,1939, the waterworks commission filed with the city council of Little Bock a recommendation for the adoption of a schedule of water rates. The Water Company had no' notice of this meeting or recommendation. The city council passed an ordinance pursuant to this recommendation, which set forth a schedule of rates for water, the only change in the schedule relating to the rate for consumption of water in excess of 131,400 cubic feet per month (a cubic foot of water is equal to iy2 gallons), which was fixed at 6.75 cents per 100 cubic feet, whereas the prior rate used by the city and the waterworks commission for water in excess of 1,333,300 cubic feet was 3.75 cents per 100 cubic feet. In terms of gallons, the old rate, with “step-up” in the schedule, was equivalent to about 5 cents per thousand gallons, and the new rate about 9y2 cents per thousand gallons. The ordinance recited that all ordinances, rate schedule and ■agreements fixing charges for water, were repealed, sét aside and held for naught. The Water Company was the only purchaser of water in excess of 131,400 cubic feet per month.
Following the passage of this ordinance, and prior to April 1, 1939, the waterworks commission notified the Water Company that from and after the passage of the ordinance water would be charged for in accordance with the ordinance, amounting to about 9% cents per thousand gallons. The ordinance contained provisions for certain discounts upon prompt payment except as to minimum bills, and for a penalty for delinquency in payment.
On March 30, 1939, suit to enjoin the enforcement of the new rates was filed in the federal court, and a temporary restraining order issued, but on June 22nd the case was voluntarily dismissed without prejudice, and on the same day the instant suit was filed in the Pulaski chancery court, and a temporary injunction was granted by that court against the enforcement of the new water rates.
A demurrer was filed, upon the ground that the complaint did not state a cause of action, which was sustained. The Water Company elected to stand on its complaint, the same was dismissed, and from that decree is this appeal.
The application of the waterworks commission for the revision of the water rates, in response to which ordinance No. 5712 was passed by the council of the city of Little Rock, contains a recital as to the operating costs of the waterworks plant, upon consideration of which the council incorporated into the ordinance the finding that “It costs the sum of 11.51c per thousand gallons to concentrate and impound water in Lake Winona (the lake created by the dam), transmit the same to the filtration and treating plants in Little Rock, and the treatment and purification of the same preparatory to turning it into the city distribution system.” It was further recited that the contract rate of 4c per thousand gallons to the Water Company is inadequate, unjust and unreasonably low, and does not yield the Little Rock Municipal Water Works sufficient compensation to cover the cost -and expenses of supplying said water, and a reasonable depreciation and return upon the property used and useful in supplying the service, and results in a discrimination against the city of Little Rock and its inhabitants.
As has been said, the Water Company was not notified that this report was being prepared, and had been prepared, and was not advised of the intention to pass the ordinance until after its passage.
The ordinance divides the rate payers into six classes, and fixes rates upon the basis of water consumed. In the first class are users of 6,700 cubic feet per month, or less, whose rate was fixed at 30 cents per 100 cubic feet. For the next 6,700 cubic feet per month, or less, the rate was 25 cents'per 100 cubic feet. For the next 20,000 cubic feet per month, or any part thereof, a rate of 22 cents. For the next 26,000 cubic feet per month, or any part thereof, 15 cents per 100 cubic feet. For the next 32,000 cubic feet per month, or any part thereof, 12 cents. For the next 40,000 cubic feet per month, or any part thereof, 10 cents. For the excess of any quantity over 131,400 cubic feet per month, a rate of 6.75 cents per 100 cubic feet.
It appears that the original contract between the city of Little Rock and the Water Company was upon the consideration of a cash payment of $3,850,000, and the waiver and relinquishment by the Water Company of any claim for severance damag’es resulting from the exclusion of the Water Company from-its reservoir and existing sources of supply for water which it required in North Little Rock. The complaint alleged that the reduction in the purchase price was made and the severance damages waived in consideration of an agreement to furnish water at the contract prices.
It was alleged that the original contract between the city and the Water Company was performed according to its terms for about three years, when the city passed ordinance No. 5712, hereinabove referred to.
The right to pass the ordinance is asserted by the city under the reserved legislative, power delegated to the city 'by the general assembly of the state to fix rates in a legislative capacity for a municipal plant. Sections 2005-2016, Pope’s Digest. If these sections do not confer this power, it would appear to be that the power of fixing rates and of other regulations was non-existent. In other words, if the city does not have that power, no other agency appears to have.
This right is denied by the Water Company, which insists that its contract was for the sale of its Little Bock plant at a reduced price, with a waiver of the severance damages, in consideration of which the city agreed to sell surplus water at an agreed price.
The controlling question in the case appears, therefore, to be whether the contract between the city and the Water Company, approved, as it was, by both the council of the city and the Department of Public Utilities, was a mere contract for the sale of surplus water. If it was this and nothing More, the contract is valid as such, and must be enforced accordingly, and it is beyond the power of the city to change the contract without the consent of the Water Company, the other contracting-party.
To sustain its position the appellant Water Company relies upon the case of McGehee v. Williams, 191 Ark. 643, 87 S. W. 2d 46, in which it was held that a city is authorized to sell its surplus water to. inhabitants located without the city limits. In that case the city of Port Smith constructed a municipal waterworks system, including a reservoir.' The water supply was obtained in the vicinity of the town of Alma, and was conveyed in a pipe line which passed near Alma. The town of Alma was engaged in constructing a municipal water system, .and required á source of supply. There was no connection between the two proposed systems. Port Smith had never furnished water to Alma, and was under no obligation to do so. Port Smith had a surplus of water beyond its own requirements, and it was held that authority existed for the sale of this surplus water as a matter of contract, upon such terms as might be agreed upon, for the reason that the reserved legislative power to fix and regulate rates does not extend to such contracts or to that service.
Here, the Water Company was engaged, as a public utility, in supplying water to both Little Bock and North Little Bock. The plant was for that purpose, and a common source of supply was used for both cities. Unlike the case of McGehee v. Williams, supra, the question here presented appears, not to be whether Little Rock may furnish water to North Little Rock, which had not been previously furnished, as surplus water, not required for its own purposes, but, rather, whether North Little Rock may be deprived of a utility service which it had when the contract was made between the city of Little Rock and the Water Company.
Now, it is alleged that Little Rock did not purchase the entire plant owned by the Water Company. It purchased only so much thereof as lay and was situated within the city of Little Rock; but, so far as North Little Rock is concerned, it had as well have done so, and, in effect, has done so, as North Little Rock has no other source of supply, and will have none until another source of supply may be provided. The city of Little Rock did supply water for North Little Rock under the contract until the waterworks commission was created, and thereafter the commission supplied water to the Water Company for resale and distribution at the rates set forth in the contract until ordinance No. 5712 became effective. If, therefore, the contract. between the city of Little Rock and the Water Company is merely one for the sale of surplus water, it must be enforced according to its terms. If, however, the contract calls for a public utility service, supplied and furnished within the governmental or legislative jurisdiction of the council, the rates fixed in the contract were subject to change and revision by the council of the city of Little Rock in the reasonable exercise of that jurisdiction.
Appellant concedes, as it must do, that it is settled beyond excuse for extensive citation of authority that a public utility may not abandon any part of its property devoted to public service without the consent of the state, or transfer its property to someone else and be rid of its duty to serve the public. This rule of the common law is reaffirmed in act 324 of the Acts of 1935, which is “An act providing for the better regulation of certain public utilities in the state of Arkansas, and for other purposes.” It is provided in § 57 of this act that “With the consent of the Department (of Public Utilities), but not otherwise, . . ., any public utility may sell, acquire, lease, or rent any public utility plant or property constituting an operating unit or system.”
Appellant also concedes the principle that when a public utility sells its public utility property, the purchaser assumes the duty of carrying on the public utility service to which the property had been dedicated. The-numerous cases cited in the briefs of opposing counsel sustain this concession, among them being our own cases of Railroad Commission of Arkansas v. Saline River Railroad Co., 119 Ark. 239, 177 S. W. 896, and Freeo Valley Railway Co. v. Hodges, 105 Ark. 314, 151 S. W. 281.
It is conceded by appellant that when a public service corporation sells and transfers its property serving a certain community, the transferee succeeds to the obligations of the transferor serving the community, and that this rule applies when a municipality, with power to do so, purchases a distribution system serving a certain community, the purchasing municipality would be compelled to continue the service. But it is insisted that this principle has no application to the facts of this case, for the reason that the Little Rock municipal waterworks system was authorized only to buy so much of the Water Company’s plant as was.situated in Little Rock and to serve only that city and its vicinity south of the river then being served by that Water Company in that territory.
We think, however, that the principle does apply, for the reason that Little Rock acquired an essential part of the system devoted to furnishing water to North Little Rock, and without which the latter city would be without water supply until another system or source of supply could be procured. The theory of the law is that a city may not be deprived of an essential utility, such .as water, through the action of the utility furnishing that service by selling its plant, or an essential portion thereof, -without which the service cannot be furnished; and if it does so, the purchaser or succeeding utility company succeeds to and has imposed upon it the obligation of continuing the service.
It is obvious from the allegations of the complaint itself that North Little Bock has been deprived of its source of water supply, and will continue to be until another source has been obtained, unless the Little Bock Municipal Waterworks Commission is under the obligation to furnish that service. It is true, of course, that Little Bock purchased only so much of the original plant which supplied both cities as lay within its own city limits; but it is true also that the part purchased is essential to service in North Little Bock, and when this purchase was made Little Bock assumed the duty and obligation to continue the service in which the vendor utility company was engaged when it sold a part of its water system. The arrangement for furnishing-water to the North Little Book system was not changed when the city of Little Bock acquired the property of the Water Company south of the river. There was a change only in the source of supply. The entire original plant had been devoted to serving water to both cities, and they were alike interested in the continuance of that service.
It was said by the Supreme Court of the United States in the case of Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, that “When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants the public an interest in that use, and must submit to be controlled by the public for the common .good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.”
The entire original plant was devoted to the public •service of furnishing both cities with water, and North Little Bock may not be deprived of that service through the action of the Water Company in selling a portion of its plant without which portion the service to North Little Rock could not be continued. A well considered case which supports this principle is that of City of South Pasadena v. Pasadena Land & Water Co., 152 Cal. 579, 93 Pac. 490; and our own cases of Arhansas-Missouri Power Co. v. Brown, 176 Ark. 774, 4 S. W. 2d 15, 58 A. L. R. 534, applied this principle. See, also, Salisbury S Southern Ry. Co. v. Southern Power Co., 179 N. C. 18, 101 S. E. 593, 12 A. L. R. 304; People’s Natural Gas Co. v. Public Service Commission, 279 Pa. 252, 123 Atl. 799.
In 67 C. J., title “Waters,” § 633, p. 1158, it is said: “So, in general, a municipal corporation which purchases the assets and franchise of a water company acquires the rights and privileges of, and has no greater rights and powers than, such company; it assumes the responsibility of, and is subject to the same obligations as, such company.”
Now, the complaint alleges that the Water Company is furnishing North Little Rock with water in abundant supply, and that it is doing so at less cost than the city of Little Rock proposes, under ordinance No. 5712, to charge for the same service, and that the Water Company is doing this under its contract with the city of Little Rock. But, unless, that contract is merely one for the sale of surplus water — and we hold that it is not —then it is apparent that a preferential and discriminating rate is 'being given to the Water Company, and this may not be done if the contract is not a mere sale of surplus water.
The law forbids a utility operating as such from discriminating between its customers. It must furnish its service to all alike, upon identical terms.' This proposition is not disputed by either of the parties to this litigation, and no citation of authority is required to. support it.
Now, it is alleged that in consideration of the rate made it, the Water Company reduced its sale price and waived its claim for severance damages. But such con tracts for discriminating rates are unenforceable. Our own case of Bryant Lbr. Co. v. Fo%wche River Lbr. Co., 124 Ark. 313, 187 S. W. 455, definitely settles that question. There a timber owner granted a right-of-way for .a railroad over its timber lands in consideration of a preferential rate for hauling its timber by the railroad as a common carrier. The contract for this preferential rate was held void as being contrary to public policy, the legal principle applied being that a carrier must render service without discrimination as . to rates.
The contract for this preferential rate is void as being contrary to public policy, for the reason that there may be no discrimination as to the rates charged for its service.
In the case of Arkansas Natural Gas Co. v. Norton Co., 165 Ark. 172, 263 S. W. 775, it was said that a corporation supplying natural gas to consumers cannot be considered as a public utility with respect to certain classes of consumers and a private corporation as to certain others; and that principle must be applied here, unless, indeed, the contract between Little Rock and the Water Company is merely one for the sale of surplus water; and, as has been said, it is not a contract of that character.
In the annotation to the case of American Aniline Products v. City of Lock Haven, 50 A. L. R. 121, 288 Pa. 420, 135 Atl. 726, many cases are cited holding that discriminating rates may not be granted by a public utility.
The purpose and effect of ordinance No. 5712 was to terminate a discrimination which, from the allegations of the complaint, appears to exist in favor of the Water Company, and to place all users of water on the same basis by making the.rates dependent upon quantity of water used.
That the operation and maintenance of the water plant by Little Rock was a governmental function, and not a proprietary activity, was the point expressly de cided in trie case of Little Rock v. Holland, 184 Ark. 381, 42 S. W. 2d 383, arid trie case of Browne v. Bentonville, 94 Ark. 80, 126 S. W. 93, is to trie same effect. If trie city is now so acting, trien its action in making trie contract was in that capacity, since it was executed in contemplation of the performance of a governmental function. Clear Creek Oil & Gas Co. v. Fort Smith Spelter Co., 148 Ark. 260, 230 S. W. 897. We think trie right of trie city of Little Rock to exercise this governmental function was not destroyed by trie contract which this suit seeks to enforce.
In trie case of City of Lamar v. Town of Wiley, 80 Colo. 18, 248 Pac. 1009, it was said by trie Supreme Court of Colorado: “¡Since the public utility statute, conferring power of fixing rates for electricity on the Public Utilities Commission, was to be read into contract between private corporations and town fixing rate for electricity, after sale of the utility to city, trie contract did not prevent trie commission from changing trie rate.”
