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Holt, J.
Appellants appeal from a judgment of $25,000l awarded appellees in the eastern district of the Laurence circuit. court, for damages growing out of a crossing collision which resulted in the death of appellees’ intestate, Vincent E. Hovley.
Among the acts of negligence on the part of appellants’ servants, set out in appellees’ complaint, was one charging the failure to give the statutory signals in approaching the crossing in question. This one act of negligence alone was relied upon by appellees at the trial of this case and the only one submitted to the jury for its consideration.
The answer of appellants denied that it failed to give the statutory signals, and in addition pleaded the contributory negligence of appellees’ intestate.
The evidence as reflected by the record is to the following effect:
Appellees’ intestate, Vincent E. Hovley, a resident of St. Louis, Missouri, was traveling through Arkansas to Texas, where he was employed. After spending the night at Walnut Ridge, on the morning of June 14, 1935, he drove his automobile upon highway- 67 and reached the town of Hoxie at about six o ’clock a. m. The morning was misty and foggy. He approached the point where appellants’ main track crosses the highway, at a rate of speed estimated at 25 or 30 miles per hour, and without-stopping his car, in attempting to pass over the crossing, his car was struck by one of appellants ’ trains and Hovley was instantly killed.
He was at the time 26 years of age, married, earning $45 and expenses per week, and had a life expectancy of 38.12 years. His wife and a child survived him.
On behalf of appellees, witness, Woodyard, testified that he was'at Hoxie when appellants’ train hit a car and killed a man about 75 or 80 feet from where he was standing. He noticed the train just as it went over the crossing. The bell was not ringing. The whistle sounded the first time, he thought, at the first block, possibly 1,200 .or 1,400 feet back up the track.
Clyde Mealer testified that he was 30 or 40 feet from the point where the collision occurred. He first noticed the approach of the train when it whistled on the west crossing coming into town. He was standing there, heard the automobile coming and knew somebody'was going to make connection there because he knew the train did not stop before it g*ot-to the station, and that he stepped in front of the bus standing near him and threw up his hands against the driver of the automobile, but that if he saw him he paid no attention.
He further testified that he did not hear the bell ringing or other alarm except the whistle at the west crossing. He saw the man when he was struck, and he probably discovered the on-coming train and pulled to the left as the train hit him. There were eight coaches on the train. The rear end of the rear coach was about midway of the highway when the train stopped.
Lester Bennett, for appellees, testified that he was standing in front of the post office about 300 feet away from the collision when it happened. The whistle blew at the crossing above, and that was the last time he noticed the whistle. That the bell was not ringing and .the whistle did not blow for the crossing down there at the highway. He judged the deceased was traveling 25 or 35 miles an hour. It was a damp, foggy morning and raining just a little.
Will Fisher testified that he was in his back lot at the time of the collision and heard the crash. He heard the air whistle a few seconds before the crash; never noticed hearing the bell. The air whistle made a kind of squeally noise like a truck or a bus horn, and was not as loud as a steam whistle.
There was other testimony of a corroborative nature.
Upon a trial to a jury there was a verdict in favor of appellees, as above indicated, in the sum of $25,000, and from a judgment on this verdict comes this appeal.
It is insisted here that the evidence does not sustain the verdict.
After a careful review of the evidence as presented by this record, we have reached the conclusion that appellees’ intestate, Hovley, was guilty of negligence contributing to his death; however, it does not follow that the right of his administratrix to recover damages for his death is defeated on that account.
Since our legislature enacted act 15.6 of the General Acts of 1919, now appearing as § 11153 of Pope’s Digest, and commonly referred to as the comparative negligence statute, the contributory negligence of a person killed does not defeat a recovery in cases of this character where such negligence was less than that of the operatives of the train causing" the death.
The instant case was submitted to the jury upon evidence legally sufficient to support the finding that the negligence of the deceased was less than that of the op eratives of the train, and we would not be warranted in saying, as a matter of law,'that deceased’s negligence was equal to or greater than that of appellants’ servants.
In this connection it may also be observed that this is the third appeal in this case. The first appeal appears in 193 Ark. 580, 102 S. W. 2d 845, and the second appeal in 196 Ark. 775, 120 S. W. 2d 14. A reversal was had in each of these cases for erroneous instructions, and not because the' evidence was insufficient to go to the jury. Appellants concede in their brief that “With the exception of the testimony of Lester Bennett the evidence in the first trial of this case was as it is here.” Bennett’s testimony is in addition to the testimony given on the former trials.
Appellants next insist that the verdict is excessive, and we think this contention must be sustained.
In this case there was no recovery sought, or had, for pain and suffering; the deceased, Hovley, having been killed instantly. The amount of recovery allowed by the jury convinces us that it did not take into account the degree of negligence which we think must be charged to appellees’ intestate. While there is no hard and fast rule, or yardstick, by which a jury must be bound in determining the measure, or difference, between the negligence of the deceased and that of appellants’ servants, and placing a money value on same, we think that a recovery of $25,000 on the facts in this record is excessive, and that a recovery above $15,000 would not be warranted. This error, however, may be corrected by a remittitur.
We have reached the conclusion, therefore, that a verdict in the sum of $15,000 would be a reasonable sum, and that the jury would not have been warranted in returning a verdict for a larger sum. If the appellees will cause a remittitur to be entered within 15 days for all in excess of $15,000, the judgment will be affirmed here for that amount and apportioned as the judgment herein appealed from; otherwise the judgment will be reversed, and the cause remanded for a new trial. | [
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Grieein Smith, C. J.
This is the fourth appeal growing out of or incident to the will of M. A. Williams. Williams v. Williams, 167 Ark. 348, 268 S. W. 364; Williams v. Chambers, 195 Ark. 654, 113 S. W.2d 722; Chambers, Administrator, v. Williams, Administrator, ante, p. 40, 132 S. W. 2d 654, Law Reporter of October 30, 1939.
May 14, 1937, Marion Wasson as .state bank commissioner filed an amended complaint asserting that Chas. X. Williams was the administrator in succession of the estate of M. A. Williams. There was the averment that Williams, at the time of his death, was the owner of two certificates for an aggregate of 80 shares of the capital stock of the Bank of Booneville; that in October, 1934, the bank became insolvent, necessitating liquidation; that within sixty days a 100 per cent, assessment against all stockholders was levied; that G-eorgianne R. Williams, then administratrix of the M. A. Williams estate, had refused to pay the assessment, although under the will of M. A. Williams such stock passed to her and she received the dividends paid thereon, and that the estate of M. A. Williams, “. . . as well as the property attempted to have been conveyed by the will of G-eorgianne R. Williams, is liable for the payment of the assessment.”
October 11, 1937, H. G. Murphy, trustee, was substituted as plaintiff in lieu of Wasson, commissioner.
In November, 1936, suit had 'been filed against Georgianne R. Williams and twelve other defendants, alleging the stock obligations and failure to pay. November 5, 1937, the action against Mrs. Williams was revived against her administrator, Wendel Chambers.
In his answer as administrator, Chas. X. Williams charged that Murphy, trustee, had satisfied the stock assessment; that such satisfaction extended to all of the capital stock of the - bank, the means of discharging the obligations having been through use of “frozen” deposits ; that these deposits were purchased at a discount, some as low as 20 per cent, of their face value, and “. . . if the estate of M. A. Williams is the owner, or liable for the assessment, its liability to [the trustee] would only be for its proportionate, part of the sum actually paid in acquiring- the frozen deposits. ’ ’
There was a demand that Murphy be required to disclose the expenditure incurred in settling the assessment, and that “. . . this court determine whether the estate of M. A. Williams is liable for anything on the shares of stock alleged to have been owned by him at his death; and if so, declare the proportionate share of the actual expense of settling the stock assessment which is a charge against this estate.”
In a motion filed by Chas. X. Williams as administrator (March 30, 1939) reference was made to the testimony of L. L. Green, deputy commissioner in charge of liquidating the Bank of Booneville. Green had formerly been cashier. It was asserted that Green’s testimony showed that records of stock liability and payments made thereon (pursuant to the agreement with Wasson as to satisfaction) had been burned. There was a prayer that the plaintiff be required to state under oath “. . .. the name and amount of the depositor and deposit that the plaintiff applied to the discharge of said stock assessment, and then obtain the testimony of the depositor as to how much he received for his deposit.”
The decree was that Murphy as trustee was entitled to judgment against Chas. X'. Williams as administrator for $2,13-2.60, this “. . . being the assessment of $2,000 against the stock in the Bank of Booneville owned by said estate, less the amount of $22,16 paid thereon, the remainder ($1,977.84) being figured at ninety-five cents on the dollar, plus 6 per cent, interest thereon from January 1, 1937.”
Counsel for appellant says: “The best evidence in this case is the stock record of the defunct bank, which proves that the M. A. Williams estate was not a stockholder when the bank failed, and [when] the stock assessment [was] levied.”
Appellant’s theory of the controversy is shown in the statement of counsel that “When the shares of stock were delivered to the life tenant and accepted by said life tenant, then so far as the stock is concerned the administration of the estate was complete.”
M. A. Williams died in 1908. Mrs. Williams had the certificates transferred to herself October 7th of the same year. September 16 preceding the transfers an ex parte proceeding had been conducted in the Logan chancery court upon petition of Mrs. Williams. The chancellor, in construing the will of M. A. Williams, found that it vested in Mrs. Williams “. . . a present absolute estate ’ ’ in all of the real and personal property formerly owned by M. A. Williams.
When the bank transferred the certificates to Mrs. Williams notation was made on its records: £ ‘ See chancery record £A’ 323.” The reference was to the decree of September 16.
From October, 1908, until October, 1934 — a period of 26 years — 'Mrs. Williams, thinking she was owner of thé stock, in good faith treated it as her personal property. In view of the chancery proceeding, bank officials undoubtedly held the same view. But, as this court has heretofore held, those who were not made parties were not bound. Liability on the stock did not arise until the commissioner levied an assessment subsequent to insolvency.
We have the unusual situation wherein an opinion of this court handed down February 21, 1938, (reversing a ruling of the Sebastian chancery court), retroactively affects interests which for more than a quarter of a century had been thought (at least by some of the parties) to be vested in Mrs. Williams; yet, under the law there declared (Williams v. Chambers, supra) she had only a life estate. Her act in surrendering the old certificates and procuring new ones did not affect the status of the stock. The certificates were merely evidence of the interest M. A. Williams, at the time of his death, had in the bank’s capital. The stock’s aspect as property was fixed by the will insofar as ownership was to be determined.
In Hospelhorn, Receiver v. Burke, 196 Ark. 1028, 120 S. W. 2d 705, there is a discussion (page 1032) of the nature of the liability incurred by the holder of bank stock. In that case a Maryland transaction was involved. We said: ££. . . the shareholder of this bank stock not only contracted for dividends and profits, but she contracted also that in case of insolvency and an assessment upon the shares of stock, she would pay such assessment. ’ ’
It was also said in the same opinion: ££We have already indicated that the nature of this transaction was contractual, the bank being the seller of the shares of stock,- the shareholder the purchaser, and the compelling implication of-law as fixing all other terms and conditions of the contract.”
Although, in the instant case, Mrs. Williams acquired personal property of the estate with full power to use it in a reasonably prudent and businesslike manner and to receive and if necessary consume the income or earnings, at her death the corpus and any unexpended earnings or increment passed to the testator’s heirs. Perhaps it is not quite accurate to say that under the will Mrs. Williams “acquired” the property. Its custody,' management, utility, and earning power were hers, but by the same document through which she attained such rights, the remaindermen likewise became interested parties with a deferred right of absolute ownership.
It was shown in Chambers, Administrator v. Williams, Administrator, that property of the value of $8,601.25 was in the hands of Mrs. Williams at her death. We held that this should be regarded as assets for the benefit of remaindermen, the presumption being that it was a part of the M. A. Williams estate as distinguished from the separate property of Mrs. Williams.
It is our view that the judgment should be against the administrator of the estate of the life tenant rather than against the administrator in succession of the estate of M. A. Williams, but only as a means of reaching the M. A. Williams estate property.
Mrs. Williams died subsequent to the time suit was filed against her. The cause was revived against her administrator. Appointment of Chambers was with the will of Georgianne R. Williams annexed. Appellee has cross-appealed.
The bank, on final liquidation, paid depositors 95 cents on the dollar. There is testimony that some of the deposits applied through Murphy as trustee in satisfaction of assessment liability were purchased at substantial discount. There is other testimony that 95 cents was paid. In the light of all the evidence we cannot say that the chancellor’s findings of facts were against the weight of evidence.
We do not decide whether suit could be successfully prosecuted against an administrator for an assessment on bank stock when the assessment had not been made during the life of such administrator’s testate or intestate and when the certificate had been transferred in a way to show record ownership in another; nor do we decide, in respect of an assessment, whether suit would lie against the administrator of a life tenant when the circumstances would require satisfaction out of the life tenant’s property owned independently of the life estate.
What we do decide is that the same stock M. A. Williams owned (and transmitted as herein shown) was held by Mrs. Williams when the assessment was levied. Therefore, payment should be from the item of $8,601.25 referred to in Chambers, Administrator v. Williams, Administrator, ante, p. 40, 132 S. W. 2d 654, and identified as ‘ ‘ residue of both estates. ’ ’
The judgment is reversed and the cause is remanded with directions to enter judgment for the amount found by the chancellor to be due. It is further directed that Chambers, Administrator, satisfy such judgment before distributing the assets now in his hands. In the alternative, if such funds are in the hands of Williams, Administrator, he is directed to pay such amount to Chambers, Administrator, for the purpose of satisfying the demand. | [
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Humphreys, J.
Appellee brought this suit at the instance of Z. M. MoCarroll, duly qualified and acting Commissioner of Revenues for the state of Arkansas, against appellant, a duly licensed rectifier of liquors in the state of Arkansas, in the third division of the circuit court of Pulaski county to recover the sum of $14,972.05 in taxes imposed upon it at the rate of 5c a gallon under the provisions of § 4 of act 109 of the Acts of the Legislature of 1935, which section is as follows:
“ Section 4. Every person engaged, or proposing to engag'e in the business or occupation in this state of blending, rectifying or mixing distilled spirits, and the sale and transportation of same shall obtain from the Commissioner of Revenues a permit to blend, rectify, or mix distilled spirits, and to sell and transport same for said purposes. For the privilege of blending, rectify ing or mixing said spirits and selling and transporting same shall in addition to the license tax provided by law pay an excise tax of five (5) cents for each gallon of distilled spirits, blended, rectified or mixed, is hereby imposed; provided, however, that said license fee (five cents) shall not be required to be paid for such distilled spirits used in said blending, rectifying or mixing.
“ (a) As were heretofore manufactured in this state or shall hereafter be manufactured in this state, or
“(b) Which have borne the tax imposed under this act.
“It shall be the duty of any person engaging in the business or occupation of blending, rectifying or mixing distilled spirits, as above set out, to report on or before the 10th day of the succeeding month, in such form and stating such facts as may be prescribed by the Commissioner of Revenues, the amount of distilled spirits, blended, rectified or mixed during the preceding month, and at the time of making said report, pay the said license tax for said privilege as herein provided. ’ ’
It was alleged that appellee received into this state for its rectifying plant at West Memphis, Arkansas, 205,509 gallons of liquor and 93,932 gallons of wine which liquor and wine were rectified, blended, and mixed by it at said rectifying plant on which it never paid a tax of 5c a gallon as required by the act.
Appellant filed an answer interposing two defenses to the cause of action:
First, that although it reported the number of gallons it rectified each month at its rectifying plant to the then revenue collector it was told by said revenue collector that the liquors rectified, blended, and mixed were not subject to a tax of 5c per gallon under the provisions of § 4 of said act, and consequently it did not pay same, and second, that under the terms of § 13899 of Pope’s Digest of the statutes of Arkansas appellee is not entitled to recover the tax of 5c per gallon imposed by § 4 of said act.
In .other words, it pleads estoppel against the state to collect a tax on account of the unauthorized statement or act of the state’s then revenue collector, and pleads a bar to recovery of the tax by virtue of the provisions of § 13899 of Pope’s Digest of the statutes of Arkansas, which last named statute of Pope’s Digest is as follows:
“After the assessment and full payment of any general property, privilege or excise tax, no proceedings shall hereafter be brought or maintained for the reassessment of the value on which such tax is based, except for actual fraud of the taxpayer, provided that failure to assess taxes as required by law shall be prima facie evidence of fraud.”
A demurrer was filed to the answer setting up the two defenses aforesaid, which was sustained by the court over the objection and exception of appellant, and, appellant refusing to plead further, judgment was rendered against it, from which is this appeal.
In lieu of a supersedeas bond appellant deposited $15,000 in cash with the clerk of this court to pay the judgment and costs in case the judgment should be affirmed by this court.
Appellant is a duly licensed rectifier of liquor in this state and rectified at its plant in West Memphis, 205,509 gallons of liquor and 93,932 gallons of wine from July 6, 1936, to June 14,1939, upon which it paid no tax. Under § 4 of act 109 of the Acts of 1935 it was required to pay a tax of 5 cents a gallon which it seeks to escape because it made monthly reports of the amount rectified and the then revenue collector told it that under his construction of the act it was not liable for the tax and so it did not pay same. And, as an additional reason for not paying same, the then revenue collector stated that if he changed his mind as to his construction of the act, that he would promulgate a regulation to that effect and that no tax would be imposed upon appellant for any liquor blended, rectified or mixed by it prior to the promulgation of such regulation by him, and from and after that date only.
The act is plain and unambiguous and requires the rectifiers of liquor in the state to pay a tax of 5 cents a gallon on every gallon he rectifies, blends or mixes irrespective of what disposition he makes of it The then revenue collector had no authority to supersede, modify or change the law by regulation or by a promise to exempt appellant from the payment of the tax. It was Ms duty to levy and collect the tax. The state of Arkansas' is not estopped by the unauthorized act of the revenue office to levy and collect the tax. It was said by this court in the case of Refunding Board v. State Highway Audit Comm., 189 Ark. 144, 70 S. W. 2d 1027, that:
“The doctrine of estoppel is not applicable to and cannot be applied against the state. . . . Section 993 of Bishop on Contracts (2nd Enlarged Edition), at page 419, it is said: ‘The government is never estopped, as an individual or private corporation may be, on the ground that the agent is acting under an apparent authority which is not real; the conclusive presumption that his powers are known rendering such a consequence impossible. So that the government is bound only when there is an actual authorization . . .’. The authorities on this subject were reviewed in the case of State v. Chilton, 49 W. Va. 453, 39 S. E. 612, in which it was sought to invoke the doctrine of estoppel against the state. It was there said: ‘A public officer cannot ratify expressly his own unauthorized act, and surely cannot do so by mere implication . . . Estoppels do not generally bind a state; that is, estoppel by conduct of its own officers. Clearly, the state cannot be estopped by unauthorized acts of its officers.’ Bigelow, Estop. 341; U. S. v. Kirkpatrick, 9 Wheat. (U. S.) 735, 9 L. Ed. 199.”
• Appellant also seeks to escape the payment of the tax because the collection thereof is barred by § 13899 of Pope’s Digest heretofore set out in this opinion. By reference to said section it is evident that it has no application to the collection of a tax never assessed, demanded from, or paid by a person. Appellant admits that this tax was never assessed against it, demanded from it or paid by it.
In the case of State, ex rel., Attorney General v. Anderson-Tully Co., 186 Ark. 170, 53 S. W. 2d 17, relied upon by appellant, there was an assessment of the value of the real property and full payment of the tax assessed. The court ruled that the property having been assessed and full payment made on the basis of the assessment the state was precluded from attempting to reassess the value.
In the case of State, ex rel. Atty. Gen. v. Chicago Mill & Lbr. Corp., 187 Ark. 65, 58 S. W. 2d 951, relied upon by appellant, the court ruled that since the personal property had been assessed and the taxes paid on the basis of the assessment, the state was precluded from attempting to reassess the value. In the case of State, ex rel. Atty. Gen. v. New York Life Ins. Co., 198 Ark. 820, 131 S. W. 2d 639, relied upon by appellant for a reversal of the judgment, the New York Life Insurance Company had,made a return as required by law, a tax was assessed upon the basis of the return, demanded, and full payment was made thereon. In that case the attorney general sought to reassess the valuation placed upon the original assessment by adding premiums for annuity insurance policies thirteen years after the original assessment and full payment had been made and the court ruled that § 13899 of Pope’s Digest was applicable and that the ■state’s right to reassess those past assessments was barred.
There is no similarity between the cases cited and the instant case as to the applicability of § 13899 of Pope’s Digest.
Our conclusion upon the whole case is that the state is not estopped under the doctrine of equitable estoppel from collecting this tax nor is the collection thereof barred under the provisions of § 13899 .of Pope’s Digest.
The judgment is, therefore, affirmed and the clerk is directed to pay same together with costs out of the cash deposited by appellant with the clerk of this court for the purpose of paying said judgment in case same should be affirmed. | [
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Gbieein Smith, C. J.
This appeal is from judgments of the circuit court ousting two municipal officers-designate from tbe positions they bad sought in the April (1939) general election, and to which they had been certified.
A. B. Glover and J. E. Purdy were opposing candidates for mayor of Hoxie. Jim Smith, O. L. Davis, and '■’W. C. Cloyd were candidates for marshal in the same election.
In the race for mayor 467 votes were cast. The number cast in the marshal’s race was 471.
The election commissioners certified that Pnrdy had been elected mayor with a vote of 240, 227 having been cast for Glover. Davis was "certified as having been elected marshal by a majority of 26, the vote being 164 to 138. The vote received by Oloyd was not an issue.
April 13 suits were filed in circuit court alleging election irregularities; that illegal votes had been cast; and that if the returns were purged of such illegal ballots the result, based upon valid returns, would show the election of Glover and Smith.
Demurrers were overruled, answers were filed, and trial was commenced May 22. It continued into the next day. A great deal of testimony was introduced touching upon the qualifications of voters whose ballots were questioned. A resume of this testimony would serve no useful purpose. Over objections of the defendants, the court ordered boxes containing the original and the duplicate ballots to be opened and contents checked.
Final judgments were that Glover had been elected' mayor and Smith marshal, and “. . . the defendant, J. E. Purdy, [and the defendant, O. L. Davis, are] hereby ousted [from said offices”].
Although the record does not disclose an order of consolidation, the proceedings seem to have been treated as though consolidation had been directed, and the motion for a new trial is in the joint names of Purdy and Davis. Thirty assignments of alleged errors are brought forward, some of which have been abandoned, and others not urged. Finally, appellants state in their brief: “We therefore earnestly urge this court to reverse and remand this cause (1) on the ground that the ballots, original and duplicate, were shown to have lost their presumptive verity; and, further, were not affirmatively shown to be worthy of credit, but on the contrary were affirmatively shown to be unworthy of credit, and (2) the court erred in placing the burden on defendants to prove the eligibility of all voters whose names did not appear on the printed [official] list from Boas township.”
Appellants also seek clarification of the question of jurisdiction.
First. Appellants insist that the court erred in not directing verdicts for the defendants at the conclusion of testimony tending’ to show that .parties who had voted were ineligible. The point was made that even if those in question had in fact voted, the evidence did not disclose the candidates for whom such ballots had been cast; that this could only be determined by opening the boxes; that the integrity of the ballots had been destroyed because of the manner of handling the boxes.
Appellants rely upon Horne v. Fish, 198 Ark. 79, 127 S. W. 2d 623, and the cases there cited, and upon Henderson v. Gladish, ante, p. 217, 128 S. W. 2d 257.
In the Pish ca'se it was held that the' ballot boxes had not lost their integrity, although irregularities had occurred, and although the method of sealing provided by law had not been followed. There is this significant observation in the opinion: “. . . this contest has taken the usual or conventional form of such contests, and [it may be said] that upon this appeal only the following matters are presented: (1) Did contestant W. A. Pish receive the highest number of legal votes cast in the August primary? (2) Was the contestee, J. M. Horne, who had been duly certified as the nominee, properly held to be ineligible to hold an office?” Later, the opinion says: “Admitting the full force of appellant’s argument, we think it sufficient to say that it affirmatively appears that the integrity and purity of the ballots must be deemed as unimpeached.”
Our conclusion in the instant case is the same. Although the strict letter of the law was not observed in depositing the ballot boxes, it is not shown or intimated that this was occasioned by anything but a lack of understanding of statutory requirements. Witnesses who testified with respect to the boxes either affirmed that the original seals had not been' broken, or that they saw nothing to indicate such.
The Henderson-Gladish ease does not sustain appellants’ contention. The issue there was whether an elector whose poll tax receipt had been written with an indelible pencil was entitled to have his vote counted. This court was of the opinion that the taxpayer had the right, prior to using his receipt, to compel the collector, by appropriate legal measures, to write such receipt with pen and ink. However, payment of the tax in a timely manner, it was held, entitled the elector to vote if other qualifications were present.
Second. The court did not err in placing- the burden of proof upon appellants to show qualifications of voters whose names did not appear on the official list for Boas township. The record, as we construe it, shows that all of Hoxie was within the township in question, although the town did not include all of the territorial area of the township. The official list of poll taxpayers for Boas township was admissible to show, prima facie, what names constituted the electorate. Hargis v. Hall, Secretary of State, 196 Ark. 878, p. 888, 120 S. W. 2d 335, and cases there cited.
Third. An assignment argued in appellants’ brief for the purpose of clarifying the law is that the trial court erred in holding that the proceedings were ordinary actions at law under Chapter 164 of Pope’s Digest —the usurpation statute — beginning with § 14325. The applicable statute is § 14326 of Pope’s Digest. See marginal note.
Ferguson v. Wolchansky, 133 Ark. 516, 202 S. W. 826, is cited, emphasis being placed on that part of the opinion which says:
“Persons assuming to act under an election authorized by law have color of title to an office and are not usurpers within the meaning of the statute. ... At any rate, it devolved on appellants in order to state a cause of action to allege that appellees were not acting under an election to office and were usurpers.”
If we should consider the quoted part of the opinion, and disregard the remainder, certainly it would be necessary to concede that, if the circuit court in the instant case was without jurisdiction, the judgments of ouster are void._
The controversy in the Wolchansky ease was to determine who should serve as school directors in Desha county. Chief Justice McCulloch, spealdng for the court, said: “The constitution confers authority upon the legislature to provj.de by law for the mode of contesting elections in cases not otherwise specifically provided for in the constitution itself. Art. 19, § 24. In exercise of that power the general assembly enacted a statute providing for contests in the county court of the election of ‘any clerk of the circuit court, sheriff, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, or any other county or township officer, the contest of which is not otherwise provided for.’ [Pope’s Digest, § 4837]. There is no other specific provision for the contest of the office of school director, and we think that that office is included within the designation of county offices within the meaning of the statute. This is confirmed by the fact that certain provisions of the school law require the returns of school elections in cities and towns to be made to the county clerk, who is required to deliver a certificate of election to the person elected. . . . Since the contest was not instituted in the court having jurisdiction of the subject-matter, the demurrer to the complaint was properly sustained.”
In State v. Sams, 81 Ark. 39, 98 S. W. 955, Mr. Justice Riddick said for the court: “As the law does not expressly vest jurisdiction to hear and determine [controversies over the office of road overseer] in any other court, it falls within the general jurisdiction of the circuit court. The remedy for usurpation of office of road overseer is an action in that court brought either by the state or the person entitled to the office.” See eases cited.
The Sams case was decided in 1906. It was an action by quo ivarranto brought by the attorney general. In 1910, in Condren v. Gibbs, 94 Ark. 478, 127 S. W. 731, it was held that the county court had jurisdiction of a contest for the office of township road overseer. The apparent inconsistency between the two decisions seems to be explained in the fact that in the Sams case the state was the moving party, and the action was not, therefore, an election contest, since removal of a usurper, and not occupancy of the office by one claiming the franchise, was the issue.
Chief Justice McCulloch, in Wood v. Miller, 154 Ark. 318, 242 S. W. 573, held that a suit to recover a municipal office was properly brought in circuit court. In that case Wood was elected (April 6, 1920) for. a two-year term. Miller was elected in 1922 to succeed Wood. In November, 1920, Miller was elected representative from Jefferson county to the general assembly. Wood’s contention was that Miller was ineligible to hold the municipal office because of his election to the general assembly, and that he (Wood) continued in office until his successor should be elected and had qualified. In the opinion the Chief Justice said: “Counsel for appellee rely on the decision in Ferguson v. Wolchansky, . . . but that case does not support the contention. That was a contest for the office of school director, and we held that it was a county office within the meaning of the statute conferring jurisdiction on the county court. We held, also, in Condren v. Gibbs, . . . that a road overseer was a county officer, and that a contest for that office fell within the jurisdiction of the county court. The case of Lucas v. Futrell, 84 Ark. 540, 106 S. W. 667, is also decisive of appellant’s right under the statute to bring this action.”
Again, the same Chief Justice, speaking for the court in State v. Tyson, 161 Ark. 42, 255 S. W. 289, said: “In Payne v. Rittman, 66 Ark. 201, 49 S. W. 814, [and in] Whittaker v. Watson, 68 Ark. 555, 60 S. W. 652, it was decided that contests over municipal offices were within the usurpation statute, for the-reason that they were not county offices within the meaning of the constitution. It results therefore that this action [in the Clark circuit court] challenging the right of appellee to hold office of town marshal comes within the usurpation statute and must be governed by its terms.” It was held, however, that the particular action would not lie because it was brought by the prosecuting attorney. Citing the Sams case, the opinion continues: “Except in the case of county officers, suit must be instituted by the attorney general. ’ ’
The result of these cases seems to be that where .jurisdiction, with respect to claims to public office, is not' expressly or by necessary implication placed elsewhere, the circuit court, under the constitution, has residuary jurisdiction, and such is true with respect to the case at bar. It is immaterial whether the actions be termed election contests, proceedings in the nature of quo warranto, or suits to oust usurpers. In either event they were triable by the circuit court.
Appellants conclude their brief with a request that the judgments be reversed and the causes remanded,, and say: “Upon remand secondary evidence can be offered to establish for whom all illegal votes were cast.” This is tantamount to a request that the circuit court be permitted to again try the 'causes. While jurisdiction cannot be conferred by consent, objections to particular formalities in a court having jurisdiction may be waived.
Our conclusion is that the circuit court had before it sufficient evidence of a substantial nature upon which to predicate its findings that appellees received enough legal votes to elect them.
The judgments are affirmed.
In cause No. 5613 Purdy and Davis superseded judgments of the circuit court, a copy of the supersedeas bond having been filed with the clerk of this court. The bond is for costs only. The writ of supersedeas is dissolved. Judgment is rendered here in favor of appellees for such costs against appellants and their sureties.
Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise. | [
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Holt, J.
Appellants brought this suit in the Pulaski chancery court to cancel certain tax deeds issued by the State Land Commissioner to appellee and another deed subsequently issued by appellants to appellee upon identical property.
Appellants alleged that they were the owners of lots 3 and 4, block 8, Haney’s Subdivision to the city of North Little Rock, and of lots 15,16,17,18,19, 20, 21, 22, block 1, Thompson’s Garden Addition to Argenta, now North Little Rock, Arkansas; that by agreement appellee paid the taxes due on this property and to secure him they agreed to give him a mortgage only on lots 3 and 4, block 8, Haney’s Subdivision, but that appellee fraudulently secured from them a warranty deed on all the property above described.
They further alleged that appellee without their consent built a small house on one of the lots and made other improvements for which they are not liable; that they were only liable to appellee for taxes which he paid for them in the total sum of $111.47, but that he had collected rents from the property to more than reimburse him for this sum.
Appellee answered denying any fraud, and alleged that he had performed his part of the agreement, that the deed in question was executed in good faith by appellants, that the improvements which he made on the property were at the request of and by an oral agreement with appellants, that the total amount expended by him for the. benefit of appellants for taxes, including improvement district assessments, and the improvements on the property was $832.97, and admitted that he had obtained in rentals from the house, which he erected on the property, the sum of $286.
■The trial court' found in effect that pursuant to an agreement between appellants and appellee, appellee redeemed from forfeiture to the state of Arkansas the following’ described properties, to-wit: lots 3 and 4, block 8, Haney’s Subdivision to the city of North Little Rock, and lots 15, 16, 17, 18,19, 20, 21, arid 22, block 1, Thompson’s Garden Addition to the city of North Little Rock, and that appellee paid thereon in accordance with such agreement all sums of money required for such redemption. He also paid special improvement district taxes upon said real estate. On the Haney property, he paid $16.59 for a deed from the land commissioner, $26.59 for general taxes, and $44.52 for improvement district taxes, or a total of $87.70. On the Thompson’s Garden property; he paid $94.88 for a deed from land commissioner, $55.79 for general taxes, and $119.27 for improvement district taxes, or a total of $270.27; that appellants executed to appellee a warranty deed to said real estate on the 13th day of February, 1937; that under an agreement with appellants, appellee erected a dwelling on lot 4, block 8, Haney’s Subdivision, and made certain repairs to premises on Thompson’s Garden property, paying therefor; that it was the intention and purpose of the parties that appellee should be secured for the reimbursement of the moneys expended by him and advanced by him, and that the said moneys were intended by the parties as a loan; that there was no fraud in the execution of said deed. That appellee has obtained from the rental of said dwelling the sum of $286 and is indebted to appellants in said sum of $286; that the reasonable value of said dwelling is $450, and repairs in Thompson’s Garden property $25; that the warranty deed should be and is declared a mortgage on all of said properties; that a lien is declared on all of said properties to secure the payment of $832.97, less the indebtedness of appellee in the sum of $286, or a remaining total of $546.97.
And further decreed that if said sum and interest shall not be paid within a reasonaible time to be fixed by the court, the sale of any, or all, of said property, not previously redeemed by the appellants, in the usual manner.
From this decree comes this appeal.
The record reflects that appellants, Henry Williams and Mary Williams, his wife, were the owners of the property in question. They had failed to pay their general taxes and certain improvement district assessments on this property and as a result it had been forfeited to the state for the nonpayment of taxes for 1932. Appellee agreed to advance the money to redeem this property, after he and appellant, Mary Williams, had gone together to the offices of the tax collector and the State Land Commissioner to ascertain the status of the property. Subsequently appellee paid all taxes due on the property, including the improvement district taxes as well as the general taxes, and obtained tax deeds from the state in his own name.
The testimony on the part of appellee reflects that appellants understood and agreed that these tax deeds should be taken in the name of appellee and that if these moneys were repaid by appellants within three years, appellee was to release his rights under the tax deeds.
There is evidence on the part of appellants that these tax deeds were to be taken in their names and not that of appellee.
There is testimony on the part of appellants that they agreed to execute, and thought they were executing, to appellee a mortgage on lots 3 and 4, block 8, Haney’s Subdivision, only, to secure all the moneys advanced and expended by appellee in their behalf, and on the part of appellee there is evidence that appellants willingly agreed to and did execute a warranty deed to appellee covering all the lots in question.
It is undisputed that appellee expended for the benefit of appellants in taxes and improvements the total sum of $832.97 and that he received in rentals from the small dwelling which he built on the property the sum of $286.
The record further reflects that at the instance of appellants and under an oral agreement between appellants and appellee, appellee erected a small house on this property at an expense of $475 and improved the dwelling in which appellants lived at the time at an expense of $25. Appellants admitted that these improvements were placed on the property to enhance its rental value.
There is evidence that appellants were on the premises during the erection of the building and Mary Williams admitted that she participated in certain work on the building, being paid therefor by the contractor, and certain modifications of the building were made to conform to her wishes.
There is also evidence that this building was erected primarily for a home for appellants but on their refusing to move into it, it was rented by appellee for $11 per month, and the rent money paid to him.
We think it unnecessary to abstract further the testimony. After a careful review, however, of the evidence, it is our view that the findings of the chancellor are not against the preponderance thereof. We are also of the view that the learned chancellor was correct in declaring the deed in question a mortgage, and that it was so intended by the parties at the time of its execution.
It is undisputed that appellee actually spent $832.97 on this property. Appellants were allowed credit in the sum of $286 rentals collected by appellee, and after this deduction they are due, under their mortgage, to appellee the sum of $546.97 as recited in the decree.
In Holcomb v. Bowe, 154 Ark. 543, 243 S. W. 803, this court said:.
“In the present case, judgment was rendered in favor of Bowe against Mary Holcomb for the balance due on the mortgage indebtedness. The defendant was allowed credit in certain amounts for water bills, insurance, and taxes which he paid on the property, and the further sum of $60, which he had furnished Mary Holcomb for her support. He was charged with the rental value of the property while he had it in his possession, and judgment was rendered in his favor against the plaintiff for the balance of the mortgage indebtedness.
‘ ‘ There was no error in the action of the court in this respect. The court followed the rule that he who asks for equity should do equity, and properly decreed that relief against the deed should be granted the plaintiff oai condition that she pay off the mortgage indebtedness against the property. This was treating the transaction between the plaintiff and the defendant as a mortgage, and was strictly in accordance with the prayer of the complaint. ’ ’
Appellants urge, however, that they should not be required to reimburse appellee for the improvements which he placed on their property for the reason that he did it voluntarily, without their consent, and without color of title.
At the time these improvements were made, appellee not only held state tax deeds to the property in question, but also a warranty deed from appellants, and certainly he had not only color of title, but title in fee simple.
Aside from this, we think it clear from a preponderance of the testimony, that appellants knew of, and consented to, these improvements, and that they were made by appellee by the mutual agreement and understanding that he had with appellants at the time, and appellants must be held responsible to appellee for the cost of same.
On the whole case, finding no errors, we conclude, therefore, that the decree of the chancellor is correct and accordingly we affirm. | [
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Baker, J.
One William Fowler filed his suit in the circuit court of White county against the Missouri Pacific Transportation Company. His suit is based on the alleged negligent operation of the defendant company’s ■bus near or at the terminal depot at the corner of Markham and Main streets in the city of Little Rock, Arkansas. The summons was served upon E. C. Roberson, who soíd tickets and maintained a bus station in the city of Searcy, White county.
Petitioner alleges that act 70 of 1935 is the only applicable statute providing for service of summons in this class of cases. The respondent relies upon act 98 of the Acts of 1909, now designated as § 1369 of Pope’s Digest, as authority for the service had. The petitioner presents the view that the former statutes are not in themselves sufficient to warrant service upon Roberson, as in this case, as he is not such agent or employee of the transportation company, a foreign corporation, as was contemplated in the aforesaid § 1369 of Pope’s Digest, and that a proper construction of act 70 of 1935 is that it is to supply a means of service, or provide for proper service in' the particular class of cases mentioned in the said act; that it, therefore, provides for service upon truck and bus companies by serving: 1. The person selling tickets for the company. 2. The chauffeur, operator of the truck or bus.
Quoting from § 2 of said act, we have this expression: “to provide further and additional methods of obtaining service ... as against . . . the operators of motor buses, coaches and trucks, . . .”
In § 3 of the said act there is a declaration that in view of the fact that people have been injured by the operation of buses and trucks, “and in many instances there is now no agent . . . upon whom service of summons can be had in counties through which the same are being- operated, therefore, an emergency exists on account of such injuries and damages to persons and property, and no adequate provision for service of summons existing, it is found that this act is necessary for the immediate preservation of the public peace, health and safety, and an emergency is hereby found to exist and this act should he in full force and effect from and after its passage. ’ ’
It is not difficult to imagine a particular kind of case in which act 70 would he applicable to aid in securing service of summons and the conditions be such that no other statute would provide therefor. For instance, it is not unusual that trucks pass through the state hauling commodities, moving in interstate commerce. There, perhaps, is no office or agent of the owner of such truck in the state. We have also frequently seen buses making-special trips into or through the state. The owners of the buses, perhaps, have no agents in the state in connection with that particular kind of business except the • drivers of the buses.
The controversy here has its foundation to some extent, at least, in a recent decision of this court, and the petitioner has very carefully and fairly presented the crux of the whole matter in this paragraph:
“ Under the holding in Dixie Motor Coach Corporations. Toler, Judge, 197 Ark. 1097, 126 S. W. 2d 618, service under act No. 70 of 1935 can only be had in instances where the plaintiff may not obtain service under prior statutes. Here, William Fowler could have obtained service in Pulaski county under prior statutes, and this is the county not only where he resides, but it is the county where the alleged accident happened.”
In the consideration of the foregoing case some members of the court were inclined toward giving act 70 aforesaid a construction whereby it would be held not only a new service statute, but in addition a venue statute for the particular class of cases involved. Upon a full consideration of that proposition, it was finally held that the statute was intended to be a service statute only • that as stated in the act itself, it provided “for additional methods of obtaining service,” and it did not impair or take away any of the means for service already existing by law.
The respondent does not insist upon legality of service under act No. 70 aforesaid, but claims that even though act No. 70 had never been passed, the service in this case upon Roberson, a ticket seller, would have been, good and valid service under the laws already applh cable for more than thirty years. If this position is sound then the petition should be denied.
The facts stated and admitted are to the effect that Roberson operated a cafe or restaurant in the city of Searcy. He had arranged for bus stops at his place of business in the city of Searcy. He had a ticket case furnished by the transportation company. He was the only contact between the transportation company and its prospective customers. In this instance, this bus stop, with Roberson as the ticket seller, was the company’s place of business. That is true notwithstanding the fact that selling the tickets by Roberson is merely incidental to the operation of his cafe and other business activities. It was the one authorized or established place in Searcy where prospective passengers could deal with the corporation and buy transportation over its lines.
This corporation was a public service organization and was offering transportation for hire. Roberson was the sole and exclusive representative of the company in this respect.
We must and do take notice of the fact that the ticket seller reports his sales to the master; that one so engaged in a matter so vital to its continued existence in business must be regarded as responsible, who would report the service of a summons upon him, as well as to pay over the money which he collects daily from customers.
Such was the practical effect of the holding in the case of Arkansas Power & Light Co. v. Hoover, 182 Ark. 1065, 34 S. W. 2d 464. In that case the agent who was served with summons received and held for collection bills owing by the customers of the company. If the bills were paid, he receipted for' the money. If they were not paid, he had no further control or charge of the matter. The court held that under the law this was the establishing or fixing of the place of business as mentioned in § 1152, Crawford & Moses ’ Digest, now § 1369, Pope’s Digest.
In like manner we held in the case of Riggs v. Clay County Burial Association, 192 Ark. 994, 96 S. W. 2d 4, that a collector of dues or premiums paid by members of the burial association was an agent upon whom service could be had at the place of business of the company in the western district of Clay county, though its main office was in the eastern district thereof. A somewhat similar contention prevailed in the case of Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6, wherein an agent for the company whose duties were to receive milk for it and report to the home office the amount of milk he received from each person. It was held in that case that such an agent at the place of business was one upon whom service might be had. See, also, the case of Sugar Creek Creamery Co. v. Fowler, 195 Ark. 870, 114 S. W. 2d 1057.
So in this case we find no substantial difference in such agencies as just mentioned in the cases cited,' and Roberson’s employment and relation as agent of the petitioner. The conclusion follows, therefore, that the plaintiff might well have filed his suit and obtained service of summons without having resorted to any of the provisions of act 70 of the Acts of 1935; that being true, the petition should be denied. It is so ordered. | [
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Holt, J.
Appellant, W. A. Bickerstaff, brings this appeal from a judgment of the Mississippi circuit court, Chickasawba district, refusing to set aside a default judgment rendered against him.
On April 18, 1937, an automobile driven by appellant collided with a car driven by Gr. F. Scrape, damaging both cars.
Thereafter appellee, Harmonía Fire Insurance Company, paid to Scrape, the sum of $137.50 under its insurance contract, after deducting $50 under the deductible clause.
On December 14, 1937, appellee, insurance company, brought suit in’ the common pleas court at Blytheville against appellant, Bickerstaff, to recover the sum of $137.50 which it had paid to Scrape. Thereafter on December 15th appellant employed an attorney at Blythe-ville, to defend for him. In apt time an answer lyas filed by this attorney on behalf of appellant denying every material allegation in the complaint, but this answer became lost or misplaced.
On January 11, 1938, Gr. F. Scrape filed an intervention asking for judgment for $50 alleged to have been paid iby him under the deductible clause in the insurance policy, and on this same date the trial court rendered judgment in favor of appellee insurance company for $137.50 and in favor of Gr. F. .Scrape, intervener, in the sum of $50. Nine months thereafter an execution was issued on the judgment.
On November 14, 1938, appellant, Bickerstaff, filed his motion in the common pleas court to set aside and ' vacate said judgment and set up as his grounds the’seventh subdivision of § 8246 of Pope’s Digest as follows: “For unavoidable casualty or misfortune preventing the party from appearing or defending,” and further alleged that the answer which was filed by his then attorney, was either lost or misplaced by the clerk which prevented him from defending the suit on the issues joined.
Further in his motion appellant asked for a restraining order under § 8251 of Pope’s Digest. Réstraining. order was granted by the court of common pleas on the 15th day of November, 1938.
Thereafter the cause came on for trial in the common pleas court on what was termed a “motion to dissolve and dismiss the order.” This motion was treated as a demurrer by the court and was sustained on the 9th day of December, 1938.
On December 19, 1938, appellant, Bickerstaff, duly prosecuted his appeal to the circuit court from the order of the common pleas court.
On a trial before the court sitting as a .jury, on the 27th day of January, 1939, the court found in favor of appellee, Harmonia Fire Insurance Company, refusing to set aside the judgment as to it, but found in favor of appellant as against G. F. Scrape, the intervener, and set aside the judgment of $50 as to him.
From this judgment Bickerstaff alone appeals.
The only question presented for review here is, as stated by the appellee, “Did the trial court commit error in finding that the appellant and his attorney were negligent, in not appearing and defending said cause in the common pleas court, when the same came on for trial and in not ascertaining said judgment until execution was issued thereon and that due to said finding of negligence there was no unavoidable casualty or misfortune preventing the parties from appearing, and defending?”
It is our view that no error was committed by the trial court and that his holding is sustained by this record.
Among the recitals in the trial court’s judgment are the following:
“That this is an action here on appeal from the common pleas court, instituted by the .plaintiff against the defendants, Harmonia Fire Insurance Company and G. F. Scrape, for the purpose of setting aside a default judgment rendered in the common pleas court against the plaintiff herein, on the ground of an unavoidable casualty and misfortune preventing 'the party from appearing or defending, as provided in the 7th subdivision of § 8246 of .Pope’s Digest.