Opposing counsel discuss at great length and cite numerous authorities upon the question whether the service rendered by trie waterworks commission is performed within trie municipality of Little Rock. We think it is. Trie water is delivered and measured at trie water meter which the complaint alleges is located within trie corporate limits of the city of Little Rock, and we think trie fact is immaterial that trie meter is located near trie city’s boundary, and is not controlling. We think there is no difference between this location and one in trie heart of trie city. Trie fact alleged in trie complaint to be true is that all trie water furnished trie Water Company is delivered through a meter located in trie city of Little Rock.
The first paragraph of § 2016, Pope’s Digest, reads as follows: “Trie jurisdiction of trie municipal council or city commission of any municipality shall extend to and include all matters pertaining to trie regulation and operation within the limits of any such municipality of any street railroad, telephone company, gas company furnishing’ g*as for domestic or industrial purposes, pipe line company for transportation,' distribution or sale of oil, gas or water, electrical company, water company, hydro-electric company or other company, operating a public utility or furnishing public service within such municipality.”
We think the grant to the city of the right to regulate private utilities contains no restriction upon the right of the city to regulate the rates of a utility operated by itself. In the case of Shirk v. City of Lancaster, 313 Pa. 158, 169 Atl. 557, the Supreme Court of Pennsylvania said: “This power of regulation and control (of public utility rates) is exclusively a legislative matter. Where a state constitutes a commission with general powers of regulation over utilities, it includes all such bodies, municipal or otherwise, unless there is definite classification and exemption therefrom.”
Many questions are discussed by opposing counsel, who have supplied us with exhaustive briefs indicating great research, and in one of the briefs of counsel for appellant it is stated that ‘ ‘ This appeal presents one question that is decisive of the whole case, . . . and that is whether or not the contract between Little Rock and the Arkansas Water Company was a contract for the sale of surplus water.” We concur in this view that that is the controlling question in the case, and will not further protract this opinion, as we think what we have said is decisive of that question.
The decree of the court below will be affirmed, and it is so ordered.
Griffin Smith, C. J., dissents; Baker, J., concurs.
The Chief Justice thinks the contract was one for the salé of surplus water, and that it is valid as long as there is a surplus. The period during which such surplus will exist is a question of fact, dependent upon the requirements of Little Rock. | [
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Smith, J.
John Moye and Eardie Shannon, trading as partners under the firm name of Moye Electrolux Company, sold a refrigerator known as an Electrolux to R. J. Stobaugh. In part payment, Stobaugh delivered •to his vendors an electric refrigerator which he owned and a typewriter also, the two articles being of the agreed value of $147.50. The contract of sale recited that it was made iipon consideration of this cash payment of $147.50 and 36 consecutive monthly payments thereafter to be made of $5 each. Title was reserved, and the contract provided that if deferred payments were not made when due, the unpaid balance should at once become due, and that the vendors might retake possession of the refrigerator, without notice or demand, by process of law or otherwise, and should retain all payments which had been made for the use of the refrigerator, the vendee waiving “All claims, damages and demands arising out of the repossession.”
The testimony is in irreconcilable conflict as to whether the refrigerator was adapted to the purpose for which it was sold — that of refrigerating. .This is the principal and the controlling question in the case, and, if it were conceded that this question had been decided contrary to the preponderance of the evidence, it cannot be said that the testimony is insufficient to support the verdict of the jury.
Stobaugh made default in his payments, and the vendors took possession of the refrigerator, and the testimony is conflicting as to whether it had been voluntarily surrendered. The testimony on Stobaugh’s behalf is to the effect that he surrendered possession upon the promise and agreement that another refrigerator would be furnished.
After possession of the refrigerator had been taken by the vendors, Stobaugh brought suit to recover the value- of his electric refrigerator and his typewriter. There was a verdict and judgment in his favor for the sum of $70, from which is this appeal.
The contract of sale of the refrigerator has not been abstracted, although excerpts from it are copied; But it is conceded that it contained no express warranty, and the court charged the jury in effect that a warranty could not be engrafted upon the contract by parol testimony. It is insisted, however, that this was done by permitting-testimony to be offered to the effect that the refrigerator would not refrigerate.
Such testimony was admitted, it being to the effect that the box would not refrigerate, and that appellants were unable to make it do so. About a week after it had been installed, a second but smaller refrigerator was taken to Stobaugh’s home, but appellants carried it away. Appellants brought a third box and offered to install it, but it was bursted on the side, and was soiled, and it, too, was carried away. A burner used in the refrigerating process was taken from the third machine, and put in the original machine, but it still would not operate. Stobaugh testified that he was promised a new box, but it was not furnished, whereupon this suit was brought.
It is insisted that the refrigerator was a well-known and standard article of commerce,' bought after inspection, and that there was, therefore, no implied warranty that it would answer the specific purpose for which it was purchased. The law was so declared in the case of General Motors Acceptance Corporation v. Jerry, 181 Ark. 771, 27 S. W. 2d 997, and in the cases there cited. It was said in the opinion in the Jerry case, supra, that, while there was no warranty that a well-known and definite article of commerce in general use would answer the purpose of the purchaser, there was a warranty against defects in the machine.
The testimony on Stobaugh’s behalf, whether true or false, (which was, of course, a jury question), was to the effect that the machine would not refrigerate, and could not be made to do so after frequent attempts. Under this testimony, Stobaugh had the right, after the refrigerator had been taken from his possession, to recover the portion of the purchase monej'- which he had paid. It was held in the case of Dyke v. Magdalena, 171 Ark. 225, 283 S. W. 374, (to quote the third headnote in that ease) that “One who purchased a refrigerator for the purpose of preserving meats is entitled to recover a cash payment on the refrigerator proving worthless, though he had agreed that such payment should be retained for rent and wear and tear in case of default in further payments.”
The testimony is legally sufficient to sustain Stobaugh’s contention, and, as no error appears, the judgment must be affirmed, and it is so ordered. | [
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Smith, J.
Appellant is tbe sheriff and collector of Jackson county, and in that capacity received warrants issued by various school districts of that county in payment of the taxes due the respective districts. The warrants liad been registered for payment with the count}1- treasurer, but that official refused to receive them from the collector when tendered in settlement of taxes due the districts which had issued the warrants. A complaint was filed by the collector against the treasurer, alleging the facts above stated, and mandamus was prayed to compel the receipt of the warrants by the treasurer, who filed a demurrer to this complaint. The demurrer was sustained, and the cause of action was dismissed, and this appeal is from that judgment.
This cause is controlled by the opinion in the case of Arkansas Power & Light Co., v. Curlin, 187 Ark. 562, 61 S. W. 2d 73. In that ease, under the authority of § 10045, Crawford & Moses’ Digest (§ 13804, Pope’s Dig.,) a taxpayer sought by mandamus to compel the collector to receive school warrants in payment of taxes due the school district which had issued them. It was held that this section of the statutes had been impliedly repealed by amendment No. 31 to the Constitution. This holding was upon the theory that amen dent No. 31 had authorized the electors of the school districts of the state to vote a school tax for any one or all of three purposes, and that the tax voted for one of these purposes could not be -diverted to any of the others, and that the amendment would be contravened and its purposes thwarted if it -were required that a school warrant issued for a particular purpose be received in payment of the school taxes generally.
It was said in the Curlin case, supra, “This, because, if appellant (the taxpayer) can coerce the collector to accept the warrants in payment of past-due taxes, it 'would nullify and destroy the constitutional mandate giving to the voters the right to make appropriation of the tax levy.” In other words, a warrant is payable in the order of its registration, when all warrants cannot be paid, and is payable out of the proceeds of the tax collected for the purpose for which the warrant in question had been issued.
Following this decision, act 326 was passed at the 1935 session of the General Assembly (Acts 3935, page 950,) which, in its preamble, recited that the opinion in the Curlin case had caused confusion as to the right of taxpayers to pay school taxes with school warrants, and that it was the sense of the General Assembly that taxpayers should have the privilege of paying their school taxes with legally drawn school warrants of the district to which such taxes are due. Following this preamble, § 10045, Crawford & Moses’ Digest was substantially re-enacted.
This re-enactment of an invalid statute adds nothing to its validity, and does not free it of the constitutional objection found to it. If § 10045, Crawford & Moses’ Digest, offends against amendment No. 11 in the respect stated in the Curlin case, its subsequent re-enactment did not free it of this infirmity.
It is insisted that the subsequent case of Bradford v. Burrow, 188 Ark. 380, 65 S. W. 2d 554, in effect overruled the Curlin case; but this is not true. The point decided in the Bradford case was (to quote a headnote) that “On redemption of land sold to the state for taxes, the county treasurer is required to accept county warrants for the portion of the taxes owing to the county.” After citing a number of cases which had construed this or similar statutes, it -was said in the body of the opinion in the Bradford case that “The purport of all these decisions is that a county may not refuse to receive its warrants in payment of any demand due it.”
Amendment No. 11 has no application to county general taxes. It relates only to school taxes. Now, while act 326 of the acts of 1935 did not heal the constitutional infirmity of § 10045, Crawford & Moses’ Digest, insofar as it relates to the payment of school taxes with school, warrants, it does evidence the legislative intent to reenact so much of § 10045, Crawford & Moses’ Digest, as is constitutional; and that portion of act 326, permitting the use of county, city and town warrants to pay the taxes due the counties, cities, or towns, respectively, which had issued them, does not offend against amendment No. 11, which) as has been said, relates only to school taxes.
The complaint alleges that the warrants tendered the treasurer by the collector were not in excess of the revenues of the respective districts which drew them for the fiscal years in which they were drawn. The warrants all appear to have been drawn in payment of teachers ’ salaries, and it was not alleged that the receipt of those warrants 'by the treasurer would not “nullify and destroy the constitutional mandate giving to the voters the right to make appropriations of the tax levy,” nor was it .alleged that their receipt by the treasurer would not give them a prior or preferential right of redemption and payment, to which their order of registration did not entitle them.
The judgment of the court below is correct and is, therefore, affirmed. | [
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Smith, J.
Appellant insurance company issued a .policy of insurance upon the life of Virginia Johnson, for the sum of $300, payable, upon her death, to her husband, Fred Johnson. The policy was issued upon an application therefor' made by the beneficiary . named therein on February 12, 1937. Premiums of thirty cents payable each week were regularly made, and totaled $20.10.
Upon the death of the insured in June, 1938, proof of death was made, but liability under the policy was denied upon the ground that the issuance of the policy had been induced by false and fraudulent answers as to the state of applicant’s health. The application was, by the terms of the policy, made a part thereof. It pro■vided that the contract of insurance should not be effective until the policy was delivered while the insured was in good health and of sound mind, and should be void if statements in the application upon these ques tions were false. The validity of this limitation upon liability is not questioned as a legal proposition. Progressive Life Ins. Co. v. Preston, 194 Ark. 84, 105 S. W. 2d 549, and Progressive Life Ins. Co. v. Hulbert, 196 Ark. 352, 118 S. W. 2d 268, are recent eases upholding this limitation upon liability. It is conceded that the answers to questions concerning' the insured’s health contained in the application for the insurance were untrue, in that she was not, at the time the application was made, in good health and of sound mind; but was, on the contrary, a patient in the State Hospital for Nervous Diseases. The proof of death disclosed this fact, and liability under the policy was denied.
A settlement was made and a written release was obtained, for which the sum of $25 was paid the beneficiary. The release was formally acknowledged before the clerk of the circuit court of the county in which the beneficiary resided. ' The policy provided that if the statements in the application were false, and the policy rendered void on that account, the insurer’s liability should be limited to the return of the premiums paid. The consideration for the release exceeded the premiums.
This suit was brought to enforce payment of the policy, and was defended upon two grounds: (1) That there was no liability under the policy, and. (2) If, so, that the liability had been compromised and settled. The trial resulted in a verdict and judgment for the plaintiff beneficiary for the sum of $275, with six per cent, interest thereon, from which judgment is this appeal.
False answers as to the insured’s health and mental condition having been given in the application, it would ordinarily follow that the policy was void on that account. But the testimony on appellee’s 'behalf was to the effect that appellant’s soliciting agent was told that the insured was then a patient in the State Hospital. This fact was denied by the agent, who testified that appellee told him his wife was in good health, and did not tell him that she was then in the State Hospital. Witness wrote into the application the answers given by appellee. Several women were present when he filled out the application, and he supposed one of them was the applicant. He did not testify that he asked whether any of the women present, was the applicant, and no one told him the applicant was present. He assumed, without inquiry, that the applicant was present, but no one made any statement to him which led to this false assumption. No one of the women was asked to sign the application. Appellee, himself, signed insured’s name.
Appellee testified that he told the agent who took the application that his wife was in the hospital, and that he did not think the insurance company would write a policy on her life, but the agent assured him that the policy could be written. Theodore Moore testified that he and his mother resided in the house with appellee, and that he was present when the agent came there and said he was selling insurance. The agent proposed to write insurance for witness and his mother, but they declined the offer. The agent asked appellee about taking out insurance on the life of his wife, but was told by appellee that his wife was in the hospital and had been there for about a year. Appellee stated that he did not think insurance would be written on the life of his wife, but the agent said he would try to get the insurance, and said he thought he could. The agent filled out the application, and appellee signed it.
These conflicting questions of fact were submitted to the jury under appropriate instructions, and have been concluded by the verdict of the jury.
Numerous decisions of this and other courts are cited as approving, in effect, the law as stated in § 601 of the chapter on Insurance in 32 C. J., page 1333. The recent case of Security Benefit Association v. Farmer, 193 Ark. 370, 99 S. W. 2d 580, quotes with approval from that work as follows: “ ‘Where the facts have been truthfully stated to its agent, but by his fraud, negligence, or mistake are misstated in the application, the company cannot, according to the generally accepted rule, after accepting the premium and issuing the policy, set up such misstatements in the application in avoidance of its liability, where the agent is acting within his real or apparent authority, and there is no fraud or collusion upon the part of insured. . . .’ ” The reasons for this rule are there stated. Many cases are cited in the note to the text quoted supporting this statement of the law. There appears also in this opinion by our court in the case just cited a quotation from 14 R. C. L., p. 1174, to the samé effect. This case, with other similar decisions of this court, is cited in the very extensive note to the ease of Metropolitan Life Ins. Co. v. Alterovitz, 214 Ind. 186, 14 N. E. 2d 570, 117 A. L. R. 770.
The effect of the release would, ordinarily, be to bar the prosecution of this suit, as it was executed for a valuable consideration, and, upon its face, appears to be a settlement of a pending’ controversy as to the insurer’s liability; but it was alleged, and the jury has ■ found, under testimony supporting that allegation, that its execution was procured by fraud and duress.
It is conceded that, in negotiating the release, the agent of the insurer stated to appellee that the company was liable only for the return of the premiums paid. But this statement, although incorrect, did not constitute fraud. It was so held in the case of Security Life Ins. Co. v. Leeper, 171 Ark. 77, 284 S. W. 12, where the authorities upon the subject were reviewed by Chief Justice McCulloch.
But it was further testified that the representative of the company who negotiated the settlement and obtained the release, stated to appellee that a change had been made in the proof of death, and that appellee would be sent to the penitentiary on that account, as the proof had been transmitted in the United States mails. It was denied that this threat had been made, or that appellee was accused of having* changed the proof of death. Appellee testified that when the threat of prosecution and punishment was made, and because of it, he went at once with the company’s representative, to the office of the circuit clerk and executed and acknowledged the release.
The jury, no doubt, found — and we think had the right to so conclude — that taking appellee, a colored man, before an official known to be connected with the courts, added to his terror, and that the execution of the release was induced by the fear of prosecution and punishment, although appellee was not guilty, provided, of course, appellee’s statement as to these circumstances was true, which was a question for the jury. The question of fact relating to the circumstances of the execution of this release was submitted to the jury under instructions which declared the law to be that the burden was upon appellee to show that the execution of the release had been procured by fraud and duress, and that otherwise there could be no recovery on the policy. The verdict concludes this question of fact.
In Shattuck v. Watson, 53 Ark. 147, 13 S. W. 516, 7 L. R. A. 551, the facts were that Mangum showed Watson certain instruments, which Mangum stated had been forged by Watson’s son, but that Mangum only wanted the money which Watson’s son had fraudulently secured, and Watson was told that if he would execute the note and make the mortgage, the liberty and good name of Watson’s son would be saved. It was there said by Justice Hemingway that “The allegation of' duress is not sustained. It seems to be conceded that the son was guilty of a felony, and the appellant threatened only to prosecute him for his crime unless the amount obtained was secured. It was not a threat to prosecute on a simulated charge in order, to extort money. Marvin v. Marvin, 52 Ark. 425, 12 S. W. 875, 20 Am. St. Rep. 191.”
The Marvin Case, cited by Judge Hemingway, was disposed of by a Per Curiam opinion reading as follows: “Per Curiam. If a man lawfully arrested on process for seduction marries the woman to procure his discharge, he cannot have the marriage avoided upon the ground of duress. The fact that he subsequently dis covers that he could not have been convicted will not alter the case, if the prosecution was upon probable cause, and not merely from malice. Bish. Mar. & Div.. § 212; 2 Kent, § 453; Honnet v. Honnet, 33 Ark. 156, 34 Am. Rep. 39. The prosecution of the appellant was upon probable cause. Let the decree be affirmed.”
Here, the jury might, and, no doubt, did, find that the threat of prosecution and punishment was made, and that, if made, it was done without probable-cause, as no attempt was made to show that appellee had altered the proof of death; indeed, it is denied that he was accused of having’ done so. There was, therefore, no probable cause for the prosecution threatened against appellee.
In Gardner v. Ward, 99 Ark. 588, 138 S. W. 981, it was held (to quote a headnote) that “To render a contract void because of threats or menaces, it is necessary that the threats and circumstances should be of a character to excite the reasonable apprehensions of a man or person of ordinary courage, and the promise, contract or statement'should be-made under the influence of such threats or menace.” See, also, Burr v. Burton, 18 Ark. 214; Bosley v. Shanner, 26 Ark. 280; Fonville v. Wichita State Bank & Trust Co., 161 Ark. 93, 255 S. W. 561, 33 A. L. R. 125; Ellis v. First Nat. Bank of Fordyce, 163 Ark. 471, 260 S. W. 714; Goodrum v. Merchants & Planters Bank, 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914A, 511.
The case of National Life & Accident Ins. Co. v. Blanton, 192 Ark. 1165, 97 S. W. 2d 77, is applicable to the facts of this case and, we think, controls it. The second headnote in that case reads as follows: “Where an action on a life insurance policy was defended- on the ground that, in consideration of return of premiums paid, appellee had released insurer from all liability, and the testimony showed that a number of agents of insurer visited appellee, and, in their efforts to secure the release, told her that if she tried to get the insurance she would be sent to the penitentiary, and the jury accepted this testimony as true, the Supreme Court will also accept it as true; and hold that it estabished such duress as to render the contract of release unenforceable. ’ ’
In the body of the opinion in the case just cited, the late Mr. Justice Butler said: “. . . -that to constitute duress sufficient to render void a contract because of threats it is necessary that the threats and circumstances be of a character sufficient to excite the reasonable fears of a person of ordinary courage. This, of • course, does not mean an ideal person, but one similar to the person affected and surrounded by similar circumstances. Manifestly, the threats which would induce the greatest fear in one person and constrain his acts might have no influence on another, and a person of ‘ordinary courage’ is one similar to the person ag*ainst whom the threats are made as to age, sex, mentality and information surrounded by the same, or similar, conditions. 13 C. J., § 315, p. 400; § 319, p. 402.
“It is clearly inferable from the evidence that the appellee is a woman of limited information unaccustomed to business transactions. The threats made by the agents of appellant company would have had no influence on many persons, but to us, they appear to have been sufficient to submit to the jury whether sufficient to overcome the appellee’s mind and to prevent her from exercising her own free will and to cause her to execute the release.”
We conclude, therefore, that the testimony is sufficient to sustain the finding that the execution of the release was obtained by duress, and, if so, the jury properly disregarded it.
No error appears, and the judgment must be affirmed. It is so ordered.
• Baker, J., dissents. | [
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Humphreys, J.
Four separate suits were brought in the circuit court of Clark county against appellants, one by Mose Mitchell to recover $3,000, one by his wife, Florence Mitchell, to recover $3,000, one 'by Mose Mitchell, Jr., to recover $3,000, and one by James Robert Mitchell to recover $1,500, for injuries received by them in a collision between a passenger bus, owned by the Missouri Pacific Transportation Company and being-driven by the other appellant, C. W. Raines, an employee of the Missouri Pacific Transportation Company, and a team and wagon owned and being driven by Mose Mitchell.
The negligence alleged in each complaint against appellants as g*rounds for recovery was:
First, that appellant, Raines, was driving- at a dangerous rate of speed, and,
Second, that he (Raines) left the right-hand side of the highway and drove over on the left side of the highway and struck the team and wagon occupied by Mose Mitchell, his wife and two sons, killing one'mule, demolishing the wagon and severely injuring each of the occupants.
C. W. Raines filed separate answers to the complaints denying the material allegations therein.
The Missouri Pacific Transportation Company filed separate answers to the complaints denying the material allegations therein and pleaded contributory negligence on the part of the plaintiffs and, as a further defense, pleaded that the collision was unavoidable because just before the collision one of the mules pulling Mose Mitchell’s wagon shied, reared up and came down on the bus driver’s side of the highway immediately in front of the bus, causing- the collision.
The cases were consolidated for the purposes of trial and were submitted to a jury under the pleadings, instructions of the court and the testimony introduced by the parties, resulting in a verdict fo-r appellants against Mose Mitchell, Jr., and James Robert Mitchell, and against appellants in favor of Mose Mitchell for $1,500 and in favor of Florence Mitchell for $2,000, from which verdicts and judgments against appellants they have duly prosecuted an appeal to this court.
The main contention of appellants for a reversal of the verdicts and judgments is, according to the undisputed evidence, the collision was not caused by Raines negligently driving the bus at a dangerous rate of speed, nor was it caused by Raines negligently driving across the center of the highway to the wrong side thereof and colliding with Mose Mitchell’s wagon. Appellants argue that viewing the evidence in the most favorable light to appellees no negligence was shown on the part of appellants. We think otherwise for there is substantial evidence in the record tending to show that immediately before and at the time of the collision C. W. Raines was traveling at a speed of 65 or 70 miles an hour and in attempting to pass a car in front of him which was opposite and even with the wagon he ran across the center black line of the highway and struck the team and wagon. A number of witnesses testified as to the rate of speed Raines was traveling, and that in an attempt to pass the car in front of him he turned to his left across the center of the highway and ran into the wagon. There is little or no dispute in the testimony that when he ran into the wagon, Raines was on the wrong side of the highway, and that Mose Mitchell was driving his wagon on his right side of the highway. Raines’ explanation is that he was confronted with an emergency and had he turned to his right he would have run off the dump into a ditch, and had he continued to drive straight ahead he would have run over the car in front of him, which suddenly and unexpectedly slowed up, so he turned to the left in an effort to pass between the car in front of him and the wagon. There is testimony in the record to the effect that he was fifty yards behind the car in front of him as he neared the wagon, and that he did not slow down; that the car in front of him slowed down a little as it neared the wagon, but did not stop. The jury might have concluded from this evidence that Raines could have slowed down himself while covering the distance of fifty yards between him and the car in front of him had he been traveling at a reasonable rate of speed. There is testimony in the record tending to show that Raines had been traveling at the rate of 70 miles an hour before reaching the scene of the collision, and that he had not slowed down when the collision occurred!
J. C. Tolleson testified that about four or five miles back from the scene of the collision he himself was traveling seventy miles an hour and the bus passed him and that he continued to follow the bus to within two miles of the scene of the collision both going seventy miles an hour; that he then slowed down to forty miles an hour and the bus continued moving rapidly and got out of his view, and that the collision occurred before he himself got there.
C. R. Dougherty testified that he saw the collision, and that he was traveling forty-five or fifty miles an hour when the bus passed him; that when the bus passed him he whipped off to the side of the road when he saw the back end of the 'bus was going to hit his car, and that the bus went on down the road and passed another car before it and never did get straight in the road until it hit the mule. The jury may have concluded from this evidence that C. W. Raines was traveling at an unreasonably dangerous rate of speed and was the author of the jam or emergency he claimed to have gotten into. One cannot negligently create a dangerous situation and escape liability on the theory that he acted as he did under the impulse of the moment.
There is substantial evidence in the record to support the verdict of the jury that Raines was driving at a dangerously high rate of speed and negligently driving over on the wrong side of the road and into the wagon and team.
Appellant contends that the court erred in permitting J. C. Tolleson to testify that the bus passed him at Curtis, and that he was making seventy-five miles an hour being four or five miles from the scene of the accident, and that he continued to drive rapidly until he passed out of his view although he, Tolleson, had slowed down to forty miles an hour. Appellants argue that this evidence was inadmissible and prejudicial for the reason that it tended to lead the jury to believe that the bus was being negligently driven at the time of the collision. Other witnesses testified that Raines continued to drive at a high and dangerous rate of speed after he passed out of the view of Tolleson. One witness testified, as above stated, that he passed him at such a rapid rate of speed that he had to turn off the road to let him pass, and another who was in sight of the collision said that he ran around him and passed another car and did not get straight in the road 'before he hit the wagon and team. We think this evidence tends to show that the speed at which Raines was traveling was a continuing act of negligence and that the rapid speed he was traveling when he passed Tolleson was not a separate and different act of negligence. Volume 9, Blashfield’s Cyclopedia of Automobile Law and Practice, § 6171, is as follows:
“Generally speaking, any evidence of conditions leading up to or surrounding an automobile accident, which will throw light on the question of whether a traveler was in exercise of due care at the time of the accident, is admissible, in an action for injuries growing out of such accident.” We think the evidence was admissible.
Appellant also contends that the court erred in giving instruction No. 3B relative to the damages sustained by Mose Mitchell in permitting the jury to take into consideration his future pain and suffering and diminished earning capacity. There is evidence in the record tending to show that as a result of his damages he would suffer future pain and that his capacity for work after his injury was greatly reduced.
We think both instructions as to the measure of damages were correct declarations of law applicable to and responsive to the evidence introduced by Mose Mitchell and Florence Mitchell.
Appellants’ last contention for a reversal is that the verdicts for damages are excessive.
Florence Mitchell testified that the impact threw her out of the wagon and knocked her unconscious; that after they brought her to the hospital she came to about two o’clock the next morning and discovered that she was in a hospital in Arkadelphia; that during the time she was unconscious she did not suffer because she had been unconscious, but after becoming conscious she suffered much with her shoulder and arm; that a gash was cut in her head from up there (indicating) on down; that her head was injured until she has no feeling on the left side of her head; that it is numb and pains her at times; that it injured her hearing; that before the injury she was in good health and able to do any kind of work she wanted to; that her right shoulder and arm was injured and that she suffers from the injury; that she has not much strength in her right hand; that she can not lift. heavy things; that she did most of her housework before she was injured and sent her children to school, but that since the injury she had not been able to do any work to amount to anything.
Dr. Townsend testified that the gash on Florence Mitchell’s head was so deep that he could see the skull; that he took his finger and felt the skull; that the skull was bare; that the cut on Florence Mitchell’s head was four or five inches long and gaped open an inch or more; that he found a good deal of injury to her left ear — that really about half of it was practically torn off and that while it healed up very nicely she complained of not being able to hear out of it; that she received a considerable lick on it which caused her to have a bad looking ear.
Florence Mitchell recovered $2,000, and we think it a very modest sum in view of the fact that the jury could have well found as a result of the injury that she lost her sense of feeling on the left side of her head and partially lost her hearing and lost a part of her ear and her ability to perform her household duties on account of the injury to her shoulder and arm to say nothing of the scar left across her head and face as a result of her injuries.
Mose Mitchell recovered $1,500 including the loss of a mule, the injury to another and the loss of his wagon. He testified, in substance, that before tbe injury he was able to do any kind of work, but that after the injury he was not able to work as he had before; that his back pained him whenever he tried to get about, and that at the time of the trial he was still suffering much pain. He also testified that the jar came near breaking his back and strained a leader in his left leg; that whenever he sat down and attempted to get up he could hardly straighten out his leg and that when he attempted to step up he had to hold onto something to help him; that between the date of the injury and the date of the trial he had lost eleven pounds. We are unable to say that the amount he recovered was an excessive amount for the injuries he received and the pain and suffering he endured, especially in view of the fact that he lost a wag-on worth $50, and a mule perhaps worth $150.