' “The court further finds that said judgment to be set aside was set forth in plaintiff’s complaint, the grounds to vacate same, and there was set out a defense to same, all of which was verified by affidavit as required by lawr; that a summons was issued and served on said defendants and proper return made thereon.
“The court further finds that as alleged in said complaint and proven, the defendant, Harmonia Fire Insurance Company, on the 14th day of December, A. D., 1937, filed said suit in which- said default judgment was rendered, in the common pleas court, and that service was issued thereon and served upon plaintiff herein on the same day thereof; that on the next day, being the 15th day of December, 1937, plaintiff in this suit at bar (defendant in suit where default judgment was'rendered), employed ... an attorney-at-law, to represent him in defense thereof, and that the said "W. A. Bickerstaff, plaintiff here, went to the office of the circuit court clerk and obtained a copy of said pleadings, and that the clerk or his deputy indorsed on the jacket of said file the following notation, ‘Copy to [the attorney] by Bickerstaff, 12/15/37. ’
“The court further finds that the said W. A. Bickerstaff took said pleadings to the office of the said [attorney], here in the city of Blytheville, and that the said [attorney] prepared and filed an answer to said complaint in the office of the clerk of the circuit court, being ex-officio clerk of the common pleas court, before the expiration of the twenty days after service of summons, and before any judgment was taken.
“The court further finds that said answer which was duly filed by the said [attorney] was either lost or misplaced by said clerk before said judgment was taken, and was not in the file at the time said judgment was taken.
“The court further finds that said judgment was taken on the 11th day of January, 1938, in the sum' of $137.50 in favor of the Harmonia Fire Insurance Company, and that on the same date of said judgment an intervention was presented to the court on behalf of Gr. F. Scrape and that a judgment was taken by said Gr. F. Scrape for the sum of $50.
“The court further finds that as to the judgment taken by the said G-. F. Scrape, due to the finding that the same was filed and taken on the same date, January 11, 1938, the same was without notice to the said W. A. Bickerstaff and that the same should be set aside and vacated.
- ‘ ‘ The court further finds that a meritorious defense was alleged and oral evidence offered showing a prima facie defense.
“The court further finds that the said W. A. Bickerstaff and his attorney . . . were negligent in not appearing and defending said cause in the common pleas court when the same came on for trial and in not ascertaining said judgment until execution was issued thereon, and that due to said finding of negligence there was no unavoidable casualty or misfortune preventing the party from appearing and defending.
“It is, therefore, by the court considered, ordered and adjudged that the judgment in the sum of $50 in favor of Gr. F. Scrape be set aside and vacated leaving the cause still pending in the common pleas court, but that the judgment in favor of the Harmonia Fire Insurance Company in the sum of $137.50 and costs be not disturbed, leaving, judgment.against W. A. Bickerstaff for $137.50 and costs.”
It is undisputed in the instant ease that appellant waited more than eight months after the default judgment in question was rendered before taking steps to set it aside. We think • the court correctly held that a lack of diligence on the part of appellant was shown, and that the court did not aJbuse its discretion in so holding.
In Trumbull v. Harris, 114 Ark. 493, 170 S. W. 222, this court said:
“It is the duty of a litigant to keep himself informed of the progress of his case and a party seeking relief against a judgment on the ground of unavoidable casualty of misfortune preventing him from defending must show that he himself is not guilty of negligence and he cannot have relief if the taking of the judgment appears to have been due to his own carelessness. Hanna v. Morrow, 43 Ark. 107; Corney v. Corney, 97 Ark. 117, 133 S. W. 813; Weller v. Studebaker, 93 Ark. 462, 125 S. W. 129; Izard County v. Huddleston, 39 Ark. 107.
' “In the case last cited the court said: ‘The statute to vacate judgments by this proceeding is in derogation not only of the common law, but of thé very important policy of holding judgments final after the close of the term. Citizens must have confidence in the judgments of our official tribunals as settlements of their controversies and there should be some end of them. Unless a case be clearly within the spirit and policy of the act, the judgment should not be disturbed.’ ”
In the instant case the effort to set aside the default judgment was made after the close of the term at which it was rendered and after one or two other terms had intervened.
Appellant relies strongly upon the case of Cady v. Pack, 135 Ark. 445, 205 S. W. 819. Upon a careful examination of that case we are of the view that it does not control here for the reason that the default judgment in that case'was rendered on February 25, 1918, and within less than two months thereafter the party against whom the judgment had been rendered, acting promptly and with due diligence, filed his complaint, or motion to set aside said judgment. and brought the case to trial on April 26, 1918.
In the instant case, as heretofore stated, appellant delayed for more than eight months before taking action.
On the whole case we find no error, and the judgment is accordingly affirmed. | [
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Mehaeey, J.
This action was instituted in the Crawford circuit court by appellant against the appellees, seeking to recover damages for personal injury. Appellant was a plasterer, doing plaster work on different parts of the building, for which he was paid by the Berry Dry Goods Company. He had been plastering the elevator shaft and had finished all except the bottom; he pulled the elevator up to the fourth floor and entered the shaft for the purpose of finishing the work in the bottom of the pit, and while waiting for some trash to be removed, Prank Carlton, another employee of the appellee, swept or pushed trash containing a wooden block into the elevator shaft at the second floor, which struck and seriously injured appellant. Up to that time he had not signed a contract, but on Saturday after being injured on Wednesday, he was requested to go to the office of the appellee and sign a contract that J. H. Reddick had prepared on his old stationery in which Reddick was designated as contractor. Appellant objected to signing it and asked the purpose for which it was being signed, and stated that the job was about finished. He was then told by Mr. Reddick that the Berry Dry Goods’ Company wanted it signed, and in order to get the money to pay his men appellant signed it. This was on May 15.
All of the appellees except Prank Carlton filed a motion to dismiss for want of jurisdiction. Said motions were overruled.
The appellee, Berry Dry Goods Company, filed answer specifically denying each and every material allegation in the complaint, and stating that if appellant received injuries or sustained damages as alleged in his complaint, the injuries and damages were caused and pro duced by the carelessness and negligence of appellant in that appellant failed to exercise ordinary care for his own safety, and pleaded contributory negligence and assumption of risk, and also pleaded that Reddick was an independent contractor and that Frank Carlton was in the employ of Reddick.
Appellant testified that he lived in Ft. Smith; that the elevator shaft was a passenger elevator and he had been working on the shaft two days when he got hurt; did not sign any contract until after he was injured, and after the injury the Berry Dry Goods Company sent for him to come to its office and sign a contract before his help could get their money. The contract designated Reddick as the contractor. It was not dark in the shaft, he could see all right, and he received no warning that it was dangerous and he worked there two days before; that he had stepped down into the shaft and was waiting when he was injured; did not know what hit him; when he came to, he was crawling on his knees; knew nothing else until after he got to the hospital about nine o ’clock; it was about eight o ’clock when he got hurt; injuries consisted of fractured skull on the left side of his head; they put him on the operating’ table and took nine stitches in sewing up his scalp; they sent him home and propped him up in the bed because he could not lie down straight; that his head throbbed terribly and he wanted to vomit for about three days, during which time he dozed a little; when he would wake up they would give him more medicine. They came after him on Saturday, while he was still in bed, to sign the contract. He received medical treatment about three months. The pain was in his head, throbbing pain; he could not do a days work; sometimes he would try to walk, but if he walked fast he was affected with pain; prior to the time of his injury he did not lose an hours work if he could get it to do; since the injury he had been unable to work; was 74 years old and able to do a day’s work before he was injured; .the only illness that he had had prior to that time was that he got billious, but never lost a day’s work; that he was a contractor and journeyman; he had no agreement with Mr. Reddick and asked him what he meant, and Reddick said the Berry Dry Goods Company wanted the contract; appellant told him the work was done, and the contract purports to have been made on April 26, 'when it was actually made on the 15th; the elevator shaft was two and a half feet deep; that he pul his hand on the bottom floor and stepped down; did not need a light to see; at the time he was injured he was standing close to the door of the elevator; that up to the time of the injury appellee had paid him $390, which paid his help; before the contract was signed every man got his money individually, but after that they paid them by cheeks.
Dr. J. S. Gregg testified as to appellant’s injuries.
Prank Carlton testified that he was working for the Berry Dry Goods Company, cleaning* up on the second floor; he was sweeping up brick and mortar on the floor; was using a. push broom to sweep it all over to the freight elevator and take it down to the loading dock; while engaged in this work he pushed and swept it by the passenger elevator, and some of it fell down the passenger elevator shaft and fell on appellant; there was nothing there to prevent it from going into the elevator shaft, and while he was sweeping by there, there seemed to be something fall and it hit and then he noticed them bringing out old man Coddington; Coddington said, something-struck him in the elevator shaft. Witness was one of the defendants; not related to the plaintiff in any manner; had no interest in the outcome of the lawsuit; after the accident the superintendent of Berry Dry Goods Company asked him to make a statement with reference to the injury; they came out to his house and asked witness where he was working; he said he was working on the second floor and they tried to get him to say that he was on the first'floor and told him he had better change his mind; he told them he would not tell a lie for them or anybody else; they told him they would go to see the two negroes. The Berry Dry Goods Company paid him for work during the entire job and Mr. Berry directed him as to what to do; he was not hired by J. H. Reddick; admitted that Mr. Knott, defendant’s attorney, had talked to him at home and that he told Knott just what he had told in court. He was then asked to repeat it, which he did. It was a very few minutes after he swept the trash down that he saw Mr. Coddington being brought up; the block of wood he swept off was about 4x4 and about 14 or 16 inches long; he did not do it intentionally.
Hugh Coddington, a son of appellant, testified that he was a plasterer, and after his father was hurt he went with John Wadman, a painter, and examined the shaft; found the block of wood that was introduced in evidence, at the bottom of the elevator shaft; his father was in bad shape for a long while after he was injured; he had found his father’s cap at the bottom of the shaft; there was blood on the block and cap and he gave it to Mr. Reddick and he examined it. Witness then pointed out blood stains on the block of wood.
Roy Cladwell testified that he worked for the Berry Dry Goods Company at the time Coddington was injured ; that he was being paid in cash by the office crew of the company.
Earl Schuler testified that he was working for the Berry Dry Goods Company and was being paid by it for his services; paid in cash by the Berry Dry Goods Company; that Mr. A. Y. Berry was supervising the work quite a bit; was hired by the Berry Dry Goods Company; Ray Herron hired him for the Berry Dry Goods Company.
Claude Carter testified that he’ was working for the Berry Dry Goods Company and was paid in cash by one of Mr. Berry’s men.
John Wadman testified that he worked for the Berry Dry Goods Company and was on the job when appellant was injured; went down into the elevator shaft after the accident with appellant’s son; identified the block of wood that hit the appellant.
Ray Herron testified for the appellee that J. H. Reddick was the general contractor and that witness started to work for liim about 14 years ago; he was employed as general foreman on the Berry Dry Goods Company building; that Mr. Reddick gave him the job and directed and instructed him; he was on the job when Coddington was injured; that he hired Frank Carlton as a laborer; that Mr. Reddick was his brother-in-law; knew nothing of his financial condition; Reddick told him that he had a contract and hired him to go to work; was getting a dollar an hour and was paid in cash by an employee of the Berry Dry Goods Company; Mr. Reddick never paid him directly; after witness’ brother-in-law died he went right along working for the Berry Dry Goods Company; knew nothing about the nature of the contract; Reddick never paid him a dime for his work.
John F. Hale, a carpenter, testified that he was working for Mr. Reddick; saw Coddington when he ivas injured; that Mr. Reddick paid all the men in money; afterwards testified that prior to the time of the accident they all got their money from Berry Dry Goods office.
Roy Upchurch testified that he was the administrator of the'estate of J. H. Reddick, deceased; that there had been no claim filed with him as such administrator against the Reddick estate by Mr. Coddington; that the Reddick estate was very small.
Dr. A. A. Blair testified as to appellant’s injuries.
A non-suit was taken as to all defendants except the appellees. Appellee Frank Carlton did not file any answer. The Berry Dry Goods Company filed motion to quash service and summons under § 1400 of Pope’s Digest which provides that when an action is against several defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in any other county than that in which the action is brought, where no one of the defendants is summoned in that county or resides therein at the commencement of the action, or where, if any of them resided or were summoned ■ in another county having appeared in the action failed to object or judgment is rendered in their favor unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceedings against him.
The Berry Dry Goods Company did object, and when its motion to quash was overruled, filed an answer preserving its objections in the answer.
There was a jury trial, a verdict and judgment for appellees, and the case is here on appeal.
The appellee, Berry Dry Goods Company, contends that Reddick was an independent contractor and that it is, therefore, not liable for the negligence of Reddick or any of his servants. The evidence does not show that Reddick was an independent contractor.
An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer except as to the result of the work. Ark. P. & L. Co. v. Richenback, 196 Ark. 620, 119 S. W. 2d 515; Miss. River Fuel Corp. v. Morris, 183 Ark. 207, 35 S. W. 2d 607; 14 R. C. L. 67; W. H. Moore Lbr. Co. v. Starrett, 170 Ark. 92, 279 S. W. 4; Thompson on Negligence, vol. 1, p. 570; J. W. Wheeler Co. v. Fitzpatrick, 135 Ark. 117, 205 S. W. 302; St. Louis, I. M. & So. R. Co. v. Gillihan, 77 Ark. 551, 92 S. W. 793; Miss. River Fuel Corp. v. Young, 188 Ark. 575, 67 S. W. 2d 581; Chapman & Dewey Lbr. Co. v. Andrews, 192 Ark. 291, 91 S. W. 2d 1026.
The question of independent contractor, however, was submitted to the jury under instructions requested by both parties.
The appellant contends that because Frank 'Carlton filed no answer and made no defense, there should have been a verdict against him in favor of appellant. The appellant did not request the court to direct a verdict in his favor against Frank Carlton, but under an instruction requested by him, the question of Carlton’s negligence and the contributory negligence of the appellant were submitted to the jury. The appellant, therefore, himself, regarded this as a question of fact to be determined by the jury.
It is next contended by the appellant that the case against the Berry Dry Goods Company is different from the case against Frank Carlton, bnt the Berry Dry Goods Company is situated in Sebastian county, was summoned in Sebastian county, and moved the court to quash the summons. Section 1400 of Pope’s Digest provides that where there is a verdict in favor of the party summoned in the county where the case is pending, there can be no judgment against the party summoned in a different county.
Appellant concedes in his brief that the jury might have found that Frank Carlton was not negligent, but it is contended that the Berry Dry Goods Company is liable because it had not put up any safeguard to keep trash from, going down the elevator shaft, and because it had not exercised ordinary care to furnish appellant a reasonably safe place in which to work. This might be true if the Berry Dry Goods Company had been summoned in the county where the case was pending; but as we have already said, under the section of the digest above mentioned, if the verdict was in favor of Carlton, who was summoned in Crawford county, there could be no verdict against the Berry Dry Goods Company summoned in Sebastian county.
Appellant complains that certain instructions given at the request of appellees were erroneous; but even if this be true, appellant cannot complain because he requested instructions on the same matters.
Appellant’s instruction No. 2 submits the question to the jury as to whether Beddick was an independent contractor. We think the appellant is correct in his statement that the evidence shows that Beddick was not an independent contractor. After appellant’s injury he was required to sign a contract, but the evidence shows that up to that time he had never signed any contract, and while they dated it back to April 26, the undisputed proof shows that it was not made at that time.
But when it is conceded that the jury might have found that Carlton was not guilty of negligence, it be comes immaterial whether Reddick was ail independent contractor or a servant, and it is immaterial whether a safe place in which to work was furnished, because the verdict in favor of Carlton who was served in Crawford county, necessarily required a verdict in favor of the Berry Dry Goods Company because it was served in Sebastian county.
The question of Carlton’s negligence was, by both parties, submitted to the jury, and the jury’s verdict is binding here. No matter how negligent the Berry Dry Goods Company might have been in failing to provide appellant with a safe place in which to work, no judgment could be had against it because it was summoned in a different county, and there was no verdict against the party summoned in Crawford county.
The question of assumed risk and also the question of a safe place in which to work, were both submitted to the jury under proper instructions, and the jury returned a verdict in favor of the appellee.
We think that the question of Carlton’s negligence was fairly submitted to the jury and that any errors that occurred, either in instructions or otherwise, could not have affected the verdict as to Carlton. That being true, there can be no verdict against the other defendant.
The judgment of the circuit court is affirmed. | [
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Griffin Smith, O. J.
Appellee was injured as the result of a fall in appellants’ gin. He alleged negligent construction of equipment.
Appellants contend that appellee accidentally lost his balance while manipulating a lever. The lever, spoken of as a “T” was attached to an iron pipe approximately four feet long. The other end of this pipe had been shaped to fit over the equare stem of a shaft. The shaft, in turn, operated certain equipment, referred to as a valve. The valve as originally installed did not include the iron pipe. This extension was made as a matter of utility. The pipe rested upon two timbers six or eight inches wide, spaced some distance apart, with the “T” end supported by an upright, contiguous to which was a narrow platform for use of those who from time to time were directed to manipulate the “T” in conjunction with a helper who would reach his hands into the cotton conveyor within which the valve was placed, the purpose being to relieve an interior “packed” or congested condition which prevented distribution of cotton into compartments holding about two bales each. The platform from which the “T” was operated was 17 to 20 feet above the ground floor.
Appellee’s testimony is that while turning the “T” under direction of the ginner (and while the latter was assisting in unclogging the valve) the iron rod became disengaged from the valve shaft stem, allowing the “T”end to drop suddenly, causing the fall.
Appellee, while operating the valve, was sitting behind the “T”. He admits that he did not and could not see the opposite end. On cross-examination he testified he “thought” the rod came loose. The question was asked: “Because the ‘T’ you were holding went down— that is what makes you think it slipped loose up there, isn’t it?” The answer was: “It makes me think [it] came loose”.
Appellants insist this is a mere conclusion drawn from the fact of the fall; that appellee, with his back to the valve and rod connection, could not know what occurred behind him.
. If answers responsive to the cross-examination were the. only testimony on the issue, we would agree with appellants’ view. But this is not the case. Appellee’s posture was such that the “T” could he seen and its motions felt. It is possible that- when pressure was removed from the valve by the ginner’s hand manipulations one end of' the “T” upon which appellee was exerting pressure' turned suddenly, and that the fall was caused by this unexpected action.
There is testimony on behalf of appellants that connection of the rod with the valve shaft stem was not disturbed; that the fitting was so close as to require force — such as driving with a hammer — to effect separation, and that subsequent to appellee’s injury (September 29, 1938) no repairs or changes were made because disunion had not occurred. Even if we should say this was probably true, it was still a matter for the jury’s, determination unless appellee’s testimony stated a physical impossibility or an absurdity no reasonable mind would accept.
Effect of appellee’s explanation of the transaction is to say that the end of the iron pipe in front of him to which the “T” was connected suddenly went down. If this statement is true in respect of the pipe (as distinguished from the “T”), then unity of the pipe with the valve shaft stem must have been destroyed; otherwise the “front end” of the pipe could not have functioned as appellee says it did.
We conclude, therefore, that on this issue there was a question of fact. At appellants’ request the jury was permitted to visit the premises and to see how the equipment operated.
It is insisted that the judgment for $3,750 is excessive. Appellee was confined to his bed 12 or 14 days, and thereafter was under treatment of a physician. X-rays were taken three months after the fall, disclosing injury to a vertebra. There is no testimony that the injury disclosed by roentgenology was caused by the fall, although that inference was drawn by the doctor in reliance upon the patient’s disclosures. Medical bill was $65. Appellee was unconscious two or three hours. Two ribs were broken and lungs injured. There was a cut on the “thick part of the left temple” and damage to the back part of the neck and shoulders, with bleeding at the nose and from the injured lungs. Another physician who saw appellee the day following the fall testified the patient was “stunned, evidently from a brain concussion; tenderness on moving the neck and dorsal, and to the chest. ’ ’ There was other testimony relating to the nature and extent of injury.
Prior to employment by appellants, appellee had worked as a truck driver with weekly earnings of $10 or $12. During the ginning season he earned $15 to $20 a week. Three months after receiving his injury appellee was working at a salary of $7.40 a week. In February, 1939, he secured employment as clerk in a store at $10 a week.
The fact that appellee was able to resume work within a comparatively short period of time after receiving his injuries, and at a wage almost equal that received prior to his employment at the gin, contradicts testimony that “possibly,” or “probably,” the injuries were permanent.
We think $2,000 is the largest sum justified by the evidence. If within two weeks appellee shall have en-. tered a remittitur for $1,750, the judgment will be affirmed. Otherwise it will be reversed on the ground that passion and prejudice influenced the verdict by inclusion of a speculative sum for future disability not sustained by the record. In the event a remittitur is not entered the cause will be remanded for a new trial. | [
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Humphreys, J.
This suit was brought by appellant against appellees to recover damages in the sum of $1,009.01 for an alleged breach of a contract whereby appellees purchased from appellant 675 barrels of flour in 48 pound cotton packages or sacks, known as ‘ ‘ Cherry Bell” flour and “Red Cherry” flour at a price of $5.60 per barrel for the “Cherry Bell” flour and $5 per barrel for the “Red Cherry” flour to be shipped on directions to be given by appellees, shipments to be scattered to February 1, 1938, which contract contained the following warranty:
‘ ‘Seller expressly warrants that any flour contracted herein will be representative of the brand or grade specified herein to be sold and that any feed contracted herein to be sold will be equal to the minmium requirements of the law of the State named herein as destination. Buyer hereby waives any claim or defense based on the quality of the commodities specified herein, unless (1) within twenty (20) days after receipt of said commodities Buyer sends Seller-at Seller’s main office a letter by registered mail specifying the nature of the complaint; (2) within said twenty (20) days sends by express prepaid to Seller’s said office a five (5) pound sample of the goods alleged to be defective or inferior; and (3) within thirty (30) dayso after the arrival of said goods Buyer sends Seller at his said office an itemized verified statement of all loss and damage claimed by Buyer as a result of said alleged defective or inferior goods, provided that compliance by Buyer with the three last above enumerated steps shall not constitute an admission by Seller of the merits or amount of Buyer’s claim.”
The contract contained a provision that the written instrument was a complete agreement between the parties and that same can not be changed in any manner except in writing subscribed by the buyer and a duly authorized officer of the seller.
The contract also contained provisions relative to liquidated damages in case appellees should breach the contract specifying the items that might be considered in arriving at the amount of liquidated damages.
It was alleged in the complaint that appellees ordered out a shipment of one hundred barrels of flour under the contract on January 24, 1938, and a shipment of fifty barrels on April 15, 1938, and thereafter failed and refused to order out any other shipments, whereupon, appellant terminated the contract on May 25, 1938, and demanded damages sustained by it on account of appellee’s failure and refusal to order out the remaining 525 barrels of flour.
Appellees filed an answer denying the material allegations of the complaint to the effect that it had breached the contract, justifying its failure and refusal to order out the balance of the flour on the ground that it had been orally represented to them by O. E. Case, appellant’s assistant manager, and John R. Wilson, appellant’s traveling salesman, that the flour it was contracting to sell them was of the same grade and quality and just as good as “Red Cross” flour and “Full Cream” flour and that it would stand up with their customers and be just as satisfactory as “Red Cross” and “Full Cream” flour, and that such representations were false and fraudulent and known by appellant to be false and fraudulent at the time such representations were made, and that they, relying on said false and fraudulent representations as being true, were deceived, cheated, defrauded and damaged in the sum of $212.07, and by cross-complaint prayed for judgment against appellant in said sum.
An answer was filed to the cross-complaint denying the material allegations therein.
The suit was originally brought in the circuit court of Howard county, but on motion was transferred to the chancery court where it was heard on the pleadings, exhibits thereto and evidence introduced by the respective parties with the result that the chancery court dismissed the complaint of appellant and rendered judgment against it in favor of appellees on their cross-complaint for the amount of $212.07, from which decree an appeal has been duly prosecuted to this court.
The record reflects that on September 16, 1937, appellees. entered into a written contract with appellant for the purchase of one thousand barrels of flour of the brands heretofore mentioned at the price heretofore mentioned which flour was to be shipped when ordered in lots designated between the date of the contract and January 1, 1938. The contract contained the same warranty heretofore set out and the same provisions with reference to the written contract being the only contract ¡between the parties and with the same provisions relative to liquidated damages in case the flour was not ordered out. Appellees ordered out 325 barrels of said flour, but toward the latter part of December they lacked 675 barrels of ordering out as much as they contracted for, so it was mutually agreed that the-balance of 675 barrels should be transferred to a new contract and so a new contract for 675 barrels remaining unshipped under the contract of September 16, 1937, was entered into on December 29, 1937, whereby the appellees were given until February 1, 1938,. to arder out the shipment thereof. Subsequent to December 29, 1937, a shipment of one hundred barrels of flour was made upon order of ap pellees of date January 24, 1938, and again on April 15, 1938, an additional fifty barrels was shipped to the appellees on their order under the new contract. The unshipped balance of 525 barrels was not ordered out, and, in accordance with the terms of the contract, appellant terminated same on May 25, 1938, and brought this suit to recover appellant’s loss in accordance with the provisions in the contract relative to liquidated damages. The second contract made in December in substitution for the first contract made in September was mutually entered into without any claim for damages by either party. Appellant did not claim damages on account of the failure of appellees to order out the thousand barrels which was to be shipped by Januáry 1, 1938, and appellees made no claims for damages on account of the grade and quality of the flour which they had ordered out and which they had sold. In other words, the new contract was wholly independent of, although made in substitution of, the original contract. The price of wheat and flour .was much lower in December when the second contract was made than it was in September when the first contract was made, but the second contract was entered into on the theory that appellees were bound to pay appellant the same price per barrel as had been agreed upon in the first contract.
The evidence introduced by appellees tended to show that fraudulent representations; had been made by appellant’s representatives relative to the grade and quality of the flour representing that the flour sold was equal in grade and quality to Red Cross and Full Cream flour and that the sacks in which it was shipped had printed on them “Every sack guaranteed. Your money back if not satisfied. Without argument, etc.” Their testimony, however, does n'ot show that any representations were made by them relative to the grade and quality of the flour at the time the second contract was entered into although it does show that the flour which was ordered after the second contract was made had printed on the sacks or packages “Every sack guaranteed. Your money back if not satisfied. Without argument, etc.”
The testimony introduced hy appellant tends to show that it made' no representations of any kind relative to warranties except the written warranty contained in both contracts which were exactly alike.
At the time the second contract was entered into appellees had received and sold 375 barrels of the flour covering the period between September and December without any objection being made whatever as to grade and quality of flour. They had had every opportunity to inspect and examine the flour at the time they entered into the second contract having handled, as above stated, 375 barrels of' the Cherry 'Bell and Bed Cherry flour. Some objection was made to the grade and quality of the flour shipped under the second contract by letters to appellant some time in May, 1938, and about the time appellant terminated the contract and demanded damages under the provisions thereof, but after these objections were made the undisputed • evidence reveals that appellee voluntarily paid appellant for the 150 barrels of flour they had ordered shipped. Both the price of wheat and flour had decreased very materially from the time the second contract was made until same was terminated. In other words flour could be bought about the time the contract was terminated at $1.30 less per barrel than when the contract was made due to the reduction in the price of wheat.
A reading of the whole record has convinced us that according to the weight of the evidence, appellees breached the contract and in doing so became responsible for damages sustained by appellant under the terms of the contract and waived any damages they might have suffered, by voluntarily paying in full for the flour which they had ordered out and received, on account of any inferiority in the grade and quality of the sacks it had sold and had been compelled to take back from the purchasers and which they now have in their stock of flour.
We think appellees are bound by their written contract, and that the only warranty which they could rely upon was the warranty contained in the written contract which written warranty was fully complied with under the evidence by appellant. In other words there is no evidence showing that the flour shipped or to be shipped was inferior in grade and quality to that covered by the written warranty. Especially is this true in view of the fact that the second contract relied upon and sued upon in this case was made long after the alleged false representations as to the grade and quality of the flour had been made and the opportunity it had had to inspect and examine the grade and quality of the flour between the dates of the two contracts. It certainly appears that the misrepresentations relied upon by appellees as to the grade and quality of the flour purchased did not induce them to enter into the second contract which is made the basis of this suit. The. alleged misrepresentations as to the grade and quality of the flour purchased by appellees conflicted with the written provisions of the contract which written contract carried only one warranty, and even if they were made they were not made as inducements to the making of the second contract and were waived by them by paying for the flour which they had received in June, 1938.
The trial court erred in finding that appellees were entitled to recover $212.07 as damages against appellant on account of the alleged misrepresentations made by appellant to them, and in dismissing appellant’s complaint for damages which it sustained under the terms of the contract by the failure and refusal of appellees to order out 525 barrels of flour.
The judgment is, therefore, reversed and the cause is remanded .with directions to the chancery court to ascertain the amount of damages due appellant under the terms of the contract on account of appellees having breached same. | [
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McHaney, J.
Appellant and his wife, Mrs. Carmen Meadows, are residents of Texarkana, Texas. Mrs. Meadows, prior to August 4, 1936, had been engaged in business selling ladies’ ready-to-wear merchandise. Sometime prior to said date she had been adjudicated a bankrupt, and, in order to obtain credit for her to go back into business again, the appellant, her husband, undertook in writing with appellees to guarantee the payment of her debts.
Appellees are engaged in business in Dallas, Texas, selling at wholesale ladies’ ready-to-wear merchandise. On said August 4, 1936, appellant executed to appellees his written contract by which he agreed to guarantee the payment to them of “any and all indebtedness which Mrs. R. S. Meadows . . . may now or at any time hereafter owe the aforesaid firm . . .; but it is understood that I (we) shall not be required to pay hereunder more than the sum of twenty-five hundred and no one hundredths ($2,500) dollars in the aggregate including legal interest, and when I (we) shall have paid the said firm the indebtedness of said debtor amounting to said sum, this obligation shall be thereby satisfied and discharged. It being understood that this is a continuing guaranty, and said liability shall continue so long as debtor shall owe the amount herein guaranteed, notwithstanding debtor may have purchased and paid for other merchandise during the life of this guaranty. That is to say, the purchase and payment by debtor to the extent of the amount of this guaranty does not extinguish the guaranty, but same shall continue so long as debtor may be indebted to said firm.”
By reason of said guaranty contract appellees sold and delivered to appellant’s wife a large amount of mer chandise and she was indebted to them on August 18, 1938, in the sum of $1,766.88. On that date, August 18, 1938, appellant and his wife called upon appellees personally in their place of business in Dallas, Texas, for the purpose of purchasing additional merchandise, and they did purchase additional merchandise to the extent of $128.25, and at the request of appellees, appellant renewed the guaranty contract mentioned above by executing and delivering a new guaranty contract which is identical in form and substance with the one of August 4, 1936. Guaranty contract of August 4, 1936, was not surrendered by appellees, but was kept by them. The result of the transaction just related was that Mrs. Meadows was indebted to appellees on August 18, 1938, in the sum of $1,895.13. Payments were thereafter made on this indebtedness which reduced it to $1,000, which amount was due and unpaid on January 20, 1939, when Mrs. Meadows filed insolvency proceedings in the Miller chancery court. In these proceedings she named appellees as one of her creditors in the sum of $1,000. She prayed that she be declared insolvent, that her exemptions be set apart to her; that a receiver be appointed to convert her assets into cash, to be distributed among her creditors; and upon final hearing she be discharged and released from further liability. A receiver was appointed and he unsuccessfully sought to induce appellees to sign a stipulation to release and acquit Mrs. Meadows from further liability upon payment of a portion of her debt.
Thereafter, on February 6, 1939, appellees filed this action in the Miller chancery court against appellant and his wife and the receiver, alleging that appellant and his wife were indebted to them in the sum of $1,000 and that the receiver had in his possession certain articles of property upon which they claimed a paramount lien and that they were entitled either to a lien on certain property or to have it sold separately and the proceeds therefrom impressed with a vendor’s lien in their favor, and denied Mrs. Meadows ’ right to exemptions under the law of Texas, of which state she was a resident. They prayed judgment against Mrs. Meadows and appellant upon Ms guaranty contract, which was made an exhibit to the complaint, in the sum of $1,000. Neither Mrs. Meadows nor the receiver made any defense to this action. Appellant defended on a number of grounds set out in his answer, some of which will be hereafter discussed. Trial resulted in a decree for appellees and a judgment was entered in their favor against appellant and his wife in the sum of $1,000, from which is this appeal.
Appellant’s first insistence for a reversal is that there was no new consideration moving to him for the execution of the new guaranty contract of August 18, 1938, because no merchandise was furnished under that contract, and that the agreement was that appellees would furnish additional merchandise and give Ms wife additional credit up to $2,500. He is wrong in both contentions. As above stated additional merchandise was sold and credit extended to Mrs. Meadows on August 18, 1938, to the extent of $128.25, which when added to the account then due and owing by her in the sum of $1,766.88 made a total of $1,895.13. The extension of this additional credit was a valuable consideration. There is no showing that Mrs. Meadows ordered and that appellees refused to ship additional merchandise up to $2,500, after said date. Moreover, the plain provisions of the guaranty contract did not require appellees to extend credit to Mrs. Meadows up to $2,500, including her then indebtedness, but by its 'plMn, and, unambiguous terms, it required appellant to pay the then existing indebtedness and any additional indebtedness thereafter incurred not to exceed $2,500. Appellant attempts to engraft upon the written contract a condition that was not contained therein, that is, that appellees orally agreed at the time, prior to the execution of the guaranty, to extend Mrs. Meadows’ credit up to $2,500 and to ship her additional goods therefor. Appellant could not do this, as oral testimony is not admissible to alter or vary the terms of a written instrument. We, therefore, hold that there was no breach of the written contract by appellees in failing to furnish additional goods. This also disposes of appellant’s contention that appellees were guilty of fraud in representing that they would deliver $2,500 worth of merchandise to appellant when they had no such intention at the time of making’ said representation.
It is finally contended by appellant that his liability under the written contract was compromised and settled by him by payment to appellees of the sum of $595 which reduced the account to a balance of $1,000 owing by Mrs. Meadows to appellees. The facts are that on or about November 15, 1938, appellees’ salesman called upon Mrs. Meadows to collect the account. At that time she owed $1,595. She was unable to pay the account, but the salesman induced her to give appellees a series of post-dated checks, amounting in the aggregate to $595,' to reduce the indebtedness down to $1,000. Appellant was called into a conference with Mrs. Meadows and the salesman, and he agreed to pay the post-dated phecks as they matured and did pay them. He now contends that he was to be released upon his guaranty contract. She testified that the salesman agreed that the contract would not be used if she and her husband would give this series of post-dated checks. In answer to the question as to what promise she claimed the salesman made to her to get those checks, she answered: “He promised that the agreement Mr. Meadows had gone into with Mr. Freedman would not be used and it would be released if we gave those post-dated checks.” She was supported in her testimony by appellant and another witness. This testimony was contradicted by the salesman who testified positively that he'made no such agreement, that he had no authority to make such an agreement. He testified that he called Mr. Freedman over the long distance telephone and told him Mrs. Meadows would give a series of post-dated checks on the account which would reduce it down to $1,000 and that Mr. Freedman said that it would be all right to take the checks. He further said that he only did what Mr. Freedman directed him to do and that he settled no accounts with out permission; that he had never settled an account for less than one hundred cents on the dollar. The court resolved this question of fact in favor of appellees and we can not say its finding in this regard is against the preponderance of the evidence.
No error appearing, the decree is affirmed. | [
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COURTNEY HUDSON GOODSON, Justice.
|!Appellant Hotel Associates, Inc. (Hotel) appeals an order entered by the Pulaski County Circuit Court upholding the validity of an oral contingency-fee agreement for legal services rendered by attorney Kent J. Rubens, deceased, when he was a general partner in the law firm of appellee Rieves, Rubens and Mayton (RRM). As a result of this ruling, the circuit court granted judgment in the amount of $2,295,756.70 in favor of RRM and the other appellees, Michael R. May-ton, Elton Allison Rieves, III, and Belinda E. Rubens, individually and in her capacity as the administratrix of the estate of Kent J. Rubens. For reversal, Hotel contends that the circuit court erred in ruling that oral contingency-fee | ^agreements are enforceable under Arkansas law. As an alternative argument, it asserts that the circuit court erred in granting RRM’s motion for summary judgment because material issues of genuine fact remain in dispute. In its final point, Hotel maintains that the circuit court erred in granting RRM’s motion for prejudgment interest. We affirm the circuit court’s grant of summary judgment and award of prejudgment interest.
Our review of the record discloses that, in 2005, J.O. “Buddy” House retained Rubens to represent Hotel, one of House’s companies, in bringing a civil lawsuit against Holiday Inn Franchising, Inc. Rubens and House had enjoyed an attorney-client relationship for many years. By all accounts, the two men were close, and as was their practice, the engagement for Rubens’s services was not reduced to writing. However, it is undisputed that Hotel agreed to pay Rubens a contingency fee amounting to one-third of any recovery obtained in the lawsuit. Thereafter, Rubens enlisted attorney Timothy Dudley to assist in the representation of Hotel. As per oral agreement, Rubens and Dudley were to divide equally the one-third contingency fee to be paid by Hotel in the event that the litigation was successful.
Rubens died of a sudden illness on November 5, 2008. With House’s consent, Dudley continued to represent Hotel in the Holiday Inn litigation, and he retrieved the files from RRM on November 18, 2008. RRM later disbanded in January 2009. The case against Holiday Inn went to trial in July 2009. A jury in Crittenden County awarded Hotel $13,000,000 in compensatory damages and $12,000,000 in punitive damages. Upon Holiday |sInn’s motion, the circuit court reduced the compensatory-damages award to $10,056,000 and the punitive-damages award to $1,000,000. Holiday Inn appealed, and Hotel filed a cross-appeal. As pertinent here, the Arkansas Court of Appeals upheld the reduction of compensatory damages but reinstated the award of punitive damages. Holiday Inn Franchising, Inc. v. Hotel Assocs., Inc., 2011 Ark. App. 147, 382 S.W.3d 6.
On or about October 21, 2011, Holiday Inn paid the compensatory-damages award with interest to Hotel via Dudley in the amount of $11,287,930. From that award, Hotel authorized Dudley- to retain his share of one-sixth of the award and to remit to RRM its fee of one-sixth of the award. However, in authorizing the payment of fees to RRM, Hotel did so under a reservation of rights. Thereafter, Holiday Inn sought a writ of certiorari to the United States Supreme Court to challenge the award of punitive damages. When the Court denied the writ, Holiday Inn paid the punitive-damages award with interest in the amount of $13,800,000. Upon Dudley’s receipt of the funds, Hotel authorized Dudley to deduct his one-sixth fee, but it instructed Dudley not to transmit any fee to RRM. Anticipating litigation over RRM’s portion of the attorney’s fee, Dudley retained RRM’s putative share of the fee to be deposited into the registry of the court.
In March 2011, Hotel filed suit. In its third amended complaint, Hotel asserted a claim of unjust enrichment and sought a declaration that RRM abandoned its representation of Hotel following Rubens’s death. Further, Hotel contended that the contingency-fee ^agreement had not been fulfilled and that the agreement contravened public policy because it was not in writing. As relief, Hotel sought the return of the fee paid RRM in 2011 from the compensatory-damages award and to preclude its receipt of fees out of the punitive-damages award. RRM answered the complaint and asserted a counterclaim for breach of contract. By agreement of the parties, the circuit court entered an order permitting Dudley to deposit the disputed fee into the registry of the court.
Hotel subsequently filed a motion for partial summary judgment asserting that RRM’s counterclaim for breach of contract should be dismissed as a matter of law because an oral contract for a contingency fee is unenforceable as against public policy, as set forth by Rule 1.5 of the Arkansas Rules of Professional Conduct. In response, RRM maintained that the rules of professional conduct do not establish public policy for the purpose of bringing or defending legal claims; that Arkansas courts routinely enforce oral contracts, even when a statute or rule requires them to be in writing; and that the agreement was otherwise enforceable under the facts of this ease.
RRM also filed a motion for summary judgment on Hotel’s claims and its counterclaim for breach of contract. It argued that RRM and Hotel had entered into a valid, enforceable contract for legal services based on terms that are not in dispute; that the contract survived Rubens’s death because Rubens and Dudley were partners in a joint venture; that the rules of professional conduct cannot be used to support a cause of action or defense; that the contract is not unethical or otherwise unenforceable; and that it would not be unjustly enriched by receipt of the fee and that it was, in fact, Hotel that would be unjustly enriched |fiif permitted to disavow the contract. In response, Hotel maintained its position that the oral contingency-fee agreement was unenforceable, and it also argued that material facts remained in dispute, so as to preclude a grant of summary judgment.
After a hearing, the circuit court denied Hotel’s motion for partial summary judgment. The court, however, granted RRM’s motion for summary judgment on all of Hotel’s claims and on RRM’s counterclaim. Thereafter, RRM filed a motion for prejudgment interest pursuant to article 19, section 13 of the Arkansas Constitution. Hotel resisted this motion by arguing that this provision of the Arkansas Constitution was repealed by Amendment 89 to the constitution, which became effective on January 1, 2011. In reply, RRM argued that a six-percent rate of prejudgment interest was established by Arkansas Code Annotated section 4 — 57—101(d) (Supp.2013), as pertaining to contracts with no specified rate of interest. The circuit court found that the applicable interest rate was six percent and awarded prejudgment interest in the amount of $212,079.92. This appeal followed, wherein Hotel challenges the granting of RRM’s motion for summary judgment and the order awarding prejudgment interest.
This case comes to us from an order of summary judgment. A circuit court may grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637. Once the moving party has [ ^established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Kolbek v. Truck Ins. Exch., 2014 Ark. 108, 431 S.W.3d 900. In reviewing a grant of summary judgment, an appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. GSS, LLC v. Center-Point Energy Gas Transmission Co., 2014 Ark. 144, 432 S.W.3d 583. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Arloe Designs, LLC v. Ark. Capital Corp., 2014 Ark. 21, 431 S.W.3d 277.
As its primary issue on appeal, Hotel contends that the circuit court erred in ruling that oral contingency-fee agreements are enforceable in Arkansas. As support for this argument, Hotel relies on Rule 1.5(c) of the Arkansas Rules of Professional Conduct, which provides that “a contingent fee agreement shall be in writing.” It asserts that this rule is an expression of public policy, as espoused by this court under our constitutional authority to regulate the practice of law under Anendment 28. RRM responds that this court has held that no cause of action arises from a violation of the rules of professional conduct and that, in any event, the oral agreement should be upheld under the facts of this case.
A number of courts that have addressed the issue decline to enforce oral contingency-fee agreements when their rules require such agreements to be in writing. See, e.g., Mullens v. Hansel-Henderson, 65 P.3d 992 (Colo.2002); Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla.1996); Starkey, Kelly, Blaney & White v. Estate of Nicolaysen, 172 N.J. 60, 796 A.2d 238 (2002). 17Other courts have reached the opposite result. See Lowrey v. In re Smith, 543 So.2d 1155 (Miss.1989); Silverstein v. Hirst, 376 Pa. 536, 103 A.2d 734 (1954).
In deciding this question, we are persuaded by reasoning of the Mississippi Supreme Court in Lowrey, supra. Like Arkansas, Mississippi has a rule of professional conduct that requires contingency-fee agreements to be in writing. In Low-rey, however, the agreement was not reduced to writing. Although the court observed that this was a “serious problem,” the court nonetheless enforced the agreement, limiting its ruling to the “unusual facts of this case.” Lowrey, 543 So.2d at 1162-63.
Like the Mississippi Supreme Court, we have no reason to draw a bright-line rule when the circumstances of the instant case compel the enforcement of the agreement. Here, there is no dispute over the existence and the terms of the agreement, nor does Hotel contend that the agreed-upon fee was unreasonable. Significantly, Rubens and House had a long-term professional, as well as personal, relationship. Based on this relationship of mutual trust and confidence, it was not their practice to reduce their arrangements to writing. Under these unique facts, we hold that the fee agreement, although oral, is enforceable according to its uncontested terms.
Alternatively, Hotel presents the argument that questions of fact remain in dispute. It contends that the remaining questions of fact are (1) whether Hotel hired Rubens personally, not RRM generally, to prosecute the Holiday Inn litigation; (2) whether the relationship between RRM and Dudley qualifies as a joint venture; (3) whether RRM abandoned its representation of Hotel in the litigation; (4) whether Hotel acknowledged the oral fee disagreement after Rubens’s death; and (5) whether RRM was unjustly enriched by the receipt of fees in 2011. Arguing that these factual issues remain in dispute, Hotel contends that the circuit court erred in granting summary judgment.
First, Hotel asserts that a question of fact remains whether it specially hired Rubens to represent it in the lawsuit against Holiday Inn. It contends that this issue is important because the fee agreement terminated at Rubens’s death, if it specifically engaged the services of Rubens and not RRM. In a related issue, Hotel argues that the circuit court erred in determining as a matter of law that RRM and Dudley were engaged in a joint venture in the representation of Hotel. In this regard, Hotel questions whether there was an equal right of control with respect to the joint undertaking.
The uncontradicted proof offered by RRM was that Rubens was a partner in RRM, which operated under an arrangement that all fees earned were considered partnership income that was shared by the partners on an equal basis. The circuit court found that Rubens represented Hotel as a partner of RRM, and Hotel has not met proof with proof to dispute this fact. To constitute a joint venture under Arkansas law, the following elements must be present: (1) two or more persons combine in a joint business enterprise for their mutual benefit; (2) right of mutual control or management of the venture; and (3) an expressed or implied understanding that they are to share in the profits or losses of the venture. Burge v. Pack, 301 Ark. 534, 785 S.W.2d 207 (1990) (citing Tackett v. Gilmer, 254 Ark. 689, 496 S.W.2d 368 (1973)). It is uniformly recognized that an agreement by an attorney who has been retained to prosecute claims on a contingent fee to share the fee with another lawyer |3who is employed to act as counsel in the litigation establishes between them the relation of joint venturers. Langdon v. Kennedy, Holland, De Lacy & McLaughlin, 118 Neb. 290, 224 N.W. 292 (1929); see also In re Johnson, 133 Ill.2d 516,142 Ill.Dec. 112, 552 N.E.2d 703 (1990) (collecting cases); Berke v. Murphy, 280 Mich. 633, 274 N.W. 356 (1937). Based on this settled law, Hotel has failed to demonstrate that the circuit court erred in granting summary judgment on the issue of joint venture.
Hotel further contends that there are remaining issues of fact as to whether RRM abandoned its representation of Hotel following Rubens’s death and whether Hotel acknowledged the fee agreement after Rubens died. However, it is commonly accepted that, where a partnership or attorneys in a joint venture are retained under a contingent-fee contract, the death of one of the attorneys prior to completion of the contemplated services will not relieve the client’s responsibility to pay according to the terms of the contract where the required performance is accomplished by the survivors of the partnership or joint venture with the consent or acquiescence of the client. Kespohl v. Northern Trust Co., 93 Ill.App.2d 211, 236 N.E.2d 268, (1968); see also Senneff v. Healy, 155 Iowa 82, 135 N.W. 27 (Iowa 1912) (holding that where there is a joint venture between attorneys, and following the death of one, the survivor proceeds with the case to protect their mutual interests, and carries it through to the end, the representative of the deceased joint venturer is entitled to his share of the profits or proceeds of the joint enterprise without diminution). Here, with Hotel’s consent, Dudley concluded the Holiday Inn litigation. Dudley’s correspondence and deposition testimony reveal that he agreed to continue the representation under the terms of the existing agreements. Hotel has provided no evidence that the terms were changed or that Dudley and RRM agreed to |incontinue the representation under any terms but those of the original agreements. Although Hotel had the option of terminating its contractual obligations and offering to settle with RRM for services rendered, it allowed Dudley to conduct the litigation to its close, resulting in full performance of the agreements by the surviving joint venturer. Under these circumstances, payment of the agreed-upon fee is warranted. See Clifton v. Clark, Hood & Co., 83 Miss. 446, 36 So. 251 (1904). Therefore, we conclude that summary judgment on this point was appropriate as well.
Finally, Hotel asserts that questions of fact exist on its claim of unjust enrichment. It contends that if the oral contingency-fee agreement fails based on its previous arguments, then RRM is only entitled to a fee based on quantum meruit. Because we have rejected Hotel’s arguments challenging the continuing efficacy of contingency-fee agreement, we necessarily find no merit in this argument. RRM is entitled to recover on the agreement; thus, there is no basis for a finding of unjust enrichment.
As its last point on appeal, Hotel contests the award of prejudgment interest under the authority of section 4-57-101(d). It contends that the circuit court erred in applying this statute because it was not in effect when RRM filed its counterclaim for breach of contract and because the statute should not be applied retroactively. This issue is not preserved for appeal. When RRM moved for prejudgment interest, it cited article 19, section 13 of our constitution as authority. In response, Hotel pointed out that this constitutional provision had been repealed. In reply, RRM argued that interest at the rate of six percent was authorized by section 4-57-101 (d). Hotel offered no other response; thus, it did not argue to the circuit In court that the statute was inapplicable. Therefore, because this issue is being raised for the first time on appeal, we will not address it. Lamontagne v. Ark. Dep’t of Human Servs., 2010 Ark. 190, 366 S.W.3d 351 (declining to address claimed error in the application of a statute when the argument was not raised before the circuit court).
Affirmed; motion to dismiss denied.
. For ease of discussion, we will refer to all appellees as "RRM.”
. During the pendency of this appeal, RRM filed a motion to dismiss. We deny the motion.
. In addition to suing RRM, Hotel also named as defendants appellees Michael R. Mayton and Elton Allison Rieves, III, general partners of RRM, and Belinda E. Rubens, individually and in her capacity as administratrix of Rubens's estate.
. The circuit court also granted RRM's motion for attorney’s fees and costs, awarding $184,890 in fees and $1,251.50 in costs. | [
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WAYMOND M. BROWN, Judge.
1,Appellants Jennifer and Edgar Ham-man appeal from the circuit court’s termination of their parental rights to S.H., born October 20, 2010; F.H., born January 13, 2010; and K.S. born October 14, 2004. Appellants’ sole point on appeal is that there was insufficient evidence to support termination of their parental rights. We affirm.
Officer Tommy Broadstock, with the Danville Police Department, reported that F.H. had been “walking the streets of Danville with a sagging diaper on that appeared not to have been changed in sometime [sic]” and that he found Jennifer at home asleep when he returned F.H. to the residence. Four other children were in the home. The officer arrested Jennifer for child endangerment and took her to jail. On May 27, 2013, a seventy-two-hour hold was taken on all five children, F.H., S.H., K.S., A.S., born April |27, 2001, and R.S., born August 1, 2007. Appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on May 30, 2012.
An ex parte order for emergency custody was filed on May 30, 2012. In that order, the court noted that DHS had been involved with the family since March 20, 2012, and that homemaker services had been provided, but those services did not prevent removal because Jennifer had been incarcerated for endangering the welfare of a minor.
In an adjudication and disposition order filed July 20, 2012, the children were adjudicated dependent-neglected “due to mother’s drug use and inability to properly parent the children and keep them safe.” The goal of the case was set as reunification.
A review order was filed October 15, 2012. The court noted “Mother has complied with few of the court orders and the case plan.” The court specifically cited Jennifer’s current incarceration on manslaughter charges, and stated that she had “made little progress” towards alleviating or mitigating the causes of the juveniles’ removal from the home and completing the court orders and requirements of the ease plan. However, the court did note that she had completed parenting classes and a psychological evaluation. The court also noted that Edgar had “complied with some of the court orders |3and the case plant,]” specifically noting that he had made “some progress” towards alleviating or mitigating the causes of the juveniles’ removal from the home and completing the court orders and requirements of the case plan; he had completed parenting class and was attending visitation with the children. The goal of the case remained reunification.
Following a January 25, 2013 review hearing at which Edgar did not appear, a review order was entered on March 11, 2013. The goal of the case remained reunification. A permanency-planning order was filed June 24, 2013, following a permanency-planning hearing held on May 24, 2013. Therein, the court found that appellants had not cooperated with DHS and changed the goal of the case to adoption; the court authorized DHS to seek termination of parental rights.
DHS filed a petition to terminate appellants’ parental rights to S.H., F.H., and K.S. on July 9, 2013. DHS alleged the following grounds for termination under Arkansas Code Annotated § 9-27-341:
1. That a juvenile had been adjudicated by the court to be dependent-neglected and had continued to be out of the custody of the parents for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parents;
2. The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material | .¡support in accordance with the parent’s means or to maintain meaningful contact with the juvenile; and
3. The court has found the juvenile or a sibling dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the juvenile’s parent or parents or step-parent or step-parents.
At the time of the August 16, 2013 termination hearing, both Jennifer and Edgar were incarcerated, though they did appear at the hearing. DHS’s court report, which was entered into evidence, noted that:
1. The department’s prior involvement with the family was in an open case due to inadequate clothing;
2. Edgar had been listed as “homeless” in SNAP records at the last hearing;
3. Jennifer was currently incarcerated “due to pleading TRUE” to criminal charges in Yell County;
4. Edgar had had no contact with DHS since prior to the last hearing;
5. Jennifer had been incarcerated since the last hearing; and
6. There had been no parental visitation between the children and either parent since the last hearing.
jsA CASA report noted, in pertinent part, its concerns on the Arkansas State Police Crimes Against Children Division’s true finding against Edgar for sexual abuse of A.S., which required him to register as a sex offender.
On September 6, 2013, the circuit court filed an order terminating appellants’ parental rights based on all three grounds cited in DHS’s petition, specifically finding that:
1.“the Court ha[d] seen no effort from the parents to participate in the case plan and correct the conditions which led [to] the juveniles coming into care that despite being given another opportunity to do so, the parents have failed to maintain significant contacts with the juveniles throughout the case [... and] the parents ha[d] failed to provide any significant material support to the juvenile[s]”;
2. Jennifer had “been incarcerated all but two or three months of the course of this case, and is currently incarcerated, facing a 10-year sentence with four years suspended”; and
3. Edgar was “released from the penitentiary just a few days after the removal was made” and “[t]here is a very good chance he will be going back to the Arkansas Department of [Correction].”
In its order, the court allowed appellants one final visit and granted DHS authority to consent to adoption. This timely appeal followed.
|fiI. Standard of Review
In cases involving the termination of parental rights, there is a heavy burden placed on the party seeking to terminate the relationship. This is because termination of parental rights is an extreme remedy in derogation of the natu ral rights of the parents. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Thus, parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children.
In accordance with Arkansas Code Annotated section 9 — 27—341(b)(3), an order terminating parental rights must be based upon clear and convincing evidence, i.e., proof that will produce in the fact-finder a firm conviction as to the verity of the allegation sought to be established. On appeal, the issue before us is whether the trial court’s finding that the fact was proved by clear and convincing evidence is clearly erroneous. A finding is clearly erroneous when the appellate court is, on the entire evidence, left with a Indefinite and firm conviction that a mistake has been made. In deciding whether a trial court’s finding is clearly erroneous, we give great deference to its superior opportunity to observe the parties and to judge the credibility of witnesses.
II. Best Interests
Both appellants argue that the circuit court erred in finding that termination of their parental rights was in the children’s best interest. We agree with DHS and the attorney ad litem that the circuit court’s order terminating parental rights was not clearly erroneous.
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 (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the 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. However, this court has held that adoptability is but one factor that is considered when making a best-interest determination. Furthermore, our appellate courts have noted that, in considering the best interest of the child, there is no requirement that every factor considered be | ¡^established by clear and convincing evidence; rather, after consideration of all factors, the evidence must be clear and convincing that termination is in the best interest of the child.
a. Adoptability
Appellants argue that DHS did not meet its burden of providing clear and convincing evidence that any of the children were adoptable. They specifically ar gue that there was no testimony the adoption specialist, Laronda Garrison, that the children were adoptable based on race or age, contrary to the court’s findings in its order, and that more information is required. Appellants are correct that no testimony was submitted regarding the effect of the children’s age or race on their adoptability; however, other sufficient evidence was provided.
Though not explicitly stated in the order, from the bench at the termination hearing, the court stated, “I find by clear and convincing evidence that these children are adoptable, especially the younger children and that it’s possible, it will be more difficult, but it’s possible that K.S. could be adopted.” This finding was no doubt based on the testimony of Garrison, who essentially stated the same thing, noting the younger children are “very adoptable” and that K.S. is also adoptable “once he can get stabilized.” She testified to her belief that “continued counseling could help K.S. get to that point [of |flbeing stabilized].” She stated that there were potential adoptive homes for S.H. and F.H., but not for K.S. because “K.S. is not ready for that at this time.” The trial court “must simply consider the likelihood that the children will be adopted — that factor need not, however, be established by clear and convincing evidence.” However, a caseworker’s testimony that children are adoptable is sufficient to support an adoptability finding. We find that this factor was sufficiently considered and Garrison’s testimony was sufficient to support the court’s finding of adoptability.
b. Potential Harm
Appellants argue that there was not sufficient evidence to show clearly and convincingly that the children would be subjected to potential harm if returned to either appellant’s care. They argue that termination of their parental rights was, in large part, due to their incarceration and was not in the children’s best interests. This is clear, they argue, from (1) Jennifer’s testimony that she would be released within seven months of the termination hearing; (2) Edgar’s testimony that he believed he would receive sixty days to six months for his probation violation, at the conclusion of which he would be able to care for his children; and (3) Thelma Louise Whisenhunt’s testimony that she wanted custody of all the children. These statements ignore the totality of the testimony.
| mJennifer did testify that she would be released in seven months; however, she submitted no proof of that asserted time period, and the ADC website reflected a release date of April 8, 2015, one year and almost nine months out from the date of the termination hearing. Additionally, although she testified that she felt she was complying with the case plan in the beginning, she admitted that she had not been out of jail very long, only two months; admitted that she and Edgar failed to complete parenting classes; agreed that having an incarcerated mother and a family that moved from place to place was not stable; and acknowledged that two or three years was a long time to her children who are “pretty young.”
Edgar did testify to his belief that he would receive sixty days to six months for his probation violation, but he admitted that he did not know what the outcome was going to be as the hearing was not until the Monday after the termination hearing. He testified that he had a “job and house and everything lined up as soon as I walk out” of prison, but he submitted no proof of the same and also testified that he had lived in “three or four places” since his release from prison shortly after the children’s removal. He admitted that “the situation Jennifer is in and the situation I’m in does not promote stability.”
Whisenhunt did testify that she could provide a home for the children; however, she had never attended a hearing, which she explained away with the statement “I would have got up and come if I knew it.” Additionally, according to Jennifer’s testimony, she |nhad only “put in to get these kids over three months ago” at which point the children would have already had been in DHS’s custody approximately one year. Her willingness to essentially wait until the last minute to attempt to gain custody of the children belies her testimony that “[tjhere’s very much a bond between myself and those kids.”
A trial court is only required to consider potential harm to a child’s health and safety that might come from continued contact with the parents; there is no requirement to find that actual harm would result or identify the potential harm. The potential-harm analysis is to be conducted in broad terms. Looking at the testimony overall, the potential harm to the children if parental rights were not terminated is clear: the children would remain in DHS’s custody for an undetermined amount of time waiting for both of their parents to be released from incarceration and to satisfactorily complete the case plan. These children, who had already been in DHS’s custody for approximately fifteen months, would be required to linger in limbo until appellants were released from jail and got their acts together. This kind of wait-and-see is the definition of the instability that the termination statute is intended to protect children from. Furthermore, Whisenhunt, |iahaving only attempted to obtain custody of the children shortly before the termination hearing, had not been properly investigated and therefore was not a viable option. Accordingly, based on the potential harm to the children, we cannot say that the trial court clearly erred in finding that . termination was in the children’s best interest.
III. Statutory Grounds
On appeal, appellants argue that there was insufficient evidence to support termination of their parental rights under any of the grounds cited in DHS’s petition. They argue that the following findings of the court were clearly erroneous: (1) that DHS made meaningful efforts; (2) that appellants failed to remedy the circumstances that caused the children’s removal; (3) that the appellants failed to maintain meaningful contact, arguing specifically that Jennifer’s incarceration prevented meaningful contact and Edgar’s homelessness should not be held against him; and (4) that none of the children had been adjudicated dependent-neglected under life-endangering circumstances.
In addition to the best-interest finding, the court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. However, proof of only one statutory ground is sufficient to terminate parental rights. Because we find that at least one statutory ground was proven, we do not agree with 11sappellants’ argument that there was insufficient evidence to support any of the grounds cited by DHS in its petition.
a. Meaningful Efforts
The circuit court found DHS had proven by clear and convincing evidence that the children had been adjudicated by the court to be dependent-neglected and had continued to be out of the custody of the parents for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parents. Appellants do not dispute that the children were found to be dependent-neglected or that they were out of the home for at least twelve months, but they dispute that DHS made a meaningful effort to either provide them with services that would remedy the issues causing the children’s removal, or that appellants failed to remedy those issues despite a lack of meaningful services.
The court found that DHS had made reasonable efforts in its October 15, 2012 review order; its March 11, 2013 review order; and its June 24, 2013 permanency-planning order. Appellants did not appeal any of those findings. Because appellants failed to challenge any of the reasonable-efforts findings below, they have waived the issue for purposes of appeal.
114Even if the argument was preserved, it would still fail. Appellants do not cite any specific services that DHS should have or even could have provided for them while they were incarcerated. At the termination hearing, they did not request that they be given more services; Jennifer only requested that the children be placed with her mother and Edgar requested only that the circuit court give him more time. Our court has frequently recognized that a child’s need for permanency and stability may override a parent’s request for addi tional time to improve the parent’s circumstances. Additionally, appellants argue that Jennifer had obtained “beneficial services” to help with her rehabilitation during this case while incarcerated. While this is duly noted, appellants ignore the fact that even if proof of the same had been submitted, and it was not, the court did not know when these services were obtained, when or if they were completed, and more importantly, had no indication at the termination hearing of whether those services made her a viable placement option for the children, or made it so she would become so within a reasonable amount of time, upon release. Their argument is without merit.
Because DHS is required to prove only one statutory ground for termination, it is not necessary for us to consider appellants’ remaining arguments regarding the other two statutory grounds.
We affirm the circuit court’s termination of appellants’ parental rights.
Affirmed.
WALMSLEY and WOOD, JJ., agree.
. Anthony Martin, father of K.S., did not appear below. His parental rights were also terminated, but Martin is not a party to this case.
. In a review hearing held immediately prior to the termination hearing, permanent custody of Jennifer’s other two children, A.S. and R.S., was awarded to their respective fathers, Jerry Pierce and Michael Franey. The conclusion of the case below as to A.S. and R.S. is not a part of this appeal.
. An amended review order was filed on October 15, 2012.
. Jennifer testified that both she and Edgar were one class away from completing parenting classes, but never completed them because she became incarcerated.
. An amended review order was entered on June 7, 2013.
. Ark.Code Ann. § 9-27-341(b)(3)(B)(l)(a) (Supp.2013).
. Ark.Code Ann. § 9-27-341(b)(3)(B)(ii)(n) (Supp.2013).
. Ark.Code Ann. § 9-27-341(b)(3)(B)(vi)(a) (Supp.2013).
. Jennifer was facing ten years' imprisonment with four years’ suspended imposition of sentence. She was also sentenced to twelve months each, to run concurrently, on three additional counts of battery in the third degree.
. The CASA report erroneously stated that the victim of Edgar’s sexual abuse was R.S.; the victim was A.S.
. The court noted that maternal grandmother, Thelma Louise Whisenhunt, had become involved with the case “at the last minute” and found her to be an inappropriate placement at the time, though it specifically stated that it was not ruling her out as a possible future placement.
. Morrison v. Ark. Dep’t of Human Servs., 2013 Ark. App. 479, at 7, 429 S.W.3d 329, 334 (citing Blackerby v. Ark. Dep’t of Human Servs., 2009 Ark. App. 858, at 4, 373 S.W.3d 375, 378 (citing Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005))).
. Id.
. Id.
. Id.
. Austin v. Ark. Dep't of Human Servs., 2013 Ark. App. 406, 428 S.W.3d 573, 576 (citing McDaniel v. Ark. Dep’t of Human Servs., 2013 Ark.App. 263).
. Id.
. Id.
. Id.
. Madison v. Ark. Dep’t of Human Servs., 2013 Ark. App. 368, at 6, 428 S.W.3d 555, 559 (citing Ark.Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Supp.2011)).
. Renfro v. Ark. Dep't of Human Servs., 2011 Ark. App. 419, at 6, 385 S.W.3d 285, 288 (citing McFarland v. Ark. Dep't of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005)).
. Id., 2011 Ark. App. 419 at 9, 385 S.W.3d at 280 (citing Reid v. Ark. Dep't of Human Servs., 2011 Ark. 187, 380 S.W.3d 918; McFarlandv. Ark. Dep't of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005)).
. Garrison was the removal caseworker in this matter and continued to be the caseworker until she moved to the adoption department in October 2012.
. Renfro, supra, 2011 Ark. App. 419 at 6, 385 S.W.3d at 288 (quoting Dority v. Ark. Dep't of Human Servs., 2011 Ark. App. 295, at 6, 2011 WL 1495988).
.Madison, supra, 2013 Ark. App. 368, at 7, 428 S.W.3d 555, 560 (citing Cobbs v. Ark. Dep’t of Human Servs., 87 Ark.App. 188, 189 S.W.3d 487 (2004)).
. Also, despite the true finding of suspected child maltreatment based on sexual conduct, contact and sexual penetration by Edgar against Jennifer’s daughter, A.S., Jennifer stated "At this time, I don't know if Mr. Hamman and I will get back together once I’m released.” This leaves in question her decision-making ability as well as her ability to protect her children, specifically F.H., who is female.
. Lawrence testified that Whisenhunt's initial inquiries were for custody of only A.S.
. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, at 11, 379 S.W.3d 703, 709 (citing Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722).
. Id.
. Hoffman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 856, at 5, 380 S.W.3d 454, 457 (citing Ark. Code Ann. § 9-27-341(a)(3) (Repl. 2009) (The intent of our termination statute is to provide permanency in a child's life in all instances in which returning the child to the family home is contrary to the child’s health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective)).
. Drake v. Ark. Dep’t of Human Servs., 2013 Ark. App. 274, at 11, 427 S.W.3d 710, 716 (citing Ark.Code Ann. § 9 — 27—341 (b)(3)(B) (Supp.2011)).
. Id. (citing Fenstermacher v. Ark. Dep’t of Human Servs., 2013 Ark. App. 88, 426 S.W.3d 483).
. The parties stipulated to the children's being dependent-neglected.
. Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209, at 11, 396 S.W.3d 272, 279 (citing Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 526, 385 S.W.3d 373).
. Hoffman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 856, at 5, 380 S.W.3d 454, 457 (citing Johnson v. Ark. Dep’t of Human Servs., 2010 Ark. App. 763; Henderson v. Ark. Dep't of Human Servs., 2010 Ark. App. 191, 377 S.W.3d 362; Dozier v. Ark. Dep't of Human Servs., 2010 Ark. App. 17, 372 S.W.3d 849).
. Wittig v. Ark. Dep't of Human Servs., 2012 Ark. App. 502, at 11, 423 S.W.3d 143 (citing Ark.Code Ann. § 9-27-341(b)(3)(B) (Supp. 2011)). | [
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Humphreys, J.
This suit was brought by appellee against appellant to recover liquidated damages in the sum of $612.09 for failure to order a second car of Snowbird flour of 210 barrels capacity under and by virtue of a. contract entered into by and 'between appellant and appellee on August 5, 1937. It was alleged that on said date appellant entered into a contract with appellee to purchase 420 barrels of Snowbird flour in a two-car shipment, each car to contain 210 barrels of flour; that appellant gave shipping' instructions on one car and that same was shipped and delivered and paid for in accordance with the terms of the contract; that appellant did not give shipping instructions on the second car and in. July, 1938, eight months after the expiration of the original time of performance, advised appellee that it would not accept the second installment of 210 barrels, whereupon appellee brought suit against appellant for damages based upon the liquidated damage clause in the contract.
The written contract made the basis of this suit-contained the following warranty:
“Seller expressly warrants that any flour contracted herein will be representative of the brand or grade specified herein to be sold and that any feed contracted herein to be sold will be equal to the minimum requirements of the law of the state named herein as destination. Buyer hereby waives any claim or defense based on the quality of the commodities specified herein, unless (1) within said twenty (20) days after receipt of said commodities Buyer sends Seller at Seller’s main office a letter by registered mail specifying the nature of the complaint; (2) within said twenty (20) days sends by express prepaid to Seller’s said office a five (5) pound sample of the goods alleged.to be defective or inferior; and (3) within thirty (30) days after the arrival of said goods Buyer sends Seller at his said office an itemized verified statement of all loss and.damage claimed by Buyer as a result of said alleged defective or inferior goods, provided that compliance by Buyer with the three last above enumerated steps shall not constitute an admission by Seller of the merits or amount of Buyer’s claim. ’ ’
It also contained a provision relative to liquidated damages in case appellant should breach the contract by failing to order ont tbe flour purchased and for future delivery specifying the items that might be considered in arriving at the amount of damages.
The contract also contained the following clause: “If there is more than one installment of g'oods shipped or stipulated herein to be shipped, this contract shall be construed to be severable as to each installment . . . and breach or default of either buyer or seller as to any installment or installments shall not give the other party a right to cancel this contract except as herein otherwise expressly provided.”
Appellant filed an answer denying liability for failure to order the second, shipment of flour for the reason that the first shipment of flour was not of the grade specified in the contract and that the agent of appellee made misrepresentations as to the grade and quality of the flour and by way of 'cross-complaint prayed for the damages it sustained by reason of the inferior quality of the flour contained in the first shipment.
The cause was heard to a jury and at the conclusion of the testimony the trial court directed a verdict against appellant for $612.09 and denied appellant any rights of recovery under its cross-complaint.
A verdict and consequent judgment was rendered in accordance with the direction of the court over appellant’s objection and exception and it has duly prosecuted an appeal to this court, from the judgment rendered by the trial court.
It is conceded that if appellee is entitled to recover in any amount, the amount adjudged to it is correct, so it is unnecessary to refer to the testimony as to the amount of damages appellee sustained, if any.
It is undisputed that appellant sold appellee 420 barrels of Snowbird flour which was a brand of flour that had been sold for a number of years in that part of the state; that no misrepresentations were made by appellee or the broker who negotiated the sale as to the quality and grade of flour intended to be sold and pur chased; that the quality and grade were so well known that no representations were necessary relative to the quality or grade in order to induce the sale and purchase of the flour.
Since there was no evidence of fraudulent representations which induced the contract, that issue went out of the case; but appellant contends that, since the evidence tends to show that the first shipment of flour did not meet the requirements of the written warranty in the contract, it was privileged to refuse to order out the second shipment of flour and that it had a right to rescind the whole contract. There is much evidence to the effect that the flour contained in the first shipment was inferior in grade and did not meet the requirements of the warranty contained in the written contract, and, for this reason, it is urged that the court should have submitted that issue of fact to the jury. In making this contention it overlooked the fact that the contract contained a provision that it was the duty of appellant within twenty days .after receiving the flour to send a registered letter to appellee’s main office specifying wherein the grade of flour was defective and by sending within twenty days by prepaid express a five pound sample of the goods alleged to be defective to the main office of appellee and also within thirty days to send a verified, itemized statement of the loss claimed by reason of the defective flour, else appellant would waive any claim or defense based on the quality of the flour. The undisputed evidence reflects that none of these conditions precedent were performed within the time specified, hence it follows that appellant cannot recover damages from or hold appellee upon the written warranty as to the quality or fitness of the flour delivered in the first car.
It was said in the case of Yerxa, Andrews & Thurston v. Randazzo Macaroni Mfg. Co., 315 Mo. 927, 228 S. W. 20, concerning a warranty provision containing similar conditions when shown that the conditions had not been complied with that:
“It has been repeatedly ruled that similar contractual obligations are conditions precedent to be observed and performed by the buyer and he must show a compliance therewith on his part or a waiver thereof by the seller before he can recover damages from the seller or hold the seller upon a warranty express or implied as to the quality or fitness of the goods delivered by the seller. ’ ’ Our own court is in accord with the rule announced in the case referred to. It was said by this court in the case of Southern Engine & Boiler Works v. Globe Cooperage & Lumber Company, 98 Ark. 482, 136 S. W. 928 that: “It has been well settled that when a purchaser of machinery has agreed that if it proves defective he will give notice in a specified time, he will not be entitled to resist payment of purchase money on account of imperfection of which he did not give notice.”
It was also said by this court in the case of Carle v. Avery Power Machinery Company, 185 Ark. 799, 49 S. W. 2d 599 that: “Thus it will be seen that the warranty was conditioned upon giving the notice of defect within a specified time. The agreement of warranty being in writing is controlled by the language used. It has been held by this court that contracts of this sort are lawful and must he enforced as they have been made by the parties, and the test must be made within the time specified and the notice given according to the terms of the agreement. The condition that notice of defects must be given within a specified time is imperative and if the buyer does not show a compliance therewith, the buyer cannot enforce it against the seller.”
Further, appellant in making the contention that it might refuse to order out the second car of flour because the flour contained in the first car was inferior in quality and grade to the flour contracted for, overlooked the following clause in the written contract, to-wit: “If there is more than one installment of goods shipped or stipulated herein to be shipped, this contract shall be construed to be severable as to each installment .. . . and breach or default of either buyer or seller as to any installment or installments shall not give the other party a right to cancel this contract except as herein otherwise provided.”
This clause in 'the contract is not ambiguous and clearly evinces the intention of the parties to treat each shipment of flour ordered out as severable and separable from other installments of flour ordered out and specifically' provides that a breach or default of either buyer or seller as to any installment shall not give the other party a right to cancel the contract. Clauses of this character in contracts' are legitimate and enforceable as will be seen by reference to the following adjudicated cases: Yerxa, Andrews & Thurston v. Randazzo Macaroni Mfg. Co., 315 Mo. 927, 288 S. W. 20;Habicht, Braun & Co. v. Gallagher & Co., 172 Mich. 328, 137 N. W. 685; Ellison, Son & Co. v. Grocery Company, 69 W. Va. 380, 71 S. E. 391, 38 L. R. A., N. S. 539; Cahen v. Platt, 69 N. Y. 348, 25 Am. Rep. 203; Krebs Hop Company v. Livesley, 59 Or. 574, 114 P. 944, P. 118, P. 165, Ann. Cas. 1913C, 758.
No error appearing, the judgment is affirmed.
Smith and Holt, JJ., dissent. | [
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Humphreys, J.
This is a foreclosure suit brought by the Home Owners’ Loan Corporation on July 5, 1937, against W. P. Mixon and Catherine C. Mixon, in the chancery court of Lee county, to recover the balance due on a note and mortgage which they executed i>n the 28th day of November, 1934, to the Home Owners’ Loan Corporation for borrowed money with which to pay an existing mortgage on their home in Marianna which consisted of 80 feet of even width off the south end of lot 5 in the east half of block L, Pharr’s survey of the city of Marianna. The original note and mortgage was for $3,026 with interest at 5 per cent, per annum, principal and interest payable in monthly installments of $23.93. The mortgage contained an accelerating clause providing that upon failure to make the monthly payments fob 90 days the mortgagee or its assignee might declare the remainder of said indebtedness due and collectible.
W. P. Mixon and Catherine Mixon filed an answer admitting the execution of the note and mortgage and that they made no payments on the note from July 3, 1936, to July 5, 1937, the date on which the suit was brought. They denied, however, that they were behind on the monthly payments at the time the suit was brought if given credit for twenty-three abstracts of title, amounting to a total of $856, which Catherine C. Mixon had made to certain tracts of land embraced in applications to the Home Owners’ Loan Corporation for loans which said Home Owners’ Loan Corporation had agreed to pay her, but failed or refused to do so./ She alleged in the cross-complaint that this amount was due her and prayed for Judgment against the Home Owners’ Loan Corporation for said amount with interest at 6% per annum and that the amount of said judgment be applied on the indebtedness due appellee by appellants and that appellee’s complaint be dismissed for want of equity.
Appellee filed a reply to the cross-complaint denying that it had entered into any contract with appellant, Catherine C. Mixon, to pay her for abstracts of title to certain lands embraced in applications for loans to it or that it had any authority to make such contracts.
The cause was submitted to the trial court upon the pleadings, exhibits thereto and the testimony introduced by the respective parties resulting in a finding that the testimony was in irreconcilable conflict as to whether appellee entered into a contract with appellant, Catherine C. Mixon, to pay for the preparation of abstracts of title to certain lands embraced in applications to appellee for loans, but found that the district manager of the Home Owners’ Loan Corporation did not have authority to ..bind appellee for the payment of the abstract fees as alleged in appellants ’ cross-complaint. Based upon such finding the trial court dismissed the cross-complaint of appellants for want of equity and rendered judgment for $3,103.35 with interest and costs against, appellants and declared a lien on the real property for the payment of said amount with the usual provisions for sale and the satisfaction of the judgment, from which decree an appeal has been duly prosecuted to this court.
The record reflects that Joe N. Martin was the district manager of appellee and that he was in complete charge of the corporation’s district office at Jonesboro, Appellant, Catherine C. Mixon, testified that Joe N. Martin agreed that appellee would pay for abstracts which were prepared by her to property described in applications for loans by the property owners to the Home Owners’ Loan Corporation, provided the Home Owners’ Loan Corporation wrote to the applicant, after approval of the loans, to send in the abstract of title to the property, and that when an applicant brought the letter of authorization to her she would prepare the abstract and send it to the Home Owners ’ Loan Corporation accompanied by the letter; that the Home Owners’ Loan Corporation paid her for all the abstracts she prepared where the loan went through, but had never paid her for the abstracts where the loans were not made. Several witnesses corroborated her in this statement.
Joe N. Martin and a number of witnesses for appellee denied making this contract with appellant, Catherine C. Mixon, and he was corroborated in this denial by a number of witnesses. Joe N. Martin also testified that he had no authority to make such contracts.
Judge R. F. Millwee testified that he was state manager for appellee and that he was familiar with the rules and regulations of appellee and its business customs; that the custom was when the application had reached the eligible stage to make a loan and if the applicant was not financially able to pay for the abstract they would pay for it and include it in the loan provided the applicant had sufficient equity after paying every thing else connected with the loan and the original mortgage and interest to include in the loan the amount due for the abstract of title, but that no abstract of title was ever paid for if the loan was not made; that the final direction approving loans was made' out of the state office over his signature and that the district manager had no final authority to make loans; that under the rules and regulations no one other than the state manager and possibly the state counsel had authority to bind appellee by contracts.
The burden was upon appellants to not only prove that a contract of the character alleged was made and entered into, but also that the district manager of appellee had authority to make such contracts.
We deem it unnecessary to determine whether such a contract was entered into because appellants have wholly failed to meet' the burden upon them to prove that Joe N. Martin had authority to make a contract to pay for abstracts of title to lands embraced in applications for loans.
Having failed to meet this burden or to make proof that Joe N. Martin, district manager of appellee, had authority to make contracts to pay for abstracts furnished applicants for loans, the decree of the chancellor must be affirmed. | [
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Holt, J.
Appellant brings this appeal from a judgment of the Hempstead circuit court for $3,000 in favor of appellee, Nolin Kennedy, for alleged injuries resulting from a fall on the floor of appellant’s grocery store in Hope, Arkansas.
The acts of negligence relied upon in the complaint of appellee were the failure of appellant to furnish him a safe place in which to work, safe tools with which to perform his work, and the failure of Arthur Morris, a fellow-servant, to sweep the floor upon which appellee fell.
Appellant’s answer to these allegations was a general denial coupled with the pleas of assumption of risk and the negligence of appellee.
The testimony, as reflected by this record, is to the following effect:
Appellee, Kennedy, at the time of the alleged injury was 22 years of age. He had done extra work in appellant’s store in Hope prior to his alleged injury in the store on December 24, 1938. He did not work in the store on December 23rd, the day before the injury, and had not been in the storeroom of appellant on the day before. He was an extra hand. He reported for work at six a. m. on December 24th and was immediately put to work husking onions. “Q. What had you been doing from the time you went to work there that morning up until the time you were injured? A. I had been husking onions. Q. Where? A. In the back of the storeroom, close to the door.”
A partition wall separates the front of the store from the rear where produce is kept. It was in this south section of the storeroom that plaintiff (appellee) was injured. This south section was about 20 feet long east and west, and about ten feet wide north and south. At the time appellee was injured it contained many articles. Along the south wall were some shelves, and in front of ■ the shelves were cakes stacked in two-foot boxes. Along the north side of the said south section, there were (beginning at the doorway and extending* west) several sacks of onions, then a large sack of English walnuts, and then some sacks of potatoes. Out in front of the English walnuts and extending* toward the cake boxes on the south wall, there were some banana crates, which were stacked up higher than the head of a man. There was barely passage room (not over a foot and a half or two feet) between the banana crates on the north and the cake boxes on the south. To get to the potatoes the appellee had to pass through this narrow passage between the banana crates and the cakes. After negotiating this narrow passage there was an open space of three or four feet where the potatoes were. The floor was concrete. There was a light in this south section of the storeroom, but the light was east of the banana crates and the place where the appellee was injured was back west of the banana crates.
The appellee was ordered by Arthur Morris, appellant’s employee, to get a sack of potatoes and take the same to the front or sales part of the store; and the appellee went into this south section of the storeroom (where he had not been before that day) and negotiated the narrow passage between the cake boxes and the banana crates to the potatoes. It was dark there — so dark that he couldn’t see the floor.
Appellee further testified: “Q. Then how did you take hold of the potatoes — :state to the jury just how you sustained your injury? A. Well, I reached down to get the potatoes and I got them by the end and brought them up to this knee (indicating) and g*ot my knee under them and then my hip and I put them on my shoulder, and as I started to turn around — I took a step to turn around and go up the aisle — and I stepped on something with my right foot and my right foot slipped from under me, and when I did that, it threw all the weight on the muscles of my stomach and something just snapped in there (indicating).”
Dr. Martindale, on behalf of appellee, testified that he examined appellee on the morning of the alleged injury and found him suffering from a hernia or rupture, and on direct examination testified: “Q. If a man gave no history of a previous rupture, state whether or not, in your opinion, he had ever been ruptured before or not, or could you tell? A. I couldn’t tell.” On cross-examination he testified: “Q. As I understand you, you cannot tell the jury whether or not this was an old or a new hernia? A. I couldn’t be positive.” ■
He further testified that a man bending down and picking up a weight could receive a hernia or carrying the weight on his shoulder could cause it. In a traumatic hernia the patient is usually shocked and complains of pain and he may be nauseated and feel weak. A new hernia is sometimes difficult to reduce while an old hernia is readily reduced. Witness found appellee’s hernia easy to reduce. In an old hernia there is no ecchymosis; in a new one you may find it. There was none in this case. He found no tear in the. fascia; the external ring was large. The fascia is one of the layers that makes up the abdominal wall and gives it support. In a new hernia when the fascia tears you usually get blueness around the ring. You don’t get that in an old hernia. In this case he did not notice any blueness.
Witness, Arthur Morris, on behalf of appellant, testified: “Q. Did you sweep out the night before this happened? A. Yes, sir. Q. Did you sweep in that place where he got hurt? A. Yes, sir. Q. That was part of your duties, wasn’t it? A. Yes, sir. Q. And you did it? A. Yes, sir.” On this point appellee testified: “Q. Who swept out the store? A. Arthur generally swept it out. Q. What time wa.s it swept out in regards opening the store? A. The last thing at night. Q. And you say Arthur Morris swept it out? A. Yes, sir. Q. Did any other people ever sweep it out? A. If they didn’t happen to be doing anything at the time, they would help him.”
On this state of the record appellant urges, first, that the evidence is not sufficient to take the case" to the jury. Since it is our view, after a careful consideration of all the testimony, that this contention of appellant must be sustained, it becomes umiecessary to consider assignments of error relating to the instructions.
Appellee in his brief says: ‘ ‘ The negligence charged against the defendant was the failure to exercise' ordinary care to provide the plaintiff a reasonably safe place in which to work.”
The master is not an insurer of his servants ’ safety. The only obligation resting upon appellant in the instant case to appellee, its servant, was to exercise ordinary care to furnish him a reasonably safe place in which to work. This principle is well recognized in this state.
In Mosley v. Raines, 183 Ark. 569, 37 S. W. 2d 78, this court said: “The master is not only bound to exercise reasonable care to furnish a safe place to work, but the servant has a right to assume that the master has performed-his duty. It is, however, also thoroughly established by the decisions of this court that the master is presumed to have performed his duty, and the servant cannot recover for an injury unless he shows that the master was guilty of negligence and that the negligence of the master caused his injury. The master is liable for the consequences of his negligence, but he is not an insurer of the employee’s safety.”
In the instant case appellee does not know what it was that caused him to slip and fall. He says it was some object on the floor, an onion or something. There is no testimony as to how long this object had been on the floor or whether appellant or any of its employees knew of its presence. It is undisputed that the floor upon which appellee fell was swept the night before and that appellee did not work in the store the night before or the day before. He went to work as an extra between six and seven a. m. of the day of his injury and was put to husking onions in the rear of the store at á place but a few feet from the place where he slipped and fell.
In the case of Missouri Pacific Railroad Company v. Martin, 186 Ark. 1101, 57 S. W. 2d 1047, this court said: “It would be placing too high a duty upon the master to require him to' keep the employee’s place of work clear of every object upon which an employee might step and slip or fall. They are not insurers, but are only held to the exercise of ordinary care to furnish a safe place to work.” This language was approved in Caddo River Lumber Company v. Henderson, 194 Ark. 724, 109 S. W. 2d 425.
The rule seems to be well settled in cases of this character that a servant cannot recover from slipping on a foreign object or substance without substantial proof of negligence. The servant must show either that the object was negligently left there by an employee or that it remained there a sufficient length of time that the master or his employee knew or should have known of its presence.
It is our view that the well considered case of Safeway Stores, Inc., v. Mosely, 192 Ark. 1059, 95 S. W. 2d 1136, where the late Mr. Justice Butler wrote the opinion and where the facts are quite similar and are to the same effect as in the instant case, controls here. In that case this court said:
“We think, under the circumstances of this case, it is purely a matter of speculation as to how the lettuce leaf happened to be at the place it was when stepped upon by the appellee, and that the evidence fails to show any negligence on the part of Welter in failing to observe it. The most that can be said is that his duty required him to pick up only those leaves he saw and not to make an inspection for other leaves which might be lying around. We therefore conclude that the evidence, when given its greatest weight, wholly fails to establish any negligent act on the part of Welter as the proximate cause of the fall sustained by the appellee. The question as to the assumption of risk is therefore not necessary to consider as the verdict has no substantial evidence to support it on the question of negligence.”
Appellee insists that the two cases upon which he relies, St. Louis-San Francisco Railway Company v. Dan iels, 170 Ark. 346, 280 S. W. 354, and Missouri Pacific Transportation Company v. Jones, 197 Ark. 79, 122 S. W. 2d 613, control here. After a careful review of those cases, we cannot agree with appellee’s contention.
It will be observed in these two cases that a passenger was'injured by slipping on a banana peel on entering or leaving the conveyance. Under their contract with the company they were ¡both entitled to have the carrier exercise the highest degree of care toward them. It has long been the rule in this state that while one has given himself wholly in charge of the carrier as a passenger on the train or conveyance, or getting on or off, the carrier owes to such passenger the highest degree of care.
In the instant case appellant, it is conceded, owed to appellee the duty of exercising only ordinary care in furnishing him a reasonably safe place in which to work.
This court in St. Louis, Iron Mountain & Southern Ry. Co. v. Woods, 96 Ark. 311, 131 S. W. 869, 33 L. R. A., N. S., 855, said: “The higher degree of care is exacted only during the time in which the passenger has given himself wholly in charge of the carrier, while on the train or getting on or off, for then only is the passenger subjected to the peculiar hazards of that mode of travel against which the carrier must exercise the highest degree of skill and care. Falls v. San Francisco & N. P. Rd. Co., 97 Cal. 114, 34 Pac. 901. But when those extraordinary hazards have ceased, or before they have begun, the degree of care is relaxed as the necessity for it ceases.”
Applying the foregoing well-established rules to the instant case, there is no theory upon which the judgment can be sustained. To uphold this judgment would, we think, be equivalent to mailing appellant an insurer of the safety of its employee, Nolin Kennedy, while performing the work assigned to him, and this is not the law.
On the whole ease we conclude, therefore, that the trial court erred in refusing to instruct a verdict in favor of appellant at the conclusion of the testimony, and since the case seems to have been fully developed, the judgment will be reversed, and the cause dismissed.
Humphreys and Mehaffy, Jj., dissent. | [
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McHaney, J.
In the case of Sebastian Bridge District v. State Refunding Board, 197 Ark. 790, 124 S. W. 2d 960, we held that the board was required to pay the indebtedness of the district, consisting of bonds and interest coupons maturing October 1, 1938, in the sum of $44,075, and that since the board had remitted to the district only the sum of $14,765.80, it was still due to pay the district $29,309.20, which it did on February 27, 1939, by warrant at which time both warrants were cashed. On the remand of the case to the circuit court the district filed a supplemental amendment to the complaint alleging it was entitled to have a mandamus order requiring appellant to pay the interest accruing on the bonds of the district between October 1, 1938, and February 27, 1939, in the sum of $895.84, for the reason that such interest had accrued because of the wrongful refusal of appellant to pay the whole amount of its bond maturities and interest due October 1, 1938, and also to require appellant to pay the costs of $105.40 which accrued in the original case. The court granted the relief prayed and this appeal followed.
It was specifically held in the former appeal as follows: “It is our view that the language in act No. 10 (of 1939) pledging the state to pay ‘all such principal and interest, when due,’ ivas expressive of the legislative intent to assume the 1938 bond obligations, and the fact, that some of the districts had funds on hand is immaterial.”
But appellant did not make full payment until February 27, 1939, and. the bonds of the districts were not paid until that time, but continued to draw interest, ac cording to their terms, after maturity and until paid at 5 per cent, per annum, which amounted to $895.84. Since the state assumed the payment of this indebtedness, it assumed all the obligations in the bonds evidencing the debt, and, as above stated, they bore interest from date at 5 per cent, until paid, and not having paid the bonds at maturity, it would seem necessarily to follow that it was obligated to pay the interest accruing after maturity just as it was to pay the interest 'before maturity.
'But appellant says the district had sufficient money on hand, especially with the $14,765.80 warrant first remitted, to pay its maturities, both of principal and interest, on October 1, 1938, and that it should have done this to prevent the accrual of interest subsequent thereto. We cannot agree, as it was the duty of the board to pay, since the state had assumed and agreed to pay these obligations. Nor can we agree that appellant should have any reduction in the interest claimed because of the $14,765.80 warrant tendered the district prior to October 1. That was a tender in full of the state’s obligation, which the district refused to accept as such and brought action for mandamus for the balance claimed. The amount of the obligation was in dispute and counsel for the district feared that if the warrant tendered were cashed and used, the right of the district to enforce payment of the balance might be imperiled. Whether this view was right or wrong, we think it one of precaution, and that the district should not now be penalized by the deduction claimed because the board failed to pay the whole amount due.
Affirmed. | [
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Humphreys, J.
The sole question presented for determination on this appeal is whether appellant, who was elected sheriff and collector of Stone county, Arkansas, at the general election on the 8th day of November, 1938, forfeited his right to serve as sheriff and collector of said county by failure to make and file the kind of surety bond required by law within fifteen days from the date he received his commission. According to the undisputed evidence he received his commission on the 9th or 10th day of December, 1938, and attempted to file bonds with personal sureties thereon on the second or third day of January, 1939, at which time he tendered his bonds to the county clerk with personal sureties thereon. Section 11810 of Pope’s Digest is as follows :
“Section 118101. Each sheriff shall within fifteen days after the receipt of his commission, enter into bond to the state of Arkansas, in any sum not less than five thousand nor more than fifty thousand dollars, with good and sufficient security, to be approved as required by §§ 10405 and 10406, conditioned that he will well, truly and faithfully discharge and perform the duties of his office. ’ ’
Section 11813 of Pope’s Digest provides: “If any sheriff shall fail to enter into bond within the time prescribed by this act, the office shall be deemed vacant, and it shall be the duty of the county clerk to notify the Governor of such vacancy.”