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Humphreys, J.
This suit was brought by appellant against appellee, a foreign corporation, in the circuit court of Independence county to recover a penalty of $1,000 provided by § 2251 of Pope’s Digest for doing-intrastate business in Arkansas without first complying with §§ 2247-2250 of Pope’s Digest. Sections .2247-2250 of Pope’s Digest provide, in substance, the conditions upon which foreign corporations may do an intrastate business and § 2251 provides the penalty against foreign corporations for doing- such business in the state without first complying with the conditions. It was alleged in the complaint that appellee was a foreign corporation doing business in this state without qualifying itself to do so and that on that account it was subject to a penalty of $1,000 and that appellee engaged in the business of furnishing- screen advertising material and having same screened for various merchants in Independence county, Arkansas, during- the year 1938; that it entered into contracts with various merchants in Independence county, Arkansas, whereupon it agreed to and did furnish advertising material for said merchants in consideration of certain amounts paid and to be paid to , it by the merchants. It was also alleged that appellee entered into contracts during the year 1938 with certain theaters in Independence county, Arkansas, to screen the advertising- films furnished by appellee advertising the products of said merchants for which appellee paid certain amounts to said theaters.
Appellee filed an answer admitting that it was a foreign corporation doing business under the laws of the state of Delaware and that appellee had not quali fied itself to do business in Arkansas as a foreign corporation under the provisions nf Pope’s Digest mentioned in the complaint and alleging by way of a complete defense that during the year 1938 and at all other times the transactions, negotiations, or other matters of business done or performed in the state of Arkansas by appellee have 'been, were and are strictly in interstate commerce and that it is not subject to penalties imposed by the statutes of Arkansas on foreign corporations doing an intrastate business in the state.
The cause was submitted to the court, sitting as a jury, upon the complaint, the answer and the testimony introduced by the respective parties which resulted in a finding that the business transacted by appellee was interstate and not intrastate and that appellee was not subject to the penalty imposed by the statutes of Arkansas against foreign corporations for doing business in this state without first qualifying themselves to do so and rendered a judgment in favor of appellee, from which is this appeal.
,The record reflects that appellee was a foreign corporation and that it maintained a district office in Dallas, Texas; that it had not complied with the laws authorizing it to do business in this state; that it had no office in the state of Arkansas and maintained no place of business;' that it had a soliciting agent whose business it was to solicit advertising contracts; that these contracts were solicited and obtained by this agent subject to the approval of appellee at its office in Dallas, Texas; that these contracts were not approved by any agent of the defendant in the state of Arkansas; that the nature of the contracts made by appellee with the merchants was for advertising films and that these films were manufactured outside of the state of Arkansas and shipped by appellee either by mail or express from its district office in Dallas, Texas, to the Melba Theater at Batesville, Arkansas, to be screened by the theater when appellee notified it to do so, the screening being paid for by appellee and after being screened the films were to be returned to appellee either by mail or express to its branch office in Dallas, Texas; that the merchants paid appellee for manufacturing and screening the films and that appellee paid the theater for screening the films.
The contracts in the instant case were not sale and purchase or lease contracts of films manufactured in another state and shipped interstate by appellee to local merchants or advertisers in Batesville so that the local merchants or advertisers might .contract with the theater or theaters in Batesville to exhibit or screen them; neither were they contracts leasing or selling* the films to the theaters and shipping them interstate to the theaters so that the theaters might charge the local merchants or advertisers for exhibiting or screening them, but were contracts retaining the title and control of the films in appellee. The contracts provided that after receiving the films by interstate shipment to the theaters they were not to exhibit or screen them unless and until directed to do so by appellee. The appellee was to and did pay the theaters for exhibiting or screening the films at certain intervals which was wholly independent of the interstate shipment or transportation of them and the exhibition or screening of the films under the directions of appellee were intrastate transactions.
The exhibition of pictures is not interstate commerce. 12 C. J., § 111, p. 83.
The distinguishing feature between contracts interstate and intrastate in nature depends upon the main purpose of the contracts.
We think the main purpose of these contracts was the exhibition or screening* in Arkansas of advertising films and that the manufacture and shipment of the films was incidental to the main purpose of the contracts. If correct in this construction of the contracts, then the penalty imposed by our statute is not an interference with interstate commerce. Of course it would be otherwise if the manufacture and shipment of the films was the main purpose of the contracts and if the exhibition or screening of them was incidental only, then the statute imposing a penalty would interfere with interstate commerce. •
In the case of Dean v. Caldwell, 141 Ark. 38, 216 S. W. 31, this court said:,
“The decision of the case turns, therefore, on the question whether or not the transaction was interstate commerce. It seems clear to us that the contract was not' interstate commerce. It was not for the sale of goods to he shipped from another state. The sale of certain articles of merchandise was a mere incident to the main purpose of the contract which was one whereby •Partin Manufacturing Co., undertook to carry on, for appellee’s benefit, what is designated in writing as a ‘trade campaign’ . . . The business was intrastate and not interstate, and the sale of goods was merely an incident. The contract did not necessarily imply a shipment from outside the state, but, even if it did, that would not alter the character of the main transaction, to which the sale of goods was a mere incident. This conclusion is supported by the decisions of the Supreme Court of the United States in Browning v. Waycross, 233 U. S. 16, 34 S. Ct. 578, 58 L. Ed. 828, and General Railway Signal Co. v. Virginia, 246 U. S. 500, 38 S. Ct. 360, 62 L. Ed. 854. The question arose in a different form in those cases, but the principles announced are the same as in the instant case.”
Again this court said in the case of Sunlight Produce Co. v. State, 183 Ark. 64, 35 S. W. 2d 342, that: “A forgein corporation cannot avoid or circumvent the statutes by engaging- in interstate business along- with local or intrastate business. In other words, the courts will not permit a foreign corporation to camouflage an intrastate business with interstate business so as to evade or avoid the penalty imposed by the statutes for doing an intrastate business without complying with the law.”
The contracts and facts in the case at bar are practically similar to the facts in the case of Ligon v. Alexander Film Co., 55 S. W. 2d 1030, decided by the Supreme Court of Texas in which it was ruled that the screening or exhibiting of advertising films ivas doing intrastate business in the state of Texas contrary to the provisions of art. 1536 of the statutes of Texas. The statute, in substance, is the same as our statute. In the course of the opinion the court said: “the matter of publicly exhibiting the films was essentially intrastate business,” and cited the following cases in support of that declaration: Mutual Film Corporation v. Industrial Commission, 236 U. S. 230, 35 S. Ct, 387, 59 L. Ed. 552; Mutual Film Corporation v. Hodges, 236 U. S. 248, 59 L. Ed. 561, 35 S. Ct. 393.
The court further said: “The matter of manufacturing and shipping the films was but incidental to the accomplishment of the essential purpose of the contract, namely, the advertising at Lubbock, the business of Ligón, by the use of the films. The circumstance that interstate commerce was involved in the manufacture and shipment of the films does not alter the intrastate character of the public exhibition of the advertising matter contained in the films. The situation is controlled by the same principle as were the cases of Browning v. Waycross, 233 U. S. 16, 34 S. Ct. 578, 58 L. Ed. 828; General Railway Signal Co. v. Virginia, 246 U. S. 500, 38 S. Ct. 360, 62 L. Ed. 854,”
Having reached the conclusion that the exhibition and screening of the films under the contracts and facts herein constituted doing business essentially intrastate without complying with the statutory conditions in Arkansas under which they might do so, the judgment of the court must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Humphreys, J.
Appellee, Hobart Sorrells, brought &■ suit against appellant in the circuit court of Crawford county to''recover damages to his truck and himself oc euning' at a public road crossing about one and one-half miles west of Mulberry on or about the 30th day of August, 1938, at nine o’clock p. m.
Appellee alleged that the truck in which he was riding was demolished and he himself injured on account of appellant’s failure to use ordinary care to construct and maintain its crossing’ in a reasonably safe condition for persons traveling over it, but, on the contrary, appellant constructed and maintained it in such a bad and rough condition that in attempting to drive over the crossing in his truck the rough and uneven condition thereof killed his engine, put out his lights and caused his truck to stall on the track; that he then attempted to start same and as he tried to do so, he observed a passenger train of the appellant approaching from the east; that he attempted to escape from the perilous position in which he had been placed by jumping out of said truck and in doing so he fell heavily in a ditch and against a timber or other object which injured his flesh, muscles, tendons, ligaments and nerves in and about his back and spine and sprained his left ankle; that on account of the injuries received he was caused to suffer and will continue to suffer in the future great mental and physical pain and anguish, and to spend money for medical treatment and has been caused to lose time and will continue to lose time; that his injuries aré permanent for which he should recover $2,750 and should recover damages to his truck in the sum of $250 additional.
Appellant filed an answer denying the material allegations of the complaint and further alleged that said injury and resulting damages, if any, were wholly the result of appellee’s own carelessness and neglect, in that he failed and neglected to use ordinary care and prudence in leaving the truck at the crossing in ample time to reach a place of safety prior to the arrival of the train and that said appellee failed and neglected to use ordinary ' care and prudence, in the night time, by backing away from said truck and stumbling over some undiscovered object on appellant’s right of way all of which was specially pleaded as a bar to appellee’s right of recovery.
The Massachusetts Fire & Marine Insurance Company filed an intervention alleging that it paid appellee the amount of $600 as insured loss on account of the destruction of the truck and took from appellee the subrogation rights and that any recovery on the truck involved in the suit up to the amount of $600 should be in favor of the intervener. The intervener adopted appellee’s allegations of negligence against appellant and prayed that the judgment which might be recovered against appellant should be rendered in its favor in the sum of $600.
Appellant filed an answer to the petition of intervention denying each and every material allegation therein and prayed that said intervener take nothing by reason of the action and that it have judgment for its costs and all other proper relief.
The cause was submitted to a jury under instructions of the court and the evidence adduced upon the sole issues of whether appellant was negligent in failing to properly construct and maintain the crossing over the public highway in such manner that the same was safe and convenient to travelers so far as it could do so without interfering with the safe operation of the road; and whether appellee was negligent in not getting out of the truck sooner and in such manner as to prevent injury to himself, with the result of a verdict and judgment in favor of appellee for $2,100 and in favor of the intervener for $400, from which is this appeal.
Appellee testified, in substance, that in traveling along the highway he came to a railroad track or an approach to a railroad track and stopped, looked and listened, and as he observed and heard no train approaching he started over the crossing in low; that there was a low place between the rails and that when he dropped down in there his truck bounced up and down and the lights went out and the truck stopped and he got out and raised the hood and struck a match, but being unable to find anything the matter with the wiring he got back in the truck and tried to start the motor, but it would not start; that he was not familiar with the crossing and had never been there before in his life; that while he was attempting to stqrt the motor, he observed the headlights of ,a train coming around a' curve and he saw that he avouIc! have to get out or get killed; that he got out of the truck as quickly, as he could and started to back away from it at which time lie was blinded by the lights from the train and fell over a cross tie about two steps from the crossing into a hole injuring his back and spraining his ankle; that his injury gives him a lot of pain and that it always hurts; that for two months he could not bend over without it seeming like a knife was sticking in his back; that he has been unable to work at anything; that he can not bend over without suffering great pain; that as a result of the injury there is a swollen place or enlargement on his back about the size of a hen’s egg; that he has been under the care, treatment and observation of a doctor ever since, more or less; that he is forty-two years of age and has a family dependent upon him and that in the last six months he has „ been unable to earn, more than $20; that before his injuries he averaged in his trucking business an income out of his trucks of about $150 a month; that the truck which he was driving and which was demolished had not been fully paid for; that it was financed through a finance corporation and insured; that he made a settlement with the finance company for what he owed it on the truck; that the truck cost him $1,150 and was worth about $800 when destroyed; that the finance company alloAved him $600 in the settlement, but appropriated the amount to the payment of the balance he owed it; that at the time the truck Avas destroyed he had not paid the July and August payments; that his truck was in good condition and only a few days before the accident it was tested.
Everett Arnold, who lived near the crossing and was a witness for appellant, testified relative to the crossing that it was in bad shape; that the depression in the highway ove-r- the crossing* was lower between the rails; that he went over the crossing in wagons and that for about two weeks prior to the accident the WPA had been hauling* heavy loads of rock over the crossing every day; that appellant put chat on this crossing early the next morning after the accident; that it put the chat through the track and leveled it up; that it put chat on the approach on the outside of the track.
Mrs. Everett Arnold, wife of Everett Arnold who resides with her husband near the crossing, was also introduced as a witness by appellant and testified that the highway had been graveled up to the crossing prior to the accident, but that nothing had been done to the crossing and that it was in bad shape and had been for a good while. She also stated that shortly after the accident the crossing was repaired and crossing planks put on; that'she had used the crossing two or three times a week prior to the accident and that the crossing was rough. She further stated that she knew the bad condition and that she had to be careful in going over it in her car.
L. E. Taylor, who was the section foreman of appellant, was introduced by appellant and testified that he was in charge of the particular crossing and had been for thirty days and that he knew that no repairs had been made on the crossing during* that time until after the accident; that he heard of the accident the night before and went up there, but that it was dark and he made no particular inspection of its condition, but on the next morning* after the truck was hit he repaired the track and put new ties in the track for about forty-five ties and that while he was putting in the ties he noticed the condition of the road bed next to the north rail; that it was three inches from the top of the rail to the surface of the road bed and that it was two inches from the south rail from the top thereof to the surface of the road bed and that on the outside of the south rail it was not very low, but it was beaten down some, not beaten down as bad as on the north side of the rail, but was beaten down some; that he had the men fill up the crossing as they were working’ there and they worked from 10:30 until 11 o’clock in filling up the crossing; that the lowest place between the rails down to the roadway to the center of the track was three inches; that in between the rails he filled up to clear the crossing to the top of the rails.
Mrs. Joe Bright, who lived near the crossing and who was introduced by appellant as a witness, testified that she had used the crossing’ prior to the accident two or three times a week and said that it was rough and that she had to be careful in crossing it on account of its condition.