The county clerk refused to accept or file the bonds tendered by appellant on the ground that they had not been filed within fifteen days after he received his commission and the further ground that they were signed by personal sureties instead of being signed by a bonding, surety or guaranty company authorized to do business in the state of Arkansas as required by act No. 329 of the Acts of 1937.
The county clerk then notified the Governor that appellant having failed to make bonds required by law there was a vacancy in the office of sheriff and collector of Stone county, Arkansas, and on the 5th day of January, 1939, the Governor declared a vacancy in the office of sheriff and collector of Stone county, and appointed appellee, George W. Looney, on January 10, 1939, sheriff and collector of said county.
A contention then arose between appellee and appellant as to who was sheriff and collector of said county and appellant brought this suit in the circuit court of Stone county to oust appellee who had assumed the duties of sheriff and collector under his appointment by the G-overnor. This suit was brought on January 26, 1939, and after the issues were made up and before the final hearing of the case on May 1, 1939, the circuit court issued a temporary injunction against appellant restraining him from exercising any of the duties of sheriff and collector and preventing him from occupying the office of sheriff and collector of Stone county until the final hearing of the cause.
On the final hearing of the cause the court declared appellee to be the sheriff and collector of Stone county, and from this judgment an appeal has been duly prosecuted to this court.
Since appellant failed to make and file bond within fifteen days after he received his commission the judgment of the trial court must be affirmed under the sections of Pope’s Digest cited above and for the further reason that the bonds made and attempted to be filed by appellant were without any validity. Even had they been made and filed within fifteen days after appellant received the commission, they failed to comply with act No. 329 of the Acts of 1937 in that they were signed by individuals instead of by a bonding, surety or guaranty company authorized to do business in the state of Arkansas in conformity with act No. 329 of the Acts of 1937.
■ Relative to sureties on bonds of officials, § 21 of art. 19 of the Constitution of 1874 provided that: “The sureties upon the official bonds of all state officers shall be residents of and have sufficient property within the state not exempt from sale under execution, attachment or other process of any court, to make good their bonds; and the sureties upon the official bonds of all county officers shall reside within the counties where such officers reside, and shall have sufficient property therein, not exempt from such sale, to make good their bonds. ’ ’
This section of the Constitution was amended in 1900 so as to allow the legislature to provide for sureties and bonding companies to become surety on the official bonds of all state and county officers. Amendment No. 4 added to the provisions of § 21, art. 19, of the original Constitution of 1874 the following language: “Provided, however, that any surety, bonding or guaranty company, organized for the purpose of doing surety or bonding business, and authorized to do business in this state, may become surety on the bonds of all state, county and municipal officers under such regulations as may be prescribed by law.”
We think this proviso authorized the legislature to prescribe by law the kind and character of bonds that all state and county officers should make and file. We think the purpose and intent of the amendment was to allow the legislature to provide the kind of official bonds state and county officers should give and not to confer any absolute right on an officer to give the kind of bond he might desire to give. It was not intended to vest in officers any rights, but was intended to allow the legislature the right to regulate the kind and character of bonds to be given by officers. We find nothing in Amendment No. 4 prohibiting the legislature from requiring public officers to give bond in surety or guaranty companies. Under the amendment, the legislature might require all state and county officers to give bonds with'personal security or to give bonds in surety companies. By the passage of act 329 of Í937, the legislature chose to require all state and county officers to give bonds in surety or guaranty companies which were authorized to do business in Arkansas and since there is no prohibition from passing such an act in Amendment No. 4, act No. 329 of 1937 does not offend against Amendment No. 4, or § .21 of art. 19-of the Constitution of 1874.
Section 1 of act 329 of the Acts of 1937 is as follows: “Prom and after the effective date of this act, the official bonds of all state, county, and district officers now required by law to furnish official bonds, shall be executed by such officials as principal and shall be executed by some surety company authorized to do business in Arkansas, as surety.”
The act is mandatory; so all bonds of state, county and district officers from tlie effective date of the act, must be executed by such officials as principal, and by some surety company authorized to do business in Arkansas, as surety.
For the reasons given the judgment of the trial court must be affirmed. | [
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Smith, J.
On August 20, 1930, Mary E. Rice and Chacy Eveland were married, and on the 6th day of October following a judgment was rendered in the county court of Greene county against Chacy Eveland for $10 per month and for $25 for lying-in expenses in a bastardy proceeding brought against him on the relation of the state for the use and benefit of Birdie Fossett. On the appeal of this judgment to the circuit court a similar judgment was rendered on November 3, 1933, and that judgment was affirmed July 9, 1934, on the appeal to this court. Eveland v. State, use of Fossett, 189 Ark. 517, 74 S. W. 2d 221. In the opinion in that case it was held that a bastardy proceeding, though in the name of the state, is a civil proceeding.
This judgment was not paid, and a proceeding was had in the circuit court, which resulted in an order by that court directing the prosecuting attorney of the district of which Greene county is a part to file suit “for the purpose of uncovering and subjecting the property of Eveland to the satisfaction of this judgment.” That suit was filed on April 3, 1939, and a decree was rendered granting the relief prayed, from which is this appeal.
The decree contained findings of fact as follows: On June 23, 1934, Eveland conveyed certain lands to his wife by warranty deed, and on March 4, 1933, executed to her a mortgage on certain other real estate, and that he also executed to his wife two chattel mortgages conveying his personal property. It was alleged in this suit to uncover that Eveland was also the owner of a store and stock of merchandise which he operated in the name of his wife, but the court found that Mrs. Eveland was the owner of the store.
The deed and mortgage to the land and the chattel mortgages on the personal property were in the decree here appealed from “declared and adjudged to be void as against any legal process issued on said judgment (in the bastardy case) rendered in the circuit court of. Greene county, Arkansas, on the 3d day of October, 1933.” This order was made upon the finding that the deed and the mortgages were executed to defeat the collection of the judgment, which could not be collected unless the land and personal property were uncoveréd.
Mrs. Eveland intervened, and alleged and offered testimony in support of the allegation that all these cou veyances had been made to her in consideration of money loaned and paid to her husband. She claimed to have earned this money by teaching school, both before and after her marriage; but the chancellor did not accept this explanation; and we cannot say that his finding is contrary to the preponderance of the evidence. In resisting the collection of the judgment Eveland suffered himself to be confined in jail, but was finally released without paying any sum in satisfaction of the judgment.
The court, no doubt, found that Mrs. Eveland had made advances of money to her husband, and it was probably for this reason that Mrs. Eveland was allowed to retain the 'store.
The rule is well settled that conveyances by debtors to members of their household or to near relatives are looked upon with suspicion and scrutinized with care, and when the embarrassment proceeds to insolvency, they are conclusively presumed to be fraudulent as to existing creditors.
Being unable to say that .the chancellor’s findings are contrary to the preponderance of the testimony, the decree must be affirmed, and it is so ordered. | [
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Smith, J.
This appeal is from a judgment awarding damages — not complained of as being excessive, if liability exists — to compensate an injury sustained by appellee as the result of a collision between an automobile which she was driving and ah engine pulling one of appellant’s passenger trains through the town of Portland on February 2, 1938.
The testimony tending to support the verdict was to the effect that appellee, then 16 years of age, was driving upon a street on which a school building is located in the town of Portland, and it became necessary for her to cross the railroad tracks, three in number. As she did so, one of appellant’s trains approached this crossing, going north. Her vision to the south was obstructed by a cotton gin, some piles of ties, and a cottonseed' house, which latter building extended along the railroad tracks for a distance of about 150 feet to a point only about 8 or 10 feet from the railroad tracks. The ties, gin and cottonseed house obstructed vision along the railroad crossing to the south for a distance of about 4.00 feet. This statement makes the fact obvious that this was a dangerous crossing, which imposed upon appellee and the operatives of the train alike the duty of using care to avoid a collision.
The usual conflict in the testimony appears as to whether signals were given by bell or whistle as the train approached the crossing. The testimony on the part of appellee was to the effect that the train was about to make the usual station stop, and was rolling noiselessly along without signal by bell or whistle of its approach to the crossing.' As appellee approached the crossing she stopped, looked and listened. She was unable to see the train because of the obstructions to her view above mentioned, and she did not hear the train. She, therefore, proceeded to drive across the tracks, and when she had driven to the point where her view was not obstructed, she saw the train approach. She turned the car sharply to the left to avoid a collision, but was unable to prevent the engine from striking her car and the injury thus inflicted. There was testimony to the effect that the car might have stopped at a point before crossing' the tracks where the train might have been seen in time to have avoided the collision had the car been under perfect control. One witness testified: “It’s just a certain angle there; if you don’t stop right there and look, you can’t see a train, and lots of times boxcars are on the south side of the crossing, and it makes a blind track and a very dangerous crossing.”
The testimony presents the question whether either the appellee or the engineer, or both, were negligent, and whether, if both were negligent, the comparative degree of their negligence, which were questions for the jury and have been concluded by the verdict of the jury.
The testimony showed that the railroad was being operated by trustees in a receivership proceeding in the federal court, and for that reason an instruction, numbered 3, was objected to. This instruction reads as follows: “The law requires that a bell of at least 30' pounds weight or a steel whistle shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least 80 rods from the place where any railroad shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, and any railroad corporation operating railway trains in this state shall be liable for all damages which shall be sustained by any person by reason of neglect to place such bell and whistle on each locomotive or engine and cause such to be rung or whistled at a distance of at least 80 rods of the place where said railroad shall cross any other road or street, and be kept ringing or whistling until such locomotive shall have crossed said road or street.”
This instruction is predicated upon § 11135, Pope’s .Digest, which reads as follows: “A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of two hundred dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer and the other half to the county; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.”
The insistence is that this statute applies only to a corporation owning and operating* a railroad, and does not apply to an individual who, as trustee, is operating it. We do not agree. The degree of care required in the operation of a railroad is the same in either case. The purpose of the statute is to require the operatives of the train, whether the owner corporation or its trustee is acting for it, to give these signals at crossing's. The necessity of crossing signals is as great in one'case as in the other. The trustee acts for the corporation. He stands in its place, and must perform the statutory duties imposed upon the corporation whose property he is operating.
. No error appears, and the judgment must be affirmed, and it is so ordered. | [
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Humphreys, J.
This is an appeal from a decree of the chancery court of Arkansas county wherein appellants were plaintiffs and appellees were defendants and cross-complainants.
The issues involved were:
First, whether a quit-claim deed executed by Nelia Walker to Carpenter on the 19th da}?- of May, 1936, was intended as a deed absolute, as shown on its face, or as a mortgage or security for the payment of money upon the following described real estate, in the county of Arkansas, state of Arkansas, to-wit:
“Commencing’ at the northwest corner of block eight (8), Carpenter & Spratlin’s Addition to the town of DeWitt, Arkansas, thence east 150 feet for the point of beginning of tract conveyed herein, thence south 31 feet to the street, thence east 150 feet, thence north 31 feet, thence west 150 feet, to point of beginning.”
Second, if a mortgage, to determine whether said mortgage is a prior lien to the lien of a mortgage on said land executed by Nelia Walker to Gr. W. Botts on the 14th day of January, 1936.
The trial court, after hearing the evidence in the case, found that the quit-claim deed of date May 19, 1936, was intended to secure the payment of money which Carpenter had advanced to pay accrued monthly payments and to keep up monthly payments which Nelia Walker was required to pay on a mortgage covering the same property that she had executed to the HOLC on August 25, 1934, for $337.03, payable in monthly payments of.$6.36.
The trial court also found that on January. 14, 1936, Nelia Walker executed and delivered a mortgage to Gr. W. Botts to the same property ito secure interest-bearing notes totaling the sum of $71.25.
The trial court also found that while the mortgage executed to Botts was not of record when Nelia Walker executed the deed to Carpenter of date May 19, 1936, which was recorded on day same was executed, and that at the time Carpenter received the deed and recorded same he had actual knowledge or notice of the execution and delivery of the Botts’ mortgage.
Based upon these findings the court made findings, in substance, that Nelia Walker was indebted to Gr. W. Botts in the sum of $81.11, and to Carpenter in the sum of $167.18; that same constituted liens on the property aforesaid subject to a lien in favor of the HOLC under its mortgage from Nelia Walker and found that subject to the lien of the HOLC, Gr. W.- Botts’ lien was prior and paramount to the lien of Carpenter and decreed a foreclosure against said property subject to the mortgage of the HOLC, which is not a party to this suit, and ordered public sale of said property subject to -the HOLC mortgage by John Gunnell, clerk and special commissioner of the court, and that the proceeds derived from the sale should be paid out as follows: “1st, The amount due the defendant and cross-complainant, G. W. Botts, in the sum of $81.11. 2nd, The amount due Carpenter in the sum of $247.18 less $80 paid Carpenter by defendant and her tenants leaving a balance owed Carpenter of $167.18. 3rd, The residue, if any, shall be paid to the defendant, Nelia Walker, or her attorney of record, J. M. Henderson, Jr.”
The record reflects without dispute that Nelia Walker bought the property in question from Lee Coker for about $600 and paid all the purchase money thereon to the grantor from time to time except a balance of $337.03, which she owed him on August 25, 1934, at which time Nelia Walker procured a loan from the HOLC in a sum sufficient to pay the balance of the purchase money; that on that date she executed a mortgage to the HOLC for said amount; that the property had two houses upon it, and according to the decided weight of the evidence, it was worth between $700 and $800; that she occupied one of the houses as her home and rented the other; that she became delinquent on the monthly payments to the HOLC, and on September 12, 1935, she executed a quit-claim deed to Carpenter which secured him for advances he made to pay the HOLC delinquency together with all sums he might advance to keep up monthly payments to the HOLC, taxes, insurance, etc.; that the deed recites on its face that it was to secure the payment of money, and is admitted by the parties to this suit to be a mortgage and not a deed; that this quit-claim deed or mortgage deed was recorded December 19, 1935; that this mortgage was never satisfied of record but instead Nelia Walker executed another quitclaim deed to Carpenter describing the same property described in the first mprtgage deed on May 19, 1936, and recorded on the same date, which acknowledged default in payment, terms and conditions of the first mortgage deed and conveyed therein all Nelia Walker’s interest in the said property to Carpenter; that on January 14,1936, Nelia Walker executed and delivered a mortgage to G. W. Botts on the same property to secure notes totaling the sum of $72.75; that G. W. Botts never recorded his mortgage until after this suit was brought and, of course, after both quit-claim deeds were executed by Nelia. Walker to Carpenter and which were recorded about the time they were given; that the mortgage executed to G. W. Botts by Nelia Walker described the property as follows: “Middle part of block eight (8) Carpenter arid Spratlin Addition to the town, now city, of DeWitt, Arkansas, the property where I am now living in the city of DeWitt, Arkansas county, Arkansas. Southern District.”
Nelia Walker testified that at the time of the execution of the second quit-claim deed to Carpenter payments to the HOLC were delinquent and that she was behind on some of her payments to Carpenter who was supposed to be keeping up the monthly payments to the HOLC; that she could not read and could barely sign her name and that Carpenter explained to her that he would give her more time if she would give him another “security paper” or mortgage; that the quit-claim deed, which she signed on May 19, 1936, was prepared by Carpenter and that he took her over to the clerk’s office where she acknowledged same believing at the time that it was an additional security paper; that at the time she and her. tenant agreed to pay him $10 a month to make payments to the HOLC which amount she and her tenant paid either in money or work until she was notified by the HOLC that she was in arrears to it at which time she ceased to make the payments; that after executing* the security paper she remained in possession of the property and that she made repairs thereon to the extent of $25 for material and hired a laborer to do the work and paid him for it.
Gunnell who took the acknowledgment to the deed or mortgage said that he told Nelia Walker that she was deeding away her property aiid he thought she understood it, but that he never read the instrument to her.
Carpenter denies that the second quit-claim deed was -intended as a mortgage and accounts for the payments she made him thereafter by saying that they were made to him for the rent of the two houses.
G. W. Botts and his secretary testified that after Carpenter took the second deed from Nelia Walker, Carpenter tried to buy the mortgage he, Botts, held against the property and that they could not agree upon a price for same. Garpenter denied that he had any such conversations with G. W. Botts or his secretary or that he offered to buy the Botts’ mortgage.
The record is very voluminous and the testimony is argued at length and the appellants and appellees disagree as to the conclusions which should be reached after reading the testimony. The- chancellor wrote an opinion which is incorporated in this record analyzing the evidence from which he concluded that the evidence was clear and convincing to the effect that Nelia Walker never at any moment thought or understood that in-executing the instrument styled a quit-claim deed on May 19, 1936, to Carpenter she was signing anything more than what she termed a piece of security paper. In the opinion,' the chancellor stated: ‘ ‘ She did not know at that particular time what she was signing any .more than she did when she signed the so-called quitclaim deed executed by her to Carpenter on September 12,1935, which the Carpenters now admit is nothing more than a mortgage. Furthermore, it is undisputed from all the testimony in the case that Nelia Walker is an ignorant negro woman, unable to read or write, with the sole exception of writing, with some degree of labor, her name, and she was not only ignorant in this respect, but she was not versed in business affairs in any degree and could not be expected to understand or appreciate the effect of her signature to such an instrument as this, whether it be a quit-claim deed or a mortgage. . . . All that can be made out of the testimony in her behalf, and it is quite convincing, if she was undertaking to get Carpenter to assist her in making the monthly payments due upon her property to the HOLC that were due by virtue of the mortgage she had executed to it in 1934. ’ ’
After a careful reading of the testimony ourselves we have concluded that the finding of the chancellor is not contrary to a clear preponderance of the evidence in holding that the deed executed by Nelia Walker to Carpenter on May 19, 1936, was, in fact, intended as a mortgage and not a deed absolute.
The undisputed evidence shows that G. W. Botts’ mortgage was never recorded until after this suit was brought. The deeds or mortgages to Carpenter were both placed of record long before the suit was brought and long before Botts’ mortgage was recorded. The chancellor found that before Carpenter took the second mortgage deed he knew of the existence of the G. W. Botts mortgage. The chancellor, in his opinion, stated that the second mortgage deed given by Nelia Walker to Carpenter was a voluntary conveyance and without consideration. We think he was in error in so finding. She was not attempting to give her property to Carpenter to defeat her creditors or any of them. She was providing a method or thought she was by which her creditors would be paid by Carpenter and instead of being without consideration the consideration was that Carpenter should pay her monthly payments to the HOLC. While mortgages are good between parties to them without being recorded, the priority of them depends upon the date they are filed for record. We think the chancellor erred in moving Botts’ mortgage np to second place instead of third place. Gr. W. Botts testified himself that the reason he did not record his mortgage was because it was a third mortgage upon the property and that he thought he would receive no benefit by recording his own mortgage.
The decree of the chancellor will be affirmed in all particulars except the priority given the Gr. W. Botts’ mortgage over the Carpenters’ mortgage and in that particular it is reversed and remanded with directions to give priority to the Carpenter mortgage over the Gr. W. Botts’ mortgage. | [
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Smith, J.
Maudie and Claude Pledger were married November 25, 1933, and thereafter lived together as husband and wife until June 2, 1935, since which time-they have lived apart. On June 18, 1935, Mrs. Pledgor filed suit in the chancery court for support and maintenance, and Mr. Pledger filed a cross-complaint in which he prayed a divorce. The divorce was not granted, and, after several hearings an order was made on March 3, 1936, which required Mr. Pledger to pay his wife the sum of $50 per month, and also to pay her medical and doctor’s bills, this being in addition to an allowance of $9 per month which the Federal Government paid to Mrs. Pledger out of her husband’s pension.
On May 18, 1937, Mrs. Pledger filed an affidavit reciting that her husband had failed to comply with the order of the court, and he was cited for contempt. At the hearing of this citation on July 9, 1937, an order was made and entered which required Mr. Pledger to pay his wife $60 per month, with nothing said about her medical and doctor’s bills. Thereafter the Federal Grovernment discontinued the payment to Mrs. Pledger of the $9 per month which had previously been paid her. It was recited this order shall be effective “until the further orders of this court.”
Mrs. Pledger appears to have been an invalid when she was married, but her condition has become much worse since the date of the order last mentioned. She has spent much time in hospitals, and had a very serious surgical operation. On March 21, 1939, she filed a petition in the chancery court, reciting the state of her health and the expenses she had incurred on that account, and she prayed that her husband be required to pay her hospital, doctor and medical bills, and she prayed also the allowance of a fee for her attorney who had filed the petition. The prayer of this petition was denied, and from that order is this appeal.
At the hearing of this petition, the showing was made — and was not questioned — that Mrs. Pledger had incurred those expenses, and that they were necessary, and that the $60 per month allowance previously made was insufficient to pay them.
In denying the prayer of the petition the chancellor stated that his recollection was that when the $60 per month allowance was made, he asked Mrs. Pledger what allowance she demanded, and that Mrs. Pledger stated that an allowance of $60 or $65 per month would be satisfactory. Mrs. Pledger testified that she at that time asked an allowance of $100 per month, but had to be content with the allowance made. Her insistence is, however, that the change-in the condition of her health has been such that the $60 per month did not suffice to pay her living expenses and the extra expenses made necessary by her illness.
We may assume that the chancellor’s recollection of the discussion in court as to the allowance to be made— and which was made — is correct, and, if so, that allowance would continue unless and until the showing was made that Mrs. Pledger’s condition had so changed that the allowance was no longer sufficient to pay her necessary expenses, including hospitalization and doctor’s hills.
The statute (§ 4390, Pope’s Digest) provides that “When a decree shall he entered, the court shall make such order touching the alimony of the wife and care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable.” Mr. and Mrs. Pledger had no children. But the statute (§ 4392, Pope’s Digest) also provides that “The court, upon application of either party, may make such alterations from time to time, as to the allowance of alimony and maintenance, as may be proper, and may order any reasonable sum to be paid for the support of the wife during the pending of her bill for a divorce.” Here, the wife has not asked for a divorce; she asks only for support and maintenance, and this, of course, includes necessary medical attention. The husband prayed a divorce, but this was not granted. The parties are, therefore, still husband and wife, and so long as that relation continues it is the husband’s duty to support his wife in the manner suitable to his station and condition in life.
The case of McConnell v. McConnell, 98 Ark. 193, 136 S. W. 931, 33 L. R. A., N. S., 1074, declares the law to be that, when a decree is entered fixing and allowing alimony for the support and maintenance of the wife, decree limits and defines the extent of the husband’s obligation in that respect. See, also, Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369; Holmes v. Holmes, 186 Ark. 251, 53 S. W. 2d 226; Wilson v. Wilson, 186 Ark. 415, 53 S. W. 2d 990; Sheppard v. Sheppard, 192 Ark. 298, 90 S. W. 2d 960.
But the McConnell case, supra, as well as the other cases cited hold that an allowance of alimony is always subject to modification by the court to meet the changed situation and condition of the parties in interest. In other words, the court has the power to increase or de crease the allowance to the wife to meet the changed situation and condition of the parties in interest.
The court having fixed the allowance to Mrs. Pledger at $60 per month, that order will stand unless the showing' has been made that it is no longer sufficient to meet the changed situation and condition of the parlies in interest since the order was made.
We think the showing was made that there has been such a change in the condition of Mrs. Pledger as to require a modification of the allowance of only $60 per month. She has incurred necessary expenses on account of her illness, which she is unable to pay. She made the showing that she had made a faithful but futile attempt to supplement her allowance with her own earnings, but that the condition of her health has been such that she has 'been able only occasionally to secure employment and to earn but little money. The testimony is also to the effect that Mr. Pledger has an income of $3,360 per year, derived from an official salary arid a federal pension. We are of the opinion, therefore, that it is not beyond Mr. Pledger’s ability to pay, nor incompatible with the necessities of- his wife, that, in addition to the $60 per month allowed by the chancellor, he should also pay his wife’s doctor’s, hospital, nursing and medical bills. The decree of the court below disallowing these items last mentioned will be reversed. In addition, appellee will be charged with the costs of this proceeding, and the costs upon the appeal of this case to this court, and a fee of $50 will be allowed Mrs. Pledger’s attorney for his services. The cause is remanded, with directions to the court below to make appropriate orders, to enforce the allowances to Mrs. Pledger here made. | [
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Griffin Smith, C. J.
The appeal is from a $20,000 judgment to. compensate personal injuries alleged to have been sustained by appellee as the result of a crossing collision. It is disposed of by holding that appellants were correct in their contention that there should have been an instructed verdict for the defendants.
The evidence discloses a situation which enjoined upon the trial court the duty of holding, as a matter of law, that plaintiff’s negligence was equal to or greater than that of the railroad operatives. The case is controlled by Missouri Pacific Railroad Company v. Davis.
Appellee, 47 years of age, had for more than ten years been secretary-treasurer and general manager of a wholesale grocery business at Pocahontas. After attending a stockholders’ meeting the night of January 21, 1938, he went to a picture show and got Vina Davis, and the two, in appellee’s automobile, proceeded to a resort a short distance east of Hoxie described by witnesses as a honky-tonk, where merrymaking was somewhat unrestrained. Dancing and other forms of entertainment were engaged in. Appellee, although married, was not living with his wife.
About one o ’clock in the morning appellee and others began leaving the rendezvous. For reasons not pertinent to this opinion appellee did not take the Davis girl home, but after having spent fifteen minutes trying to get his oar key out of the lock of the door, (a task he was unable to complete without assistance) he drove off alone. Some of his witnesses say he was traveling 40 miles an hour when he approached the crossing, and that he did not decrease this speed. Others are more conservative. Appellee says he left his companions and traveled at a “moderate” rate of speed, perhaps 20 miles per hour. The highway is east and west. The railroad is north and south. The crossing is near the depot. As appellee neared the railroad two or three automobiles were coming in his direction. His testimony is that “their lights were in front of me.” There is this statement: “I continued to look and listen for trains at both ends of the railroad and on both sides of the highway until I was practically on the crossing. One car passed going in the opposite direction and just got across the track as I drove on. It was traveling east on the south side of the highway, and I was traveling west on the north side. I was nearly on the track at the time.”
Appellee insists that he hadn’t seen or heard the train; that “if there were a¡ny lights of a train shining over the crossing it was a mighty dim light. ”
Other witnesses for the plaintiff described the train’s headlights as “dim”; or “I didn’t see any”; or used terms of similar uncertainty.
On cross-examination appellee testified that the windows in his automobile were all up [closed]; that they were frosted with [appellee’s] breath on the inside of the coupe and with the mist on the outside; that if his windshield wiper was working he didn’t have it turned on.
Appellee was cross-examined about statements he had made to appellants’ claim agent, but vigorously' denied all admissions that were in conflict with the theory upon which the suit was being tried. The statement was dated February 25, 1938. At that time appellee was in his office. In it appellee was quoted as having said he drove to within about ten feet of the track and stopped and looked both ways; that he saw the “red flasher signals going on and off, but did not see or hear any train; and then proceeded upon the track.”
It is conceded that there were no permanent impediments on or near the railroad to obstruct a clear view of the crossing; that no faulty construction or negligence in maintenance contributed to the transaction; and photographs indicate the terrain was virtually level where the highway crosses the railroad.
Although statements ascribed to appellee in a report compiled by an agent named Jones are vigorously denied, appellee admitted authorship of a letter dated March 21,1938, in which he said:
“Mr. Jones called on me about three weeks ago, and I gave him, to the best of my knowledge, the facts as Tthey] happened, . . . The amount I asked for in my satement to Mr. Jones was a reasonable amount.”
In the statement, admitted as evidence after objections had been withdrawn, anpellee proposed a settlement as follows: “. . . difference [on automobile] $677.40; total hospital, doctor, and ambulance bills, together with $50 as cost of a set of false teeth knocked out; one watch, $45; one pair of glasses broken, $25; room rent at $16 per month for the time I am unable to work, which is yet undetermined. . . . Approximate total, $829.40. plus hospital bills, etc.”
When asked about the statement, appellee said: ‘I told him [the account was] for settlement of the automobile, but I didn’t tell him [it was in] full settlement of the claim. ’ ’
The first paragraph in appellee’s letter of March 21st is: “It has been over two months now since a claim was. called to your attention regarding an accident which occurred to the writer January 21, 1938. You sent me a letter on February 17th advising that a claim agent would call on me for the purpose of checking into the matter of whether or not I have a claim. ’ ’
The injuries alleged were: “Left cheek bone, and left .jaw bones were broken; face and left eye were severely bruised, contused, and crushed; left eyebrow was split, lacerated and contused; five ribs on left side were broken; pelvis bone was broken and shattered in several places; was caused to spend many weeks in clinics and hospitals.” Appellee’s physician testified that he had two ribs broken, and that he sustained some of the other injuries enumerated. He mentioned one or - two additional injuries, and estimated the patient’s disability was 11 or 12 per cent.
Appellee testified that he “got hurt slightly” in a railroad crossing accident and sued the Frisco system in a Missouri court for $7,500. In that case he was hit by a train at Pocahontas. The ‘ ‘ slight” nature of the injuries alleged is shown in the margin. In spite of the fact that the suit was tried and lost on the complaint and evidence, appellee denied knowledge of the allegations. When asked if he claimed “all of those injuries in that lawsuit,” ,the reply was that he did not.
There is the additional statement by appellee: “I have had other automobile accidents a few times.” They were of a comparatively minor nature.
The engineer testified that he had applied the brakes for a station stop, and had slowed to perhaps 20 miles per hour. When within 100 feet of the crossing he saw an automobile cross in front of the engine. Another was close behind. The second can drove up to the crossing and stopped. — “When it stopped I released the brakes, and just about the time the pilot was reaching the crossing, the car that had stopped on the highway was moving. ahead and the car and the engine came together on the crossing. The car had very bright headlights. I could see [it] plainly. He was possibly 200 feet from the track when I first saw him. . . . He slowed down, and when he got pretty close to the crossing I didn’t know whether he was going to stop or not; 1 thought maybe he would follow the other man across; but he slowed down and stopped, and I released the brakes. I thought he came to a complete stop. After it appeared to me that he was going to stop, and didn’t, then I couldn’t stop. . . . It looked to .me like he had stopped dead still. . . . When I saw him start forward over the crossing I put the brakes in emergency. I put on all the braking power I had. ’ ’
Other witnesses corroborated the engineer in respect of speed, headlights, etc.
In spite of the fact that appellee — -a married man with three children — was patronizing a honky-tonk at one o’clock in the morning with a girl companion; that he “hadn’t been going with her very much”; that his own witnesses testified he drove over the crossing at a speed of forty miles an hour; that disinterested'witnesses affirmed the train hell was being rung and [he whistle blown; that others said they saw the signal lights burning — regardless of contradictions and denials in appellee’s testimony and the reasonable construction to be placed upon other evidence — in disregard of every syllable of evidence adduced in behalf of appellants, we must say that “substantial” testimony was introduced in support of appellee’s contentions, and under our superior system of .jurisprudence it was for jurymen to resolve these conflicts as their reasonable judgments suggested, under instructions of the court that a verdict could only be returned if supported by a preponderance of the testimony. The verdict, having been for the plaintiff, should have been set aside by the trial court if the quantum of evidence — a preponderance — was lacking.
We must indulge an additional assumption: that the court thought the evidence preponderated in favor of the plaintiff.
We reverse only for errors of law, the jury being the sole judge of factual matters, and of the credibility to be given the testimony of witnesses. If there is substantial evidence to support the jury’s findings, and no errors of law appear, we do not reverse because, in our judgment, there is not a preponderance of evidence in favor of the verdict.
In the instant case, therefore, we must assume that the bell was not being rung; that the whistle was not blown; that the flash light system (through some mysterious caprice of mechanics) had suspended operation; that the engine headlight was dim; that appellee slowed to a speed of Í5 or 20 miles an hour as he crossed the tracks; that he looked and listened, and did not see a train nor hear a signal, and that, having thus reassured himself, he proceeded upon the .track at the very instant a passenger engine (which the undisputed evidence shows was not traveling more than 20 miles an hour) engaged the crossing.
The circumstances suggest the questions: ‘ ‘ Why did appellee not see a train so obviously present? Was it because the bell was not being rung or the whistle blown? Was it through failure of the flash light system to function? Did the engine’s dim headlight prevent the natural warning which an efficient light might have given?
Appellee himself has answered the query. The night was somewhat murky. The windows of his automobile were closed. It was chilly outside, and moisture from breathing within the closed cab “frosted” the windows and visibility was interfered witli because of mist on the outside. Almost at the instant appellee arrived at the crossing another car, coming from the opposite direction, cleared the tracks?. Its headlights were shining. This car was between appellee and the oncoming train! At least one other automobile was on the west side of the tracks, and its headlights were shining upon appellee. With the interior of his cab windows frosted, and with mist blurring from without, appellee .did not resort to the precaution of testing his windshield wiper to ascertain if it was in wprldng order. His testimony is to the contrary.
With knowledge of the exact position of the tracks, and in the situation just described, appellee must have relied upon his sense of hearing in preference to his sense of sight, and not having-heard a bell or a whistle (which we must assume were not being operated) he dashed over the crossing at a time when another automobile obstructed the view which assuredly would have been his had the automobile in question not been where it was, and if appellee’s car windows had not been frosted and his windshield wiper inactive.
Counsel for appellee urge inapplicability of the Davis Case, because the collision there occurred in the daytime, while here it was night. It would be inaccurate to say, “that makes no difference.” In certain conditions it might. It seldom happens that two crossing collisions are exactly alike. Each must be tried in view of the prevailing facts and circumstances, and the result must be tested by accepted principles of law.
To say in-the instant case that appellee’s negligence was not, as a matter of law, equal to or greater than that, of appellants would be to disregard human experiences and known factors of physical operations, and this we cannot do. Of course, comparative negligence is a matter of jury determination, but there must be substantial evidence to sustain a verdict that a defendant’s negligence was of a higher degree than that of the plaintiff, and such evidence is lacking* in the case before us.
The judgment is reversed, and the cause dismissed.
Humphreys and Mei-iaffy, JJ., dissent.
Pope’s Digest, § 11153.
197 Ark. 830, 125 S. W. 2d 785.
Webster’s dictionary defines “honky-tonk” as “a low drinking resort.”
The “red flash signals” referred to are the automatic lights of the block system which give warning that, presumptively, a train is approaching the crossing.
Allegations in the suit prosecuted in Missouri were: “Plaintiff states that as a result of said collision he was greatly and permanently injured as follows: Spine, and the vertebrae thereof, sacrum and coccyx were partially and permanently/ rotated, sub-luxated, dislocated and the nerves leading therefrom to plaintiff’s vital internal organs, bowels, kidneys, bladder, were crushed, impinged and permanently injured, crippled and diseased and their functions and usefulness permanently impaired; that said organs became weakened, diseased, and their functions and usefulness permanently impaired. Plaintiff’s sciatic nerve became impinged, weakened, diseased, and its functions and usefulness permanently impaired and, as a result thereof, plaintiff has and in the future will continue permanently to suffer with sciatic; that plaintiff’s spine by reason of said injuries is permanently injured, weakened, and disfigured and its functions and usefulness are permanently impaired. Plaintiff’s nervous system was greatly shocked and permánently injured. The bones of plaintiff’s left foot were dislocated and permanently injured, crippled, diseased, and their functions and usefulness permanently impaired and plaintiff’s entire foot was then and thereby permanently injured.” | [
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Humphreys, J.
On the ninth day of August, 1937, appellant, who owned a fleet of trucks and trailers and who was engaged in hauling cottonseed to Memphis and lumber and other commodities and merchandise to different points bought a truck from appellee, who was engaged in selling trucks, parts, gasoline, etc., and executed a note and mortgage for same in the sum of $927, due and payable in three installments, the last installment being due and payable on December 1,1937, bearing interest at 10 per cent, per annum. The mortgage provided that it should secure the note and any other indebtedness contracted subsequent to the date of the chattel mortgage. The chattel mortgage not only covered the truck purchased, but several other trucks and trailers owned by appellant.
On November 4, 1937, appellant paid $300' on the note. About that time an account was opened on the books of appellee against appellant charging many items of parts, repairs and gasoline to him down to and including March 25, 1938.
Appellant defaulted in the payment of the note and' balance due upon the account, whereupon a replevin suit was brought by appellee against appellant in the circuit court of Mississippi county, Chickasawba district, to reduce the property described in the mortgage to possession of appellee for the purpose of selling same to' satisfy the alleged balance due upon the note and open account. No question was made as to the regularity of the replevin proceeding, the identity of the property seized under the writ, or the balance due on the note. No answer was filed, but, notwithstanding, the cause proceeded to a hearing before a jury under stipulation, presumably oral, between the parties that the only question in dispute was the amount due appellee on the open account under the provisions of the mortgage and stating that this question alone was to be submitted to the jury.
The cause was submitted to a jury upon the evi- ■ dence and instructions of the court which resulted in a verdict and consequent judgment for the amount sued for against appellant and his bondsmen who had signed a retaining bond for the property which bond was conditioned that they would perform the judgment of the court.
From this verdict and judgment an appeal has been duly prosecuted to this court.
The itemized statement of the open account taken from the books showed that the items contained in the open account were purchased by appellant, his son and a number of his truck drivers. Whenever a purchase was made according to the books a duplicate for the amount purchased and the items thereof was signed by either appellant, his son or his truck drivers. Most of them were signed by his truck drivers. This account and the books from which it was made up show that during the period for which the account ran many payments were made upon same by appellant. The statement of the account embracing credits and debits and including the balance and interest due on the note showed a balance due from appellant to appellee of $934.12. This book account was open at any time for the inspection of appellant and he did' inspect it at one time according to his own admission as much as he wanted to and he stated that if he had desired he guessed he could have looked all through it. Dee Hammock, who was an employee of appellee and had charge of the books and accounts, testified that a statement of the account was sent to appellant every month and that prior to the institution of the replevin suit he presented a duly verified account showing the items charged and credits allowed including balance due on the note, to appellant. He also testified that when appellant’s account got to be some size he pressed him on many occasions and called at his home on other occasions in an effort to collect the account. Appellee testified that Mr. Hammock “kept the road hot” in an attempt to collect the account, to which statement appellant objected and excepted.
In the course of the trial appellant and his son testified that they told Hammock and appellee not to sell the truck drivers anything, but both Mr. Hammock and appellee denied that either ever told them not to make the sales to their truck drivers.
Appellant and his son testified that they did not authorize these truck drivers to buy gasoline, parts, etc., from appellee and that the truck drivers were furnished money to buy all things necessary for the operation of the trucks. The record also reflects that appellee knew that the trucks were being operated by appellant and that the trucks were being driven by the truck drivers who signed the duplicate receipts for each purchase. As we understand the record it is practically conceded that all the items charged for gasoline, etc., were used in appellant’s fleet of trucks and that all the repairs made were upon appellant’s trucks. Appellee and his employee, Hammock, did not make any inquiry or at least did not testify to having made any inquiry from the truck drivers in making these purchases whether they had authority from appellant to buy gasoline, repairs, etc., and there is no direct evidence by either to the effect that they asked appellant or his son whether such authority had been given to the truck drivers.
Instructions were given defining the law of implied and apparent authority of an agent to act for his principal so as to hind him. The court gave instruction No. 2, which is as follows:
“The authority that an agent has, the direct authority, is the authority given to him by his principal. That is actual authority. Apparent authority will bind the principal the same as direct or actual authority. Apparent authority simply means this, gentlemen, that the agent has such authority as he appears to have under all the facts and circumstances of the case, as a person of ordinary care, caution and prudence would reasonably suppose he would have from the actual authority that was actually given him. If he acts beyond the scope of his authority, real or apparent, he is bound by it, and you. will determine from the evidence here, as I say, what the defendant Barnes owes to the plaintiff, Tom Little Chevrolet Company, in your verdict, which will he interrogatory.”
Appellant made the following objection to the instruction: “I object to the instruction on apparent authority and want this added — that one who 'deals with an agent, it is incumbent on him to determine or find out what the authority of the agent is to bind his principal.”
When the objection was made the court said: “I think I have made this clear. Apparent authority simply means the authority that he appears to have by reason of the actual authority that is given him. It is that authority that his principal holds him out as having! ■ A person dealing with the agent of course is bound to ascertain his authority, whether it be actual or apparent, and if he has no authority, either actual or apparent, then he can’t bind the principal.”
The only objection made to the instruction as we understand the record, was in the form of a request that there be added to the instruction the statement “that one who deals with an agent, it is incumbent on him to determine or find out what the authority of the agent is to bind his principal.” The court then told the jury that “A person dealing with the agent of course is bound to ascertain his authority, whether it be actual or apparent, and if he has no authority, either actual or apparent, then he can not bind the principal.” This addition to the instruction made by the court met the only objection which appellant made to same.
Appellant contends that there is no substantial evidence to support the verdict. According to the books quite a number of payments were made by appellant on the account leaving a balance due appellee on the open account of $259.62. The evidence also tended to show that a statement of this account was furnished monthly, and that the account showed to whom each sale was made and that many payments were made by him on the account and that same was open to appellant for inspection and that he did inspect same and made no objection to any of the items. Under these circumstances we think the jury was warranted in finding that the truck drivers had at least apparent authority to buy gasoline for the trucks they were operating and necessary parts and repairs for same. Of course, appellee could not have sold ' them gasoline for the use of the trucks nor repairs made on them if appellant and his son had told him not to sell ‘ the truck drivers anything on appellant’s credit. This issue of fact was submitted to the jury and they necessarily found that no such instructions had been given by appellant and his son to appellee.
We, therefore, have concluded that there is ample evidence to sustain the verdict and judgment of the court.
Appellant saved an exception to the statement of appellee that Hammock “kept the road hot” when Hammock was trying to collect the account. This was simply a form of expression used in conveying to the jury that he made many efforts to collect the account and could not have prejudiced appellant.
Appellant contends that the court exceeded its authority in ordering appellee to sell the property and apply the proceeds thereof as a payment on the judg-. ment. This authority was vested in appellee under the terms of the mortgage and we are unable to see that appellant was prejudiced by the order of the court directing appellee to sell the property under the terms of the mortgage. We can not tell from the record whether the property was present in court or not as a retaining bond had been given for it, but we presume that no such order would have been made by the court unless the property had been returned to the officer and was present in court-. It is true the order directed that the property be sold for its present value, but it seems to us that that direction was for the benefit of appellant himself. At least appellant made no specific- objection to such direction and his attorney consented to the precedent drawn for the judgment entry.
No error appearing, the judgment is affirmed. | [
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Holt, J.
Appellee, Ollen Spurlin, recovered judgment for $200 against appellant, in the Hot Spring circuit court, to compensate damages alleged to have been sustained by drinking a portion of a bottle of Coca-Cola, bottled by appellant, which contained particles of glass.
On August 14, . 1937, appellee, with three other parties, stopped at Will Nabors’ Filling Station and appellee drank part of a bottle of Coca-Cola which he had purchased from Nabors. When he took the first swallow he felt something rough go down his throat. He examined the bottle and found inside the bottle neck the glass had cracked and' crumbled from some cause. He found no foreign substance in the bottle other than pieces of glass. He took only one swallow and part of another from the bottle, then ran to the door and spit out a piece of glass about as big as a black-eyed pea. The piece of glass was broken off the top and inside the bottle. The break started at the top of the bottle and went down inside. Appellee knew that he had swallowed a piece of glass and went immediately to see a doctor.
Dr. Norton testified that he treated appellee on August 14th and found little abrasions in his throat enough to bleed a little. He saw appellee afterwards every few days and visited him at his home on the 25th. He found him in bed and appellee had been vomiting, passing blood and complained of griping pains. On September 3rd appellee came to his office, still complaining of pain in his lower bowels, was pale and anemic looking. After treating him, advised him to go to bed, take some castor oil, and after a day or two he commenced vomiting again and passing blood.
Another witness on behalf of appellee testified that they did not find all of the pieces of glass that were broken off the bottle in question. Pieces of glass were, found in the cap container where the cap from the bottle in question fell when it was removed by Nabors. He further testified that “quite a few slivers” of glass were missing from the bottle.
There is also evidence that the bottle was cracked on the inside of the neck and was not broken on the outside.
There was evidence on the part of appellant of a contradictory nature and to the effect that the most approved and scientific methods were used by the manufacturer in cleansing the bottle in question, filling it with Coca-Cola and in the handling thereof from the time of manufacture until it was delivered to the retailer, Nabors Filling Station.
On this appeal appellant earnestly insists (1) that the evidence is not sufficient to sustain a verdict against it; and (2) that the trial court erred in giving, over its objection, plaintiff’s instruction No. 1.
We cannot agree with appellant that there is no testimony in this record of a substantial nature such as would support a verdict. We are of the view that the above testimony when given its strongest probative force in favor of appellee, is sufficient to take the case to the jury and to warrant a recovery of the $200 awarded in this case.
As this court said in Coca-Cola Bottling Company v. Hill, 192 Ark. 154, 90 S. W. 2d 210: “We may therefore determine only whether there is any testimony of a substantial character to support, the verdict, and we must in passing upon that question, in conformity with settled rules of practice, give to the testimony tending to support the* verdict its highest probative value along with all inferences reasonably deducible from the testimony. ’ ’
Appellant nest insists that the court erred in giving to the jury plaintiff’s instruction No. 1, .which is as follows: “If you find from a preponderance of the evidence in this case that the said Ollen Spurlin drank the Coca-Cola as alleged, and if you find that he was free of any negligence in drinking said Coca-Cola as alleged, and if you find that there was glass or other foreign substance in said Coca-Cola, and that he became ill by reason of having drunk from said Coca-Cola, as alleged, then you are instructed that this evidence is sufficient to make a prima facie case of negligence against the defend ant company and shifts the burden of proof to the defendant to prove that it was not negligent as alleged. ’ ’
Appellant’s specific objections to this instruction are that it was a comment on the weight of the testimony by the court, it shifted the burden of proof to the defendant, and told the jury that a prima facie case against the defendant was established without a modification requiring the jury to find that the foreign substance alleged to be in the bottle was present “at the time it left the possession of the defendant.”
We think it was not error to refuse the modification requested for the reason that with such modification, it imposed upon the plaintiff the burden of showing, not only that the glass was in the bottle, but that it was there when it left defendant’s possession. The law does not impose this burden.upon the plaintiff. Plaintiff’s prima facie case is made when he shows the presence of the glass in the bottle at the time he drank it, and the burden is then upon the defendant to show that it was not there when the bottle left his possession. The testimony as to the practice and methods of defendant in cleansing the bottle, and in bottling the Coca-Cola, and other precautions taken by it, tends to show that the glass was not in the bottle when it left defendant’s possession, however, the truth, and the sufficiency, of the testimony for that purpose is a question for the jury.
The court charged the jury in at least three different instructions, given at the request of the defendant,, that it would not be liable if the glass got in the bottle after its delivery to the retailer and that the burden upon the whole case was upon the plaintiff. We think that this is as far as the court was required to go, and that the instruction complained of was not erroneous.
No errors appearing, the judgment is affirmed. | [
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McHaney, J.
This litigation is between father and son, appellant, J. W. Smith, being' the father of the other appellant, Thomas, and of the appellee, Charles. While Thomas.is named as an appellant, he does not appear to claim any interest in the litigation, and this appeal is a contest between J. W. Smith and Charles Smith, neither of whom was satisfied with the decision below, and there is here a direct and a cross-appeal.
For some years appellant has owned and operated a mercantile business in Black Oak, in Craighead county, consisting of a local store and a rolling store, the latter being a truck stocked with merchandise and moving over the roads and highways from place to place. For some four or five years prior to January 1, 1938, appellee had been working for his father, operating the rolling store for some portion of that time in the latter part of that period. Appellee says that since 1934 or beginning in that year he was in partnership with his father on a 50-50 basis, operating under the name of J. W. Smith & Son. The store building bore a sign to this effect, but appellant says there was no partnership until January 1, 1938. The trial court found there was no partnership during that period and we cannot say this finding is contrary to the preponderance of the evidence.
Appellant has been married four times. His first wife was the mother of appellee and Thomas. His third wife was a Mrs. Blalock who had a son by a former marriage named Henry Keith. She owned some property and died testate in the fall of 1937. Her will gave all her property to appellant, except $1.00 to her son, Henry Keith. There was some talk in the community that Henry Keith was going to contest the will and to recover his mother’s estate from appellant, and sometime thereafter appellant turned over to appellee the sum of $1,725 to forestall a possible suit by Henry Keith. As to this claim of appellant against appellee, the court found that this was done to avoid the effect of any legal process that might be issued in any suit that might be brought against him and dismissed his complaint as to this item for want of equity.' Appellee says this money was paid to him, for his share of the partnership profits. Appellant says he turned- this money over to his son “for safe keeping at a time I .expected possible trouble with Keith.” He settled with Keith about December 4, 1938, but just what settlement was made is not disclosed. We think the court correctly left appellant where it found him in this regard. He came into equity with soiled hands. But says ..appellant, appellee recognized his obligation to return this money, because he paid, at his father’s request, on February 11, 1938, $441 for merchandise, and on March 4, 1938, paid $455 upon a.new truck. We do not think these payments by appellee, while the new partnership, beginning January 1, 1938, was in existence, operated to suspend the maxim or rule that one who comes into equity .must come with clean hands. ... .
On December 22, 1937, appellant and his new wife executed and delivered to appellee a deed to two lots in Black Oak, as a Christmas present, telling him at' the time to take the money he had given him and build him a new house. Appellee did build himself a house. Appellant sought to recover this property in this suit, but the trial court found that it was a consummated gift, and we cannot say this finding is against the weight of; the evidence. ' ' . •'
Several other items are involved in this litigation. We think it would serve no useful purpose to discuss them as they involve questions of fact only. However, we have carefully considered the. arguments presented on the different items, both on appeal and cross-appeal, and find that the trial court meted out substantial justice, or at least we cannot, say the decree as to any item is contrary to the preponderance of the evidence.
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McHaney, 3.
These are separate appeals, but since they are almost identical questions of fact and identical questions of law, they will be disposed of in one opinion. The facts are stipulated in each case and are substantially as follows:'
Appellee Lady was the circuit clerk and appellee Walker was an active deputy sheriff of Poinsett county during the years 1937 and 1938. They each rendered ■certain services for Poinsett county in named felony cases then pending in the circuit court of said- county (criminal division) for which he is entitled to compensation, as set out in the stipulation, in a total amount, — to .Lady, $79.90; to Walker, $143.40. In addition, Walker rendered services in serving and executing warrants and other processes issued out of a justice of the peace court of said county in criminal cases in which the defendants were charged with felony, in 1938, in the sum of $55.40. All of the cases in which costs accrued for services rendered by each appellee were disposed of by the criminal division of said circuit court, at its March, 1939, term, either by dismissal, acquittal, or conviction. In April, 1939, executions were issued against each of the defendants in the cases listed in the stipulation in which costs accrued to each appellee, for the collection of said costs, and delivered to the sheriff who returned same “no goods found. ’ ’ It was the policy or practice of the county judge in 1937 and 1938 to pay no costs in felony cases in the circuit court until such cases were finally disposed of. On March 15, 1939, the then circuit clerk of said county certified the fees due each appellee, as above stated, as a part of the court costs in said cases to the county court. It was also agreed that the 1937 and 1938 revenue of said county has been completely exhausted, and that the county court disallowed the claims because there was no revenue from 1937 and 1938 with which to pay same; that same cannot be paid except out of the 1939 revenue, and “that the anticipated revenue for 1939 is sufficient up to the present time to pay said claims. ’ ’
Prom the order of disallowance, appeals were prosecuted to the circuit court, where the claims were allowed and judgment entered against the county for each of said sums, and it was directed that payment be made out of the 1939 county general revenue. The county has appealed.
We think the circuit court was correct in so holding. No affidavit to these claims was required as in the ordinary contractual claims against the county. The exception or proviso to § 2583 of Pope’s Digest reads: “. . . Provided, the affidavit herein provided for shall not be required to any juror or witness certificates, or any claim which is a matter of record, or claims in the circuit court, when the same shall be duly certified down to the county court by the clerk of the circuit court.” 'See, also, Saline County v. Kinkhead, 84 Ark. 399, 105 S. W. 581.
•Section 4119 of Pope’s Digest provides that the county shall pay the costs in all criminal or penal cases, pending in the circuit courts under indictments, if the defendant is acquitted or nolle prosequi entered, and in felony eases if the defendant is convicted and has no property to pay the, costs. Section 4120 provides' that “The county shall not be liable for costs when the defendant is convicted, until execution shall have been issued against the property of such convict, and returned unsatisfied for the want of property to satisfy the same, unless the court in which the trial was had shall certify that, in the opinion of such court, the costs can not be made out of the property of the defendant.”
Now, it appears from the agreed statement the services of appellees were rendered in 1937 and 1938. While this is true, it was not and could not be determined at that time upon whom the liability for costs would fall, whether on the defendants or the county. All the cases in which these costs accrued were felony cases and all were disposed of at the March, 1939, term of circuit court either by nolle prosequi, acquittal or conviction. • ■
By § 4119 of Pope’s Digest, the county is absolutely liable for costs in all “criminal or penal cases,” pending under indictments where either the defendant is acquitted or a nolle proseqxá entered, and where the defendant is convicted in a felony case and has no property the county is liable, under the conditions stated in § 4120 •of Pope’s Digest. So, it necessarily follows that a right ■of action on appellees’ claims for.costs did not accrue until the cases in which the costs were incurred were disposed of, and not then until § 4123 of Pope’s Digest has been complied with which provides: “In all cases where the county shall be liable to pay the costs and expenses in criminal cases, the circuit court in which the case was tried shall adjust the same and cause the same to be certified to the county court.” As to the fees of appellee Walker which accrued in the justice court, the procedure for collecting fees in felony cases is provided by § 5692 of Pope’s Digest, and it is not suggested that this procedure was not followed. Both claims were disallowed because the revenue for 1937 and 1938 had been exhausted. Since these claims accrued in 1939, the county court was in error in disallowing them, and the circuit court correctly allowed them out of 1939 revenue, and they may still be paid out of such revenue at this time if the county had a sufficient surplus at the close of 1939.
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Griffin Smith, C. J.
Appellant, alleging breach of contract, seeks to recover from appellee insurance company, with interest, all premiums paid during the life of the policy in question, amounting to $945.23.
In 1929 or 1930 Illinois Bankers Life Assurance Company reinsured the business of Illinois Bankers Life Association. Prior to that time the older organization had operated as an assessment company. Appellant became a member of the association. Appellee is a legal reserve insurance company with “level” premiums sufficient to create and maintain a legal reserve.
When reorganization or reinsurance was effectuated, appellant applied for a legal reserve policy. His proportion of assets of.the association was then $72.78. Of this amount $24.26 was applied as a premium on the new policy. The balance of $48.52 was transferred to an account designated “survivorship fund.” Under the agreement by which this fund was created, to which appellant assented, assets were to be held in trust for distribution (conditionally) April 5, 1940, the recipients to be policyholders who had acquiesced in the plan, there being approximately 15,000 of such. The trial court’s finding with respect to the survivorship fund certificate is shown in the margin.
The new policy issued to appellant provided for quarterly premium payments of $12.48 on the fifth of January, April, July, and October, with 31 days of. grace.
The January (1938) premium was due Wednesday, the fifth. Allowing for grace, it could have been paid as late as Saturday, February fifth. On February fifth appellant issued his check on the Bank of Delight and mailed it to appellee. It was received February 7. Due to the circumstance of its having been mailed within the grace period, appellee waived the default of two days during which time the check was in transit, and upon receiving the remittance issued and forwarded to appellant a provisional receipt, the terms of which were: “Any check, bank draft, or money order given in exchange for this receipt will be considered payment of the premium for which this receipt is issued, provided such check, bank draft, or money order is actually paid to the company on presentation in due course of business.”
Appellant’s check, having been deposited for collection, reached the Bank of Delight “on or about” February 16. There being insufficient funds to the credit of Hare’s account, payment was refused and the check was returned with the notation, “No funds.”
The following day (February 17) appellant was informed by the bank’s cashier of what had occurred. A letter was promptly sent to appellee in which appellant requested that he be supplied with blank forms for use in applying for' a loan. In the same letter a cashier’s cheek was inclosed for -use in redeeming the dishonored personal check. Appellant’s letter was received by the insurance company February 19.
February 26th the company acknowledged receipt of the cashier’s check and accompanying letter. The unpaid personal check was returned. In its letter of explanation appellee called appellant’s attention to the terms printed on the conditional receipt, stating that the policy had lapsed for non-payment of the January premium. However, the cashier’s check was temporarily retained at the company’s home office, the information having been volunteered that the amount ($12.48) was sufficient to pay a premium to April 5, 1938, provided appellant applied for and was granted reinstatement under the policy’s provisions. The statement was made that the cashier’s check would be held pending application if such should be made; otherwise it would be returned.
In appellant’s brief it is stated: “The testimony does not disclose what action was taken with reference to the application for reinstatement, but the cashier’s check was later returned to plaintiff.” Tn view of this statement we must assume that appellant did not establish insurability.
The policy contains three non-forfeiture provisions. Option rests with the insured, in the event of failure to pay premiums, to select one of the three: but, “If the insured shall not surrender this policy for its cash value,as provided above in the first option, or for a policy of paid-up insurance, as provided in the second option, the amount of insurance will be automatically continued in force as extended term insurance as provided in the third option.”
As of January 5, 1938, loan value of the policy was $397, against which there was an indebtedness of $367.14. The difference was $29.86. When the insured failed to exercise option one, or option two, it was the company’s duty to recognize option number three — the non-forfeiture provision contracted for by the insured. This was done, in consequence of which appellant’s policy was paid to May 9, 1939. In other words, the conceded loan value (net) of $29.86. was used as a single premium in paying the insurance for one year, four months, and four days.
Appellant’s principal complaint is that before the dishonored premium check reached the insurance company’s home office on its return trip, the company had in its hands a cashier’s check tendered in payment of the worthless check. It must be conceded that there is some equity in appellant’s contention. It is equally true, however, that competent, mature people have a right to contract with respect to permissive subjects; and if in such contracts reasonable forfeitures are provided for in instances of default, the courts, while frowning generally upon forfeitures, are powerless to protect a person sui juris from the consequences of his own inadvertence or from the fruits of his misfortune in those instances where the opposing party has a right to enforce the contract.
In the instant case default occurred when appellant’s check was presented to the Bank of Delight, and payment refused. This occurred eleven days after the grace period had expired; and yet, we are asked to hold that because appellant, on the twelfth day of delinquency, sent the equivalent of cash with which to redeem the default, appellee must be coerced into accepting the tender. Such is not the law. Nor did appellee, by its act in temporarily retaining the cashier’s check, waive the default. Couch on Insurance, § 688, says: “Acceptance and retention of premiums during negotiations for reinstatement, and while awaiting for a reasonable time the furnishing by insured of a health certificate do not waive a forfeiture based upon delinquency in payment.” This rule was quoted with approval in Illinois Bankers Life Assurance Company v. Petray, 195 Ark. 144, 110 S. W. 2d 1070.
Appellant relies upon National Life Insurance Company v. Brennecke, 195 Ark. 1088, 115 S. W. 2d 855. In that case, however, the appellant insurance company neglected to do what the court said it should have done: that is, inform the insured that the check was accepted conditionally. In the case at bar the insured was so informed.
The judgment must be affirmed. It is so ordered.
. . A similar provision with reference to the so-called survivorship fund is contained in the survivorship fund certificate, and it appears that plaintiff agreed to such form of’ distribution of this fund in his application for exchange of policies. While the testimony discloses that the amount of surplus allotted to his policy at the time of default in the payment of his quarterly premium was more than sufficient to pay the premium» such amount did not become due plaintiff until April 5, 1940. and then only that he then be living and all premiums having been duly paid. Since the dividends were deferred and none could be apportioned to the policy until the end of the distribution period, they were not available for payment of the current premium, and defendant did not breach its contract in failing to apply such dividends.”
“The company could have advised the insured that the check was accepted conditionally, that is, for collection only; but it did not do so. If it had advised the insured that the check was being accepted in payment only on the condition of its being honored when presented for payment, then, of course, the premium could not have been regarded as paid. On the contrary, as stated, it issued its regular receipt, advising the insured that the premium had been paid within the time prescribed by the policy.” | [
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Baker, J.
The appellant challenges the soundness of the decree of the chancery court wherein a tax sale and donation certificate were held invalid, and title was confirmed in appellee.
No fault is found in the declaration that the sale for taxes was not in substantial conformity to law. But appellant relies upon a charge that the court was without jurisdiction. The defendant in this action was in possession, and, on account of his possession, he pleaded a lack of jurisdiction in the trial court to grant any relief to the plaintiff, by first filing a motion to dismiss, which being denied, he pleaded the same fact of his possession as an answer. Appellant insists that this suit is one to quiet title,, and that since appellee is not in possession he may not invoke the jurisdition of the chancery court. For the position taken the appellant insists the suit must be regarded as a statutory proceeding, provided for by § 10598, Pope’s Digest, et seq. This is an erroneous conception of the intent and purpose of these statutes providing for the exercise of chancery jurisdiction to quiet title to real property. A recognition that such statutes (Chapter 136, Pope’s Digest) do not grant jurisdiction, but only establish a statutory method of exercising a jurisdiction already existing, prior to the enactment of the statutes mentioned, will make clear and understandable many seeming inconsistencies in decisions of the courts.
Plaintiff had pleaded his title showing a deraignment thereof entitling him to question the validity of the tax sale.
The defendant relies principally upon the case of Jackson v. Frazier, 175 Ark. 421, 299 S. W. 738. The language employed in the' opinion presented for our consideration follows: ‘ * That equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession holding the legal title. The reason is that where the title is a purely legal one, and someone else is in possession, the remedy at law is plain, adequate, and complete, and an action by ejectment cannot be maintained under the guise of a suit to quiet title. In such case, the party in possession has a constitutional right to trial by jury. ’ ’
It is asserted that the foregoing announcement is reaffirmed in Fisk v. Magness, 193 Ark. 231, 98 S. W. 2d 958.
In the cited authorities the proceedings amounted to an ejectment action filed in chancery. In the Fisk case the defense was adverse possession for a period of sixteen years. Certainly, this might not be treated as a cloud upon the title of the plaintiff. We agree with appellant that in no case wherein the action is purely a possessory one may courts of chancery be invoked..
■ The statutes, Chapter 136, Pope’s Digest, instead of creating a new tribunal or conferring jurisdiction or enlarging jurisdiction already in being, provides for proceedings and merely point out or declare a method of employing or using a remedy under jurisdiction that already existed. The chancery courts provided for by our Constitution, art. VII, § 15, has not been and cannot be enlarged or diminished by legislative action. Gladdish v. Lovewell, 95 Ark. 618, 130 S. W. 759; Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230; Ann. Cas. 1915C, 980.
The last cited case is the best known to the public generally and arose out of the so-called 'Brundidge Primary Election. Law, wherein it was provided that the results of primary elections might be contested in courts of chancery.
We do not offer a more extended discussion of this matter for the reason that we think the' principle must be universally recognized.
We do not impair in any manner any announcement made in the cases cited, but the case at bar, and others of like kind, will be easily distinguishable from all those presented by appellant, as controlling authority on the propositions under consideration. The well-recognized principle that in any proceeding wherein a plaintiff seeks to gain possession of. lands held by a defendant, the remedy is by ejectment, a purely legal method to obtain possession of the land in dispute, unless plaintiff’s title is an equitable one, not cognizable in a law court.
If, however, the foregoing chapter on “quieting title” were repealed, jurisdiction would still exist and the power would remain in the chancery court to remove clouds upon titles.’
In this case plaintiff has shown his chain of title, which authorizes him to invoke the aid of chancery to set aside or cancel a void tax sale as cloud thereon. Nothing was said in his complaint that indicated his action was to any extent possessory. He shows that he has a legal title, that there is an invalid tax sale which is a cloud thereon. The court certainly had the right to consider and act upon this petition.
It was held as early as 1860 that courts of chancery have jurisdiction to remove clonds of title from real estate, Walker v. Peay, 22 Ark. 103, citing Shell v. Martin, 19 Ark. 139. This was prior to enactment of Chapter 136, Pope’s Digest.
We find in a case similar to this that where the plaintiff had filed a suit to quiet title and the defendant in his answer set np his adverse possession by cross-complaint, it was held that equity nevertheless had jurisdiction, Gaither v. Gage, 82 Ark. 51, 100 S. W. 80.
In a somewhat recent case it is held that suit to cancel certain conveyances as clouds on title is purely of equitable cognizance, although plaintiff prayed for possession. Sanders v. Flenniken, 180 Ark. 303, 21 S. W. 2d 847. See, also, Earle Improvement Co. v. Chatfield, 81 Ark. 296, 99 S. W. 84, a case which is almost identical as to issues with the case at bar.
Another case, though somewhat ancient, makes clear the distinction in the purely equitable proceeding’s and a suit for possession. Chaplin v. Holmes, 27 Ark. 414.
It is, perhaps, very true that since plaintiff’s title has been quieted some of the defenses, at least to a suit for possession, would be destroyed, yet that result or effect in no wise lessens the power of the chancery court to remove clouds from the title.
We call attention also to the case of Reynolds v. Plants, 196 Ark. 116, 116 S. W. 2d 350. This case makes the distinction in a proceeding- for recovery of possession and one to cancel a cloud on the title.
In all cases where the question was squarely before the court, where the plaintiff sought merely the removal of a cloud, he has been allowed to proceed without making a tender of taxes or improvements where the defendant holds possession of the land under donation certificate. But the rule is different when recovery of possession is sought. Beloate v. State ex rel., 187 Ark. 17, 58 S. W. 2d 423; Wilkins v. Maggard, 190 Ark. 532, 79 S. W. 2d 1003.
When the possessory action is begun many authorities cited by appellant will ¡be applicable.
The conclusion necessarily follows that plaintiff was correct in choosing his remedy, and that defendant, the appellant here, is mistaken in asserting that the chancery court was without jurisdiction in this case, and, since that is the only question to be decided, defendant must fail.
Decree affirmed. | [
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Holt, J.
Appellants bring’ this appeal from an ad-' verse ruling of the Pulaski chancery court.
The cause is presented here on the pleadings in the court below, no evidence having been introduced.
It is alleged in appellee’s complaint that appellee, L. F. Rodgers, plaintiff, below, is trustee of a bond issue dated September 3, 1929, issued by Mablevale Extension Road Improvement District No. 5 of Saline county, Arkansas, for the original amount of $18,000, of which $15,000 is still outstanding. This district was organized under act 183 of 1927, which was amendatory of act 126 of 1923 and was a beneficiary under paragraph G of § 1 of act 63 of the General Assembly of the state of Arkansas for the year 1931, and received 75 per cent, of its annual requirements for maturing bonds and interest from the Saline County Turnback Fund until the decision of this court on June 11, 1934, in the case of Texarkana- Forest Park Improvement District No. 1 v. State, 189 Ark. 617, 74 S. W. 2d 784, which held act 183 of 1927, supra, unconstitutional and that no valid district could be formed under it.
That following that decision, appellant, Saline county, refused to pay any part of its County Highway Fund on this district’s bonds and the district refused to levy any taxes on its assessment of benefits for the payment of said bonds, resulting in the district being in default in the sum of $4,000 principal and $3,300 interest on said bond's, through March 1, 1938.
That the district was organized in 1928 and the improvements constructed by it were a public enterprise and were completed and the bonds issued subsequent -to February 4, 1927.
That the Legislature of this state, recognizing that there had been road improvement districts organized in good faith throughout the state under act 126 of 1923, as amended by act 183 of 1927, which had been invalidated by the Supreme Court’s decision, supra, but in which the district had received and spent the money for public improvements, and that the public improvements derived from these districts should he recognized and relief' awarded to the bondholders by allowing such districts to participate in the County Turnback Fund, enacted into law by act 381 of 1937, which act amended act 63 of 1931 by providing that the road improvement districts that should participate in the state aid being given to districts that had issued bonds since February 4, 1927, should also apply to any bonds issued by an improvement district in any of the counties in the state, even though such improvement district may be invalid, provided the improvement constructed by any such invalid district had .been completed and the bonds issued subsequent to. February 4, 1927, and provided further that such improvement was in the nature of a public enterprise and not a private or personal venture.
The complaint further alleges that under the terms of said act 381 appellee is entitled to have that part of the county highway, or County Turnback Fund, which ordinarily would be paid to Saline county, applied in payment of its past due maturities until such time as 75 per cent, of all of them had been paid and thereafter 75 per cent, of the annual maturity requirements.
Appellee brought this suit originally against Earl Page, treasurer of the state of Arkansas, but appellant, Saline county, was granted permission to intervene and demur to the complaint.
In this intervention and demurrer it alleged, “. . . that there is now pending in the United States District Court of Appeals, Eighth Circuit, Case No. 11,072, in the Equity Division, and which said case is styled, L. F. Rodgers, Trustee, Appellant, v. Mablevale Extension Road Improvement District No. 5 of Saline County, Arkansas, Appellee, and that said case is now pending in the Circuit Court of Appeals and was appealed from the District Court of the United States, Eastern District, Western Division, located at Little Eock, Arkansas; that plaintiff is attempting to maintain two causes of action in different courts, and asking for the same relief in each instance.” And further that this court in the case of Texarkana-Forest Park Paving, Water, Sewer and Gas District No. 1 v. State Use of Miller Coun ty, 189 Ark. 617, 74 S. W. 2d 784, held that a like bond issue was invalid, that the act under which said road improvement district was organized was a local act and in violation of Amendment No. 14 'to the Constitution of this state, that act 381 of 1937, supra, is void for the reason that it violates the provisions of Amendments 14 and 20 to the Constitution of 'the state of Arkansas.
Appellant, Earl Page, state treasurer, in his answer to appellee’s complaint, alleged that act 381 of 1937 is invalid for the reason that it violates the provision of Amendment No. 20 to the Constitution of the state of Arkansas.
While the cause was awaiting trial, the Arkansas Legislature passed act 311, approved March 14, 1939, Acts of 1939, p. 763, which undertook to amend act 381 of 1937 by providing that the road district bonds entitled to the benefits of the law must have been issued by the improvement district which was completed after February 4, 1927, “and not later than March 1, 1928.”
Subsequent to the passage of act 311, appellant, Saline county, as intervener, filed an amended answer setting up act 311 of 1939 and alleged that the bonds of the Mablevale Road Improvement District No. 5 of Saline county, Arkansas, were issued after March 1, 1928, and therefore void, and that there was no law authorizing their payment.
To this amended answer appellee replied alleging that act 311 of 1939 is a local, or special, act so drawn that only two districts in the state could comply with its terms, those two districts being in Phillips county, Arkansas, and organized under act 183 of 1927, the same act under which the Saline county district was organized, and so drawn discriminates against all districts organized under act 183 of 1927 except those districts which issued bonds prior to March 1, 1928, and after February 4, 1927.
As indicated above, this cause was tried upon the pleadings, and the questions presented to the chancery court for decision were (1) whether act 381 of 1937 is a valid general law applicable to all districts falling within the same class; and (2) whether act 311 of 1939 is a special, or local, act and therefore void because it was within the constitutional prohibition against the passage of local laws. The court held that act 381 of 1937 is constitutional, but that act 311 of 1939 is unconstitutional, and therefore the bonds issued by the Saline county district were entitled to participate in. the benefits provided by act 381 of 1937.
Appellants earnestly insist on this appeal, first, that appellee is barred from maintaining this suit upon the ground of res judicata. We cannot agree to this contention.
The suit in the United States District Court, relied upon by appellants, was a suit against the district itself to establish the validity of its bonds based upon the statutes under which the district had been organized and to enforce the lien of assessment of benefits against the lands in the district. The parties were not the same as in the instant suit.
The suit before us attempts to secure for the bondholders of this district the benefit of an act passed over a year after their suit was started and giving relief that wa's not in • existence at the time the suit was begun. The present suit is by the trustee, not against the district, and no effort is being made to enforce the collection of assessed benefits on the lands in the district, but it is directed against the state treasurer to require him to hold from the Saline County Turnback Fund that portion thereof that act 381 of 1937 authorizes to be paid to a district created under an invalid law. The state treasurer was not a party in the suit in the United States district court and could not have been a party until the validity of the Mablevale district had been established, but is a necessary party in the instant suit.
From this record it is clear that appellants did not plead res judicata in the court below and not having done so they cannot raise it here for the first time.
Here the record is silent as to the contents of the pleadings or the decree in the suit in the federal court. The only reference made to it is in the intervention and demurrer of Saline county, supra. As has been indicated, no evidence was taken in this case, the record before us consisting solely of the pleadings with one exhibit, act 311 of 1939.
In Williams v. Maners, 179 Ark. 110, 14 S. W. 2d 1104, this court said: “Appellant did not plead res adjudicata as a defense or raise that question in the lower court. She has raised it here for the first time, basing her contention upon the following notation, appearing in page 68 of the transcript, ‘A decree rendered on October 18, 1934.’ The record is silent as to the contents of the decree, or by whom or on what authority it is made. The notation is too indefinite to sustain the defense of res adjudicata, had it been pleaded.”
Appellants next contend that Mablevale Extension Boad Improvement District No. 5 of Saline county, Arkansas, having been created under act 183 of 1927, which the Supreme Court held as unconstitutional, is a void district, and that, therefore, its bonds and interest coupons are void. This contention seems to be undisputed and we think under the terms of act 381 of 1937 is immaterial.
It is undisputed that the district in question is a public enterprise, -was completed and the bonds issued after February 4,1927'. It is, therefore, entitled to share in the county turnback funds, for the state may bestow its bounty where it will.
It is apparent that act 381 of 1937 was passed with the express purpose of taking care of a situation just as we find here. Act 381 of 1937 applies here to the district in question regardless of the validity or invalidity of the statute under which it was created. ■
It is next contended that act 381 of 1937 is unconsti- - tutional for the alleged reasons that it violates Amendment No. 20 to the Constitution of the state of Arkansas, that it is a local act violative of Amendment No. 14 to the Constitution of the state of Arkansas, and finally that it is repealed by act 325 of 1939.
The only difference between act 381 of 1937 and § 6 of act 63 of 1931, which it amends, is found in the last paragraph of act 381 as contrasted with the last paragraph of § 6 of act 63.
Section. 6 of act 63 reads: “Road district bonds under the terms of this act shall apply to all road district bonds issued since February 4, 1927, and all road maintenance district bonds in each of said counties, and to the payment of any bonds or coupons for improvement of public thoroughfares issued since February 4, 1927, where such district was organized under act 126 of the Acts of the General Assembly of 1923 and amendments thereto, and under act 183 of the Acts of the General Assembly of 1927 and amendments thereto, or organized under other existing laws.”
And act 381 reads: “Road district bonds under terms of this act shall ’apply to all road district bonds issued since February 4, 1927, and all road maintenance district bonds in each of said counties, and shall also apply to all bonds issued by any improvement district in any of the said counties even though such improvement districts may be an invalid or an unconstitutional district, provided the improvement of such invalid or unconstitutional districts has been completed and the bonds were issued since February 4, 1927, and provided further that the improvement district which has issued such bonds was in its nature a public enterprise and not a private or personal venture; and provided further that any improvement district, any part of whose improvement has been designated or is being used as a United States mail route or a public school bus route, shall conclusively be deemed to be a public venture.”
The purpose of act 381 is clear. When act 63 of 1931 was enacted all districts organized under act 126 of 1923, and amendments thereto, and under act 183 of 1927, and amendments thereto, were recognized as valid districts. When this court, however, on June 11, 1934, in the Texarkana Case, supra, declared act 183 of 1927 unconstitutional and the districts created under it void, the Legislature passed act 381. We think it clear that what the Legislature intended to, and did do, under act 381 was to provide for a donation by the state and a gratuity in favor of Mablevale Extension Road Improvement District No. 5 of Saline county, Arkansas, which could be bestowed upon this district regardless of the constitu tionality of act 183' of 1927 under which the district was created.
In the Texarkana case, supra, this court said: “It is insisted, however, that the allotments to appellant district from Miller county’s allotment oí the funds under act 63 of 1931 is lawful and valid and should be continued because the donation by the state is a gratuity and may be bestowed regardless of the constitutionality of the act under which it was created. This is probably true if the General Assembly has manifested such intention, but such is not the case. . .”
This court has said that the Legislature is presumed to have enacted a statute in the light of all judicial decisions relating to the same subject. Merchants’ Transfer & Warehouse Company v. Gates, 180 Ark. 96, 21 S. W. 2d 406.
In Cone v. Hope-Fulton-Emmett Road Improvement District, 169 Ark. 1032, 277 S. W. 544, this court construed act 147. of 1925, which provided for state aid to highway districts and was similar to the provision made by the county turnback fund, referring to the attack made upon the act said: “If the state and federal governments, in aid of the taxpayers of improvement district taxes and the bondholders of the district, set apart a portion of their revenues to be applied on the payment of bonds, such act upon the part of the sovereign is a gratuity rather than a contract. The sovereign has complete control of its revenues derived from taxation.”
We are also of the view that act 381 does not violate Amendment No. 20 to the Constitution of the state of Arkansas. This amendment is as follows: “Except for the purpose of refunding the outstanding indebtedness of the state and for assuming and refunding valid outstanding road improvement district bonds, the state of Arkansas shall issue no bonds or other evidences of indebtedness pledging the faith and credit of the state or any of its revenues for any purposes whatsoever, except by and with the consent of the majority of the qualified electors of the state voting on the question at a general election or at a special election called for that purpose.”
The only limitation provided by this amendment is that the state “shall issue no bonds or other evidences of indebtedness pledging the faith and credit of the state or any of its revenues for any purposes whatsoever.” No limitation is placed upon paying out the revenue of the state, but the limitation is placed upon the issuance of bonds pledging the faith, credit, and revenues of’ 'the state, etc.
Act 381 does not purport to issue any bonds or any other evidences of indebtedness, nor does it pledge the faith and credit or the revenues of the state for any purpose. It provides simply, that part of the county turnback fund set up under act 63 of 1931 shall be used in certain counties for certain purposes to pay a part of the cost of the improvements in use on public highways, constructed by districts in good faith organized under an act (act 183 of 1927) later held unconstitutional by the Supreme Court of this state.
We are further of the view that act 381 is not a local or á special act, but is of a general nature.
We think the words of the act as set out, supra, disclose that it is not a local act, but that it is general in its nature.
We think the language of the act brings it within the rule announced by this court in Farelly Lake Levee District v. Hudson, 169 Ark. 33, 37, 273 S. W. 711, wherein it is said in defining a general act: “The question of whether an act is a general or a special one must be determined from the act itself and from facts of which the court will take judicial notice. The courts will take judicial notice that many special acts have been heretofore passed by the Legislature establishing levee, drainage and highway districts. A general law must relate 1o persons and things as a class and must operate throughout the state upon the whole subject or whole class and must not be restricted to any particular locality within the state. The classification must be so general as to bring within its limits all those who are in substantially the same situation or class. McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707.”
We hold also that act 381 is not repealed by act 325 of 1939 by implication. In this state the rule is well settled that the repeal of an act by implication is not favored and will not be held to exist if by any reasonable construction repeal is not shown. Act 381 of 1937 amends § 6 of act 63 of 1931, and this section makes no appropriation whatever, but simply defines the districts that are entitled to share in the county turnback money. Paragraph G of § 1 of act 63 of 1931 is the provision for payment of -bonds and interest coupons, and act 381 does not affect paragraph Gf at all. It simply defines the districts entitled to share in the benefits of paragraph G.
We think act 325 of 1939 is cumulative to the provi-, sions of paragraph G and supplements the state aid for a period of two years. However, an examination of act 325 reveals that the aid given by it applies only to the valid bonds of valid road improvement districts.
Act 381 of 1937 deals with two classes of districts, ■ those that are valid and those that are invalid, and we think there is no repugnancy in providing for the payment of valid bonds in full and limiting the payment on bonds in invalid districts to 75 per cent, of the amount due each year.
The rule seems to be well settled that in order for a later statute to repeal a former one, by implication, there must be irreconcilable conflict and repugnancy between the two statutes so that they cannot stand together and further in order to repeal a former statute, by a later one relating to the same subject, it is necessary that the later statute take up and cover the whole subject matter of the former act.
Guided by these rules of construction, we conclude that act 381 is not repealed by act 325 of 1939.
Finally we are of the view that the chancellor was correct in holding act 311 of 1939 a local and special act and in violation of Amendment No. 14 to the Constitution of the state of Arkansas. This act changes act 381 of 1937 in this, after the words “issued since February 4, 1927,” it adds the words “and not> later than March 1, 1928,” thus the application of act 311 of 1939 is limited to a period of slightly more than one year, that is from February 4, 1927, to March 1, 1928. No district except one that completed its improvements and issued bonds, within this time limit, can participate in its benefits. The appellee alleged, and it is not denied by appellants in this record, that only two districts in the state can benefit by act 311 of 1939. This record does not show the total number of districts in Arkansas organized under act 183 of 1927. It does show, however, the existence of three such districts, two in Phil- • lip's county, and the one in Saline county in question here, and that act 311 of 1939 does not include all three.
The record discloses that while the instant case was •awaiting trial act 311 was passed by the Legislature and was so drawn that it did not permit the Saline county district to participate. We are clearly of the view that the classification made by act 311 is arbitrary and an unnatural classification of road districts coming under the same general class and so drawn as to exclude road districts that fall within the general classification from its benefits, and, is therefore, a local act and, being in conflict with Amendment No. 14 to the Constitution of the state of Arkansas, is void and that the learned chancellor was correct in so holding.
In Leonard v. Luxora-Little River Road Maintenance District No. 1, 187 Ark. 599, 61 S. W. 2d 70, this court had under consideration act 159 of 1933. The first section of act 159 undertook to amend paragraph F of § 1 of act 63 of 1931 by providing that the basis of distributing county highway turnback funds should, in counties having more than one judicial district and a population of not less than 65,000 as shown by the most recent United States census, be divided as to those counties between the judicial districts on the basis of the mileage of the county-maintained road. The court said there are twelve counties in Arkansas having: more than one judicial district, and of these twelve counties only one, Mississippi county, has a population of 65,000. The court held the act violated the amendment to the Constitution, because it is a local act applying to Mississippi county alone. It cites the cases of Street Improvement Districts Nos. 481 and 485 v. Hadfield, 184 Ark. 598, 43 S. W. 2d 62, and Simpson v. Matthews, 184 Ark. 213, 40 S. W. 2d 991. The opinion states that there is no reason in the nature of things why an act of this kind should apply to Mississippi county and not to other counties in the state. It is, therefore, an arbitrary or unnatural classification, and there is no natural connection between counties having more than one judicial district and 65,000 population and the division of the county highway funds, stating that the court had repeatedly held that an act which exempts one county is a local act.
In Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617, there was involved a construction of act 149 of 1929. Section 14 of the act provided, “The provisions of this act shall in no way apply to or affect Gosnell Special School District in Mississippi county, Arkansas. Provided, also, that the provisions of this bill shall not apply to Faulkner and Sharp counties. ’ ’ The act was attacked upon the ground that it violated Amendment No. 14 to the Constitution which states the general assembly shall not pass any local or special act. This court said: “The exclusion of a single county from the operation of a law makes it local and it cannot be both a general and a local statute. . . . The courts looked to the substance and general operation of a law in determining whether it is general, special or local, and if its operation must necessarily be special or local, it must be held to be special or local legislation, whatever may be its form. . . . The local law is one that applies to any subdivision or subdivisions of the state less than the whole. 3 Words & Phrases, 2d Series, p. 172. A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon which but for such separation it would operate.”
The court held the act void and upon rehearing, Chief Justice Hart, in reaffirming the decision of the court, cited Farelly Lake Levee District v. Hudson, 169 Ark. 33, 273 S. W. 711, that a general law must relate to persons and things as a class and must operate uniformly throughout the state upon the whole subject or upon the whole class, and must not be restricted to any particular locality within the state. See, also, Smith v. Cole, 187 Ark. 471, 61 S. W. 2d 65; Ark-Ash Lumber Co. v. Pride and Fairley, 162 Ark. 235, 258 S. W. 135; State ex rel. Attorney General v. Lee, 193 Ark. 270, 99 S. W. 2d 835.
In Conway County Bridge District v. Williams, 189 Ark. 929, 75 S. W. 2d 814, this court said: “We- conclude that the legislative classification here under consideration was unreasonable and arbitrary and in its effect was to exclude bridge districts located in this state which fall within the general classification of such districts and is, therefore, unwarranted.”
On the whole case, we find no errors and the decree of the trial court is affirmed. | [
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Smith, J.
On March. 5, 1936, appellant, Mrs. Jones, was granted a separation decree from appellee, her husband, with an allowance of $85 per month for the support of herself and their minor child, a son nine years old.
On March 6, 1939, appellee filed suit for divorce under the provisions of act No. 20 of the Acts of 1939, p. 38, which act will hereinafter be referred to by that number. Appellant filed an answer denying appellee’s right to a divorce, and praying an increase of support money for herself and son. A decree for divorce was granted, but no change in the allowance was made, and this appeal is from that decree.
No ground for divorce was alleged, or shown, except that the parties had lived separate and apart for three consecutive years without cohabitation. This fact was not denied, except that it was answered that the parties had not lived apart for three years, if the time were excluded while the decree of separation was effective, and it is insisted that this period of time should not be included in determining the period of separation.
Act No. 20 was passed at the first session of the General Assembly following the rendition of the opinion in the case of White v. White, 196 Ark. 29, 116 S. W. 2d 616. In that case we construed act 167 of the Acts of 1937, which appears as § 4381, Pope’s Digest. This act amended § 3500, C. & M. Digest, by the addition of the following paragraph: “Seventh. Divorce from the bonds of matrimony may be obtained in addition to the causes now provided by law, and subject to the same procedure and requirements, for the following cause: When the husband and wife have lived apart for three consecutive years without cohabitation the court shall grant an absolute decree of divorce at the suit of either party.”
It was insisted in this White case, supra, that this act gave either spouse a right to a divorce upon the mere showing that the parties had lived apart for three consecutive years without cohabitation, and that the husband in that case was entitled to a divorce although he had deserted his wife' without cause, and had ignored her protests and entreaties that he should return to the home and live with her as her husband. The legislation, if so construed, appeared so subversive of the sanctity of the marital relation that the majority were unwilling to give it that construction unless clearly required. It was said, in a vigorous dissenting opinion, that the legislation was susceptible of no other construction, and eases construing similar legislation in other jurisdictions so holding were cited in the dissenting opinion. It was, however, held by the majority that the act contemplated an agreement or understanding between the parties that they will act in concert, and that at the end of the required period either might obtain a divorce from the other by alleging and proving mutuality of separation.
Following that decision, act No. 20 was enacted. It amended § 4381, Pope’s Digest, by making the seventh paragraph thereof read as follows: ‘ ‘ Seventh. Where either husband or wife have lived separate and apart from, the other for three (3) consecutive years without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony.”
In view of the history of this legislation above recited, there remains no doubt as to the purpose of act No. 20, and we can only say that it was not beyond the power of the legislature to enact it. We must, therefore, enforce it in cases -where its provisions are applicable. The act requires that the husband and wife shall have- lived separate and apart for three consecutive years without cohabitation, in which event an absolute decree of divorce shall be granted at the suit of either party, whether such separation was the voluntary act, or by the mutual consent of the parties, and the question as to who was the injured party may be considered only in the settlement of the property rights and the question of alimony.
We perceive no authority on our part to exclude the period of time during which the parties to the litigation lived apart under the separation decree of March, 1936. The act makes no such exception, and we have no authority to read that exception into the act, which requires only that the parties shall have lived separate and apart for three consecutive years without cohabitation. The fact that the parties to this litigation were living apart during a portion of the three years immediately preceding1 the filing of the instant suit under a decree of separation does not alter the fact that they were living apart.
Upon this question the Supreme Court of North Carolina held, in the case of Cooke v. Cooke, 164 N. C. 272, 80 S. E. 178, 49 L. R. A., N. S. 1034, that “The time during which the parties have lived apart under and by virtue of a decree of separation from bed and board may be counted as part of the period of a separation for which an absolute divorce may be obtained.” In the case of Brown v. Brown, 172 Ky. 754, 189 S. W. 921, the Court of Appeals of Kentucky, construing a statute similar to act No. 20, announced the same conclusion. See, also, Knobe v. Bermam, 234 Ala. 433, 175 So. 354, 110 A. L. R. 864.
Upon the authority of act No. 20 we must affirm the decree for a divorce; but the act does not affect our jurisdiction to settle the property rights of the parties and to award alimony; indeed, for those purposes —but for those purposes only — we may consider which spouse is the “injured party.”
It appears that subsequent to the separation decree, but before a cause of action had accrued under act No. 20, appellee was denied his prayer for an absolute divorce, and he prays such a divorce now only upon the showing that he and appellant have lived apart for more than three years. Certainly, appellee is not the “injured party” who has been relieved of his obligation to pay alimony, and no conduct on the part of his wife could free him of his duty to support his minor son.
We think the allowance of $85 per month for both these purposes is not commensurate with appellee’s sta tion in life and Ms ability to pay and the necessities of his wife and child. Appellee is the district manager of his corporate employer, whose bookkeeper testified that appellee was paid $375 per month for the months of January and February, 1938, and $337.50 for the remaining months of that year, but that his salary was restored to $375 per month for each month of 1939, and that appellee received an additional amount for expenses and entertainment, which averaged $125 to $150 per month. Appellee explained that during some months this last-named item was not the source of any income to him. Appellee admitted that, in addition to his salary, he received a bonus of $1,000 in 1937. The bonus is an indeterminate amount based upon the business of his employer as a whole, and varies. The highest bonus paid in any one year was $1,000, from $250 to $300 the lowest. Appellee’s total income for 1937 does not appear, but his income tax return for 1936 showed an income of $4,750, and that for 1938 of $4,312.
Appellant gave an itemized statement of her average monthly necessary expenses amounting to $175 for the support of herself and son, who has no earning capacity. Appellant explained that on account of her health she had no earning capacity except the board paid her by a lady boarder, who lives with appellant in a rented apartment.
Upon a consideration of this testimony, we are of opinion that the allowance should be increased from $85 to $150 per month, and it will remain at that amount until the altered circumstance of the parties suggests a revision.
It appears that upon one branch or another of the case the parties have been before the chancellor “about a dozen times,” and that appellant has had no money with which to pay her attorney. We have heretofore allowed appellant $25 to pay her attorney for filing brief on this appeal. That allowance will now be increased by $125, making a total of $150 for all services in connection with this case.
It is said also that appellee is in default to the extent of $240 in paying the $85 per month allowance heretofore made. If this be true, the court below will, no doubt, upon appropriate application, make suitable orders to enforce its payment.
The decree will, therefore, be modified in the respects indicated, and the cause will be remanded for any appropriate order that may be necessary to enforce the decree as modified. | [
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Smith, J.
Suit was brought by Elva Ford to foreclose a deed to him, executed December 23, 1936, by Sylvia Joyce Newton conveying certain town lots to Ford as trustee for the use and benefit of Mrs. Sarah Davis Baker to secure the payment of a note of even date with the deed of trust, to the order of Mrs. Baker, for the sum of $300.
An answer was filed, in which it was admitted that the note had been executed, and had not been paid, but which alleged that i£it was definitely understood and agreed between the parties thereto that no part of the principal should ever be paid, but that to the contrary . . . it was agreed that the interest-thereon should be paid so long as said mortgagee should live; that at the time said mortgage was executed, said mortgagee made a gift of the principal amount of said mortgage to the defendant, . . . and that it was agreed that upon the death of said mortgagee said mortgage was to be canceled and said principal amount was to become tbe property of tbe defendant absolutely.” Tbe answer alleges payment of the interest up to and including June 23, 1939, and that by “an unexpressed.understanding between the parties said mortgage expiration date has legally been extended until December 23, 1939, and that the same is not now due and payable.”
Defendant offered testimony in support of the allegations of her answer recited above. Her own testimony was to the effect that Mrs. Baker, the mortgagee, now deceased, was her mother, and that her mother gave her the $300, and did not desire or require a' mortgage, as the money was a gift, but witness told her mother, “No, that I did not want it that way; that I would give her a mortgage on the property, so in case I died she would get her money back. ’ ’ Her mother told the notary who prepared the mortgage and took the acknowledgment, that she did not require a mortgage, as the money was a gift. The mortgage was executed and delivered to Mrs. Baker, and the administrator of her estate joins in this suit as a party plaintiff. Mrs. Newton testified that she had paid only the interest due on the note.