Dr. Robert Wood, a witness introduced by appellee, testified, in substance, that he was a physician. After qualifying as an expert he stated that he. had had eleven years experience as a practitioner; that he examined appellee on August 31, 1938, thoroughly; that he had an abrasion on the back of his left hand which was black and blue; that he was bruised on the lower part of the back in the lumbar region and there was a mass there about the size of a hen’s egg which was discolored and abrasions of the skin and up and down the back; that his ankle was bruised and swollen and was about three times as large as a normal ankle; that all these injuries had been recently inflicted; that in his opinion* the knot or mass was a muscle and nerve injury which would perhaps never disappear and would continue to cause pain and prevent him from lifting or doing heavy work; that his bill for treating him to the date of the trial was $50.
The testimony is undisputed as to the speed of the train. At the time the engineer discovered the truck stalled on the track the train was running sixty miles an hour and was about nine hundred or one thousand feet from the crossing. The engineer applied the emergency brakes and reduced the speed of the train to forty or ' forty-five miles an hour when the engine struck the truck and carried it down the track several hundred feet before stopping.
There is a conflict in the testimony- as to the conversation that occurred between some of the trainmen and appellee when the trainmen came back to the crossing where appellee was standing.
The trainmen said he informed them that he was not hurt and he testified that he told them he was hurt. He admitted that they told him to get the section foreman and have him clear the track which he did. He said they told him to see a physician and find out the extent of his injuries. The trainmen denied giving him any such advice. He testified that he did see a physician the next day and had been under his treatment until the date of the trial.
The issues involved on this appeal are only two, aside from the issue as to the alleged excessiveness of the verdict on account of personal injuries received by appellee, and these issues are whether appellee failed to leave the truck as quickly as he should and whether he exercised care in leaving the same; and whether appellant used ordinary care to keep the crossing where the accident occurred in a reasonably safe condition for persons traveling over it and whether a failure on its part to do so was the proximate cause of his injury.
(1) We pretermit any discussion as to whether appellee was guilty of contributory negligence in driving his truck upon the crossing because the undisputed evidence reflects that he was not. According to his testimony, which is undisputed, his truck was in good condition and before driving on the crossing he stopped, looked and listened in both directions and, not seeing or hearing a train approaching, he proceeded to drive upon the crossing in low.
We, therefore, proceed to a discussion of whether there is any .substantial testimony in the record tending to show that appellee was not negligent in jumping out of the truck and stepping backward to a point where he stumbled over a crosstie and fell into a hole or ditch resulting in his injuries. It will be remembered that it was in the night time and he testified that he was blinded by the light from the headlight of the engine. We think appellee was confronted with an emergency and, under the circumstances, was not required, in the exercise of ordinary care, to withdraw to a place of safety in a strictly orderly manner. Appellant argues that under the testimony appellee had ample time for an orderly retreat to a place of safety after he discovered the approach of the train, but we think whether he had was a question for the jury. At least, the jury might have found otherwise. The testimony shows that the train was moving at the rate of forty or forty-five miles an hour when it struck the truck and faster than that rh approaching it and was only three hundred or four hundred feet away when appellee discovered it. Appellee testified that if he had not jumped out quickly and sought a place of safety he would have been killed. So the jury may have found that in jumping out as he did and in attempting to back to a place of safety he did as any reasonable man would have done in the presence of imminent danger, and “was not guilty of contributory negligence in .jumping out and backing away from the truck. To say the least of it, the testimony was conflicting as to whether appellee was guilty of contributory negligence that was the proximate cause of the injuries he received and, on account of the- conflict, it became a jury question. The issue of contribuí tory negligence was submitted to the jury under correct instructions and appellant is bound by the adverse finding of the jury on the issue.
(2) The next question arising is whether there is substantial evidence in the record, vieAved in the most favorable light to appellee, tending to show that appellant failed to exercise ordinary care to maintain the crossing in such manner that same was in a reasonably safe condition for persons traveling over it without interfering' with the safe operation of the road.
In the. ease of St. Louis, Iron Mountain & Southern Railway Co. v. Smith, 118 Ark. 72, 175 S. W. 415, this court laid down the duty of railroad companies operating in this state relative to maintaining its crossings over public highways and quoted as follows from American and English Enc. of Law (2 ed.), volume 8, p. 363:
“It is the duty of every railroad company properly to construct and maintain crossings over all public highways on the line of its road in such mamier that the same shall be safe and. convenient to travelers, so far as it can do so without interfering with the safe operation of the road.
‘£ The duty of the railroad to construct and maintain crossings over public highways is a matter usually regulated by statutory enactment. And a failure to regard such statutory requirements will render the railroad company liable for all injuries from such neglect of duty. ’ ’
Under the principles of law set out above we think there was sufficient substantial evidence to warrant the verdict of the jury. In this opinion we have already set out all the evidence, in substance, in the record tending to show the condition in which this particular crossing was maintained. Relative to the condition of the crossing appellee testified that when he drove onto it his truck bounced up and down so that it stopped his motor and put out his lights. All the witnesses testified that the depression between the rails was from two and one-half to three inches below the top of the rail. The section foreman and three or four witnesses who live near the crossing testified that the crossing was not in good condition, that it was rough and that even those knowing its condition had to drive over it very carefully. The evidence also shows that for two weeks prior to the accident trucks heavily loaded with rock had been continuously passing over it to supply rock for a project in operation near, the crossing. No attention had been paid to the crossing notwithstanding this heavy traffic on it by the section foreman who must have known that it had been used for two weeks for very heavy traffic. In fact there is no evidence whatever in the record showing that the section foreman or appellant’s employees had paid any attention to this crossing either in the way of inspecting same or making- repairs thereon until the next morning after the accident had occurred. It was then repaired and made safe for travelers over it. It is noticeable that all the witnesses who testified relative to the rough, bad condition of the crossing were witnesses introduced by appellant itself except the appellee. There is ample evidence in the record to show that the condition of the crossing was defective and that this defective condition had existed for some time prior to the accident. Under these circumstances the jury was warranted in finding that appellant was guilty in the maintenance of the crossing and there is substantial evidence to sustain the verdict of the jury. This issue was submitted to the jury under correct instructions and appellant is bound by the verdict.
Appellant argues that even though it were guilty of negligence in failing- to maintain the crossing it was not shown that the negligence on its part was the proximate cause of the injury received by appellee. The jury has acquitted appellee of contributory negligence under correct instructions of the court and that being the case it follows that the proximate cause of the injuries received was the failure of appellant to exercise ordinary care to maintain the crossing in a reasonably safe condition for travelers to pass over it. We think there is ample evidence in the record to sustain the verdict of the jury to the effect that the injuries were the direct result of appellant’s failure to properly maintain this railroad, crossing.
Appellant contends that instruction No. 3 given by the court was long and involved. We agree with appellant that it was quite lengthy, but after reading it carefully we. can not agree with appellant that it was involved to such an extent that the jury could have been misled by it. The instruction was specifically objected to by appellant because it submitted the question to the jury of whether appellee in leaving the truck was acting on an impulse or under an emergency. As stated before we think there was testimony in the record tending to show that an emergency existed, hence, it was proper to submit that question to the jury.
Appellant’s last contention for a reversal is that the verdict in favor of appellee was excessive. We have set out above the injuries received by appellee and the extent thereof according to his testimony and that of the physician who carefully examined him and who has treated him. We see no necessity of setting this testimony out again further than to say the amount recovered was commensurate with the extent of the injuries received by appellee when taken in connection with the pain and suffering he endured and must endure, the amount recovered does not indicate that it was the result of passion or prejudice on the part of the jury. There is no question that his earning capacity has been decreased on account of the injuries. Appellant introduced no testimony as to the extent of the injuries. It did not ask that he submit himself to an examination so the evidence stands in the record practically undisputed that the injuries justified the amount recovered by appellee.
No error' appearing, the judgment is affirmed.
Griffin Smith, C. J., and Holt, J., dissent. | [
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Per Curiam.
Petitioner alleges that, unless the chancery court is restrained, it will unlawfully proceed with trial in a cause wherein petitioner is defendant; also, that the court will permit execution to issue on a judgment for $7,132.19 rendered against petitioner in such court.
Transactions prompting the petition are these: John E. Jones has for many years been circuit clerk of Garland county. It. was claimed on behalf of the county that certain fees and commissions collected by Jones in 1931, 1932, 1933, 1934 and 1935, had not been fully accounted for. Suit to surcharge the clerk’s settlements was, in 1936, dismissed on demurrer. On appeal the order was reversed, and the cause remanded with directions. State, Use and Benefit of Garland County v. Jones, 193 Ark. 391, 100 S. W. 2d 249.
On remand the defenses interposed were sustained, with dismissal of the complaint. This court sustained the chancellor’s finding that settlements of 1931 and 1932 were barred by limitation. In other respects, the decree was reversed, and the cause remanded with directions to ascertain whether any sums were due for 1933, 1934, and 1935. State, Use and Benefit of Garland County, et al. v. Jones, 198 Ark. 756, 131 S. W. 2d 612.
The petition for prohibition alleges that this court’s mandate on the second remand was filed in Garland county October 25, 1939. Thereafter supplemental complaint was filed alleging the clerk’s failure to account for certain excess fees and commissions collected in 1936, 1937,1938 and 1939.
In compliance with this court’s directions the chancellor ascertained what sums were due for the accountable years, and gave judgment December 18, 1939. The order recites submission of the cause December 13, and judgment nunc pro tunc.
October 18,1939, the prosecuting attorney filed complaint in circuit court “. . . for the purpose of recovering excess salaries and fees for the years 1933,1934, 1935, 1936, 1937, 1938 and 1939.” The indebtedness was alleged in blank. By amendment December 15 overcharges for 1933, 1934 and 1935 were stated as $3,858.50. For 1936 and 1937 the demand was $3,873.55. It was then alieged that “the defendant is also indebted to the plain tiff for excess salary and fees collected during the years 193.8 and 1939, but at the time of the filing of this amendment the comptroller’s office has not filed its report of audit for the years 1938 and 1939, but as soon as said reports are filed the complaint will be amended to show said amounts.”
Three days after the amended complaint was filed the court gave .judgment for $816.90, “. . . this being the aggregate amount due for all of the years” enumerated.
The judgment recites that “. . . by agreement of the parties the cause is submitted to the court upon the plaintiff’s complaint and amendment to the complaint, the defendant’s answer, oral testimony, and statement of counsel, from all of which the court finds that the indebtedness [for the seven-year period] is $816.90.”
"What the so-called “oral testimony” was is not disclosed.
By statute the state comptroller is required to determine facts necessary to an adjudication of that character of claims alleged in the prosecuting attorney’s complaint. Neither the prosecuting attorney nor the court had all of the information contemplated by law when the judgment was rendered. A valid chancery court judgment of more than seven thousand dollars was “absorbed” and in effect set aside by the circuit court, while at the same time claims aggregating $3,873.55 for 1936 and 1937, together with alleged, but unstated items for 1938 and unknown and unknowable demands for 1939, were reduced to $816.
This arbitrary conduct is shocking to public sensibilities, and if unrestrained would paralyze justice.
In the face of such a record this court is now asked to participate in the transaction by prohibiting the chancery court from continuing to perform its duties.
The chancellor rightly rendered judgment and has properly declined to relinquish jurisdiction in respect of the amended complaint. Having acquired jurisdiction, such jurisdiction was exclusive. [See cases cited in Cause No. 5885 this day decided — Butt, Prosecuting Attorney, et al. v. Southwestern Distilled Products, Inc., post p. 750, 135 S. W. 2d 857.]
The writ is denied. | [
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MoHaney, J.
On January 15, 1938, appellees instituted separate actions in the justice court of Center township, Sebastian county, to recover an indebtedness owing them by the appellants. Writs of garnishment were issued against the circuit clerk, who held money, in his hands belonging to the appellants. Judgments were rendered in the justice court for each appellee for the amounts sued for and the garnishment against the circuit clerk was sustained. The defendants before the justice of the peace appealed each action to the circuit court where the actions were submitted to the circuit court, sitting as a jury, on an agreed statement of facts substantially as follows: It was agreed that the appellants were indebted to appellee Gillam in the sum of $100 and interest at 10 per cent, on a promissory note executed by them, and that they' were indebted to appellee Smidth in the sum of $16.75 with interest for work and labor done by him; that on December 23, 1938, appellants filed a complaint against W. T. Graham and Ben Hall in the circuit court of Sebastian county for the Greenwood district and that each of the appellees intervened in that cause asking judgment against both appellants and the defendants in that action on account of their note and account. It was further agreed that the transcript of the pleadings and judgment in that cause in the circuit court of the Greenwood district, attached to the stipulation as exhibit “A,” was a true and correct copy of the judgment and all pleadings pertinent to the issues in said cause and that a judgment was subsequently rendered in that cause in favor of appellants against Graham and Hall and that appellees did not recover any judgment against any of the parties to that action; that the question of the liability of appellants upon the note and account of appellees, apart from any liability of Graham and Hall, was not submitted to the jury; that no appeal was taken from said judgment; that appellants do not deny the indebtedness claimed by the appellees, but that they pleaded the judgment in the aforesaid circuit court action in bar of the right of appellees to recover against them in this action and offer no further defense against the note and account.
The trial court, sitting as a jury, heard the plea of res adjudícala, overruled same and entered judgment for appellees; hence this appeal.
We think the court correctly overruled the plea, although the question is not free from difficulty. It is true as stated in Bass v. Minich, 194 Ark. 589, 109 S. W. 2d 139, and many other eases cited by appellant, that: “It goes without question that a judgment of a court of competent jurisdiction is conclusive of all questions within the issue, whether formally litigated or not. It extends not only to questions of fact and law, but also to grounds of recovery or defense which might have been, but were not, presented.”
On the trial in the circuit court between appellants and . Graham and Hall, wherein appellees were interveners, the issue was not whether appellants were indebted to appellees. That fact was conceded there as here. There the court instructed the jury, in instruction No. 5 as follows: “You are instructed that there is no issue here concerning whether the plaintiffs (appellants) were indebted to the interveners (appellees), the only issue being between those parties whether the interveners have a right to receive a part of whatever sum the plaintiffs might recover from the defendants, and you cannot find for the interveners in this case merely because you might find that the plaintiffs were actually indebted to the interveners.” So, it will be seen that no issue was joined in that suit as to the indebted ness of appellants to appellees, and, therefore, appellees were not concluded by the judgment in that case. All that was determined in that suit was that appellees did not have a right to receive any part of any sum the appellants might recover against Graham and Hall: No objection was made to the above instruction and all parties seemed to concede the correctness of it. Therefore, even though the intervention filed by appellees in that case prayed a money judgment against appellants, the suit resolved itself into one whereby they sought to establish a lien in the nature of an equitable garnishment upon a fund that might be recovered in that litigation. In this suit, however, a wholly different situation is presented. Here, appellees sued appellants to recover admitted indebtedness and garnisheed a fund in court, belonging to the appellants.