The official who prepared the mortgage and took the acknowledgment testified that when it was delivered to Mrs. Baker, she said “There was no necessity to making any mortgage or note, because she wanted to let Sylvia (Mrs. Newton) have the money.” Other testimony was offered indicative of an intention on Mrs. Baker’s part to give her daughter the $300.
The court below found the fact to be that it was Mrs. Baker’s intention to give her daughter the $300, and that “Said gift was fully perfected prior to the execution of said note and deecl of trust, ’ ’ and dismissed the suit to foreclose as being without equity, and from that decree is this appeal.
Oran Vaughan testified that Mrs. Baker had the mortgage recorded, after which she delivered the instrument to him for safekeeping, and that at her request he placed it in his safe.
Mr. Newton, the husband of the mortgagor, testified that Mrs. Baker told him “That she (Mrs. Baker) wanted her (Mrs. Newton), in case of her (Mrs. Baker’s) death, to have the $300 in the mortgage.”
There was testimony to the effect that Mrs. Newton claimed, before the institution of this suit, that she had paid $100 of the principal.
Mrs. Hardcastle, a sister of Mrs. Newton, testified that her mother told her that Mrs. Newton wanted the note, but Mrs. Baker would not give it to her, and that her mother “later on went and had the mortgage recorded.”
We do not concur in the finding contained in the decree that Mrs. Baker made a gift of the $300 to her daughter. A note evidenced the amount of the alleged gift, and fixed a date for its payment — one year later— and provided that interest thereon should be paid at six per cent, per annum from the date of the note until it was paid. It is admitted by Mrs. Newton that she paid the interest; indeed, there was testimony that Mrs. Newton claimed at one time to have paid a portion of the principal. It is undisputed that a mortgage was executed and delivered, and which recites its purpose to be to secure the payment of the $300 evidenced by the note. No other indebtedness is mentioned in the instrument. It is true Mrs. Newton testified and offered other testimony to the effect that her mother did not ask for the mortgage, for the reason that she was making a gift of the money; but the effect of that testimony is destroyed by the admission that the mortgage was executed “so, in case I died, she (Mrs. Baker) would get her money back. ’ ’
It is not only anomalous but is a contradiction in terms to say that a mortgage was given to secure a gift. The obligation to repay deprived the transaction of the essential elements necessary to constitute a gift.
The decree must, therefore, be reversed, and the cause will be remanded, with directions to order the foreclosure of the mortgage. | [
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Smith, J.
This is a suit between the administrators, with the wills annexed, of the estates of Mr. and Mrs. Fletcher Trotter, who were husband and wife, and involves a number of transactions between this married couple. Mr. Trotter owned at the time of his death property worth not less than $66,000, its inventory value, and Mrs. Trotter owned property of much smaller value. They had been married more than fifty years when Mrs. Trotter died July 10, 1936. No child had ever been born to them. There was no testimony to the effect that there had ever been any discord between them; indeed, the testimony is to the contrary, and is to the further effect that Mrs. Trotter,' by her frugality and industry, assisted her husband in the accumulation of his estate, Mr. Trotter inherited an estate worth $25,000, hut the remainder of his estate was accumulated during his married life. Mr. Trotter. became the president of the Standard Grocer Company, a wholesale grocery concern having its place of business in Stuttgart, Arkansas, and was the principal owner of its stock. Fletcher Minnis, a nephew of Mrs. Trotter, was a stockholder and employee of the grocery company, and his father was also a stockholder. Fletcher Minnis’ father was the associate of Mr. Trotter in another business operated under the name of Trotter & Minnis, which firm appears to have carried its account with a hank in Clarendon.
The grocer company, of which Mr. Trotter was president, borrowed the sum of $11,000 from the First State Bank of Stuttgart, and this note was indorsed by Trotter, Minnis, Sr., and another stockholder , of the grocery company. By payments thereon the note was reduced to $9,000, at which time the bank closed its doors. The note had been acquired by the Beconstruction Finance Corporation, and was sold, along with other assets of the bank, to Mr. T. J. Gay, who was represented in the transaction by J. B. Crowe.
Payment of the note was demanded by Crowe for Gay, and this case finds its inception in the transactions eventuating in its payment. Negotiations for the settlement of this note were conducted between Fletcher Minnis and Crowe. Minnis represented to Crowe, apparently with Trotter’s authority, that Trotter could and would pay the note if given some time by borrowing from his (Trotter’s) relatives, provided the note was discounted. Crowe agreed to accept $6,200 in payment of the note, and that sum was paid Crowe in full satisfaction of the note.
Mrs. Trotter, at the time, had a comparatively small savings account with the Peoples Bank of Stuttgart, which she carried in her own name. One of the questions of fact which will later be discussed was whether this accotmt was a joint account owned by Mrs. Trotter and her husband, or was owned by her individually.
Trotter had a personal account in excess of $1,000, and the grocer company had its own bank account, the amount thereof not being shown; but these two accounts combined were not sufficient to pay the grocer company. note owned by Gay. Trotter began calling in contain loans due him personally, and made deposits at the Peoples Bank until his balance there totaled $3,119. Additional' collections subsequently made by Trotter increased his cash assets to $14,509. He deposited $4,000 of this money with a bank in Carrolton, Missouri, operated by a relative of his. When his account reached the sum of $3,119 at the Peoples Bank, Trotter closed the account by checking out his entire balance. Just what lie did with this money and where he kept it is not clear, except that he deposited some cash in a safety box. It is obvious that Trotter was attempting to conceal it. He admitted as much, and explained that he did not want-Gay to know that he had this money lest it would be seized under a writ of garnishment and the negotiations for a discount of the Gay note would terminate.
Mrs. Trotter died testate. She named her nephew, Fletcher Minnis, as executor of the will, and devised to him her entire estate. Minnis filed an inventory of the estate, and listed certain shares of corporate stock. The inventory did not include Mrs. Trotter’s bank balance. He listed as debts of Mrs. Trotter two notes, one for the sum of $648.67, payable to the order of Mr. Trotter. The other note was for $250, and was payable to the order of Trotter & Minnis. This Minnis, as has been said, was the business associate of Trotter and the father of Fletcher Minnis.
An estrangement between Mr. Trotter and Fletcher Minnis arose over a trivial matter having no relation to their business affairs, which became permanent and acute. On October 16, 1936, three months after the death of his wife, Mr. Trotter filed suit against Minnis for the recovery of the corporate stocks which had been inventoried as the property of Mrs. Trotter, and on March 25, 1937, Minnis filed suit against Trotter for the sum of $5,000 alleged to have been loaned Mr. Trotter by his wife, and for the sum of $431.82 alleged to have been wrongfully withdrawn by Trotter from his wife’s bank account after her death.
We return to a consideration of this alleged $5,000 loan. After Fletcher Minnis had obtained a discount of the Gay note, reducing it to $6,200, there was deposited on May 24, 1934, to the credit of Mrs. Trotter’s account the sum of $5,000. This deposit consisted of $1,000 in cash and St. Louis exchange to the order of Mr. Trotter for $4,000 drawn by the bank of Carrolton, Missouri, where as has been stated, Mr. Trotter had previously deposited $4,000.
It is not disputed that all of this $5,000 belonged to Mr. Trotter and was his personal money. This deposit was not sufficient to pay the note, but a check had been drawn' by Minnis, Sr., against the account of Trotter & Minnis with the Clarendon bank in favor of Mr. Trotter for $1,200, and that check -was deposited to the personal account of Mr. Trotter with the Peoples Bank. These two deposits sufficed and were used by Trotter in payment of the Gay note. Trotter personally had no other obligation, and upon paying it,-he took a mortgage upon property owned by the grocer company, whose note he had indorsed and paid in the manner stated, to indemnify him for the payment of the note upon which his personal liability was that of an indorser. In paying this note Mr. Trotter used the check of his wife for $5,000 drawn by her in his favor against her account with the Peoples Bank. The insistence is that Trotter, in making the original deposit to his wife’s account of the $5,000, as herein stated, gave her that money, and that her check to his order for the same amount constituted a loan thereof to him.
It is conceded that upon making this $5,000 deposit by Mr. Trotter in the name of his wife, a presumption arose that he had given her that money. But that presumption is not conclusive, and may be shown to be untrue. Kline v. Ragland, 47 Ark. 111, 14 S. W. 474; Hannaford v. Dowdle, 75 Ark. 127, 86 S. W. 818; Della v. Della, 98 Ark. 540, 136 S. W. 927; Johnson v. Johnson, 115 Ark. 416, 171 S. W. 475; Gilbert v. Gilbert, 180 Ark. 596, 22 S. W. 2d 32; Wasson v. Dillard, 189 Ark. 546, 74 S. W. 2d 637.
We think the testimony rebuts the presumption of a gift, notwithstanding the fact that three witnesses testified that pending the negotiations for the discount of the Gay note, Mr. Trotter had stated that he would borrow the money from a relative with which to pay the note. These statements must be considered and weighed to determine whether they re-inforee and sustain the presumption that the money had been given to Mrs. Trotter in the first instance.
The testimony leads us to conclude that if these statements were made, they were made for bargaining-purposes, and while they must be considered as evidence upon the question of a gift, they did not and do not operate to change the title to the money. These statements may be and are considered to determine whether there had been a gift and a loan, but there are two circumstances which lead us to the conclusion that these statements are not determinative of that question and which circumstances overcome the presumption of a gift.
The first of these is that both Mr. and Mrs. Trotter were present when the deposit was made, and the president of the bank handled the deposit, and while his recollection was not distinct as to what was said by Mr. and Mrs. Trotter at the time, he testified that “There was some discussion as to how to put the money in, but I don’t remember what the exact words were.” These people were all .familiar with making ordinary bank deposits, and if this deposit were merely one for the account of Mrs. Trotter, there was no occasion for any discussion as to how to make it. Trotter explained that the purpose of the deposit was to accumulate and conceal the money with which he proposed to pay the Gray note.
The second circumstance and one which strongly corroborates Mr. Trotter is that on November 11, 1934, Mrs. Trotter signed the following instrument:
“Stuttgart, Ark., Nov. llth, 1934.
“Pay to the
“Order of F. Trotter, $5,271.76
“On Bal. Acct. to date
“Fifty Two Hundred Seventy One & 76/100 Dollars “and interest at rate of 3% per annum.
‘ ‘ To the First National Bank)
“81-588 Stuttgart, Ark.)
“Mrs. Oallie Trotter.”
This was not a cheek on the bank where the deposit was made; in fact, it was written upon the blank check of another bank. But it was for the exact amount of two deposits which Mr. Trotter had made to the account of his wife, one for $5,000 and the other for $271.16. This was a savings account, which bore interest at the rate of 3 per cent. The genuineness of Mrs. Trotter’s signature to this writing is not questioned, and there would appear to be no purpose in its execution except that stated by Mr. Trotter, which was to evidence the fact that he had deposited to his wife’s account $5,271.76, which was and continued to be his money, together with the interest which it earned.
Now, this is not a case where a debtor disposed of his property to defeat a creditor and prayed the aid of the courts to secure its return. In such a case the courts would leave him where they found him, and would refuse to lend their aid to undo a fraudulent transaction. Mr. Trotter is not asking aid to secure the return of his money. It has been returned. Nor was there ever any intention to defraud a creditor. The whole purpose of the transaction was to pay the creditor, and the creditor was paid as a result of the transaction. Mr. Trotter was the owner of all the money paid for the Gay note except $1,200 derived from the.Trotter & Minnis check for that sum, and he owned one-half of that money. Mr. Trotter had no personal debt except his obligation as an indorser on the note purchased by Gay; and he owned unencumbered property worth not less than $66,000. His method of paying the Gay note was circuitous and artful, but we think this was the purpose of the devious method which he employed, and that he never gave the $5,000 to his wife in the first instance, and did not borrow it from her after having given it to her.
After suit had been brought by Trotter to recover the corporate stock, as above stated, Minnis filed suit, as has also been stated, and the depositions of Trotter and other witnesses were taken. Before the trial of the case Mr. Trotter died April 28, 1938, leaving a will naming appellants as his beneficiaries, and the cause was revived against them.
A decree was entered which contained the finding that Mr. Trotter had given the $5,000 to his wife, and had later borrowed it from, her; but, as appears from what has been said, we do not concur in that finding.
The court also found that Mrs. Trotter’s account was not a joint account, and that the balance to her credit at the time of her death was her individual property ; and we concur in that finding.
After the death of Mrs. Trotter the bank permitted Mr. Trotter to draw checks against that account totaling $431.82 in payment of the expenses of Mrs. Trotter’s last illness and of her burial. Judgment was rendered in favor of Mrs. Trotter’s administrator for this amount; and we think properly so. Liability for these expenses was that of the husband, and not that of the wife, and Trotter should have paid them with his own money, and not that of his wife. Beverly v. Nance, 145 Ark. 589, 224 S. W. 956.
The court also denied recovery of the corporate shares of stock which Minnis had inventoried as belonging to Mrs. Trotter; and we concur in that finding. It is no doubt true that Mr. Trotter had loaned his wife the money with which the shares were purchased, and the notes listed as debts due by Mrs. Trotter evidenced these loans, in part at least, but Minnis testified that Trotter wished to retain certain personal effects belonging to his wife, and that these were given him in payment of the two notes above-mentioned. The court found the fact so to be, and we concur in that finding, and if the notes were thus satisfied, that satisfaction paid for the stock. The transaction appears to have been approved by the probate court.
The net result of the views here expressed is that the decree of the court below is correct in its entirety, except as to the $5,000 deposit, as to which the decree will be reversed.
These estates appear even yet to be in process of administration, and the decree will, therefore, be reversed with directions to discharge Mr. Trotter’s estate from liability to Mrs. Trotter’s estate on account of this $5,000 deposit. In all other respects the decree is affirmed. | [
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Baker, J.
We accept appellant’s statement substantially as set forth in his abstract and brief, showing the issues upon this appeal. The agreed statement of facts signed by the parties or their counsel shows that there was paid to L. W. Dew, the assessor of Ashley county, $900 for the year 1937, and the same amount for 1938, as being half of his salary paid by the state of Arkansas, and that he paid this amount of money into the treasury of Ashley county. It also appears that he was paid $1,800, which was the salary of the county assessor in that county, for each of the said years. He filed a claim in the county court for $900 for the year of 1937 and a like amount for the year of 1938, and these claims were disallowed. He appealed and the agreed statement of facts filed by the parties'was prepared for the trial in the circuit court. It became the sole evidence. ’ It was also agreed therein that except for the salary act, initiated in that county, the salary of the tax assessor would be $3,000 per annum. Section 13637, Pope’s Digest.
More succinctly stated it is now contended by appellant that the act of the Legislature fixing salaries is a general law and that being such the Initiative and Referendum Amendment No. 7 to the Constitution of the State of Arkansas could not legally authorize the county to pass any local act, or, if so, that it was changed or repealed, at least, by the act which fixed the salary of the assessor of Ashley county at $3,000; that under the state act the appellant is entitled to $1,500 from the state, instead of $900, but that he is asking now that he be permitted to have only the $900 paid by the state to him and which he, in obedience to the initiated salary act, paid over to the treasurer of the county under protest. Counsel says: “It is clear that the county has the right to set the salaries of local officials as far as they are such; and the question is whether or not the county may set the salary of the assessor not only for the work done as a local official hut also for the work done by him as an official of the State of Arkansas.”
We comprehend appellant’s viewpoint in this regard, but we wholly fail to agree as to its pursuasive force or effect, when we consider the proposition having due regard to the power of the county under Constitutional Amendment No. 7 to fix or determine salaries of county officers.
We shall not enter upon a discussion as to the right or power of counties to fix or determine such salaries. That has been settled upon many occasions. Dozier v. Ragsdale, 186 Ark. 654, 55 S. W. 2d 779; Tindall v. Searan, 192 Ark. 173, 90 S. W. 2d 476; Phillips v. Rothrock, 194 Ark. 945, 110 S. W. 2d 26.
There is little left for discussion now except the present status of the assessor. It is argued that he is both a state and county officer, so recognized as a state officer by the state by the legislative act which provides for the payment of one-half his salary. Act 316 of 1935 and Act 75 of 1937, are cited by appellant as authority therefor.
In recent years many changes have been made in providing compensation for officials, without changing to any extent or to any degree the duty or power or status of such officials. Many people still remember when all officials were paid fees by those whom they served and for the particular services rendered. The fee system has been eliminated in many counties in so far as compensation for the officer is concerned, though, in many instances, it has been preserved as a means of measuring the value of the services rendered to the individual citizen. Under this later system the theory is that when this service is rendered by the county through its duly elected officer, such fee shall be collected and be paid over to the treasurer, for the benefit of the county, the fee system being regarded merely as above stated, as the measure of compensation. to be paid by him who has been served in the particular governmental function. But even if such fee system, as provided for at this time, and for the purposes above set out were completely abolished, and if services were'rendered free by officers duly elected, appellant’s position here would not be changed in the least. The fact that the state, by appropriation tenders and pays over $900 a year for half the assessor’s salary in no respect whatever changes the nature of the office of county tax assessor. It is true that his assessment is for the benefit of the state, perhaps to the same extent that it is to the benefit of the county, and it is perhaps beyond question that the appropriation for the payment of such salaries is an equitable distribution of the burdens of government in accordance with the benefits derived therefrom.
But any theory that might tend to support the position of the tax assessor, as a state officer, is applicable to the same extent and with the same full effect to the county clerk, that it is to the county assessor. Every piece of property listed and assessed by the assessor must be also listed and the taxes extended against it by the" county clerk, and the theory that the tax assessor has become, by reason of the payment of half his salary, a state officer, supports with equal force a theory that the county clerk is likewise a state officer. It may be argued in response to this assertion that the only difference is that no appropriation has been made and no payments are being made to county clerks of the state.
However logical and seemingly potent or pursuasive these suggestions may be, they must yield to the all powerful and conclusive provisions of constitutional law. Constitution of 1874, art. VII, § 46.
So, from the foregoing cited provisions of our Constitution, the tax assessor is merely a county officer, whose duties, when performed, serve the state, as indeed the state may be served by any other officer, without a recognition by the state of that fact by the payment of salary, or otherwise.
Appellant also argues that this money appropriated by the state for the payment of these salaries is such that it may not properly be paid over to the county treasurer as that is a diversion of the fund appropriated and paid for salary purposes, and another use was not contemplated. This contention is a very narrow construction put upon the theory or proposition of a diversion of funds. Perhaps there is no better settled principle of law than the one providing that the fact that taxes levied and collected for a particular .purpose may not be diverted or appropriated to some other purpose. There is nothing in the record before us indicating how these salary funds arose, but we, at least, assume that they became part of the general funds of the state, maybe, we suggest, possibly a part of the 2 per cent, tax on insurance premiums, not levied for school purposes, not levied for the maintenance of any institution of-the state, but free to be appropriated to meet any obligation that the state, may feel obligated to pay. When it shall have paid over this fund it was not the purpose of the state to add the amount as additional salary to that already fixed by law. That is apparent from all of the conditions that prevail. In the first place, the initiated salary act provides that from and after January 1, 1935, there shall be paid to the officers of Ashley county and that they shall receive the compensations and salaries provided and nothing more. The county assessor of Ashley county could not accept the additional $900 without violating that provision of the local or initiated salary act. Had it been the intention of the state, on the other hand, to pay half the salary of the county assessor of that county and to change, repeal or amend the initiated salary act, if we accept appellant’s contention, it would have been recognized as the rightful or fixed salary, the amount contended for by the appellant, $3,000, and the payment would have been $1,500, or half the salary. Any construction of this act of the Legislature for the payment of half the salary, when taken in connection with the amount paid, $900, must be regarded n'ot as having the effect to repeal, modify, or change the initiated salary act in that respect, but, instead, as a recognition of the initiated salary act and the amount fixed by it as the full salary owing to the county assessor.
The trial court has given a statement, historical in effect, of all this class of legislation and a somewhat careful analysis thereof,'which has proven both instructive and interesting, but it is unnecessary to quote same,. Citing somewhat copiously from such cases as Dozier v. Ragsdale, supra, wherein it was said in effect that the fixing of fees and salaries of county officers is purely a local matter and is not of interest to persons, except the taxpayers in the particular county where the law is enacted; and also from Phillips v. Rothrock, supra, and again from the case of Priest v. Mack, 194 Ark. 788, 109 S. W. 2d 665, as well as from 22 R. C. L. 527, and many other authorities.
After a complete re-examination and study of the subject we cannot think there could be any benefit to the public or to any individual interested in this litigation to re-examine and extend unduly a discussion of local salary acts. In this case the assessor has been paid his full salary. If under the Constitution salaries of county officials are purely local matters and may be settled and determined by the people themselves, certainly when salaries shall have been so determined and fixed and shall have been paid, no officer may properly claim more than the amount so determined and the courts do not have power to amend the law.
Certainly in this case, if the Legislature had not appropriated and paid over the $900 a year there would have been no insistence on the part of the tax assessor that he was entitled to any additional compensation over and above that provided by the initiated act. We have already seen that the so-called salary act under which the $900 was paid was not intended to increase the amount that the officer should receive, but was paid in recognition that the salary was limited to $1,800, half of which was assumed and paid by the state.
Judgment affirmed. | [
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Mei-iaff'y, J.
The appellant, Loyce D. Berry, sued the Arnold School District for a breach of contract of employment as teacher, alleging that the board of directors of Arnold School District, on April 23, 1938, entered into a written contract with appellant to teach in said district. The contract provided, among other things, that Berry was employed for a term of eight months, provided funds are available for such term, commencing on July 11, 1938, and agreed to pay him $80 for each school month. The contract provided that the teacher would give said school his entire time and best efforts during school hours; use his utmost influence with parents to secure a full attendance of pupils, and generally to comply with all the requirements of the laws of this state in relation to teachers, to the best of his ability.
Appellant began to teach under said contract oil July 11, 1938, and taught to September 9, 1938, when a vacation was arranged. On October 10, 1938, appellant reported for duty and was on said date discharged by a majority of the board of directors acting in their of ficial capacity. They appeared with Jim. Martin, sheriff of Baxter county, who served upon appellant an order signed by R. C. Love, judge of the Baxter county court, directing the sheriff to take from the appellant the key to the door of the school house and. the key to a steel book case therein, and deliver them to the school directors.
The appellant alleges that in order to serve the peace and by order of a majority of the directors, but protesting by written notice that appellant would hold Arnold School District liable for the breach of his contract, he peaceably surrendered the keys and ceased to teach in said district; that his discharge was without just cause and he was then and at all times during the term of his contract, ready and willing to teach said school; that he was paid for services rendered the sum of $40 and appellee owed him for services rendered under his contract the sum of $140; that at the time he entered into said contract, he was engaged in selling life insurance, and over week-ends continued during the period he taught under said contract to sell life insurance; he prayed judgment against the district and directors for the $140 and interest, and for the further sum of $460 with interest from April 11, 1938, a total of $600.
On June 13, 1939, appellant took a non-suit as to the directors, and on said date the school district filed its separate answer. The answer was a general denial alleging that the district had paid him $40 for services rendered the first two weeks; that he failed to give his entire time and efforts to teaching, and was overbearing and quarrelsome towards the pupils and whipped them in an inhuman manner, and was abusive and quarrelsome towards patrons and directors; that he appeared during school hours intoxicated and is not of good moral character, and is unfit to teach in the public schools; that because of his conduct the board of directors at the end of the third week informed appellant that he had breached his contract and that the same was thereby terminated. Over the protest of the board, appellant con- tinned to teach until September' 9, 1938, when, without consulting the board, he closed the school. The appellee denies that it breached the contract, denies that appellant was damaged, and that he should recover any amount.
Before the evidence was offered the court made the following statement:
“A valid contract of employment is admitted; and that appellant taught three weeks under this contract, and was paid for two week’s services and tendered $20 for the third week’s services.
“The district contends that plaintiff was discharged at the end of the third week, while he contends that he was not discharged until October 10th.
“The contract having been admitted, the burden of proof shifts to the defendant district to show by a preponderance of the evidence that the plaintiff breached his contract. ’ ’
There was a jury trial and a verdict and judgment for $200 in favor of appellant.
At the close of the testimony the appellant requested that the court direct a verdict for him and also to instruct the jury that the contract provided that it cannot be terminated except by mutual consent, and that no such consent was shown, and that the appellant requested a trial by the board on charges, which was refused. He asked the court to instruct the jury that he was not discharged by authority of a resolution of the board; that he was discharged without just grounds.
The court overruled this motion, and exceptions were saved. After the verdict and judgment the appellant filed motion for new trial which was overruled, and the case is here on appeal.
The evidence showed that the appellant whipped one of the pupils, 15 years old, with a paddle. He whipped the boy the first time for saying a riddle, and the second time for throwing a paper-wad.
Barrett Richardson, the boy he whipped, testified that he was 15 years old; that he whipped him the first time for telling a riddle; he got the riddle out of the Kansas City Star; made him get in a stooped position to whip him with the side and edge of the paddle; hit him twelve or fourteen licks; there were bruises on him; they were black and about that long (indicating) and as wide as the edge of the paddle.
Floyd Neal testified that he saw Barrett Richardson the morning after he was whipped; saw one place across his hip three or four inches, and one right across there (indicating) that was four or five inches long; they looked black and blue and something like an inch wide; he came up to witness ’ house limping and showed him the places.
One of the directors testified that it was reported to him that Mr. Berry had gene from the school room and came hack drinking and used a paddle on Barrett Richardson, and that before the board employed Mr. Berry they forbade him using the paddle; after he heard of the whipping, he tried to get Mr. Berry to discard the paddle and he would not do it, and they tried to discharge him and he said he would not be fired. Witness took Richardson to Norfolk and he filed a complaint and when the constable came back to place Mr. Berry under arrest he was standing in the school house. He looked at witness and said that some one had said that he had been drinking, and any one that said he had been drinking was “a damn liar and I will beat hell out of him.” Witness ■ further said that they told Mr. Berry they would not hire a teacher that used a paddle and Berry made no comment on this; the board passed a resolution discharging Mr. Berry.
There was other evidence about the teacher’s drinking, and also about his leaving school and leaving Thurl Whitaker in charge, and other witnesses testified to the' whipping with the paddle, and to the bruises on the boy.
Appellee’s witnesses testified that appellant was not drunk; that they smelled no whiskey on his breath, and the appellant himself testified at length and said he never used any of the school hours to sell insurance; that his average monthly earnings from selling life insurance was $123.12; witness admitted whipping the boy, but said the first time he only hit him four licks with the paddle, and eight licks the second time; not too severely, but enough that he knew it. Appellant then testified about his contract and his inability to secure employment elsewhere.
The appellant’s first contention is that he was entitled to recover for services rendered to date of September 9, 1938. He states that he was discharged on October 10, 1938. He then argues that it was necessary, in order to make a valid contract, that there be a meeting of the 'board of directors, of which meeting all of the members had notice, and that a teacher cannot be discharged except at a regular meeting of the board at which a quorum is present and of which all members have been notified. He alleges in his complaint that he reported October 10th for duty at the school house, and was on that date summarily discharged by Snellgrove and Griffith; a majority of the board of directors appeared with the sheriff who served on appellant an order to deliver up the keys. Appellant further states in his complaint that in obedience to the order served on him he peaceably surrendered the keys and ceased teaching in said, district, notifying the directors at the time that he would hold the school district liable for a breach of his contract, and then brought suit for a breach of his contract. He admits that a teacher might breach his contract in several ways, and that is what the appellee contends in this case; that the teacher breached his contract. It is contended that he breached it by drinking whiskey and by unlawfully beating one of the pupils and in some other ways. -I
The evidence is in conflict as to whether he drank whiskey or not. There is no dispute, however, about his leaving- the school at one time, being gone about an hour and a half, leaving a young pupil in charge, and it is also undisputed that he whipped one of the pupils with a paddle in violation of the direction of the board, and that he whipped him so severely that marks and bruises were left on his body, which were seen by several persons. This evidence is not denied.
In discussing the authority to revoke a teacher’s license and the authority of the board to discharge a teacher for breach of contract, this court said: “It is the duty of the board of directors, expressly enjoined by statute, to hire suitable teachers ... to establish an adequate number of schools; to keep them, in operation; to enforce all necessary rules and regulations for the government of teachers and pupils; and to visit at least twice in each year each school, and observe the discipline, mode of teaching, and progress of pupils. . . . The duty to hire teachers is not discharged by the hiring' of immoral or incompetent persons, although they may have obtained a license to teach from the examiner. "While the board of directors can not go outside of those having license to secure teachers, it should not hire unknown persons, without making inquiry as to their morality and competency, simply because of the license. The duty to establish and keep in operation schools is not met by the employment of teachers and keeping them at a school house; but it demands that suitable persons shall be kept as teachers, and a school maintained adapted to the intellectual and moral advancement of pupils.” School District v. Maury, 53 Ark. 471, 14 S. W. 669.
We think the evidence as to intoxication and leaving the school would be insufficient to justify the board in discharging the teacher. The evidence on the question of intoxication is not only slight, but in conflict. We also think, however, that the conduct of the teacher in whipping the pupil with a paddle made of flooring was sufficient to justify the board in discharging the teacher. A. teacher has the right to inflict reasonable corporal punishment upon a pupil for insubordination, disobedience, or other misconduct, but he has no right to inflict punishment to enforce an unreasonable rule, and the punishment must not be inflicted with such force or in such manner as to cause it to be cruel or excessive.
•“As a general rule a school teacher, in so far as it may be reasonably necessary to the maintenance of the discipline and efficiency of the school, and to compel a compliance with reasonable rules and regulations, may inflict reasonable corporal punishment upon a pupil for insubordination, disobedience, or other misconduct.” 56 C. J. 855, 856.
This court said, in the case of Dodd v. State, 94 Ark. 297, 126 S. W. 834: “There is no evidence that punishment administered for failure to obey was excessive.”
It appears from this record that the punishment in the instant case was excessive. The boy was punished twice on the same day, each time being whipped with a paddle. The first time was for suggesting a riddle, and the next time because the pupil threw a paper-wad at the teacher. These acts on the part of the pupil, especially the last one, justified the teacher in inflicting reasonable punishment on the pupil, but he was not justified in inflicting excessive or cruel punishment.
If the board had a right to discharge the teacher, then it would not be liable to him for any sum except what it owed him for services already rendered; it is only in eases where the discharge is not justified that the person discharged is entitled to damages.
We find no error and the judgment is affirmed. | [
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Holt, J.
Appellee brought suit against appellants in the Randolph circuit court to recover damages for injuries which she alleged she received while a passenger on a bus belonging to appellant, Missouri Pacific Transportation Company, and operated and driven by appellant, Clyde Fiveash, its employee.
She sets out in her complaint a general allegation that appellants (defendants below) were negligent in furnishing, maintaining and operating the bus in question at the time of her alleged injuries, and that without such negligence on the part of defendants the bus would not have been wrecked, and she would not have been injured.
Defendants set up a general denial, and in addition pleaded contributory negligence and assumption of risk on the part of appellee.
The record reflects that appellee, Alma Porter, a colored woman, twenty-two years of ag’e, boarded appellants’ bus at Newport, Arkansas, at about 10:15 on the night of February 26,1938, and took her seat in the rear. In one hand she carried a suitcase and in the other an eighteen-months-old baby. She had been married, but was divorced.
After the bus had been driven by appellant, Fiveash, about thirty-five miles, or within about five miles of Hoxie, on the eighteen-foot concrete highway between the two cities, the wheels on the left side of the bus left the pavement and traveled on the dirt shoulder some two hundred and forty feet when the bus struck some posts supporting mail boxes, swerved quickly to the right across the pavement, turned off of the highway dump, which was about four feet high, to the right, and overturned two or three times.
As a result, appellee received a.n injury to her head, many bruises and abrasions, and, according to the testimony of one of the doctors, her left leg was fractured between the linee and hip. This limb was in a cast for approximately one month and appellee was confined to her bed for three months following her injuries. There is evidence that her injuries are of a permanent nature.
The doctor, who testified on behalf of appellee, stated that while he made no X-ray of appellee’s limb, yet that she was very thin and he could feel the bone fracture, and that upon an examination a short time before the trial he could feel a knot on the bone where the fracture had healed.
There is evidence that appellee suffered intense pain and still suffers to a certain extent. Before her injuries she was a strong and healthy woman and the only times that she had ever been sick were the occasions on the births of her two children. Shé had a position that would pay her $5 a week.
The only evidence, on the part of appellants, as to the cause for the overturning of the bus is that of appellant, Fiveash, and is very meager.
There were only five people on the bus at the time, the bus driver, Clyde Fiveash, appellee, her baby, and two others.
Mr. Fiveash testified: “. . . and about four miles out of Iioxie, the bus started across the road and hit the shoulder- — it was soft dirt, and struck a mail box and I tried to straighten it back up and it seems as though I went down the road apiece, and it took out again, and went a little further and then it turned over. . . . Q. What- was it that caused this bus to start going across the road? A. That, I don’t know. There was a catch or something in the front end. Q. Was the bus in good condition at Newport? A. Yes, sir. Q. Did it run all right up to that point? A. Yes, sir.”
On a trial to a jury, appellee was awarded damages in the sum of $2,500.
Appellants urge here that there is no substantial evidence of negligence presented to take the case to the . jury, and that the verdict is excessive.
We are unable to agree with either contention.
It is our view that the evidence presented in this record, some of which we have set out above, when considered in its strongest light in favor of appellee, is substantial, and fully warranted the jury in returning a verdict in favor of appellee. When we determine here that there is substantial evidence to support the jury’s verdict, we do not disturb it.
There is no evidence in this record that would indicate that appellee was guilty of any kind of negligence on her part contributing to her injuries. In fact, appellants do not so contend.
The bus driver’s only explanation of what might have caused the bus to overturn was, “I don’t know. There was a catch- or"something in the front end.”
We think that the jury would have been justified from the testimony in concluding that Fiveash negligently lost control of the bus, thereby causing it to overturn and injure appellee.
Appellants earnestly insist that the verdict is excessive. The evidence shows that appellee, at the time of her injuries, was a young negro woman, twenty-two years of age, and the mother.of two. children, one of which is now dead. Her injuries caused much pain, severe shock, fracture of the femur bone of the left leg, and injury to her head, shoulder, hip, and right arm. There was also evidence that her back was injured in the sacro-iliac region. She was in bed for approximately three months, and it was necessary to place the fractured limb in a cast for a month or more. Her physician testified that her injuries would be permanent.
As this court said in Coca-Cola Bottling Company of Arkansas v. Cordell, 189 Ark. 1132, 76 S. W. 2d 307:
.“Verdicts are set aside for this cause (excessiveness) only when they are not supported by proof, or when they ale so excessive as to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case. Texas & St. L. Ry. Co. v. Eddy, 42 Ark. 527; Kelly v. McDonald, 39 Ark. 387.
“While the discretion of the jury is very wide, it is not an arbitrary or unlimited discretion, but it must be exercised reasonably, intelligently, and in harmony with the testimony before them. The amount of damages to be awarded for breach of contract, or in actions for tort, is ordinarily a question for the jury; and this is particularly true in actions for personal injuries and other personal torts, especially where a recovery is sought for mental suffering. 8 R. C. L. 657, § 199.
“The amount of recovery in a case of this sort should be such, as nearly as can be, to compensate the injured party for his injury. The suit is for compensation, and compensation means that which constituted or is regarded as an equivalent or recompense; that which compensates for loss or privation, remuneration. M. P. Ry. Co. v. Remel, 185 Ark. 598, 48 S. W. 2d 548.
“The extent of the injury and the amount of recovery were questions of fact for the jury, and there is nothing in this case to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case. This court, as was said in Texas & St. L. Ry. Co. v. Eddy, supra, cannot set aside a verdict if it is supported by proof, and when there is nothing to indicate passion, prejudice, or an, incorrect appreciation of the law applicable to the case. ’ ’
We do not think the size of the verdict in the instant case evidences passion or prejudice on the part ,of the jury, or misapplication of the law as announced by the trial court, and, therefore, we do not feel warranted in reducing the amount.
On the whole case, we find no errors, and the judgment is accordingly affirmed. | [
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Holt, J.
Appellants bring this appeal from a decree of the Union chancery court, first division, in which their claim to a certain interest in land was denied and their complaint dismissed for want of equity.
The property involved is a two-thirds interest in a tract of land containing 208 acres.
The plaintiffs below were Hulette F. Nelson, the widow of J. Hansel Nelson, deceased, and three children, James Word Nelson, Mary Lillian Nelson and J. Hansel Nelson, Jr., by his mother and next friend, Hulette F. Nelson.
It is conceded by the parties that the interests, if any, of Mrs. Hnlette F. Nelson and the oldest heir, James Word Nelson, who was twenty-six years of age at the time this suit was filed, are barred by the statute of limitations (§§ 8918 and 8924 of Pope’s Digest) and, therefore, they pass out of this suit. The interests, if any, of Mary Lillian Nelson and J. Hansel Nelson, Jr., minors, remain for determination here.
Appellee, J. J. Wood, was the only defendant below.
Appellants alleged claim to the property as heirs at law of their father, J. Hansel Nelson, deceased.
Appellee, Wood, in his answer claimed the property by reason of a deed from Elmer Nelson, administrator of the estate of J. Hansel Nelson, deceased, dated January 3, 1928. He denied all the allegations of plaintiffs’ complaint and among others set up the following defenses:
“The plaintiff, J. Word Nelson, inherited approximately $3,000 from his mother who died about 1912 or ’13 and following the death of his mother, J. Hansel Nelson, Sr., was by the probate court of Union county, Arkansas, appointed guardian for said plaintiff, who was a minor at said time, and said inheritance was paid over in cash to said guardian. Said funds so received by said guardian for said ward were 'by said guardian invested for his ward in the purchase of the lands described in the complaint from..............................Muse and the deed was made to said guardian. Said guardian at all times recognized said lands as belonging to and the property of his ward, J. Word Nelson, and that he held the title thereto in trust for his said ward, and defendant alleges that in the purchase of said lands by said guardian a trust was created in said property for the benefit of the said J. Word Nelson, and that he was in fact the owner thereof and that J. Hansel Nelson, Sr., nor either of the plaintiffs, Hulette F. Nelson, Mary Lillian Nelson, or J. Hansel Nelson, have at any time owned any interest therein.”
“Said lands were sold . . . for the support, maintenance and education of the plaintiff, J. Word Nelson,” . . . and that the purchase price thereof, $2,-700, was paid to or for the account of the plaintiff, James Word Nelson, and that he is estopped to attack the administrator’s sale.
The material facts as reflected by this record are to the following effect:
J. Hansel Nelson, deceased, father of appellants, was married three times and one child was born to each of these marriages. The first wife, Stella Word Nelson, died in 1911 leaving one child, James Word Nelson. Appellants are children by subsequent marriages. J. Hansel Nelson was appointed guardian of his son, James Word Nelson, in 1911, after the death of his wife, Stella Word Nelson.
Stella Word Nelson was an heir of C. T. Word, whose estate had been administered in Lee county, Arkansas, by E. B. Word as administrator. Stella-Word’s share of this estate had not 'been paid to her at her death. In 1913, E. B. Word as administrator paid to J. Hansel Nelson for the benefit of, and as guardian of, James Word Nelson from Stella Word’s share of the estate, a sum of money variously estimated up to $3,800, but the exact sum is in dispute. This sum, according to E. B. Word, was paid to J. Hansel Nelson, guardian, after Nelson had satisfied Word that he, Nelson, had -been duly appointed guardian of James Word Nelson in Union county, Arkansas. The record reflects that there was deposited in the personal account of J. Hansel Nelson on February 25, 1913, the sum of $2,500 at Junction City, Arkansas.
There is evidence on the part of .appellants that E. B. Word, who was also guardian of .Stella Word in 1911, had paid over to Stella Word Nelson $1,737.39 prior to her death in full settlement of her claims under the various estates, and she had receipted E. B. Word therefor.
E: B. Word testified that Stella Word Nelson had left her inheritance with Word & Boone, a mercantile establishment of Marianna, Arkansas, to be drawn as needed. The exact amount due Stella Word Nelson at her death is not certain.
The record reflects that J. Hansel Nelson received at least $3,000 from E. B. Word as belonging to James Word Nelson, the sole heir of Stella Word Nelson. This is shown by a number of reports made by J. Hansel Nelson, guardian of James Word Nelson, at intervals from 1914 to 1925 in which Nelson listed as the sole and only assets of said minor, the sum of $3,000 in money. This $3,000 with which J. Hansel Nelson, guardian, charged himself in his reports as belonging to James Word Nelson could not be found by Elmer Nelson, administrator of the estate of J. Hansel Nelson, deceased.
It is further in evidence that J. Hansel Nelson, after Stella Word Nelson died, consulted with E. B. Word relative to investing the money of his ward, James Word Nelson, which came to his ward by inheritance from Stella Word Nelson, his mother. J. Hansel Nelson expressed the intention to put this money into, land and E. B. Word advised him that title would have to be taken in James Word Nelson or J. Hansel Nelson would have to qualify in the Union probate court as James Word Nelson’s guardian. J. Hansel Nelson did qualify and was appointed guardian of James Word Nelson February 15, 1913, and Word paid this money over to him. On January 16, 1913, M. P. Muse, et al., grantors, conveyed by deed the property in question to J. Hansel Nelson, which deed was recorded April 2, 1913. J. Hansel Nelson retained the record title to these lands until the time of his death.
Mrs. P. E. Murphy testified that J. Hansel Nelson told her that his minor son, James Word Nelson, had money that “came from the boy’s mother’s estate.” Another witness, S. L. Muse, one of the grantors in the deed to J. Hansel Nelson, testified that he received money “from the estate of his first wife — from Word’s mother.” Another witness, J. A. Nelson, testified that my brother, J. Hansel Nelson, told me she (Stella Word Nelson) did inherit some money from her father or mother.
And quoting from the abstract of the testimony as set out in appellants’ brief: “On February 15, 1911, E. B. Word, guardian of Stella Word Nelson, took a receipt from her for $729.89 in full settlement of his guardianship, and on July 31, 1911, took a receipt from her for $1,007.89 as her distributive share of the estate of her sister (Lena Word) who had died. These sums E. B. Word did not pay to her, but she left them a total of $1,737.29 in the assets of the firm of Word & Boone, subject to her withdrawal.
“Mrs. Murphy further testified that J. Hansel Nelson ‘ afterwards told me that he had bought the place for Word — had used Word’s money in buying this farm for him — but could not’ say positively that this is the property.’ S. L. Muse testified that J. Hansel Nelson ‘said he was acquiring it for Stella’s son, Word Nelson.’ J. D. Barnes testified that at some unremembered time and place J. Hansel Nelson had ‘remarked that he didn’t buy the place to live on — he said he was investing his boy’s money in it.’ S. E. Nelson testified ‘it was understood by me and all of the relatives that he bought this place for the boy.’ J. A. Nelson testified that J. Hansel Nelson told him that with the ‘inherited money’ ‘he bought a place — the McCorvey place. He bought it for Word so that, when he grew up, he would have .a good farm — that is what he told me. Said he bought it for him.’ E. B. Word testified that although J. Hansel Nelson had agreed to send to E. B. Word the deed, made out to James Word Nelson as grantee, he did not do so and ‘as to how he paid for land I could not say one thing.’
“Mrs. Murphy further testified that if J. Hansel Nelson ‘did have any money, or property, I never knew about it — he was just a clerk in the store’ and ‘if he ever did get into any deal where he made any money I never heard of it.’ S. L. Muse testified that J. Hansel Nelson had worked for Muse Mercantile Company, the. firm from whom he bought the land in question, for eight to ten years for a salary of at first $35 per month and then increased to $50 and then to $60 per month, and was so working for them in 1913; that Nelson then had a little farm, but ‘I don’t think he had’ started farming in 1913, although ‘I don’t know for sure.’ S. E. Nelson testified that J. Hansel Nelson had a 230-acre tract of land in Union Parish, Louisiana, a lot and house in Junction City, Louisiana, was not a pauper and his estate was solvent and that he, as tutor for James Word Nelson, had received the net distributive share of James Word Nelson which after paying a fifteen per cent, attorney fee therefrom, amounted to approximately $1,000.”
On November 3, 1927, Elmer Nelson was appointed' administrator of the estate of J. Hansel Nelson, deceased, and guardian in succession, of James Word Nelson, by the Union probate court.
Finding no funds belonging to the guardianship of James Word Nelson, a minor, Elmer Nelson filed a petition and secured an order from the Union probate court to sell the lands in question on the ground that they had been bought by J. Hansel Nelson with funds belonging to his ward, James Word Nelson; that some $3,000 had been left to James Word Nelson from the estate of his mother, Stella Word Nelson, and that this money had been turned over to J. Hansel Nelson during his lifetime as guardian, and that J. Hansel Nelson had invested $2,000 of this fund in the lands in question, taking title in his own name; that the lands in fact belonged to J ames Word Nelson and prayed that they be sold for his support and maintenance. Subsequently the Union probate court on December 5, 1927, granted the prayer of the petition, and the lands, after having been appraised and advertised for sale, were sold under order of the court on December 30, 1927, to appellee, J. J. Wood,' for $2,700 cash. Said sale was reported to the court and approved January 3, 1928, a deed was ordered to J. J. Wood and duly executed to him on that date. This deed undertook to convey the lands in question. Appellee took possession, has retained same up- until the filing of this suit, made repairs and has paid the taxes. The proceeds from the sale of this land -by Elmer Nelson to appellee Wood were used by Nelson as guardian of James Word Nelson for his education and maintenance.
The record in this case is voluminous, containing some 325 pag-es. While there is other testimony of probative value, we have attempted to set out that part of the testimony we think, as essential and material, in an effort not to extend unduly this opinion.
It was the contention of appellee in the trial below, and here on appeal, that the evidence was sufficient to establish that J. Hansel Nelson, while guardian of his son, James Word Nelson, used his ward’s money in purchasing the lands in question, and though he took title in his own name, he created a trust in these lands for the benefit of his ward, James Word Nelson, and that he (James Word Nelson) then became the equitable owner of the property. He insisted that a constructive trust had been established in the lands in favor of James Word Nelson, and that appellants had nó interest in them, and that James Word Nelson is now estopped to assert any.