We think the plea of res adjudicata was properly denied, and the judgment is accordingly affirmed. | [
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Mehaeey, J.
This is an action by the appellant for a writ of certiorari to quash a judgment of a justice of the peace in favor of W. E. Green & Son, who are appellees. The circuit court refused to quash the judgment and this is an appeal from that order.
The record shows that the suit in the justice of the peace court was on an account for-merchandise sold by Green & Son to appellant. The judgment of the justice of the peace was for the amount of the account for merchandise.
The petition for the writ of certiorari stated at its close that the appellant had a meritorious defense. This is the only statement with reference to a defense. The petitioner does not state, that he did not purchase the merchandise, does not state that any of the charges are incorrect, and does not state that he had paid the account or any part of it.
At the time the case was set for trial in the justice of the peace court, the appellant appeared and said he wanted to get an attorney. The case was continued a week in order that appellant might secure an attorney. He appeared at the office of the justice of the peace on the day set for trial and did not have his attorney with him, but had a written petition prepared by his attorney under § 21 of act No. 60 of the Acts of 1927, which reads as follows: “In any civil action brought before a justice of the peace in any township in the county wherein a municipal court exists under this act, the defendant may, on motion, without any affidavit or supporting witnesses, take a change of venue to said municipal court, without the payment or tender of any fees; the justice of the peace, upon the filing of such motion, to have no further jurisdiction in the case, except for the purpose of preparing a transcript for said case. ’ ’
The-appellant testified that Mr. Green had an action against him in the justice of peace court and that he consulted an attorney, Mr. Ivy Crawford, who was busy, and there was no particular reason for his going over there; he prepared a motion for witness to take over and. present to the court. ■ Witness took the motion and, when the court was called in session, mentioned that he had the motion and proceeded to discuss it; he intended to read it; he laid it on the table and Mr. Green raised .objections and said it could not be transferred to the municipal court. Witness further testified that his lawyer was hot present and he did not get a chance to say anything further until the justice of the peace had gone ahead with the case; when he got a chance the second time, he read the motion and that was as far as he undertook to do anything. He read the motion after Mr. Green had given his testimony. He filed the motion before the trial started. As soon as court was called to order he pulled the petition out and started explaining, and was interrupted. He laid the motion on the table; does not know when the justice of the peace got hold of the motion, but he finally finished reading the motion after Mr. Green finished testifying. The justice of the peace said that if he transferred it anywhere he would have to transfer it to Leachville; that he could not transfer it to municipal court. The justice of the peace' rendered judgment. Witness said the reason he did not appeal was that he thought he had done sufficient; he had done what they told him to about the motion. He did not give any notice of appeal and did not perfect an appeal. All the business he had was to transfer the case to municipal court. He informed the court and the court knew that that was a motion to, transfer before he started the trial of the case.
The justice of the peace, E. F. Alston, filed the transcript, and testified that Overton filed a motion on the day to which the case had been continued. The case was continued at the request of the appellant, Overton, and the parties appeared there on the second day the case was set, April 21st, and he had a trial, heard the testimony, and rendered judgment. Overton read the motion after Mr. Green had made his statement, after Mr. Green had already testified, and he overruled the motion and rendered judgment. He had already started to try the case and Mr. Green had testified, when Mr. Overton presented his motion.
The transcript of the justice of the peace showed a judgment, regular in form, for $38.84 with interest and costs. After the circuit judge had denied the writ, motion for new trial was filed, overruled, and the case appealed to this court.
The appellant, Overton, called the court’s attention to the. motion and started to read it, and laid it on the table of the justice of the peace. We think this was a sufficient filing of the motion.
Whenever a motion is filed to transfer under the above statute, it is not only the duty of the court to transfer it to municipal court, but after the motion is filed, the justice of the peace has no further jurisdiction in the case except for the purpose of preparing a transcript for said court.
Certiorari is not a writ of right, but issues only on special cause shown to the court to which application is made, and the. court is vested with judicial discretion to grant or refuse the writ as justice may seem to require. Inasmuch as the writ is a discretionary one, it is often denied where the power to issue is unquestionable. The writ will be granted only where necessary to prevent substantial wrong. 11 C. J. 128.
This decretion, however, is not an arbitrary one, governed by the whim or caprice of the court, but is a sound, judicial discretion, dependent on the settled legal principles applicable to the case, and an abuse thereof is generally reviewable, bnt such discretion will be interfered with only when a clear abuse thereof is shown. 11 C. J. 129.
Section 2866 of Pope’s Digest provides that affidavits may be read on such applications and evidence dehors the record may be introduced by either party on the hearing. The record of any such inferior judicial tribunal shall be conclusive as far as the same may extend.
In this case evidence was introduced, but there was no evidence by the petitioner that he did not purchase the merchandise, or that it had been paid for, nor did he mention any other defense that he might have.
“The burden of proof is on the petitioner to make out a clear case.” 11 C. J. 158.
The writ, being discretionary, will not be granted where it is clear that the granting of the writ, and setting aside and quashing the judgment would still leave the petitioner indebted in the amount of the judgment. Under our practice, he must show in his petition, not merely a conclusion of law that, he has a meritorious defense, but he must show the facts that constitute the defense.
In the case of Gates v. Hayes, 69 Ark. 518, 64 S. W. 271, this court said: “Moreover, the aid of the writ should never be granted except to do substantial justice. Burgett v. Apperson, 52 Ark. 213, 12 S. W. 559. Although not strictly applicable to proceedings by certiorari, § 4200, Sand. & IT. pig., shows the policy of the law to be not to vacate judgments unless there is some defense to the action in which the judgment was rendered. This is the principle applicable here, independent of the statute. Counsel assert in their brief that the ‘defendant insists that he does not owe P. Gates one cent.’ If that be true, he should have set it up in his petition. Unfortunately for him, his petition alleges that the suit was on a note and open account, and he does not charge anywhere that the note was not given, or that it was not due, or that it had been paid. Nor does he say that the account was unjust, or that it had been paid; nothing, in fact, to show that his lands should not have been subjected to the payment of his debt.”
In the case of Hollis v. Hogan, 126 Ark. 207, 190 S. W. 117, the late Chief Justice Hart, speaking for the court, said:
“It will be noted that the defense of Hollis to the action against him before the justice of the peace is stated in language as follows: ‘And this plaintiff has a just and meritorious defense to said unjust, trumped up and fraudulent claim of said W. M. Hogan on which said judgment was rendered, in that -he was not indebted to said W. M. Hogan as set forth in the account filed by said W. M. Hogan.’
“This general statement does not state any defense to the action. The object of the code is that the pleadings shall state facts and not mere conclusions of law. The petition of Hollis neither denies any allegation of fact contained in the account filed before the justice of the peace, nor does it state any new matter constituting a defense. The account sued on by Hogan was for goods sold to Hollis, and the items are set out in it and the account is sworn to. The account imports that Hogan sold to Hollis certain articles of merchandise set out in it at the times and for the prices therein stated.
“The petition does not controvert the sale or the value of the goods, but simply alleges that Hollis was not indebted to Hogan as set forth in the account filed before the justice of the peace.”
In the case of Nelson v. Freeman, 136 Ark. 396, 206 S. W. 667, the late Chief Justice McCulloch, speaking for the court, said: “The judgment of the circuit court
in refusing to quash the judgment of the justice of the peace was correct for the further reason that the petition for certiorari does not set forth any defense to the original action in which the judgment was rendered.”
“ ‘The petition’ said the court, ‘should state clearly what the plaintiff in the action said, to induce him to understand the suit was dismissed, or that no further proceedings would be had in the case. ’ It was held in Illinois that a justice of the peace could not take a case under advisement, even by consent of parties, and that where, after he had heard the evidence, he adjourned the cause for any reason, it is fatal and the suit must fail. But a petition for certiorari to remove a cause from a justice of the peace must show with certainty the injustice sustained, and why the defense was not made, and if this is not stated in the petition, it cannot be supplied or supported by affidavits.” Harris on Certiorari, 436.
A judgment will not he quashed on certiorari, even though ¿rroneous or void, unless it appears from the petition that the petitioner has a defense, to the action. This court has many times held that where there was a defective service and a judgment had, in order to get that judgment set aside, the party must show a meritorious defense. This extraordinary writ being a writ of discretion, the reason is very much stronger for refusing to quash the judgment, if there is no meritorious defense alleged in the petition.
Section 8249 of Pope’s Digest reads as follows: “A judgment shall not he vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered, or, if the plaintiff seeks its vacation, that there is a valid cause of action; and where a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment.”
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Mehaeey, J.
The appellant filed suit in the Lonoke chancery court alleging that he made a contract with the Kentark Land & Timber Company, and attached said contract and made it part of his complaint. The contract was for the sale and rent of the lands described in appellant’s complaint. He alleged that he has owned and occupied and possessed, used and claimed ownership of the same openly, notoriously, peaceably and continuously from 1917 to the present time; that at the time the contract was made it. Carnahan was the authorized agent and had authority to execute the contract; that later this land was conveyed to other purchasers and the legal title was vested in W. C. Hudson, F. H. Triplett, trustee, and they continued to recognize the contract of appellant and received payments on said-contract; that he trusted the appellees to keep the accounts and deal fairly; he discovered that he had not been given proper credits and requested an accounting and was informed that his present indebtedness was more than the original contract price; he then demanded a deed and an accounting. He states that early in 1937 he learned that he had overpaid the appellees $340 and again demanded a deed and refund of the overpayment which was refused. He does not know .the relative interests of the various appellees, but they have been receiving payments and receipted for part of them. They have reported to him that Triplett, trustee, was in position to make deed and that the appellant would be given a proper deed when he has paid in accordance with the contract.
The appellees filed answer-denying that on February 17, 1917, the contract was entered into, and denied that appellant has owned the land continuously or in any other manner; deny that Hudson ever received, collected or receipted for any payments made by appellee, and alleged that he had no authority to do so; deny that'appellant had made payments in accordance-with the contract. The appellees, by way of cross-complaint, allege that the Kentark Land & Timber Company, the owner of the land at the time, made the contract to sell for $2,400,’and that under such contract some payments were made and that on December 9, 1918, a new contract was entered into showing that $600 had been paid, and by inadvertence the second contract was dated the same date as the original, When the same was in fact made on December 9,1918; that certain payments were made, an itemized statement of which' is attached to the cross-complaint, showing the payments made and the taxes paid by appellees; that appellant has made no payments whatever except those set out in the account; that after the execution of said eontract the Kentark Land & Timber Company conveyed said lands to the Security Trust Company as trustee, which in turn conveyed same to R. Carnahan, W. C. Hudson, and C. H. Triplett; that in 1928 F. H. Triplett, trustee, acquired all the interests of C. H. Triplett in the land; that Carnahan died in September, 1928, 'and that his interest was sold to Hudson and Triplett, as trustees; thereafter Hudson conveyed to F. H. Triplett, trustee, all of his interest; that default has been made in 'the payments; that appellant is insolvent and that said lands will not sell for a. sufficient sum to discharge the indebtedness, and appellees ask for the appointment of a receiver. They ask that appellant’s complaint be dismissed and that the receiver collect rents and that, upon a final hearing, F. H. Triplett, trustee, have judgment against the appellant for the amounts due under the contract, and that all the claim title and interest of appellant be foreclosed, a commissioner appointed to make sale, and for costs.
An amendment to the cross-complaint was filed qsking that the contract be canceled and that the title to the lands be vested in F. H. Triplett, trustee.
•The appellant filed answer to the cross-complaint denying the allegations of said cross-complaint.
The court appointed a receiver and on May 9, 1939, entered a decree finding that there was due from appellant to F. H. Triplett, trustee, the sum of $1,800 as of September 1, 1918, and that there was now due under the contract $2,158.68, and granted the appellant until January 1,1940, to pay the amounts adjudged due under the contract. The court further decreed that if the payment was made, F. H. Triplett, trustee, should execute a warranty deed conveying the property, and if appellant fails to pay the amounts adjudged to be due on or before January 1, 1940, the contract should be canceled and title to the real estate vested in Triplett, trustee.
The appellant excepted to the ruling of the court, prayed an appeal, and the ease is here on appeal.
The appellant says that the issue is whether or not the contract which Ferguson and the Kentark Land & Timber Company, by R. Carnahan, entered into is to be taken as the true contract, or whether an alleged contract signed only by Carnahan, on the basis of which Olcott kept the books, shall be the basis of computing the present status of the account, and whether two additional payments, one for $165 and one for $152.96, should be credited on the account.
The evidence is in' sharp conflict as to the two contracts. Appellant contends first, however, that the contract that was not signed by Ferguson, was void under the statute of frauds, and that oral testimony cannot be introduced to vary the terms of a written contract..
It is true that a contract for the sale of land, under the statute of frauds, must be in writing. That statute provides that no action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement, promise or contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing and signed by the party to be charged therewith.
The undisputed proof, however, in this case shows that payments were made under the contract. There was, therefore, a part performance of the contract. The testimony, as we have said, is in conflict about the contract. But it clearly appears, and is not disputed, that these payments were made, and this is sufficient to take the contract out of the statute of frauds.
This court has many times passed on the question of part performance of an oral contract for the sale of land.
‘ ‘ The facts proved as to the payment of the purchase money and the taking of possession meet every requirement of our decisions as to the part performance of the parol contract necessary to give the vendee, Mann, the right to specific performance and to put his case out of the operation of the statute of frauds.” Arkadelphia Lbr. Co. v. Thornton, 83 Ark. 403, 104 S. W. 169.
“Taking possession in pursuance of a contract of sale, together with the payment in full or in part of the purchase price, is recognized in nearly all of the jurisdictions, as sufficient part performance.” Barnstetter v. Barnstetter, 115 Ark. 154, 170 S. W. 989.
It is also contended by the appellant that parol testimony cannot be received to contradict, vary, add to or subtract from the terms of a valid, written contract.