Appellants (plaintiffs below) contended in the lower court, and insist here, that the title to the land in question was vested in them by inheritance unaffected by the purported sale by the administrator, Elmer Nelson, to the defendant, and that the appellee’s, J. J .Wood’s, assertion of the alleged trust was neither proven in fact nor tenable in law.
From a decree of the chancellor sustaining appellee’s contention comes this appeal.
The general rule, as well as the established rule in this state, seems to be well settled that in order for one to establish by parol either a resulting or constructive trust, the evidence must be “full, clear and convincing,” “full, clear and conclusive,” “of so positive a character as to leave no doubt of the fact,” and “of such clearness and certainty of purpose as to leave no well founded doubt upon the subject.” These requirements run through a long line of cases from this court.
In Tillar v. Henry, 75 Ark. 446, 88 S. W. 573, this court said:
“Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to establish such trust to be clear and satisfactory. .Sometimes it is expressed that the ‘evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact,’ and sometimes it is expressed as requiring the evidence to be ‘full, clear and convincing,’ and sometimes expressed as requiring it to be ‘clearly established.’ Crittenden v. Woodruff, 11 Ark. 82; Trapnall v. Brown, 19 Ark. 39; Johnson v. Richardson, 44 Ark. 365; Richard son v. Taylor, 45 Ark. 472; Robinson v. Robinson, 45 Ark. 481; Crow v. Watkins, 48 Ark. 169, 2 S. W. 659; Camden v. Bennett, 64 Ark. 155, 41 S. W. 854; 1 Perry on Trusts, § 137.”
Tested by the above rule, is the evidence as reflected by this record sufficient to establish a constructive trust in this case? We think it is.
In the well considered case of Shelton v. Lewis, 27 Ark. 190, principally relied upon by appellee here (and also cited by appellant) in which the essential facts are quite similar to those in the instant case, we think the principles of law announced are controlling here.
The facts in that case were that Jacob A. Lewis died in Russell county, Alabama, possessed of a- large estate, and left surviving him a widow, Mary B., and several children. Mary B. Lewis remarried one Bryant Duncan in Alabama, and Duncan was appointed guardian for the Lewis children by the probate court of Russell county, Alabama. Bryant Duncan made a final settlement with that probate court, shortly before removing to Arkansas in early 1859, and showed about $25,000 and some slaves in his hands, as guardian of the Lewis children. Bryant Duncan removed to Crittenden county, Arkansas, with the Lewis children early in 1859, and bought lands in November, 1858, paying only partially for same. Duncan died in 1864, and the holders of vendors’ lien notes against these lands sued the administrator of Duncan’s estate to foreclose such notes. The heirs of Jacob A. Lewis intervened, claiming that Duncan had used his wards’ (the Lewis heirs) money in partially paying for such lands and that they were entitled to have the title divested out of the heirs of Duncan and vested in themselves.
The evidence showed that Duncan had received the Lewis heirs’ money as guardian and had used a portion of such money in buying the litigated lands. The evidence also showed that Duncan was not a man of means when receiving the moneys and property of the Lewis heirs and also that Duncan had repeatedly stated in his lifetime that he had bought these lands for his wards.
In the opinion this court said:
“It is established by other testimony that at the time of the marriage between Duncan and the mother of the appellees, and when appointed guardian, he (Duncan) was a man of no property whatever and insolvent. It is equally well settled by testimony that, when Duncan removed to Arkansas, he had no property or money, save such as remained of the estate of his said wards, and that he brought to Arkansas the identical negroes that belonged to the estate of Jacob A. Lewis. From the record there can be no doubt that whatever of money was paid by Duncan on the lands was paid out of money belonging to his wards. There is much proof of statements made by Duncan in his lifetime that he bought the lands for his wards. . . . Duncan, when he purchased . . . held in trust for his wards, the appellees.”
Tested by the foregoing principles of law as announced by this court, it is our view, on this record, that appellee has met the burden imposed upon him by that quantum of proof required, that the moneys of James Word Nelson were used in 1913 'by his father and guardian, J. Hansel Nelson, to purchase from Muse Bros., of Junction City, Arkansas, the lands in question; that J. Hansel Nelson violated the trust relationship by taking-title in his own name; and that at the time title was taken in J. Hansel Nelson’s name, the equitable title to this property passed immediately to James Word Nelson and that thereafter James Word Nelson was the sole owner thereof, despite the fact that legal title was taken in the name of his father and guardian, and that appellants have no rights in these lands which may be asserted here.
It is next contended by appellants that James Word Nelson, the beneficiary of the trust so created, is the only person who can assert that trust, and that appellee, Wood, is not entitled to the benefits of the trust. We think this contention cannot be sustained.
To support this contention, appellants quote from Shelton v. Lewis, supra, as follows: “The rule is that where one holds money of another, in any fiduciary character and invests in the purchase of land, taking the conveyance himself, the person entitled to the money may, at his election, charge the trustee personally or follow the money into the land and claim the purchase as made in trust for him, and he may establish such trust by parol evidence.” We think it clear, however, that this court did not hold in that case, and had no intention of holding, that the beneficiary of such trust could alone assert the trust.
For authority directly allowing persons other than the cestui que trust to enforce a violated trust, in R. C. L., vol. 26, p. Í360, on the subject of Trusts, § 224, the author says: “With regard to who are necessary and proper parties to proceedings to establish and enforce trusts, parties by representation, joinder of parties, defects and objections as to parties, etc., the general rules as to parties in equity apply. ... A resulting trust is created in notes secured by a mortgage where the purchase is made with the joint funds of two persons and title taken in the name of but one; and in such a case if the cestui que trust conveys an interest in the property to the plaintiff, a trust is created in his favor which, attaches to the land if the mortgage is foreclosed, and the trustee can bring a suit in his own name to enforce the trust.
And further in § 230: “In proceedings to establish and enforce trusts, as in other suits in equity, the relief granted will be moulded and adapted to the circumstances of each case ... On assignment of a trust in a trust estate, the trustee holds the land in trust for the assignee, and a conveyance will be directly enforced from the trustee in his (the assignee’s) favor, and the conveyance when made will discharge the assignor from so much of his contract as shall thereby have been performed.”
See, as supporting the text, Buck v. Swazey, 35 Maine 41, 56 Am. Dec. 681.
It is our view, therefore, that J. J. Wood, appellee, is entitled in this case to. assert and enforce the trust created by J. Hansel Nelson in using* the funds of James Word Nelson in purchasing the lands in question.
Finally appellants contend that the sale of the land in question by the administrator, Elmer Nelson, to appellee, J. J. Wood, is void.
Conceding, without deciding, that this contention is true, since the result of our views is that the decree of the learned chancellor is correct, that James Word Nelson was the only person possessing any interest at all in the lands in question, after J. Hansel Nelson had purchased said lands with the moneys.of his ward, James Word Nelson, it follows that James Word Nelson is the only person in a position to question the proceedings by which appellee acquired title to these lands, and admittedly he has long since been barred from asserting any claim to these lands, and since Elmer Nelson, James Word Nelson’s guardian in succession, sold these lands to appellee, Wood, and expended all the proceeds from the sale ($2,700) for the benefit of his ward, it was clearly within the power of the chancery court to disallow appellants’ claims to the litigated property and to quiet appellee’s title thereto.
We conclude, therefore, after a careful review of this entire record, that no errors appear, and accordingly the judgment is affimed. | [
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McIIaney, J.
Appellants are the executive board of the Arkansas Medical Society. Appellees are the members of the State Board of Chiropractic Examiners, except that appellee's, M. L. Evans, and C. R. Ernest, are individuals engaged in the chiropractic practice in the city of Little Rock. Appellants brought this action against appellees, in their official capacity, and also as individual medical practitioners duly licensed and practicing under the laws of Arkansas, and for the benefit of all others similarly situated to enjoin the appellees, members of the State Board of Chiropractic Examiners and their successors in office, from issuing licenses or permitting applicants for license to take examinations before, said board until a basic sciences certificate is first presented, as, it is alleged, is required by act 147 of 1929, and to enjoin said Evans and Ernest from continuing the practice of chiropractic in this state under authority of licenses issued to them, which were issued after the enactment of said act 147 and without complying with its terms. Appellees defended the action on the grounds of a general denial of the allegations of the complaint; that the Basic Sciences Act is not applicable to the practice, or the licensing to practice, of the chiropractic art; that in so far as it attempts to regulate the licensing or practice of chiropractic it is unconstitutional and void under both the state and federal constitutions, in that the subjects in which an examination is required by said act are not requisite, necessary nor connected with such practice, thereby constituting an unreasonable and unconstitutional interference with the right to practice chiropractic.
Trial resulted in a decree dismissing appellants’ complaint for want of equity and they have appealed.
There has long been in this state a State Board of Chiropractic Examiners. Such a board was created by act 126 of the acts of 1915, p. 485. By § 4 of this act, said board was required to examine applicants in the following subjects: “Chiropractic — anatomy, physiology, symptomotology, chemistry, hygiene, chiropractic principles and diagnosis. ’ ’ In 1921, by act 485, the legislature amended said act 126 of 1915 in certain respects and among others added that an applicant for examination should possess certain educational requirements and must be a graduate of a reputable college of chiropractic, having a “resident” course of not less than three years, in the subjects listed above. Section 2 of this amendatory act gave the board the power to revoke the license of any practitioner in this state for “prescribing any form of medical treatment without having first complied with the law governing the practice of medicine, or any method which is not chiropractic. ’ ’
The legislature of 1929 enacted act 147, p. 731, the short title of which is the Basic Sciences Act of 1929. Sections 1 and 2 of said act are as follows:
Section 1. “No person shall be eligible for examination or permitted to take an examination for a license to practice the healing art, or any branch thereof, or granted any such license, unless he has presented to the licensing board, or officer empowered to issue such a license, a certificate of ability in anatomy, physiology, chemistry, bacteriology and pathology (hereinafter referred to as the basic sciences) issued by the state board of examiners in the basic sciences.” Section 2. “For the purpose of this act, any license authorizing the licentiate to offer or undertake to diagnose, treat, operate on, or prescribe for any human pain, injury, disease, deformity or physical or mental condition is a license to practice the healing art.”
Thus is will be seen that the Basic Sciences Act requires an examination before the board therein created in five subjects, called the “Basic Sciences,” two of which, bacteriology and pathology, are not mentioned in the subjects required by - the above mentioned chiropractic acts. By § 19 of said act it is provided that: “No provision of this act shall be construed as repealing any statutory provision in force at the time of its passage with reference to the requirements governing the issuing of licenses to practicé the healing art or any such branch thereof; but any board authorized to issue licenses to practice the healing art or any branch thereof may, in its discretion, accept certificates issued by the Board of Examiners in the Basic Sciences in lieu of examining applicants in such sciences or may continue to examine applicants in such sciences as heretofore. The unconstitutionality of any part of this act shall not be construed as invalidating any other part thereof.” Section 18 provides that the act shall not apply to “dentists, nurses, midwives, optometrists, chiropodists, barbers, cosmeticians or Christian scientists, practicing within the limits of their respective callings.” Certain others are excepted from the provisions of the act, including those then licensed to practice the healing art or any branch thereof. (Corresponding sections of Pope’s Digest to the sections of the acts -above mentioned will be inserted by the reporter in a footnote.)
The trial court made no specific findings, but simply dismissed the complaint for want of equity. To sustain the decree, appellees say that, in the practice of chiropractic in Arkansas, “such subjects as bacteriology and pathology were not essential to, were not permitted and were not related to or connected with that practice.” And that the testimony of certain chiropractic practitioners showed conclusively that such practice in Arkansas “consisted solely in locating the nerve pressure of .the spinal column and making proper adjustments to relieve that pressure--and nothing else.” It is also said that the evidence shows that such a practitioner does not “attempt or purport to diagnose any disease, to treat any disease, or to engage in any method which would in the remotest degree be connected with or concerned with the subjects of bacteriology and pathology.” Bacteriol ogy is defined by Webster as “Tbe science which deals with the study of bacteria. It is a branch of botany, but some of its most important practical relations are with hygiene, medicine and agriculture.” Pathology is defined as “The science treating of diseases, their essential nature, causes an’d development, and the structural and functional changes produced by them.” The legislature thought it proper that all persons seeking license to practice the healing art should have a knowledge of these subjects, and we cannot say their inclusion as to chiropractic was unreasonable, arbitrary and without any relation to such practice. Certainly bacteriology has some relation to such practice, since ‘ ‘ some of its most important practical relations are with hygiene,” a subject upon which such a practitioner must take an examination under the chiropractic acts of 1915 as amended by the act of 1921, above mentioned. It is said that a chiropractor does not treat diseases, and therefore, pathology has no relation. If he does not treat diseases, what does he treat? Does he manipulate the vertebrae of a well person just for the pleasure of such well person? There would be no excuse for any regulatory chiropractic laws, if they were not engaged in treating disease. In a case cited and relied on by appellees, State v. Gallagher, 101 Ark. 593, 143 S. W. 98, 38 L. R. A., N. S., 328, a case decided in 1912, before the first regulatory act on the subject, this court recognized at that time that such practice was the treatment of disease. The court said: “The practice of chiropractics, as defined, understood and used in the treatment of ailments of the body, is not included in the definition of the practice of medicine in said statute, and not limited by it to those only who have procured certificates in accordance with said act.” The “treatment of ailments of the body” is necessarily the treatment of diseases. The Basic .Sciences Act uses the words “treat — any human pain, injury, disease,” § 2, and we are, therefore, of the opinion that said act applies to appellees and that persons practicing chiropractic are engaged in thé practice of the healing art, as defined in said act, and that applicants for license must take the examination before the Basic Sciences Board of Examiners, before they are eligible for examination before the chiropractic board. As said by Mr. Justice Stone of the Supreme Court of Minnesota, in the case of State, ex rel. Shenk v. State Board of Examiners in the Basic Sciences, et al., 189 Minn. 1, 250 N. W. 353: “Too plain is the legislative purpose to sweep within the law every practitioner of healing, not as previously defined by law, but as defined ‘by this act’.”
The Basic Sciences Act of 1929 does not repeal, amend or modify any pre-existing law relating to examination of applicants ■ to practice the healing art, but is an additional requirement, a prerequisite to be complied with before taking such examinations. These laws remain in full force and effect, but with the super-imposed requirements of said act.
Nor can we agree with appellees that the Basic Sciences Act of 1929 is unconstitutional. We again quote from Judge Stone in the Minnesota case, supra, the following: “There is claim for petitioner that the basic science law is unconstitutional because abridging hiá privileges and denying him due process and equal protection of the law. The point is without merit. . . . The law does not ban naturopathy. It does regulate it. We are not interested in the extent to which the medical profession may have sponsored the law, nor their motive in doing so. It is enough that, since the days of Hippocrates, through those of Galen, Yesalius and their modern successor anatomists, there has been great progress and splendid accomplishment in their science, and the related arts of diagnosis and treatment. Lawmakers everywhere have taken note and have been doing so for a century or more. They began by laws facilitating the procuring of human bodies for dissection. Thereby doctors and their students were enabled to transfer their patronage from grave robbers, ‘body snatchers,’ to legitimate purveyors of cadavers. Other laws, regulatory and otherwise followed. Finally came the restrictive regulation, through licensing, now familiar everywhere. The basic science statute is the latest addition thereto. It departs somewhat from the older definition of the practice of medicine. Of its newer and broader category of the practice of healing, naturopaths have no complaint on constitutional grounds. . . . Nothing- has been brought to our attention to enable us to override the legislative judgment either as to the reasonableness of its regulation or the classification of the basic sciences.”
What was said in that case applies with more force here because of the difference between a naturopath and a chiropractor. Nor can we say that because dentists and others are excepted from the provisions of the act, the legislature made an arbitrary classification of those to whom it applies and excluded others of the same class. Acts of the legislature áre presumed to be valid, and they will not be stricken down unless contrary to some express or necessarily implied provision of the constitution.
We, therefore, hold that the learned trial court erred in dismissing the complaint. The judgment will be reversed and the cause remanded with directions to grant the relief prayed.
Pope’s Dig., §§ 10771 to 10776.
Pope’s Dig., §§ 10776 to 10784.
Pope’s Dig., §§ 10795 to 10814.
Pope’s Dig., § 10813. | [
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Humphreys, J.
This suit was brought on March -30, 1938, in the chancery court of Cross county by Lucy Williamson, Flora Gann and Kizzy Mayberry, adult daughters and only heirs and next of kin of Mrs. Caldonia Scott, deceased, against Jess Kelly and Ed Leverett to recover judgment on two notes of $100 each with interest at the rate of 8 per cent, per annum from December 3, 1929, and to foreclose a vendor’s lien given to secure them on the NW14 NE14, section 34, tp. 9 N., R. 1 E. in said county.
A summons was issued and served upon Jess Kelly and Ed Leverett on the 11th day of April, 1938.
Jess Kelly made no defense to the action, but Ed Leverett filed an answer pleading that the notes sued on were barred by the statute of limitations of five years and that Jess Kelly, from whom he bought said land, only owned a one-half interest therein, and that the two notes sued on were less than half of the consideration paid therefor and that he, Ed Leverett, was compelled to purchase the outstanding half interest in said land from-the true owner.
After the suit was filed, Kizzy Mayberry died without issue leaving Lucy Williamson and Flora Gann as her sole heirs and next of kin. Her death was suggested to the court by Ed Leverett and by order of the court the cause proceeded in the name of Lucy Williamson and Flora Gann, they being the sole owners of the note and vendor’s lien.
The cause was submitted upon the pleadings, exhibits and testimony introduced by the respective parties resulting in a judgment against Jess Kelly and Ed Leverett for the amount sued for and a foreclosure of the lien retained in thé deed from Jess Kelly to the Leveretts and order for sale of the said land to pay same.
The record discloses that on December 3, 1929, Jess Kelly and his wife sold and conveyed said land to Ed Leverett and his brother, J. C. Leverett, now dead, and retained a vendor’s lien thereon to secure four notes of even date therewith evidencing the purchase money due thereon, the first of which was for $125 due November 15,1930, the next for $100 due on November 15, 1931, the next for $100 due on November 15, 1932, and the last for $100 due on November 15, 1933; that all of the notes bore interest at the rate of 8 per cent, per annum from date until paid; that these notes were sold and assigned by Jess Kelly to Mrs. Caldonia Scott for a valuable consideration before maturity; that Ed Leverett paid the first two notes to Mrs. Scott, but failed to pay the last two notes; that Mrs. Scott died on December 3, 1937, leaving three adult daughters who were her only heirs and next of lán; that the notes sued upon were found in the papers of Caldonia Scott after her death by her-daughter Flora Gann who talked to Ed Leverett and Jess Kelly about them.
Flora Gann testified, and it is not disputed, that Ed Leverett told her they represented a just debt and he would pay them, and that Ed Kelly told her he sold the notes to her mother and that if Ed Leverett did not pay them he would let us get judgment and when the land was sold he would buy it in and pay us himself.
The original notes were introduced in evidence and the one due on November 15, 1932, had a credit on it of $1.48. The other note had no credit upon it, but in copying same to be attached as an exhibit to the complaint a credit of $65 appeared on the back of the copy. Ed Leverett testified that he had not paid anything on the notes. He also testified that an abstractor told him the title to the land,.in Kelly was not perfect and so he purchased and procured deeds from other parties claiming an interest therein and on that account he refused to pay the notes. - .
Ed Leverett procured a warranty deed to the land from Jess Kelly and he did not file a cross-complaint against Kelly seeking to recoup the amount he paid for alleged outstanding interests against the notes. He took possession of the forty acres of land under the warranty deed from Kelly and is still in possession thereof. He never lost possession of the land, but claims he bought the interest of parties claiming they owned an interest in the land. He does not show by sufficient evidence that Kelly’s title to the land was not perfect nor- does he show that same was perfected by the deeds he obtained from other claimants to the land or a part thereof.
Even though Ed Leverett did buy interests from claimants to the land it does not appear from this record that it was necessary to do so to perfect the title he got from Kelly. As stated above, Kelly gave him a warranty deed to the entire forty acre tract, and he went into possession thereunder and his possession thereof has never been disturbed. For aught that appears in this record, Kelly may have had a perfect title to the forty acre tract and the parties from whom Ed Leverett purchased interests therein might not have owned any real interest in the land.
We proceed then to a consideration of whether the notes or either of them was barred by the five year statute of limitations at the time this suit was instituted. It is certain that the note that matured on November 15, 1933, was not barred by the five year statute of limitations because the suit was brought within five years after the due date of said note. The suit was commenced on March 30, 1938, so five years had not intervened between the maturity of the note and the date upon which suit was brought.
The due date of the other note was November 15, 1932. The suit, therefore, was brought more than five years after the maturity thereof. Section 9465 of Pope’s Digest is, in part, as follows: “In suits to foreclose or enforce mortgages, deeds of trust or vendor liens, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given. ’ ’
Suits on notes upon which no payments have been made are barred under our statute in five years .after maturity. It follows that this note was barred when ' suit was brought upon it and the court should have sustained Ed Leverett’s plea of the statute of limitations as to it, and should have rendered judgment on the note which was not barred with interest thereon from the date of its execution. The decree is, therefore, reversed and the cause is remanded with directions to render judgment in favor of appellees against appellant and Kelly upon the note which became due on November 15, 1933, or, to be more explicit, to render judgment in favor of appellees for $100 with interest thereon at 8 per cent, per annum from December 3, 1929, the date of the note, with all costs, except the costs of this appeal, and foreclose a lien for that amount against the land and order a sale thereof to pay same. | [
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Holt, J.
Appellee, T. E. Smith, brought this suit in the Clark circuit court to recover $3,000 damages alleged to have been sustained by him when struck and run down by one of appellant’s trucks, driven by one of its employees, on July 14, 1938, while appellee was walking along the highway leading to' the Shuler oil field in Union county.
He alleged in his complaint that he was walking ‘ ‘ on the left side of the road near the edge of said road, as is the customary and proper place for a pedestrian to walk, and while walking on the left side of the road and as near a ditch that was parallel with said road as was possible for him to be, he met a Chevrolet coupe with a pickup back that belonged to the Lion Oil Refining Company, and was being driven by one of the defendant’s agents, servants or employees; that as they approached each other, defendant negligently cut across and directly into the plaintiff, striking him and knocking him clear of the road and over into and under a wire fence and injured plaintiff as follows”: He then set out the nature .and extent of his injuries and sought damages in the sum as indicated above.
Appellant answered, denying every material allegation in the complaint, and in addition pleaded the contributory negligence of appellee.
From a jury verdict of $3,000, and the judgment rendered thereon, comes this appeal.
Two errors are assigned here by appellant: First, that “there was no proof offered upon which the jury was justified in finding that the car. which struck the appellee was, at the time, being driven by an agent of the appellant, acting in the course of his employment.” We cannot agree to this contention.
The testimony stated in its most favorable light to appellee is to the following effect:
On July 14, 1938, appellee, while returning from the Shuler oil field in Union county, Arkansas, met one of appellant’s trucks, and (quoting from his testimony): “A. I was returning back home, coming towards the highway, and I was walking on the left-hand side of the road meeting the traffic, and this car was coming facing me, meeting me and I was walking as far over on the side of the road as I could get without getting off of the road, and he run up pretty close to me and I seen he was going to hit me and I made an effort to get out of the way, but he got me before I could get out of the way. It looked like he taken a swerve like that (indicating)— I didn’t know at the time whether he stopped or what happened. Q. Were you on the extreme left-hand side of the highway? A. Yes, sir. Q. Were there any other on-coming ears right there at you? A. Meeting me? Q. Yes. A. No, sir, not that I seen. . . . Q. D'o you know whose truck it was? A. Yes, sir. Q. How do you know whose truck it was? A. 'By the signs and color. Q. What signs were on the truck? A. Well, the truck was an orange colored truck, with a lion on one side of it. Q. Are you accustomed to seeing Lion Oil Refining Company’s trucks? A. In the field over there, yes, sir. Q. You are? A. Yes, sir.”
He further testified that he had been on that road a number of times before and knew that Lion Oil Refining trucks operated over it.
The testimony further reflects that a Mr. Beasley, his brother and two other men, a Mr. Chastain and a Mr. McCoy, were in a car nearby and saw appellant’s truck strike appellee, Smith. Quoting from Beasley’s testimony:
“Q. Did you see the wreck or did you see the truck strike Mr. Smith that day? A. Yes, sir. . . . Q. What kind of a truck was it? A. It was an orange truck, a Lion Oil pickup light runabout truck. Q. Did it have signs on it? A. Yes, it had a picture of a lion on it and ‘Lion’ wrote on it. . . Q. Do you see those trucks almost daily? A. Not right at present, but I did about that time — that was in July and I wasn’t doing anything. . . . ' Q. Did you look to see what was in the body of this truck that you said had ‘Lion’ printed on it and the picture of a lion on it? A. It had oil supply stuff— I don’t know what was in there except wire cable. Q. Have you worked in the oil field? A. Yes, sir. Q. Did you use wire cable when you worked in the oil field? A. Yes, sir. Q. And they were going into the oil field when this accident happened ? A. Into the Shuler field. ’ ’
Witness Ocie McCoy corroborated Mr. Beasley’s testimony, that the truck that hit appellee had a lion’s picture on it, some wire cable and wire rope in it, and that the road was about fifty feet wide, and further: “Q. Have you seen a number of Lion Oil Refining Company’s trucks? A. Yes, sir. Q. Was this truck the same kind of a truck they use? A. It was the same kind of little truck they haul light material on. Q. It had the same kind of painting and the same signs and everything? A. Yes, sir.”
Witness Chastain, who was in the Chevrolet car with McCoy and Beasley, corroborated their testimony.
A Mr. Mills, witness for appellant, who was the general service manager for appellant, testified that he was in charge of the purchasing, and assigning of appellant’s trucks to the different departments, and looked after their up-keep. He testified that appellee, Smith, gave him the license number of the truck which he, Smith, claimed struck him, and quoting from his testimony:
“Q. I believe you said Mr. Smith gave you the license number of the truck? A. He did. Q. Did you investigate that? A. I did. Q. Did you find out whose truck that license was on? A. It was a coupe pickup truck driven by Gaffney Williams in the geological department. Q. For the Lion Oil Refining Company? A. For the Lion Oil Refining Company. . . Q. Hew many trucks did you say you had going from El Dorado to the Shuler Field? A. What kind? Q. Coupe pickup trucks? A. We have seven. Q. Did they go to the Shuler field almost every day? A. Practically.”
He further testified that some of appellant’s pickup trucks went down to the Shuler field on the 14th day of July, 1938, the day on which appellee claims to have been injured, and further:
“Q. Were you drilling down there at that time? A. We were. Q. Did you use cables and wiring of that kind in the drilling and operation of those , wells down there? A. The contractors do. Q. Did your trucks carry such material as that from El Dorado out there to the wells? A. Yes. Q. And when they would carry it out there, they were working for the Lion Oil Refining Company, weren’t they? A. Yes. . . Q. But they did haul wire cable down there? A. They hauled sand line. Q. Did any of your contractors operate Lion Oil Refill1 ing Company’s trucks — that is, the ones with a lion’s picture on them and the name ‘Lion’ on them? A. No, sir. Q. All of those trucks operated in that vicinity were trucks of the Lion Oil Refining Company? A. That had the Lion Oil Refining Company insignia on it.”
It will thus be seen from this evidence that on July 14, 1938, the day the testimony shows appellee was struck by one of appellant’s trucks, at least seven of appellant’s trucks similar to the one in question passed over the road on which appellee was walking. They were painted yellow with a lion’s head and the word “Lion” printed on each. They carried wire and cable down to the Shuler field similar to that carried on the truck that struck appellee.
Appellee took the license number of the truck which struck him, gave this number to appellant’s general service manager, Mills, and upon investigation Mills ascertained that one of appellant’s trucks, fitting the description given by appellee and his witnesses, carried this particular license number and was actually driven along the road in question by Gaffney Williams, an employee of appellant, on the day in question, July 14, 1938.
Appellant did not offer Gaffney Williams, this truck driver, as a witness nor any of its other truck drivers to contradict appellee’s testimony.
On this state of the record it is our view that the evidence is ample to support the finding that the truck in question was the property of appellant and was being driven and operated by one of its employees in the master’s 'business, and that the instant case is controlled by the recent case of Plunkett-Jarrell Grocer Company v. Freeman, 192 Ark. 380, 92 S. W. 2d 849. In fact we think the testimony, in the instant case, is stronger in favor of appellee, than that in the Plunkett-Jarrell case. In that case this court said:
“In the instant case the evidence shows that the appellant owns 42 trucks, and 16 places of business; that it constantly delivers merchandise in those trucks, using the highways; that the truck was the kind of truck used by appellant, and had appellant’s name printed on the door. There is no evidence that any other person or company used trucks like this to deliver merchandise in that section of the country. As said in the case just cited, it was a question of fact for the jury, and was sufficient evidence to establish the ownership of the appellant, and that it was being operated by its employee at the time of the accident. . .
“ (And further, quoting from Arkansas Baking Company v. Wyman, 185 Ark. 310, 47 S. W. 2d 45): ‘It is next insisted that there is no sufficient showing that the truck that caused the accident was appellant’s property, was being used at the time of the accident in its business, or that the driver of the truck was in its employ, and that he was engaged in the business of appellant at the time of the accident. It is undisputed that the truck that caused the accident had appellant’s name printed or painted thereon. It is further undisputed that this truck or a like truck bearing the name of appellant, traveled over this highway daily. The evidence further shows that a short time prior to the accident, while appellee and another were in Warren, they saw this same truck and the same driver who caused the accident, delivering bread or other articles of merchandise to a customer in Warren.’ . . .
“The court held that this evidence was sufficient to establish the fact that the truck belonged to the appellant, and that it was being operated at the time of the accident by its employee, and that this was sufficient to raise the inference that at the time of the accident he was acting within the scope of his employment, and in the furtherance of his master’s business. . .
“Appellee calls attention to many authorities, all holding that in cases where there is no direct evidence as to who. was the owner of the truck, but where the evidence shows that the truck bore the name of the defendant company, was a business truck, and engaged in the character of business that appellant was engaged in, that this is sufficient to establish not only that the defendants were the owners of the trucks, but it was also then in charge of their servant or employee. We do not discuss these eases because we think this court has settled this question beyond controversy.”
In Mullins v. Ritchie Grocer Company, 183 Ark. 218, 35 S. W. 2d 1010, the late Chief Justice Hart, speaking for this court on rehearing, said:
‘ ‘ The presumption with which we are dealing in the present case is not a legal presumption, but is an inference or presumption of fact. Its existence is called into being by proof introduced on the subject and not by any statute dealing with the question. This being so, the opposing evidence must be weighed by the jury for the reason that under art. 7, § 23, of our Constitution, the jury is the judge of the facts proved. The rule is stated in 6 Labatt on Master and Servant, '(2d ed.), § 2281A, as follows: “ ‘A servant may be presumed prima facie to have been acting in the course of his employment, wherever' it appears, not only that his master was the owner of the given instrumentality, but also that, at the time when the alleged tort was committed, it was being used under conditions resembling those which normally attended its use in connection with the master’s business.’ ”
In Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161, where plaintiff was struck by an automobile being driven by defendant’s son and the proof showed that the license number of the. car was in the name of the defendant, the court, speaking through Justice Cardoza, said: “The license number of the car, coupled with evidence that the defendant.held the license, was prima facie proof that the defendant was the owner. It was more than that; it was prima facie proof that the custodian of the car was then engaged in the owner’s service. Norris v. Kohler, 41 N. Y. 42; McCann v. Davison, 145 App. Div. 522, 130 N. Y. Supp. 473; Gulliver v. Blauvelt, 14 App. Div. 523, 43 N. Y. Supp. 935; Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406, 56 Atl. 833; Knust v. Bullock, 59 Wash. 141; 109 Pac. 329. ‘The property being proved to belong to the defendant, . . . a presumption arises that it was in use for his benefit, and on his own account.’ Norris v. Kohler, supra. This presumption was not destroyed, as a matter of law, by the testimony for the'.defendant. Even though his explanation of-the use of the car would absolve him if credited, the question whether it should be credited was one of fact for the jury.”
It is next contended that “no proof was offered tending to show any breach of duty owed by the appellant to the. appellee and* consequently, no negligence on the part of the appellant was established.” Again we cannot agree.
On this assignment we think little need be said. It is our view that the evidence as reflected by the record is sufficient to take the case to the jury on the question of negligence of appellant and contributory negligence of appellee, and that its finding is supported by substantial testimony.
With reference to the relative rights of a pedestrian and the driver of an automobile on our streets and highways, this court in Millsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A., N. S., 1177, said: “Each is bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof. Hot Springs Street Rd. Co. v. Hildreth, 72 Ark. 572, 82 S. W. 245; Hannigan v. Wright, 5 Penn. 537, 63 Atl. 234; Simeone v. Lindsay, 6 Penn. 224, 65 Atl. 778.
“Negligence and contributory negligence are matters to be proved, and the burden is on the one alleging injury from negligence to establish it, unless it is shown by the plaintiff’s testimony. Hot Springs Street Rd. Co. v. Hildreth, supra.”
In the case of Morel v. Lee, 182 Ark. 985, 33 S W. 2d 1110, this court said:
“. . . The law of the case has been well settled in the several decisions of this court defining the relative rights and reciprocal duties of persons using the public streets and highways as pedestrians or in operation of automobiles and other cars or vehicles thereon, each being bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof. Millsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A., N. S., 1177; Minor v. Mapes, 102 Ark. 351, 114 S. W. 219, 39 L. R. A., N. S., 214; Butter v. Cabe, 116 Ark. 26, 171 S. W. 1190, L. R. A., N. S., 1915C, 702; Texas Motor Company v. Buffington, 134 Ark. 320, 203 S. W. 1013; Oliphant v. Hamm, 167 Ark. 167, 267 S. W. 563; Snow v. Riggs, 172 Ark. 835, 290 S. W. 591; Gates v. Plummer, 173 Ark. 27, 291 S. W. 816; Murphy v. Clayton, 179 Ark. 225, 15 S. W. 2d 391.
^‘Ordinary care, however, is a relative term, its interpretation depending upon the facts and circumstances of each particular .case; and, although drivers of automobiles and pedestrians both have the right to the use of the streets, the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them, care commensurate with the danger reasonably to be anticipated. Minor v. Mapes, supra; Snow v. Riggs, supra; Texas Motor Company v. Buffington, supra; and Murphy v. Clayton, supra.”
Upon careful examination, we find no error in the instructions.
On the whole case we conclude that the judgment should be affirmed, and it is so ordered. | [
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OPINION OF
THE COURT.
This case comes up by appeal from the Pope circuit court. The appellant brought an action of assumpsit to recover money had and received by the appellant to his use. At the trial, neither party required a jury, and the matter was submitted to the court, and a judgment rendered for the defendant. From a bill of exceptions taken by the appellant, the evidence appears to have been that the attorney of the appellant forwarded to the appellee, through the mail, two notes on a man by the name of Logan, with directions to place the same in the hands of a justice for collection, and, when collected, to receive the money, and transmit it to him by mail, or some safe, responsible person; that the appellee received one hundred and thirteen dollars on the notes before the suit was commenced, and handed the same to a youth of seventeen or eighteen years of age, who promised to deliver it to appellant’s attorney at Little Rock; that this youth had transacted business for himself, by the consent of his father, for one or two years, was intelligent, honest and trustworthy, as any of his age; that before he had an opportunity of paying it over his pocketbook was stolen, containing that, as well as other moneys; that said attorney had been heard to say that he would have had no hesitancy in sending the money by this same youth in his own case; and finally that appellee received compensation for his trouble. The only question it will be material to consider is whether the appellee discharged himself from liability by transmitting the money in the manner shown by the evidence. In the absence of any express agreement between the parties, or terms imposed at the time of making the bailment, the law steps in and settles the question of duty and liability. The case before us. however, depends upon the terms imposed at the time of transmitting the notes, and acceded to by the appellee in undertaking the collection. He was bound to transmit either by mail, or by a safe, responsible person. The mail, in legal contemplation, is a safe mode of conveyance, but not a responsible one. That mode was not adopted, but the money was forwarded by a youth of seventeen or eighteen years of age. who is shown by testimony to have been intelligent, prudent, and trust worthy, and to which the law adds responsibility, notwithstanding his age. On the subject of the liability of minors in such cases, see 11 Petersd. Abr. tit. “Infant,” 55S. The appellee, we think, in transmitting the money, complied with the terms imposed at the time of receiving the notes for collection. Judgment affirmed. | [
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DONALD L. CORBIN, Associate Justice.
| jThis is an appeal from an order of the Jefferson County Circuit Court granting Appellee Deborah “Debe” Hollingsworth’s request for a petition for writ of mandamus. Appellants are the Jefferson Coun ty Election Commission (Commission); Ted Davis, individually and in his official capacity as chairman of the Jefferson County Election Commission; Stu Stoffer and Cynthia Sims, in their official capacities as Jefferson County Election Commissioners; Will Fox, in his official capacity with the Jefferson County Election Commission; and Patricia Johnson, in her official capacity as Jefferson County Clerk | ¡¡(collectively “Appellants”). For reversal, they argue that the circuit court erred in (1). denying their motion to dismiss Ap-pellee’s complaint because the complaint failed to state a cause of action for which relief could be granted; (2) denying then-motion to dismiss because the complaint failed to state facts upon which relief could be granted; and (3) its construction of Arkansas Code Annotated section 14-37-113. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(4) (2014). Because the appeal is moot, we dismiss it.
The present case dates back to a dispute that arose in 2012 regarding the length of term for municipal offices in the city of Pine Bluff. A mayoral election was scheduled to appear on the November 2012 ballot. Prior to that election, Redus, who was then the mayor of Pine Bluff, filed an action in the Jefferson County Circuit Court requesting a declaration of when the next mayoral election should be held and requesting a writ of mandamus to prohibit the county clerk from counting any votes in the 2012 mayoral election or certifying the winner. The circuit court entered an order on October 5, 2012, finding that the Pine Bluff mayoral election was properly scheduled for November 2012 and denying Redus’s motion for a writ of mandamus. No appeal was taken from that order.
|sThe election took place as scheduled in November 2012, and Hollingsworth defeated Redus in the mayoral election. On December 3, 2012, the Pine Bluff City Council passed a resolution stating in relevant part as follows:
Section 1. That the party committees of the recognized political parties under the laws of the State of Arkansas which are operating in Jefferson County, Arkansas, are hereby requested to conduct primary elections for the municipal officers of the City of Pine Bluff, Arkansas, beginning in 2014 and for all subsequent municipal elections.
City of Pine Bluff, Ark., City Council Res. No. 3551, § 1 (Dec. 3, 2012). Nevertheless, Hollingsworth took office on January 1, 2013, and her oath of office stated that her term began in 2013 and ends in 2016.
Prior to the filing deadline for the 2014 primary elections, Redus filed as an unopposed Democratic candidate for the office of Pine Bluff mayor. Franklin filed as a Democratic candidate for city treasurer, and Whitfield, the current city clerk who was elected in 2012, filed as a Democratic candidate for the city clerk position.
Thereafter, on March 25, 2014, Hollings-worth filed a complaint seeking injunctive relief, issuance of a preliminary/permanent injunction, writ of mandamus/prohibition, declaratory judgment, and attorney’s fees. Specifically, she asked for injunctive relief mandating that any plans for a mayoral election be nullified and cancelled. She requested a writ of mandamus/prohibition directing the Commission “to take necessary and appropriate action to nullify and cancel the scheduling” of elections for the offices of mayor, city clerk, and city treasurer until 2016. Finally, she requested a declaratory judgment that she was Delected to a four-year term expiring on December 31, 2016, and where no vacancy existed, the Commission could not lawfully schedule elections for any city offices.
Appellants filed a motion to dismiss Ap-pellee’s complaint on April 8, 2014. In that motion, Appellants claimed that Ap-pellee had failed to plead facts sufficient to state a cause of action, failed to state facts that showed a clear right to the requested relief, and failed to include necessary parties.
The circuit court held a hearing that same day. At the conclusion of the hearing, the circuit court announced from the bench that the October 5, 2012 circuit-court order finding that the municipal elections were to be held every four years was res judicata. The circuit court further announced that Appellee was “entitled to a writ of prohibition prohibiting the election, declaring that it’s a four-year term for the mayor.”
Following its oral ruling, the circuit court entered a written order on April 21, 2014, granting a “Writ of Mandamus and Prohibition.” Therein, the court stated that the Commission’s plans to conduct a May 2014 primary election and a November 2014 general election for the Pine Bluff municipal offices of mayor, treasurer, and city clerk were null and void. The court ordered the Commission to cancel any such arrangements, desist from future action to call for or conduct said elections, and refrain from the counting of any votes cast in such elections.
Appellants filed a timely notice of appeal and also filed a motion requesting that the circuit court’s order be stayed pending their appeal of the court’s decision. The circuit court entered an order on May 5, 2014, denying the motion for stay. That same day, Appellants | ¡dodged the record with our court and filed an emergency petition for a stay pending appeal and a motion to expedite consideration of the stay motion. This court granted the motion for expedited consideration but denied Appellants’ request for a stay pending appeal. Briefing commenced, and the case is now submitted for our consideration.
As á threshold matter, this court must determine whether the instant appeal is moot. As a general rule, the appellate courts of this state will not review issues that are moot because to do so would be to render an advisory opinion, which this court will not do. See Kinchen v. Wilkins, 367 Ark. 71, 238 S.W.3d 94 (2006). Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Id. We have, however, recognized two exceptions to the mootness doctrine. Id. The first exception involves issues that are capable of repetition, yet evade review, and the second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id.
Here, the instant litigation began when Appellee, the current mayor, filed a complaint seeking a declaratory judgment that she holds the office of mayor through 2016, and a writ of mandamus to prohibit Appellants from taking any actions with regard to municipal elections in either the primary or general elections in 2014. The circuit court found in her favor, but its written order was limited to granting the requested relief of a writ of mandamus thát prohibited election officials from conducting any elections for the municipal offices of mayor, treasurer, and city clerk and directing those officials to not count or certify any votes that may be cast for those offices. After the circuit court entered its order, Appellants filed a | ^motion requesting the court to stay its order. The circuit court denied the motion. Appellants then filed a motion for stay with this court and requested expedited consideration of their motion. This court granted the motion to expedite but denied the motion for stay. Thus, at the time of the May primary, the circuit court’s order prohibiting Appellants from holding the municipal elections and directing them to not count votes or certify winners in such races was in effect. We take judicial notice of the primary-election results, as reported by the Arkansas Secretary of State following the May 20, 2014 primary election, which show that no candidate was certified as the winner of any of those three municipal offices. Moreover, the three Democratic candidates who filed for the municipal offices did not file an appeal of the circuit court’s order in this case. Thus, any review of this appeal as it relates to the May 20, 2014 primary election is necessarily moot.
Next, we must decide whether a decision by this court could have any practical legal effect with regard to the impending November 4, 2014 election. The answer is no. Arkansas Code Annotated section 7-5-203 governs certification of candidate lists and provides in relevant part as follows:
(b)(1) Not less than seventy-five (75) days before each general election day, the clerk of each county shall certify to the county board of his or her county a full list of all candidates to be voted for in the county as the nominations have been certified or otherwise properly submitted to him or her.
Ark.Code Ann. § 7-5-203(b)(i) (Repl. 2011). Moreover, Arkansas Code Annotated section 7-5-207, the statute outlining certain ballot procedures, provides in relevant part as follows:
(a)(1) Except as provided in subdivisions (a)(2) and (3) of this section, all election ballots provided by the county board of election commissioners of any county pin this state for any election shall contain in the proper place the name of every candidate whose nomination for any office to be filled at that election has been certified to the county board and shall not contain the name of any candidate or person who has not been certified.
Ark.Code Ann. § 7-5-207(a)(l) (Supp. 2013). Again, taking judicial notice of the ballot as prepared and certified by the Jefferson County Election Commission, it reveals that no candidates have been certified and listed on the ballot for these three municipal offices. Thus, the circuit court’s order prohibiting Appellants from holding elections in November 2014 is also moot.
Before leaving this point, it is necessary to determine whether either of the exceptions to the mootness doctrine applies: issues that are capable of repetition, yet evade review, or issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. The only way one of these exceptions would apply is if the circuit court had granted Appellee’s requested declaratory relief. Although the circuit court announced from the bench’that the mayoral term was for four years, there was nothing in the written order to reflect this ruling. The written., ruling most certainly did not declare that Appellee was entitled to hold the office through 2016.
This court has made clear that an oral order announced from the bench does not become effective until reduced to writing and filed in accordance with the requirements of Arkansas Supreme Court Administrative Order No. 2(b)(2). McGhee v. Ark. State Bd. of Collection Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006) (refusing to address the constitutionality of the Check-cashers Act where no written order was entered following the | «circuit court’s ruling from the bench that the Act was unconstitutional). This rule eliminates or reduces disputes between litigants over what a trial court’s oral decision in open court entailed. See Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000). If a circuit court’s ruling from the bench is not reduced to writing and filed of record, it is free to alter its decision upon further consideration of the matter. McGhee, 368 Ark. 60, 243 S.W.3d 278. Simply put, the written order controls: Accordingly, in the absence of a written ruling, there is nothing for this court to review with regard to the declaratory-judgment issue that might fall within one of the exceptions to the mootness doctrine.
Appeal dismissed.
. Although the circuit court’s order is styled as "Writ of Mandamus and Prohibition,” this court has explained that "[a] writ of prohibition may only be directed to a court or adjudicative committee that is proceeding wholly without jurisdiction; it cannot be directed, as a writ of mandamus can, to a ministerial officer." State v. Craighead Cnty. Bd. of Election Comm’rs, 300 Ark. 405, 411, 779 S.W.2d 169, 172 (1989).