That is true, but it is also true that parties who make a written contract may, subsequent to its execution, modify it and substitute a valid oral agreement. There is no law that forbids the relinquishment of an existing contract and the substitution of a new one in its stead. Elkins v. Aliceville, 170 Ark. 195, 279 S. W. 379; Mansfield Lbr. Co. v. Gravette, 177 Ark. 31, 5 S. W. 2d 726; Amer. So. Trust Co. v. McKee, 173 Ark. 147, 293 S. W. 50; Afflick v. Lambert, 187 Ark. 416, 60 S. W. 2d 176; Dewey Port. Cem. Co. v. Benton County Lbr. Co., 187 Ark. 917, 63 S. W. 2d 649.
“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.” Cook v. Cave, 163 Ark. 407, 260 S. W. 49.
The law is settled in this state that while parol testimony cannot be received to vary the terms of a written contract, parol testimony is admissible to show that the written contract has been rescinded and an oral contract made. It is frequently impossible to show that a contract had been abandoned and a new one made, except by oral testimony.
Appellant contends that interest was not computed in accordance with the law, but he is relying altogether on the contract that was signed by him, and, as we have already said, the evidence on the question of which contract was in force was in conflict. The appellant testifies to one state of facts and the witnesses for appellees to a different state of facts, and the decision in this case depended altogether upon the facts. We think there was ample evidence to support the chancellor’s finding. At any rate, we cannot say that the finding of the chancery court is against the preponderance of the evidence.
The decree is affirmed. | [
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Holt, J.
Mrs. Stephanie Fania, appellant, brings this appeal from a decree of the Pulaski chancery court in which her husband, appellee, was awarded a divorce on the ground of desertion.
It is alleged in appellee’s complaint that he and appellant were married in St. Louis, Missouri, in September, 1923, and lived together until about four years ago, at which time appellant deserted him without reasonable cause. It is further alleged that four children were born to this marriage, now aged, respectively, fourteen, thirteen, eleven, and eight, and that said children are now in the care and custody of appellant and that she is the proper person to have said custody.
The answer of appellant denied every material allegation in the complaint.
We think it would serve no useful purpose to set out the testimony in this case at any great length. Briefly, however, it is to the following effect:
Appellee, Frank V. Fania, until coming to-Arkansas .and establishing his residence here for the purpose of filing suit for divorce, was, and is at the present time, a resident of St. Louis, Missouri. Appellant since 1929 has been and still is a resident of Ironton, Missouri.
These parties! separated in the early part of 1934 and appellee thereafter paid no visits to his wife and children in Ironton.
Since the separation, appellant has had the custody of the four minor children which were born to these parties, and with $25 a month, one-half of appellee’s government pension, and moneys that she was enabled to earn as a social worker and as a trained nurse, appellant has succeeded in caring for the children and herself.
Appellee was formerly an assistant prosecuting attorney in the city of St. Louis. While holding that office, he procured a home in Ironton and took his family there in 1929. He spent his Saturdays and Sundays with Ms faxMly. He lost Ms assistant’s position and for a wMle spent more time in Ironton. He severed all relations with appellant in 1934 and decided “to strike out for himself.” At that time he went to live with his mother and sisters in St.'Louis and was supported by his friends. He testified that he tried to get his wife and family to come to St. Louis, take rooms and “try to make it” on the $50 a month allowance he was getting from the government.
Appellant urged him to return to his family in Iron-ton and tried to secure employment for him there. Appellee refused her request to return, and has contributed nothing toward the support of his family sixxce their separation in 1934 except one-half of his government pension.
Appellee made two unsuccessful attempts to obtaixx a divorce from appellant in the state of Missouri before bringing suit in Arkansas.
The learned chancellor granted appellee a divorce on the ground of desertioxx axxd awarded appellant $50 a month alimoxxy and the care and custody of the four minor children.
Appellant very earnestly insists here that the evidence in this record is not sufficient to sustain the decree for lack of corroboration, and we are of the view that this contention must be sustained.
While it is true that appellee testified that his wife deserted him by refusing to join him ixx 'St. Louis, the appellant testified that she had always been willing to .join the appellee wherever he might go. After a careful review of the testimony we are of the view that the overwhelming weight of the testimony sustains axxd corroborates appellant’s evidence on this question of desertion.
While appellee says he wanted his family to join him in St. Louis in the early part of 1935, yet his own testimoxxy shows that he had lost out in the practice of law, had xxot practiced sixxce 1934, had no ixxoome other than the $50 per month pension, was living off of loans from his friends and in the home of relatives, and to quote from his own testimony:
“Q. You say it was about 1935 and that you finally severed all relations with Mrs. Fania and decided to strike out for yourself? A. Yes, sir — oh, about the latter part of 1934. Q. You say at that time you were living with your mother, and your sisters and your friends were supporting you? A. That is practically true. Q. And you requested your family to join you in St. Louis and told them you were not coming back to Ironton? A. I told them if they would come up, there would be an opportunity to cut the expense down, and come to St. Louis and get three or four rooms, or two, and we could make it on my $50 a month — yes. Q. That was in 1935? A. Oh, I wouldn’t be exact — somewhere around there — the latter part of 1934, or 1935. Q. That was when you were out of employment and had no money and when you were living on your relatives, yourself? A. I still had that $50 a month coming in, and I think if they had had any feeling for me they would have come up there and tried to make it go.”
In answer to this testimony his wife testified: “Q. He testified he wanted you to bring the children to St. Louis and reduce expenses? A. He never said that at any time. Q. Would you have gone to him had he requested you? A. Yery gladly. Q. Did he give you any opportunity to ever rejoin him after 1934? A. No, Mr. House, he did not.”
In an effort to corroborate his own testimony appellee introduced but one witness, his mother, Mrs. Lucy Fania. An examination of her testimony, however, clearly shows that it does not measure up to that kind of corroborative testimony which the law requires, for the reason that we think it undisputed on this record that her testimony, given to support the alleged efforts of appellee to persuade appellant to join him in St. Louis in the early part of 1935, related to conversations of appellant which took place in 1931. Certainly conversations in 1931 could have no probative value in determining whether the appellant refused to follow the appellee to St. Louis in 1935. No rule is better settled in this state than that a divorce cannot be granted on the uncorroborated testimony of the moving party.
In the case of Welborn v. Welborn, 189 Ark. 1063, 76 S. W. 2d 98, this court said: “Appellee was awarded a decree of divorce, and. this appeal is prosecuted therefrom. Were it conceded, which we do not for the reasons hereinafter expressed, that appellee’s testimony was sufficient to establish cause for divorce, this would fall far short of complying with the prevailing rule in this state that a divorce will not be granted upon the uncorroborated testimony or admissions of either spouse. Rie v. Rie, 34 Ark. 37; Kurtz v. Kurtz, 38 Ark. 119; Scarborough v. Scarborough, 54 Ark. 20, 14 S. W. 1098; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486. The testimony of appellee’s witnesses heretofore set out demonstrates its lack of corroborative facts and circumstances, and we have no hesitancy in holding its insufficiency.”
We are of -the view that the preponderance of the testimony in this case is not only against appellee, but in fact, sustains the version of appellant. The testimony of many disinterested witnesses shows that apppellant did not desert appellee.
The general rule controlling with respect to divorce actions in this state has been well stated in 'the case of Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486, as follows: “Marriage vows are solemnly assumed, and should be sacredly kept. The interests of society demand that the bonds of wedlock should not be severed, except upon clear proof of one or more of the grounds prescribed by our statute.”
While i't may be that the parties to this action may never become reconciled and live together again, although, as we view the testimony, the door is far from being closed to their again becoming reunited, we think it far more important to the interest of society that the marriage contract should not be severed except upon clear proof of one or more of the grounds prescribed by our statute.
In Davis v. Davis, 163 Ark. 263, 259 S. W. 751, .this court said: “The learned counsel for the appellee urged to the effect that the record, as a whole, shows the utter incompatibility of the appellant and the appel lee and the futility of any hope of future reconciliation, and that to deny him a divorce under such circumstances, which, they contend, indicate ‘a continued and enduring estrangement, suspicion and alienation from the appellee, which has finally culminated in a settled hate, would be merely to force upon the appellee the indefinite continuance of an intolerable condition which no sound public policy demands.’ We cannot concur in these views. The ease and frequency with which divorces are so often obtained as a matter of expediency to the individuals concerned is not only a menace to orderly society, but also in it lurks one of the dangers to the stability of our great republic. For one of the foundation pillars of our government is the sanctity of the marriage relation and the influences of the home life, where the holy bond of wedlock is looked upon with profound reverence and respect, and where the marriage vows are sedulously observed. As was said in Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486, ‘The love and faith that are plighted when parties stand at the marriage altar should suffer long and be exceedingly kind. Marriage vows are solemnly assumed, and should be sacredly kept. The interests of society demand that the bonds of wedlock should not be severed except upon clear proof of one or more of the grounds prescribed by our statute’.”
For the error indicated, the decree of the trial court mil be reversed, and the cause remanded with directions to dismiss appellee’s complaint for want of equity. | [
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Baker, J.
For the reason that there is no substantia] dispute in regard to the evidence in this case an effort will be made to state the facts as concisely as possible with the respective contentions of the parties.
Magers suffered an accident in 1933 and, since that time, has not been able on account thereof, or on account of disease, to look after his extensive farming interests, except by employing a foreman, and through the assistance of his wife, a daughter, and a son-in-law. At the time of his injury the insurance policies sued on in this case were in full force and effect. For a period of five years following his injury he was paid by appellant, as provided for in the policies, $150 per month. He was also paid some insurance by one or two other companies.
The appellant finally declined to make further payments, insisting that Magers was well -able to take care of himself, that his earnings and activities were such as thoroughly to demonstrate the fact that he was not totally disabled and insisted that his policies would lapse unless he paid premiums; the payment of these was suspended for the period during which there was no dis-. pute about his total disability, for which he had received monthly payments amounting in all to about $9,000.
Suit was filed by Magers and judgment had in the circuit court for the amount alleged to be in default, some prerhiums paid, penalty and attorney’s fee. An appeal was taken from this judgment, and it is also alleged and argued upon this appeal that the court erred in fixing the attorney’s fee at $800, and that this should be reduced even though the judgment rendered by the trial court be permitted to stand.
Prior to his injury Magers was actively engaged in farming. He had begun his career, near Dell in Mis sissippi county, having no property except a team. He finally bought and operated several farms; and at the time of his injury was very active, not only in the management of the farms operated, but as a laborer, making at times, perhaps, an extra hand in all the work as it proceeded. He was active in' the making and gathering of crops and in the marketing of the products. He soon had a few cattle and from these he has increased his herd so that he now has approximately one hundred head. Instead of the pair of mules with which he started he now has teams to farm approximately six hundred acres of land, using., as he does, two tractors that he has somewhat recently bought.
For some years his. earnings have been, perhaps, phenomenal, at least, it appears so from his bank account offered in evidence by counsel. Hé explains there had gone into this account from time to time, the $9,000 he collected from appellant, about $4,000 from the Agriculture Administration; $6,000 from the sale of 40 acres of land; $3,000 from 17 acres of land sold; $7,000 from 64 acres sold; and, there was another tract for which he received $3,000. Other insurance companies mentioned paid him in all $6,500. We do not know, and have not taken pains to determine, over what period of time these payments were made, over or during the period of alleged disability. It will be, perhaps,' sufficient to say that in addition to these sums of money derived from other insurance and from real estate transactions, substantial amounts of money we're earned and entered into appellee’s bank account throughout the last several years. The appellee testified, however, that his income tax report shows a loss of $1,000 in 1938.' During this period under investigation and within which the bank account had been built up as appellant alleged, appellée had been practically confined to his home. He lives nine miles from Blytheville and sometimes drives his car to that city and home again. The evidence discloses that he has gone to some of his farms only three or four times within a year. Within the last year or two he has had some barns built. At the time the building was going on he was about them only occasionally. He has bought several tracts of land within the last two or three years. He has carried on this work largely through a foreman that he has employed and whom he has constantly about him since the date of his injury. He stays in his home most of the time, and people who desire to see him call upon him there, and numerous witnesses testified that they nearly always found him lying down. The foreman employed reports to him daily and sometimes several times during the day for instructions and advice.
In addition to share-croppers, he employs day labor. Prior to his injury when he always made the extra hand, he was the first out on the farm in the early morning, and the last to leave at the end of the day; he made up his own payrolls, paid off his men, took his cotton samples to markets and sold his cotton. All the enterprises in which he was interested received his personal attention. He had no foreman..
Someone else now always gathers his cotton samples; the buyers come to him to purchase his cotton; his foreman makes up the pay roll for labor and the hands are paid off at some store, probably the place of business operated by his son-in-law. Tie signs one check only for the total amount, having to forego attention to details. During all this period he has not been known to have performed any kind of labor.
There is evidence that during- the last year or two he made some kind of a pleasure trip somewhere in the west. On this trip he says he had the entire rear seat of the car to himself where he could sit or lie as might be found most comfortable. It is said he made a trip to Hot Springs, and he testified to that himself, explaining that he went there hoping to be benefited by the baths, but found he was unable to take them and returned home. He made one trip to Mayo Bros.’ Clinic and some trips to Dr. Willis Campbell’s Clinic at Memphis, Tennessee. There was no insistence by appellant that these trips or journeys were unnecessary or that they were in the nature of pleasure trips, but it is argued most forcefully that, notwithstanding* the physical impairment he may have suffered and the extent thereof he still retains physical vigor and capacity to augment his growing fortunes. In truth,, we are asked to say that these matters clearly demonstrate that Magers was not, and is not now permanently and totally disabled. This statement is made by counsel for appellant: “We believe that notwithstanding the injury Magers has suffered the true test is his actual actions. The results are what the court looks at in determining when a man is totally and permanently injured.” There follow from this announcement statements developing this theory upon which the appellant defends this action.
This contention made by appellant arises out of its understanding of an announcement of this court in the decision of certain cases cited. For instance in Missouri State Life Insurance Company v. Snow, 185 Ark. 335, 47 S. W. 2d 600, it was said: ‘ ‘ This is in substance appellee’s contention as testified to by himself and it follows conclusively that he was not permanently and totally disabled from engaging in gainful occupation.” The record disclosed Snow had continued his business affairs, even through the period of alleged disability much as he had prior thereto.
Without developing the particular facts presented and upon which the court acted when the above declaration was made we suggest now that the statement had reference to the physical condition of Snow, who, although he had suffered some serious impairment, was still able, and did continue to operate the business in which he had been engaged, giving it his individual and personal attention much as he had prior to the date of the impairment which he thought entitled him to recovery on the disability provision of his policy. Appellant, also, cited the case of Ætna Life Insurance Co. v. Person, 188 Ark. 864, 67 S. W. 2d 1007. The insured in that case was the victim of arrested tuberculosis. It is stated by appellant that the record in the Person Case reflected that the insured actually farmed during the time that he contended that he was totally and permanently disabled and his farm operations consisted of cultivation of 150 to 200 acres of land. He employed a foreman to whom he delegated a “good deal” of the management. The closing paragraph of the court’s an nouncement is pertinent: “The evidence is undisputed that not only was appellee able to manage the farm in the usual and customary manner but was able to and did engage in other lines of business without hurt to his physical condition.” The last cited case is perhaps more nearly in point or in line with the Magers Case than others relied upon, but there is a very clear distinction from the Magers Case in many particulars.
Before Magers’ injury, he never employed a manager or foreman, and he did not act solely in a managerial capacity, he actually labored with those whom he had employed, adding his own energy' to theirs in the development of his farm and production of his crops. That all ceased from and after the date of his injury. Instead of continuing even in a managerial capacity, he has had to employ one to act solely as manager because of his own incapacity: So we find him not engaged in his usual or ordinary activities in which he found pleasure and profit prior to the accident or disease from which he suffers.
In the more recent case of the Ætna Life Ins. Co. v. Norman, 196 Ark. 381, 117 S. W. 2d 728, this court clearly distinguished the facts from those in the Snow Case, and the Person Case above mentioned. Norman was engaged in the banking business, but his employment was not such that he remained in the bank and attended to duties there. He was an “outside” man whose duties required him to attend to business such as making appraisals of personal property and real estate and other matters of like kind; He was principal owner of the bank and might have chosen some inside position had he preferred to do so. He suffered from arthritis to the extent that he was unable to continue in the performance of the duties as “outside” man and it was held that because of his disability he should be permitted to recover.
If we should follow appellant’s theory in this case we would have to criticize this opinion and say that Norman was able to hire some one. to attend to the duties that formerly he had performed himself and that he should not have been permitted to recover and the opin- . ion should now be overruled.
Numerous cases are cited, most of which, we think, are authorities justifying the trial court in submitting the evidence to the jury for determination of the facts. Some of these cases are: Travelers Insurance Co. v. Thompson, 193 Ark. 332, 99 S. W. 2d 254; Monarch Life Insurance Co. v. Riddle, 193 Ark. 572, 101 S. W. 2d 781. To cite all that are appropriate would look like a table of cases on insurance.
Another recent case is Ætna Life Ins. Co. v. Martin, 192 Ark. 860, 96 S. W. 2d 327. A. pertinent comment in this case is that Martin by' reason of diabetes had become incapable of supervising personally his contracting business. His business would perhaps have perished in his hands if he had not employed some foreman or overseer. But he was permitted to have a recovery.
One most interesting case is the case of Metropolitan Life Ins. Co. v. Weathersby, 190 Ark. 1050, 82 S. W. 2d 527. The insured was a distributor of peanuts. He employed men to travel about the country selling and delivering his merchandise in stores suitable for this trade. At the time he became afflicted he had a good sales organization. He was so badly afflicted that he could, with great difficulty, dress himself, yet he carried on his business. He sometimes lay on a bed or cot and directed others in the preparation of his merchandise for delivery and sale. To one not acquainted with the meth-' ods employed by Weathersby, his business apparently went on in much the same way it did when he was in good health. If the proper test for determining liability had been his bank account it would perhaps have shown no difference, or at least no impairment from what it had formerly been. We said in that case iii response to ' a defense very similar to one made here: “This contention assumes that appellee procured insurance for the success of his business; whereas he procured insurance for himself against bodily disease which might prevent him from wholly performing' all the substantial and material duties connected with his business or avocation or against illness of snch character or degree that common prudence would require him to desist from his labors.”
So we reiterate anew the principle that insurance to compensate a permanent and total disability is not insurance upon one’s business, but it is' a guaranty of continued personal fitness, enabling one to employ and adapt not only his mental qualification and mental preparation for his business; but also the continued use of physical vigor and energy in the performance of manual pursuits connected with his business as well, to the extent that he may perform all the substantial and material acts necessary to be done in the conduct of his business in the usual way. The insurance contract is not discharged because he may be able.to hire a substitute or proxy. Mutual Life Ins. Co. of N. Y. v. Dowdle, 189 Ark. 296, 71 S. W. 2d 691.
Such has been the trend of our decisions; even those cited by appellant and many others. It follows, therefore, that there is no error in the submission of questions of fact to the jury for determination. The evidence is ample and of substantial nature to support the verdict rendered.
The objection founded upon the fact that the trial court read to the jury a single instruction in response to an inquiry pertaining thereto is without substantial merit. It appears, moreover, that there was no objection urged thereto until after the jury had retired. When objection was made it was to the effect some material matters had been omitted by the court in explaining the effect of the instruction. The jury returned a second time and the entire instruction was read. It is argued now that failure to read all instructions amounted to placing of undue emphasis upon the one read. There was no suggestion at that time that all instructions should be reread by the court.
Nor is there any merit in the allegedly improper admission of testimony later withdrawn from consideration of the jury. There could not have been any misconception by the jury as to the court’s meaning in directing the jury to give no consideration to the evidence questioned. We must and do hold the jury gave the admoni tion of the court due regard. Besides, we are not convinced the evidence was improper.
One instruction appellant insisted upon to the effect that “if the insured, although he had been injured, was not disabled to the extent that he has been prevented from the prosecution of his business and has not been rendered unable to engage in gainful occupation he was not entitled to- recover.” This is not a correct statement of the law and is in conflict with all the announcements of the courts defining total and permanent disability. The ruling was correct in refusing to give the instruction.
The only other matter arises from the alleged error of the trial court in fixing the attorney’s fee for the sum of $800. Some witnesses testified that a reasonable fee in this case would be $1,000, but the trial court no doubt attempted to follow our former announcements in such matters that although due consideration should be given to this testimony it was deemed advisory only and by no means conclusive. The record in this lawsuit is not lacking in minute details in the development of appellant’s theory. It would seem therefrom every business contact of the appellee, or other activity has been subjected to the closest scrutiny. As instances, several physicians were examined, and, at least, one of them testified on two or three occasions by depositions. Again, we have noticed that Magers’ bank account has not only been offered in evidence, but it has been very carefully analyzed by counsel on both sides. All other matters were given the same close attention.
In proper cases plaintiff is entitled to recover a penalty of 12 per cent, of the money judgment, and reasonable attorney’s fee to be fixed by the court. Section 7670, Pope’s Digest. These recoveries for penalty and fees, were, no doubt, intended by the legislature to prevent defenses for delay or other vexatious litigation, and as a restraint against unreasonable contentions of the insured for he may not recover these items unless he. recovers first the amount sought by suit.
Our attention is called to the fact that this is the fifth suit instituted to require payment of installments claimed, four having been dismissed upon resumption of payments. A reasonable fee is to be determined by the particular circumstances that appear.
It should not only be commensurate with time and amount of work required, but also with the ability present and necessary to take care of or meet the issues that arise. The fee is not fixed for, nor by the attorney, but for the insured and by the court. To be reasonable, it should not be so small or low, that well prepared attorneys would avoid that class of litigation or fail in the employment of sufficient time for thorough preparation, but should be for the purpose of compensating the insured in engaging counsel thoroughly -competent to protect his interests.
Our last announcement in regard to fees appears in Metropolitan Life Ins. Co. v. Leach, 198 Ark. 531, 129 S. W. 2d 588. We reduced the fee for the obvious error apparent in that the trial court had in mind the prospect the case would be appealed. There was no appeal except from the order or judgment fixing the fee. That condition is not in this case; besides, the recovery in the instant case is not limited to the amount of money for which execution might issue.
As above indicated it fixes as a continuing liability to run as long’ as the disability -established by proof exists, unless limited by the policies.
Almost the same facts were present in the case of Pacific Mutual Life Ins. Co. v. Jordan, 190 Ark. 941, 82 S. W. 2d 250. In that case the court gave due consideration to the -establishment of this contingent liability. There was cited therein the case of Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366. The fee fixed by the trial court in the cited opinion was sustained oil appeal notwithstanding it was greater than money judgment.
So, also, we find approval by the court of a similar situation in the case of Equitable Life Assurance Society of United States v. Dyess, 194 Ark. 1023, 109 S. W. 2d 1263.
After a full consideration we can not say the fee is excessive.
Affirmed. | [
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Grifein Smith, C. J.
The trial court, serving as judge and jury, beld that the promissory note of Joseph A. Glasgow, E. F. Disheroon, Hugh McCollum, and J. A. Curtis, was not intended to become effective until signed by Glasgow’s son and wife, and that as to the appellee Disheroon there was no binding obligation.
In January, 1934, Glasgow contracted with W. T. Rawleigh Company to handle certain products. Disheroon, McCollum, and Curtis became Glasgow’s sureties. In April, 1935, the indebtedness was $495.87. A Rawleigh representative agreed with Glasgow and -his sureties that a note for the amount in question might be executed, payable $25 a month. There was an acceleration clause, optional to the payee in the event of default. After one installment had been paid the obligation was disregarded. After a reasonable period of waiting the company declared the entire amount due.
Judgment by default went against Curtis and Mc-Collum. Glasgow moved to California and no personal service was had upon him.
Disheroon’s defense rests upon his assertion that he "suggested to Mr. Glasgow about security.” Glasgow is quoted as having said he had insurance [presumptively] payable to his wife. Appellee testified that Glasgow said: "I will have my wife and boy sign the note with me.” The Rawleigh representative was present when this conversation is claimed to have occurred, according to appellee’s contention. Appellee’s attorney asked: "When you signed that note were they to secure those other signatures?” There was an affirmative answer. It should be noted that appellee had not used the word "they.” On the contrary, he had testified to having "suggested to Mr. Glasgow about security.” Appellee later testified it was his "understanding” when the note was signed that the additional signatures would be procured, and but for these representations he would have refused to execute the note.
January 31, 1936 — more than a year after issuance of the note — -appellee wrote appellant: "I tried my best to get [Glasgow] to take care of the payments on his note. ... If I can get in touch with him and he will make a part payment each month, then all four of us could . . . dispose of it. . • . . But owing to the nature of the debt concerning Mr. Curtis, Mr. McCollum, and myself, I think it would be a foolish move on your part to enter suit until we have had ample opportunity to make some arrangements to settle”.
McCollum testified he did not hear any conversations reg’arding' procurement of the signatures of Glasgow’s son and wife.
While it is true appellee says he would have refused to sign the note if he had not thought the additional signatures would be provided, this testimony was given several years after the transaction occurred. At most it is a present declaration of what at the time of the trial he conceived his attitude to have been when the meeting was held in April, 1935.
.The law is well settled that a note or contract signed by a person who stipulates as a condition to completion of the agreement th,at another signature is to be procured is not binding between the parties or as to those with notice if the condition is not fulfilled.
In the instant case appellee does not testify that he told appellant’s agent what he now insists he had in mind. The nearest approach to such a statement was appellee’s affirmative response to his attorney’s question in which the word “they” was substituted for appellee’s explanation that Glasgow was to have been the moving party. In his letter appellee spoke of what “all four of us could do”. The four were named, and they do not include Glasgow’s son or wife. Appellee undertakes to explain this by saying he did not see the note subject to its conditional execution until after suit was filed, and therefore had no opportunity to ascertain the true status. It is significant that suit was filed May 27,. 1936, and that appellee was summoned the following day. A copy of the note was attached to the complaint. Trial was May 16, 1939 — yet appellee does not contend that during the interim between the service of summons and trial he informed appellant of the omission of signatures he set up as a defense.
The plea is a technical one. Appellee is entitled to the point only if he has met the burden of proof. No claim is made that Glasgow did not owe the debt. It is admitted appellee was surety to the contract. There is the explanation by appellee that in signing the contract he thought it was a bond for $50. In the absence of fraud upon the part of Glasgow of which appellant was informed, this is no defense. Appellant credited Glasgow in reliance upon appellee’s signature to the contract.
Appellee testified more than three years after the letter of January, 1936, was written. At the time of trial his memory in respect of details could not have been as fresh as it was when mention was made of the four who had signed the note. The letter was a voluntary communication in which the obligors were identified. Being in conflict with his recollection of what his purpose was in 1935, it must be held that the writing was more reliable than appellee’s recollection of his intent as expressed by the answer “yes” to his attorney’s leading question: “You state to the court that these representations were made to you to get you to sign the note ’ ’ ?
Another conclusion testified to by appellee is that following the April (1935) meeting, Glasgow and the Rawleigh representative drove away together to get the other signatures.
We reverse the judgment and remand with directions that judgment be rendered in-favor of appellant because appellee’s testimony given in 1939 is not a substantial denial of facts admitted in the letter of 1936. In commenting on the letter and the references to indorsements, appellee said: “That is rig’ht — we were the main indorsers”.
We think that when appellee’s testimony is read as a whole, and that when proper allowances are made for the suggestive nature of leading questions and the acquiescing responses thereto, its effect is to express what appellee’s intentions were at the time in the light of how he remembered them four years later. But for the letter we would say the evidence was ample to sustain the trial court’s finding of fact.
Glasgow was summoned constructively and an attorney ad litem wa.s appointed. Since personal judgment could not have been rendered, there was no occasion for the warning order, or for appointment of the attorney. Appellant should be charged with costs incident to that proceeding. It is not shown that the costs were paid.
The cause, having been remanded, must be referred to the trial court for ascertainment of the amount judgment should be rendered for in conformity with this opinion. Appellee is entitled to credit for payment of $25 as of August 6, 1935. Interest, when allowance is made for the partial payment, would be $114.97 to May 16, 1939.
The only question to be determined by the trial court on remand is the cost of publication, attorney ad litem. and the clerk’s cost incidental to that phase of the proceedings. | [
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