. Appellee’s complaint also named as defendants Carl A. Redus, Jr., former Pine Bluff mayor; Lloyd Franklin, Sr„ who sought the Democratic party nomination for office of Pine Bluff City Treasurer; and Loretta Whitfield, the current Pine Bluff City Clerk who was elected to a four-year term but filed for the Democratic nomination for that same office. None of these parties appealed the circuit court’s order and, thus, are not parties to the instant appeal. The only notice of appeal filed in this case was filed on behalf of the above-listed Appellants, identified as the “Jefferson County Defendants” in that notice of appeal. | [
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LARRY D. VAUGHT, Judge.
hOn appeal is the Carroll County Circuit Court’s grant of appellee Carroll County and appellee County Judge Sam Barr’s summary-judgment motion on the claims of appellants, Cindy and John Finch, for alleged breach of contract, negligence, and inverse condemnation. We affirm.
This case began when the Finches were approached by Judge Barr to donate gravel from their creek bed for use on Carroll County roads. The Finches agreed to make the donation. Weeks after the county had removed several hundred truck loads of gravel, the debris left behind after the removal effectively dammed the creek. Severe rainfall in April 2011 plagued Carroll County, causing the Finches’ creek to flood and damage their cattle, chickens, trees, and the chicken structures that were near the creek.
On September 19, 2011, the Finches filed suit against Carroll County and Judge Barr for the intentional taking of appellants’ property for public use by the removal of the gravel without 12the requisite due-process proceedings, resulting in inverse condemnation of their property. The Finches also alleged negligence and sought damages from the appellees’ “taking” and requested a jury trial and attorney’s fees. The Finches later amended their complaint and added an allegation of breach of contract based on an alleged agreement to remove the gravel without damaging the Finches’ property.
Appellees answered the amended complaint and pled defenses of qualified immunity, punitive-damages immunity, sovereign immunity, justification, mootness, set-off, comparative fault, failure to mitigate, assumption of risk, accord and satisfaction, failure of consideration, statute of frauds, waiver, estoppel, laches, and failure to state a claim for which relief could be granted. On February 22, 2013, appellees filed a motion for summary judgment, claiming that Carroll County was protected by statutory immunity, that there was no valid contract, and that there was no inverse-condemnation liability because the gravel was donated and was by definition not a taking.
The Finches responded to the summary-judgment motion with affidavits and a brief in which they argued that a contract did exist and the statute of frauds did not require that the contract be in writing. They also claimed that appellees’ negligence in the removal of the gravel amounted to inverse condemnation because it damaged their property. The Finches produced no proof of a contract, orál or written. Further, there was no dispute that they willingly donated the gravel to appellees. Additionally, there was no showing that the value of the Finches’ property was diminished based on the alleged structural damages or the negligent removal of the gravel.
IsAfter considering the pleadings, accompanying briefs, and affidavits, the trial court entered an order on December 18, 2013, finding that appellees were immune from liability and suit for damages; there was no breach of contract because the transfer was a gift donation; and there was no inverse condemnation because there was no evidence that appellees’ acts were intentional. The trial court granted appellees’ motion for summary judgment and dismissed the Finches’ case. On January 8, 2014, the Finches filed this appeal claiming that the trial court erred in its grant of the summary-judgment motion because genuine issues of material fact remained.
In reviewing a trial court’s grant of summary judgment, we need only decide if the granting of the motion was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Edwards v. MSC Pipeline, LLC, 2013 Ark. App. 165, 2013 WL 840697. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. at 5, 2013 WL 840697. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id.
Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Id. Once a moving party establishes a prima facie entitlement to the summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of its pleadings, but its response, by affidavits or as otherwise I ¿provided, must set forth specific facts showing that there is a genuine issue for trial. Ark. R. Civ. P. 56 (2014).
First, we address the Finches’ argument that the trial court erroneously dismissed their claim that the eounty-road-department officers were negligent in their extraction of the gravel from the creek that crossed the Finches’ property. The trial court properly dismissed the negligence claim against the county because it is expressly precluded and foreclosed by Arkansas law, which declares that “all counties ... and all other political subdivisions of the state ... shall be immune from liability and from suit for damages” and that “no tort action shall lie against any such political subdivision because of the acts of their agents or employees.” Ark.Code Ann. § 21-9-301(a), (b) (Repl. 2011).
Likewise, the Finches’ inverse-condemnation claim fails as a matter of law. Although permanency is not a requirement to establish an inverse-condemnation claim, negligence sustained over a long period of time resulting in a continuing trespass or nuisance can ripen into inverse condemnation. Here, there was but a single act of negligence and only one flood, which coincided with a natural weather anomaly. See Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990) (finding inverse condemnation where city had knowledge of sewer flooding over a period exceeding ten years causing homeowners’ property to lose all value). Because there was no continuing, recurrent, or substantial trespass - here, and no proof that the value of the Finches’ property had substantially diminished, the trial court properly dismissed the inverse-condemnation action.
| ¡^Finally, as to the Finches’ contract claim, all parties agree that the gravel was a donation to appellees. The essential elements of a contract claim are competent parties, subject matter, legal consideration, mutual agreement, and mutual obligation. Stewart v. Combs, 368 Ark. 121, 126, 243 S.W.3d 294, 298 (2006). The Finches offered no proof to support their claim that there was a contract between them and the county. Thus, as a matter of law, there were no genuine issues of material fact on which a jury could determine that either Judge Barr or Carroll County was liable for breach of contract. Therefore, the trial court appropriately granted appellees’ summary-judgment motion.
Affirmed.
GRUBER and WHITEAKER, JJ., agree. | [
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Donis B. Hamilton, Special Justice.
This case involves an appeal from a decision of the Pulaski Circuit Court refusing to grant a writ of mandamus against appellees. The writ, if granted, would have required appellees to meet as a board pursuant to Ark. Stats. Ann. Section 84-444 (1960 Repl.) to fix a value on property reported by appellants as being non-assessed personal property. Appellants claimed a 10% statutory bounty for discovering the property.
The material facts are not in dispute. Appellants filed a sworn statement with the county clerk in which they alleged that sixteen banks and savings and loan institutions in Pulaski County had failed to assess $1,872,726,208 of personal property. Appellants used as a basis for their allegations of unassessed property newspaper and other published “statements of condition” of the institutions from which they deducted only the figures listed therein for real estate and tangible personal property. Included in the assets on the statements of condition were items for U.S. governmeR/t and U.S. government agency obligations as well as obligations of state and political subdivisions.
After the report was filed, the attorney for appellants wrote a letter to appellees containing the following language:
We will appear for the meeting required by Section 444 at 2:00 o’clock in the afternoon on Tuesday, April 6, in the office of the Pulaski County Assessor at the Pulaski County Courthouse to complete the formality of agreeing upon the above figures, (emphasis added)
The figures mentioned in the letter were the same figures (including the items listed for federal, state and local government obligations) as contained in the report of unlisted property filed by appellants.
The parties met on April 6, 1976, in accordance with the letter. The appellants submitted a “special list of omitted property” containing the figures previously submitted by them, which they demanded appellees sign. On advice of counsel appellees refused to sign the form or to set a value on the property without additional proof and documentation, which was never tendered.
Appellants then petitioned Pulaski Circuit Court for a writ of mandamus to compel appellees to “meet in good faith” with appellants for the purpose of establishing the values on the property alleged by appellants to be unassessed. The Circuit Court denied the petition, holding that a meeting had, in fact, been held between the parties, that there was a substantial question as to whether all the property alleged by appellants to be unassessed was subject to tax and further that mandamus was improper to compel officials to act in the discretionary area involved in the case. From that decision comes this appeal.
Mandamus is not a writ of right, but is directed to the sound discretion of the trial court and the parties applying for it must show a specific legal right and the absence of any other specific legal remedy. Goings v. Mills, 1 Ark. 11 (1837); Fitch v. McDiarmid, 26 Ark. 482 (1871); State v. Board of Directors of School District of Ashdown, 122 Ark. 337, 183 S.W. 747 (1916); Arkansas State Highway Employees Local 1315 v. Smith, 257 Ark. 174, 515 S.W. 2d 208 (1974). The right asserted must be a clear, legal right. Mandamus may not be used to determine in advance what the rights or actions shall be. Arkansas State Highway Commission v. Otis and Company, 182 Ark. 242, 31 S.W. 2d 427 (1930). This court will reverse the trial court’s refusal to grant the writ only upon a finding that the trial court abused its discretion in doing so.
In Arkansas State Highway Employees Local 1315 v. Smith, supra, we said:
. . . Before we can reverse the trial court in its refusal to grant a petition for mandamus, we must find that the duties, the performance of which are sought to be mandated, are clear and legal duties specifically and peremptorially enjoined by law, and that the trial court abused its discretion in denying the petition for the writ.
The pertinent sections of the statute (Ark. Stat. Ann. 84-444 [1960 Repl.]) under which appellants requested the meeting provide as follows:
... In any case where the assessor for any cause shall have failed to list any taxable property on the assessment rolls as by law required, and such property shall be discovered and reported under oath to the county clerk by someone other than the assessor or his deputy, a member of the equalization board, county clerk or other county official, if it be after the assessment rolls have been delivered to the county clerk, and before the collector closes his books, the party making such discovery and report, on filing claim therefor, shall be allowed an amount equal to 10% of the total tax and penalty to be extended against the property so reported; . . . provided further, the party reporting such property, together with the county assessor and the county clerk, shall constitute a board for the purpose only of fixing a value on such property reported as herein provided and for such a fee is claimed. . .
On the basis of the record before us, we cannot say that the trial court’s refusal to grant the writ was an abuse of discretion.
The petition for mandamus on its face shows (and appellants in oral argument stated) that obligations of the United States government were included in the assets claimed to be omitted from assessment. Such obligations are not subject to local taxation. McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 979 (1819); Weston v. Charleston, 2 Pet. 449, 7 L. Ed. 481 (1929); Plummer v. Coler, 178 U.S. 115, 20 S. Ct. 829, 44 L. Ed. 998 (1900); Colorado National Bank v. Bedford, 310 U.S. 41, 60 S. Ct. 800, 84 L. Ed. 1067 (1940); Macallen Company v. Massachusetts, 279 U.S. 620, 49 S. Ct. 432, 73 L. Ed. 874 (1929).
Appellants asked the trial court that appellees be ordered to meet “in good faith” for the purpose of fixing the value on the property alleged to be unassessed. The trial court found that a meeting had, in fact, taken place and this is admitted by appellants. The trial court refused to find that appellees acted in bad faith in not accepting appellants’ figures. The proof indicates that appellants insisted on appellees’ agreeing to their figures which appellees rightfully refused to do since they included items on which no tax could be lawfully assessed. Since the parties had met but could not agree on a value, the trial court could do no more in the absence of a prior determination by declaratory judgment or otherwise what action was to be taken. Arkansas State Highway Commission v. Otis and Company, supra.
Appellants have cited the cases of Kirkwood v. Carter, 252 Ark. 1124, 482 S.W. 2d 608 (1972); and Swiderski v. Goggins, 257 Ark. 228, 515 S.W. 2d 644 (1974), for the proposition that mandamus would be the appropriate remedy under the circumstances above outlined. These cases are distinguishable from the one at bar. In Kirkwood, the taxpayers’ petition was brought against the county judge and election commissioners to compel them to purchase or lease-purchase voting machines to be used in Faulkner County as required by Act 465 of 1969. Apparently, the board of election commissioners had failed to purchase the machine under the belief that insufficient funds existed for that purpose. The court there found that the funds did, in fact, exist and that the commissioners should purchase the machines under the formula set forth in the act. In Swiderski, the county clerk brought mandamus action against the board of election commissioners to furnish him with absentee ballots pursuant to statute. The court ordered the board to obtain and supply to the county clerk a sufficient number of ballots for absentee voters in accordance with the formula in Ark. Stat. Ann. Section 3-610 (1976 Repl.). In both of the above cases, the right to specified action on the part of the defendants was clear; the only question to be resolved was that of amount, for which a formula was provided in the statute. Here, there is a question as to whether all of the property reported by appellants is taxable and the value thereof. Section 81-444 of the statute provides no guideline or formula by which agreement on such matters could be independently measured. The setting of value calls for independent judgment and discretion which could not be determined in advance by the Circuit Court on a petition for mandamus.
We have considered, but appellants do not rely upon, the case of Lewis v. Conlee, Mayor, et al, 258 Ark. 715, 529 S.W. 2d 132 (1975). In that case, the city council called a referendum election in response to a citizens’ petition with respect to an ordinance, but the council set the date for the election 21 months in the future. This court reversed the trial court’s refusal to grant mandamus holding that the unwarranted postponement of the election for 21 months was an abuse of discretion, and in effect, a denial of the citizens’ right to have any meaningful election. The facts in Lewis distinguish it from the case at bar. Here, there was no undue delay in arranging for the meeting between appellants and appellees, and it was conceded that the meeting had been held without issue as to the time of the meeting. Appellants contend that mandamus lies to compel the assessor and the clerk to accept their contentions as to the values of the property alleged to be omitted from the assessment records. Under the record here, where portions of the claimed assessments were not subject to taxation as a matter of law, appellees did not abuse their discretion in refusing to accept appellants’ claim.
There have been many issues raised by both parties dealing with the constitutionality of the tax statutes which we find to be unnecessary to reach in view of our decision here.
The lower court judgment is affirmed, and appellants shall bear the costs in this court.
Special Justice William R. Wilson joins in this opinion.
Fogleman and Roy, JJ., not participating.
We note that Amendment 57 and Acts 106, 202 and 203 of 1977 enacted pursuant to it, apparently have rendered moot most future constitutional arguments made here except those relating to the due process clauses of the State and Federal Constitutions. | [
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Conley Byrd, Justice.
Involved on these appeals are the rights of a divorced spouse to the proceeds of life insurance policies in which she was the designated beneficiary. The trial court considered several instruments and various factual circumstances from all of which it, relying upon such cases as Harris v. Brewer, 239 Ark. 614, 390 S.W. 2d 630 (1965), concluded that the decedent had evidenced his intent and had done sufficient acts to make his estate the beneficiary of the insurance proceeds. For reversal, appellant Kathryn L. Allen contends:
POINT I. “The trial court erred in finding that the property division and settlement of Dr. Allen and appellant confirmed by its decree divested appellant of any right, title, claim or interest she had or contemplated in Continental Assurance Policy No. LI 9195-A8.
POINT II. The trial court erred in finding that the ‘Change of Beneficiary’ executed by Dr. Allen on February 4, 1972, after the divorce, changed the beneficiary on all his life insurance policies to his estate, except for the $60,000.00 policy covered by the divorce decree.
POINT ill. The trial court erred in finding that the ‘Change of Beneficiary’ document coupled with the will provisions of Dr. Allen ¿ccomplished a change of beneficiaries in accordance with the laws of Arkansas.”
The stipulated facts show that prior to January 18, 1972, Kathryn L. Allen and the decedent Dr. George W. Allen were husband and wife. During that marriage several policies of life insurance, including the two here involved, were obtained by Dr. George W. Allen and appellant was the named beneficiary in most, if not all, of said policies. The divorce decree dated January 18, 1972 provided that Dr. George W. Allen would transfer to appellant $60,000.00 of life insurance and that he would pay the premiums and maintain it in force until appellant attained the age of 65. In return, appellant generally released and relinquished any claim and interest she might have in any of the properties mentioned in the decree. However, the decree did not specifically mention the policies here involved. Approximately two weeks following the divorce, Dr. Allen executed the following written instrument:
“CHANGE OF BENEFICIARIES OF LIFE INSURANCE POLICIES
At the time this instrument is executed, all of my policies of life insurance on my life are in the hands of Warner, Warner, Ragan & Smith, Attorneys who have represented my divorced wife Kathryn L. Allen in a divorce case between us recently concluded. Under the terms of the divorce Decree, $60,000.00 of life insurance coverage on my life is to be transferred to Kathryn L. Allen, and I am to pay the premiums of this insurance coverage and maintain it in force until Kathryn L. Allen has attained the age of 65
By this instrument, I hereby change the beneficiaries of all of these life insurance policies, except the $60,000.00 coverage (face amount) mentioned above which is to be transferred to Kathryn L. Allen, and maintained in force by me for her benefit.
From and after this date, the beneficiary of all of my life insurance policies, except the $60,000.00 coverage mentioned above which is to be transferred to Kathryn L. Allen, shall be the estate of George W. Allen.
Dated at Fort Smith, Arkansas, this 4th day of February, 1972.
/s/ George W. Allen”
Thereafter, Dr. Allen cashed in some of his life insurance policies and permitted others to lapse. After his remarriage he took out a $100,000 policy in favor of his new wife. However, no change of beneficiary was made on the two policies here involved. Dr. Allen died February 24, 1975. The proceeds of the $60,000.00 policy transferred in the divorce decree to appellant have been paid to appellant. The proceeds of the $100,000 life insurance policy in which the new wife was designated the beneficiary have been paid to the new wife. By his Will Dr. Allen provided: “I give, devise and bequeath all of my property and estate, real, personal and mixed, wherever located, and whether acquired before or after the execution of this Will, to my Trustee, in Trust. . . ” [for his three children by appellant]. It was stipulated that the instrument entitled “Change of Beneficiaries of Life Insurance Policies” was left in his lawyer’s office and was not transmitted to any insurance company. With respect to change of beneficiary, the Continental Assurance Company Policy provides:
“Any Insured who has not made an irrevocable designation of beneficiary may designate a new beneficiary at any time, without the consent of the beneficiary, by filing with the American Geriatrics Society a written request for such change, but such change shall become effective only upon receipt of such request at the Home Office of the Company. When such request is received by the Company, whether the Insured be then living or not, the change of beneficiary shall relate back to and take effect as of the date of execution of the written request, but without prejudice to the Company on account of any payment theretofore made by it.”
With respect to the profit sharing plan with Investors Diver sified Services, Inc., it was stipulated that appellant was the designated beneficiary under the Plan in Custodial Account “A” and that so far as here pertinent the profit sharing plan provides:
“(b) Distributions payable at death under this Article shall be made to the beneficiary designated by the Participant on an acceptable form. With respect to Participant’s interest held under Custodial Account “A” such designation may be changed by the Participant’s filing a written notice of change with the Employer with respect to Participant’s interest held under Custodial Account “B” such designation may be changed by Participant filing a written notice of change with the issuer of the contracts held thereunder in accordance with the terms of such contracts. If no beneficiary is designated as of the date of death of the Participant, such distributions shall be made to the estate of the Participant.”
POINT I. The rights of a divorced spouse after a property settlement to the proceeds of a life insurance policy as the designated beneficiary in policies specifically designated in the divorce decree were before us in Mabbitt v. Wilkerson, 220 Ark. 270, 247 S.W. 2d 201 (1952) and Harris v. Brewer, 239 Ark. 614, 390 S.W. 2d 630 (1965). While holding in both cases that the surviving ex-spouse could not take as a beneficiary, the latter case was affirmed by a 4 to 3 vote only upon the reluctant concurrence of Justice Ed. F. McFaddin who, in doing so, stated: Brewer, supra, detract from its value as a precedent, we need not now re-examine its precedential value, because both Mabbitt v. Wilkerson, supra, and Harris v. Brewer, supra, involved divorce decrees in which the specific policies of insurance were specifically mentioned and agreed upon. The property settlement here incorporated into the decree of divorce between appellant and Dr. Allen does not mention either of the policies here involved. In such situations the court has consistently determined the rights of the designated beneficiaries in such contracts of insurance according to contractual law without regard to the effect of a divorce between the insured and the beneficiary. See Walden v. McCollum, 172 Ark. 291, 288 S.W. 386 (1926). It therefore follows that the trial court erred in holding that the property division in the divorce decree divested appellant of her rights to the proceeds of the policies as a beneficiary.
“However, I have concluded that we should now give notice to the Bench and Bar that we will re-examine our former cases when a case like this one is next presented to us. For myself, I hereby give such notice. I think the weight of authority, and certainly the better reasoned cases, are contrary to our holding in Mabbitt v. Wilkerson ...” [220 Ark. 270, 247 S.W. 2d 201 (1952)].
While the dissenting and concurring opinions in Harris v.
POINT II. The “Change of Beneficiary” executed by Dr. Allen on February 4, 1972 and left in his lawyer’s office certainly cannot be considered as a substantial compliance with the contractual requirements for a change of beneficiary. Cases such as Tibbels v. Tibbels, 232 Ark. 857, 340 S.W. 2d 590 (1960), relied upon by the trial court are limited to those situations in which the insured has done everything reasonably possible to effectuate a change in beneficiary. It cannot be said that Dr. Allen’s conduct placed him in the position of having done everything reasonably possible. The record shows that he took no action for three years even though he made annual payments, surrendered and cashed policies and took out an additional policy in favor of his new wife. A mere announcement of a desire or preference, alone, does not amount to a change of a beneficiary, Dennis v. Equitable Life Assurance Society, 191 Ark. 825, 88 S.W. 2d 76 (1935).
POINT III. While our cases recognize that a change of beneficiary can be accomplished by will, Pedron v. Olds, 193 Ark. 1026, 105 S.W. 2d 70 (1937) and Clements v. Neblett, 237 Ark. 340, 372 S.W. 2d 816 (1963), the terms of the Will here only devises “all of my property and estate, real, personal and mixed wherever located. ...” Such language is insufficient to either identify the insurance policies involved or to show an intent to effectuate a change of beneficiary.
Having demonstrated that the property settlement in the divorce, the “Change of Beneficiaries” left in the lawyer’s office and the Will were ineffectual to amount to a change in the designation of appellant as the beneficiary in the life insurance policies involved, it follows that the decrees in favor of the estate of Dr. George W. Allen must be reversed and remanded for entry of decrees in favor of appellant Kathryn L. Allen not inconsistent with this opinion.
Reversed and remanded.
The parties agree that the reasoning and opinions in life insurance cases are applicable to this profit sharing plan. See 5 ALR 3d 644. | [
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Frank Holt, Justice,
in this foreclosure action brought by the appellee, the appellants interposed the defense of usury. The chancellor found the transaction between the parties was free of usury and, therefore, appellee was entitled to foreclosure. We must agree with appellants’ contention that the court erred in so finding.
In December, 1973, the appellants signed a construction note and mortgage in the amount of $28,000, bearing 10% interest per annum, in favor of appellee for the purpose of financing the construction of a residence. Advances or “draws” totaling $22,180 were made from February, 1974, through September, 1974. Subsequently, appellants sought to cancel the note and mortgage in the local federal court on the basis of usury. Appellee answered and then brought this action in the state court alleging that, despite demand for payment, the balance of $22,180 was due plus interest in the amount of $2,715.81, which represents the legal rate of interest. Appellants defended on the basis that the note and mortgage were usurious since the monthly statements, following advances on the loan, showed that appellee had monthly which resulted in exceeding the legal rate of 10% per annum simple interest. Further, the monthly statements reflected that appellee charged a daily rate of interest which also resulted in exceeding the legal rate of interest. Admittedly, the note and mortgage are not usurious on their face. No payment was ever made on the indebtedness.
Appellee is a Tennessee corporation which operates in Arkansas and Mississippi with corporate offices in Memphis. Its Arkansas manager, who negotiated the loan with appellants, testified there was never any intention to charge any interest on the loan in excess of the legal rate of interest. Appellant Lloyd Cagle responded by exhibits to his testimony which show that the appellee mailed computerized monthly statements to him from its Memphis office. These exhibits on their face show, according to the balance and interest due, that a usurious rate of interest was being charged. It appears from appellants’ computation that these exhibits reflect a compounding of interest which yields 10.4712% interest per annum. The exhibits further reflect that by the use of a daily interest factor based on a 360 day year times 365 produces an annual interest rate of 10.139% interest per annum. It appears that when both of these methods are used together it produces a simple interest rate of 10.6235296% per annum. Appellant Cagle testified that he “suspected” a usurious rate was being charged and complained to the Arkansas manager, who replied that he “had nothing to do” with computing the interest and “it all came out of Memphis.” The appellee’s manager testified that these computer print-outs were inaccurate and eventually he notified the Memphis office to discontinue them. It appears that this occurred about the time these parties were involved in litigation in federal court which, as stated, preceded briefly this state action. He admitted the print-outs computed the interest monthly and the computer was programmed to compound interest on all notes whether in Arkansas or Tennessee. He could not say whether the interest was computed on a monthly or daily basis. It appears undisputed that in a companion transaction the appellee collected a note secured by a mortgage from appellants based upon a computerized monthly statement as here.
Appellee argues that the requisite intent to collect a usurious rate of interest is not shown since the note on its face recites a valid rate of interest, no payment was ever made and the computer print-outs were erroneous. We are not convinced by this argument. There is a “conclusive legal presumption that, in the absence of fraud or mutual mistake, the lender is presumed to know the consequences of its adding an illegally excessive charge.” First National Bank v. Thompson, 249 Ark. 972, 463 S.W. 2d 87 (1971). Here there is no evidence of fraud presented and although a mistake in the computer print-out is asserted, it is certainly not a mutual mistake of the parties. We have also said that mere errors in mathematical calculations are not necessarily forgiven, thereby removing the taint of usury. Ford Motor Credit Co. v. Catalini, 238 Ark. 561, 383 S.W. 2d 99 (1964); and First National Bank v. Thompson, supra.
Here it is also argued that the lender merely made a mistake of fact as to the calculations of interest and since the action is not based on a usurious rate of interest, the note and mortgage should be enforced according to its provisions. We are not persuaded by this argument. Brooks v. Burgess, 228 Ark. 150, 306 S.W. 2d 104 (1957). There we reiterated:
It is not necessary for both parties to intend that an unlawful rate of interest shall be charged, but if the lender alone charges or receives more than is lawful, the contract is void.’
Here the lender’s monthly statements showed a computation of interest above the legal rate of interest. It appears it was not until litigation ensued that the appellee sought to collect its loan free of usury. We are not convinced that appellee’s monthly statements were mere mathematical errors in calculations. It is significant that, in a companion transaction with the appellants, the appellee made a loan to them and collected the principal and interest on.monthly computerized statements as here. We must hold that the evidence is clear and convincing that the transaction was usurious.
Reversed and remanded for entry of a decree cancelling the note and mortgage.
We agree: Harris, C.J., and George Rose Smith and Byrd, JJ.
Dissenting Opinion on Denial of Rehearing | [
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Elsijane T. Roy, Justice.
Appellant Evelyn Jean Warren was convicted of the crime of robbery with a firearm by a jury on February 21, 1975, and sentenced to a term of 5 t ears for the offense of robbery and 10 years for the use of a firearm in the commission of a felony. Judgment subsequently was entered and appellant failed to timely file her appeal. On November 10, 1975, this Court denied appellant’s motion for Rule on the Clerk to file transcript but granted her the right to proceed under Rules of Grim. Proc., Rule 1 (1976) (now Criminal Rule 37) for post-conviction relief. On August 20, 1976, the trial court issued its order denying relief under Rule 1. It is from this denial appeal is taken.
For reversal appellant first contends the trial court erred in allowing the victim to identify her at trial. Randy Williams, the prosecuting witness, testified that on September 7, 1974, at approximately 9 p.m. while on his way home he stopped behind two other cars at a stop sign in West Memphis. Williams stated that while he was stopped appellant walked up to his car, tapped on his window and demanded money. The witness testified the intersection was well lighted and that he rolled down the window, whereupon appellant pulled a gun on him and threatened to “blow his head off” if he did not give her money. Being extremely frightened appellant gave her $20 which he saw her put in a small coin purse she kept inside a larger purse, then she laughed and walked away.
Williams further testified he has 20/20 vision and that since the area was well lighted and appellant was standing only a foot or so away from him he got a good look at her for a minute to a minute and a half and was able to give a detailed description to the police. From this good description the police were able to locate appellant within a few hours. Williams stated he next saw appellant the morning following this incident at the police station and that when he saw her she was wearing the same clothes worn when she robbed him the evening before. He further stated he was absolutely positive appellant was the person who robbed him and so identified her to the police.
Subsequently Williams identified appellant at trial, but no mention was made of the pre-trial identification at the police station. Appellant contends this was unconstitutional because she had no counsel at the police station and because there was no hearing prior to trial to determine the validity of her waiver of counsel or the identification. This was not error since defendant had not at that time been charged with a crime. A person’s right to counsel attaches only when adversary proceedings have been brought against the party. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).
Furthermore, appellant’s counsel did not make the motion to suppress until minutes before trial, and the motion was not accompanied by a statement of legal reasons therefor. Thus there was no compliance with Rule 2 of the Uniform Rules for Circuit, Chancery and Probate Courts which requires filing of motions such as this 10 days before trial. Under the circumstances here it was not error to deny the motion since counsel for appellant had been appointed more than two months prior to trial. Moreover, appellant’s counsel made no objection when the victim identified Ms. Warren at the trial. We also note that appellant knowingly signed a waiver of right to counsel prior to the pre-trial identification.
Here, it is clear under the totality of the circumstances there was no substantial likelihood the prosecuting witness misidentified appellant as his robber, since (1) the witness had an excellent opportunity to view appellant during the commission of the crime; (2) the witness paid a great deal of attention during the crime; (3) he gave a most accurate description of appellant to the police, noting her unusual facial characteristic, i.e., the broken or missing tooth; and (4) the witness was most certain and positive of his identification of appellant.
Appellant’s next two allegations of error deal with the admissibility of certain evidence during the course of the trial. We find these contentions without merit. In Swisher v. State, 257 Ark. 24, 514 S.W. 2d 218 (1974), we said:
Criminal Procedure Rule 1 was not designed to permit review of mere error in the conduct of a trial and it is not a substitute for a direct appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657. The rule permits review only to determine whether a sentence is subject to collateral attack for violation of constitutional requirements or statutory enactments or for other such reasons. * * * Errors in ruling on competency of evidence are not a basis for collateral attack under Criminal Procedure Rule 1.
See also Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553 (1969); and Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973).
Appellant also challenges the sufficiency of the evidence. The testimony of Williams has already been detailed above, and Officer Covington testified that following the robbery he was given a description of the robber, and from this description he found and arrested appellant at 4:30 the morning following the incident. Clearly this evidence was more than sufficient to present a question of fact for the jury, and we do not. disturb its findings on a fact issue unless there is no substantial evidence to support the verdict. Inklebarger v. State, 252 Ark. 953, 481 S.W. 2d 750 (1972).
Appellant’s petition alleges that she remained in jail for a period of approximately three months and two weeks awaiting trial due to the fact that she was an indigent and unable to make bond.
We find appellant is entitled to credit for the time spent in jail prior to trial. The record reflects appellant was arrested and committed to jail on September 8, 1974, and was not released until about December 19, 1974, when her trial was rescheduled for February 21. The court found that appellant did not prove the time in jail was spent because of indigency. We cannot agree.
Immediately prior to sentencing the court stated:
Mot being able to employ Counsel, Evelyn Jean, the Court appointed Mr. Jacobi to represent you. * * * (Italics supplied.)
The prosecuting attorney stated he would not oppose the allowance of jail time. Under these circumstances we find credit for jail time should have been allowed.
Affirmed as modified.
We agree. Harris, C.J., and Fogleman and Hickman, JJ-
This Court now requires an in-chambers hearing on the admissibility of pre-trial identifications; such requirement did not exist at the time of this trial in 1975. See Wright and Southerland v. State, 258 Ark. 651, 528 S.W. 2d 905 (1975).
As to presumption of indigency when counsel has been appointed, see Gross v. Bishop, 273 F. Supp. 992 (1967). | [
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Conley Byrd, Justice.
Appellant Ronald Brown was charged with selling 25.6 grams of marijuana for $15 to an undercover agent on June 26, 1975 and of selling 9.5 grams of marijuana for $10 on June 30, 1975 to the same undercover agent. Appellant was age 16 at the time of the alleged sale. The jury found appellant guilty on both charges and fixed his punishment on the first charge at three years in the Department of Corrections and a $3,000 fine and at five years and a $7,000 fine on the latter charge for a total of eight years and $10,000 in fines. We reverse for the error hereinafter discussed.
The statutory penalty for delivery of marijuana, Ark. Stat. Ann. § 82-2617(a)(1 )(ii) (Supp. 1975), calls for imprisonment for not less than three nor more than ten years, a fine of not more than $15,000, or both. The trial court did not instruct the jury as to the penalty. Instead the trial court, notwithstanding that appellant submitted verdict forms in accordance with the statute, told the jury “We are preparing verdict forms, which, will be self-explanatory.” The form submitted to the jury on the first charge was as follows:
“We the jury, find the defendant, Ronald Brown, guilty in case No. CR-75-143, delivery of a controlled substance, 25.6 grams of marijuana to Don Sanders, for $15.00 and fix his punishment at - years in the Arkansas Penitentiary, and/er- a fine of__
(3 to 10 years)
(Fine not exceeding $15,000.00)
Foreman”
A similar form was submitted on the next charge.
We pointed out in Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), that where the enforcement of penalties is optional with the jury, the penalties as a whole should be explained to the jury so that the record will disclose with certainty that all of the jurors would understand their options in the assessment of the penalties. Here the verdict forms submitted indicated that the assessment of the fine was mandatory and consequently, we must hold that the trial court erred. The suggestion of the State that the matter is raised for the first time on appeal has no merit in view of the presentation of the appropriate forms to the trial court by appellant.
The only other issue that is likely to occur on a retrial of appellant is the action of the trial court in quashing a subpoena duces tecum for the weekly reports made by the undercover agent to the Arkansas State Police. The testimony given by the undercover agent was made entirely from his notes — in fact, he testified that he had no recollection as to what he was doing before or after the two purchases except as shown by his notes. According to the undercover agent, he made a daily report of his activities at the end of each day and submitted his reports to the Arkansas State Police on a weekly basis. Admittedly, the undercover agent made 20 buys of controlled substances in Conway during each of the months of June and July, 1975 — he made 13 of those purchases from nine different people during the period of June 26 through June 30th.
The undercover officer testified that his purchases were made from appellant in the presence of his girlfriend at the Wal-Mart Shopping Center area at 8:30 p.m. on both of the dates involved. It was the testimony of appellant and his girlfriend that they were approached by the undercover agent both times between 5:00 and 6:00 p.m. and that no marijuana was sold to the undercover agent. In a subsequent proceeding to confiscate the pickup truck which appellant was driving, the undercover agent signed an affidavit that the first sale occurred on June 27th. The agent testified at trial that this was error.
The subpoena duces tecum issued by appellant asked for all of the reports made by the agent for the period beginning January 1, 1975 and ending September 1, 1975. However, at the hearing to quash the subpoena appellant indicated that a lesser time span would be sufficient. While we agree with the trial court that the request for the records from January 1, 1975 through September 1, 1975 would be too broad, in view of the possibility of a retrial, we cannot agree with the State’s contentions that appellant was not entitled to any of the records. Appellant was entitled on rebuttal to show the method used by the undercover agent in making his weekly reports, how he calculated his time, and whom he contacted both before and after the alleged purchases involved. The method and manner used by the undercover agent in securing the several purchases made during the week of June 26th and the Week of June 30th could also go to the extent of the punishment. Of course, in view of Ark. Rules of Grim. Proc. 17.1 (d) which enjoins upon the prosecuting attorney the duty to furnish to defense counsel “any material or information . . . which tends to negate the guilt of the defendant ... or would tend to reduce the punishment. . it may not be necessary for the appellant to seek a subpoena duces tecum for the weekly reports for the week of June 26th and the week of June 30th.
The other issues argued are not apt to arise upon a new trial.
Reversed and remanded.
We agree: Harris, C.J., and Fogleman and Hickman, JJ. | [
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Elsijane T. Roy, Justice.
Appellant Billy Woodard was charged with capital felony murder in violation of Ark. Stat. Ann. § 41-4702 (Supp. 1973). The information charged that appellant on September 3, 1975, while robbing C. M. Baker shot the victim, causing his death. The jury returned a verdict of guilty as charged and after further deliberation determined appellant should be sentenced to death. The court entered judgment accordingly. This appeal is from that judgment and sentence.
The record reflects Baker was a resident of Craighead County, Arkansas. The last day he was seen alive was September 3, 1975. Some hunters discovered his body in the floodway area near Payneway on September 7, and notified the Poinsett County sheriff’s office. An investigation revealed appellant had been at the Baker home on the last day that Baker had been seen there by his wife.
After the body was found appellant was brought to the Craighead County sheriff’s office for questioning on September 7, 1975; a statement was taken from him at that time and he signed a consent for the officers to search his mobile home. A search was conducted and appellant gave the officers a 12 gauge shotgun they found there. He was then released.
More than a month later the crime had not been solved, and on October 10, 1975, appellant again was picked up by the Craighead County sheriff’s department and taken to the sheriff’s office in Jonesboro, where he was fingerprinted and photographed. Craighead County Deputy Sheriff Findley and State Police Investigator Odom drove appellant to the scene where the body was found, and, after being questioned and shown photographs of the deceased, appellant gave a statement to the police officers admitting he had shot and killed the deceased and had taken his billfold which contained about SI60. Officers Odom and Findley, after placing appellant under arrest and charging him with capital felony murder, delivered him to the Poinsett County jail.
On the same day appellant gave another statement to the Poinsett County sheriff’s office which was essentially the same statement as that given to the State Police. On October 11, appellant also made a tape recorded statement which was almost identical to the first two statements. All these statements were admitted over objections at the trial. Appellant took the stand and repudiated all three statements and denied having killed or robbed the deceased.
For reversal appellant first contends the court erred in admitting appellant’s confession taken by officers Odom and Findley on October 10, 1975.
Appellant testified that Findley had contacted him following discovery of Baker’s body and had taken him to the sheriff’s office for questioning around 10:30 a.m. on September 7. He stated he did not fully understand at that time that he either had a right to give a statement or not give a statement as he desired; that, although the sheriff’s department knew he was a diabetic he was refused an insulin shot; and that he arrived at the sheriff’s office about 10:30 a.m. and that he did not have anything to eat or have an insulin shot from that time until a little after 4 p.m. (It is noted appellant made no self-incriminating statement at this time.)
Appellant also testified that on the 10th day of October he was arrested at 7 a.m. and was detained in the Craighead County Sheriff’s office until shortly before noon; that he was photographed and fingerprinted; that he was taken to the place where the victim’s body was discovered and was shown a number of photographs of the victim; that he was also told he might have to stay at the scene all night; and that he was physically abused before*he gave the statement.
The trial court, pursuant to Ark. Stat. Ann. § 43-2105 (Supp. 1975), held the required Denno hearing to consider the circumstances surrounding the giving of appellant’s confessions. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Under this statute it is the duty of the court “ . . . before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.” Appellee contends the record clearly supports the court’s finding that all these confessions were voluntary.
This Court, in Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975), rehearing denied January 26, 1976, has stated that:
* * * Whenever the voluntariness of a defendant’s confession is disputed on federal constitutional grounds, we make an independent determination from a review of the entire record. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974); Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761; 16 L. Ed. 2d 895 (1966); and Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968). In doing so, however, we do not set aside a trial court’s finding of voluntariness unless the finding is “clearly erroneous.” Degler v. State, supra. This standard of review is in accord with that of the federal courts. United States v. United States Gypsum Co., 333 U.S. 364 (1948), and Maple Island Farm v. Bitterling, 209 F. 2d 867 (8th Cir. 1954).
At the Demo hearing Officer Odom, the State Police investigator who actually took appellant’s confession on October 10, 1975, testified that by the use of a rights form he advised appellant of all his rights. Odom also testified that appellant then signed the waiver of rights form. Appellant had received an insulin shot about ten o’clock that morning. After fingerprinting appellant, Odom took him and Findley to a restaurant for lunch. After lunch appellant, Findley and Odom left Jonesboro and traveled to the scene of the crime. Appellant had stated he did not object. On arriving at the crime scene appellant was again advised of his rights. After more questioning from the officers Woodard made his first statement. Odom denied he told appellant they were going to question him until he confessed and that to his knowledge no one coerced appellant, promised him anything, intimidated him or beat him to obtain the confession.
Appellant’s confession was very detailed, consisting of ten handwritten pages. It was written by Officer Odom, but each page was signed by appellant and the statement concluded as follows: “All of this statement is true and correct to the best of my knowledge. I make this statement without threats or promises being made to me. ” In the margin of the last page and followed by appellant’s initials is the following statement: “Before making this statement I had been informed of my constitutional rights and understood them.” Odom testified further that he then read the entire statement to appellant and appellant signed each page after some corrections were made. Appellant also read the confession and made some changes in it himself according to Odom.
Deputy Findley testified that on October 10 he stopped appellant’s truck and asked him if he would come to the sheriff’s office, and appellant complied with the request. According to Findley, Odom read appellant his constitutional rights and appellant indicated he understood them. Findley further testified there were no threats, coercion or promises of lenient treatment made to appellant. In addition, Findley denied he or Odom told appellant it would be best for him to make a statement. According to Findley when he, Odom and appellant arrived at the crime scene Odom again advised appellant of his constitutional rights. Contrary to the claims of appellant, Findley denied he physically mistreated appellant. In response to questions by the trial court, Findley denied he or Odom told appellant “if he would sign a confession that he had the easiest out in the world and that [they] would see that he got medical help.”
The trial court found appellant was informed of his constitutional rights, that he knowingly and intelligently waived his right against self-incrimination and that the statement was made voluntarily. We find that the trial court’s determination of voluntariness was not “clearly erroneous. ” Neal, supra, and Degler, supra.
Appellant next urges that the statement given to Sheriff Crawford and Deputy Sheriff Walker later on October 10 and the taped statement given the next day were illegally admitted as evidence. Appellant contends the earlier October 10th statement was involuntary and that consequently the subsequent confessions were also tainted by the same influences and therefore inadmissible.
In Payne v. State, 231 Ark. 727, 332 S.W. 2d 233 (1960), as to the admissibility of confessions we adhered to the rule announced in Love v. State, 22 Ark. 336 (1860), that when the original confession has been made under illegal influence, such influence will be presumed to continue and color all subsequent confessions, unless the contrary is clearly shown.
However, appellant’s reliance upon Payne and other similar citations is misplaced because, as heretofore pointed out, we do not find the first confession was procured by illegal means. Even if we assume the statement given Officers Odom and Findley was involuntary, it does not automatically follow that the subsequent confessions are as a matter of law involuntary.
In Matthews v. State, 261 Ark. 532, 549 S.W. 2d 492 (1977), this Court held:
* * * Whether a confession subsequent to one obtained by unlawful pressure is voluntary depends upon whether an inference as to the continuing effect of the coercive practices may fairly be drawn from the surrounding circumstances and is determined by a conclusion as to whether the accused, at the time of the second confession, was in possession of mental freedom to confess or deny his suspected participation in a crime. The effect of earlier abuse may be so clear as to forbid any inference other than that the later confession is involuntary. On the other hand, one making a confession which is involuntary is not perpetually disabled from making a voluntary confession after the conditions of abuse have been removed. Lapse of time is an important consideration. (Italics supplied.)
In the present case the incriminating statements given by appellant to Sheriff Crawford and Deputy Sheriff Walker were made while he was in possession of the mental freedom to confess or deny his participation in the crime. There had been a lapse of time and change of circumstances since the earlier statement had been given.
After Officers Odom and Findley had taken the confession of appellant at the crime scene they took him to Harrisburg (Poinsett County) and released him into the custody of Sheriff Gerald Crawford of Poinsett County.
Crawford testified at the Denno hearing that after appellant was delivered to the sheriff’s office all of his rights were read to him by either Crawford or his deputy, James Walker. He further testified he did not know appellant had given the previous statement to Craighead County officials when his confession was taken by Poinsett County officers.
Sheriff Crawford testified appellant told him Officers Odom and Findley “were kind of mean to him” and that he (appellant) had rather be locked up in Sheriff Crawford’s jail than in Craighead County; that appellant did not tell him specifically what Odom and Findley allegedly had done but that he saw no bruises on appellant’s face or body.
Deputy Walker stated appellant did not raise any questions about, not Understanding his rights at the time the statement was given; that he appeared to understand his rights; that he had all of his faculties and appeared to be intelligent; that he answered the questions clearly and concisely; and that he freely and voluntarily made the statement. This second statement was almost identical with the earlier statement except it contained even more details.
The testimony of appellant himself at the Demo hearing constituted strong evidence that the confession appellant made to the Poinsett County officers was not made while he was under duress and was not tainted by any previous coercive influences. He testified he was not afraid of Deputy Walker, that he trusted him and that he was not threatened or mistreated by him. He also testified Sheriff Crawford treated him kindly and he was not afraid of Crawford but wanted to get away from the Craighead County officers.
The following morning, October 11, 1975, appellant gave Deputy Walker another statement, which was recorded. Before the statement was given appellant was again advised of his rights. According to Walker, appellant had no objection to making the statement, appeared rested and comfortable and was not threatened, abused or mistreated in any way. At trial appellant objected because the taped statement had not been in Walker’s custody, but Walker testified he had heard the play-back of the tape and that it had not been edited, tampered with or altered in any manner from the time it was made to him until the time of the introduction of the tape in evidence.
For the foregoing reasons we find the trial court did not err in admitting all three of the statements challenged by appellant.
Since the rule excluding witnesses from the courtroom was in effect during the trial, appellant urges the trial court erred in permitting a witness who had been in the courtroom during the proceedings to testify as a rebuttal witness.
At trial appellant took the stand and repudiated all three statements. Also on cross-examination when asked what he told the newspaperman who was taking pictures at the floodway area in Poinsett County appellant stated, “I didn’t tell him nothing.”
The trial judge, in holding Larry Fugate, the reporter, could testify in rebuttal, stated:
it will be the ruling of the Court that the State will be permitted to call the witnesses Larry Fugate and Paul Holmes in rebuttal testimony, the State not having used these witnesses in its case in chief, having presented not one but three separate and independent confessions purportedly made by the defendant. The defendant having taken the stand and testified in his own behalf. I believe the State could not know or anticipate in advance or during its case in chief, the defense did call both of these witnesses in their pre-trial motion in this case and was aware of these witnesses having reported this case extensively at the time of its occurrence. So the defense could hardly be surprised by any knowledge that these witnesses might have. And they being called for the purpose of rebuttal, the necessity of that rebuttal having developed during the cross-examination of the defendant, the objection will be overruled.
We find the trial judge did not abuse his discretion in allowing Fugate to testify. In Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975), this Court stated:
The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624. The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free, in argument to the jury, to raise an issue as to his credibility by reason of his conduct, the party, who is innocent of the rule’s violation, should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W. 2d 277; Mobley v. State, 251 Ark. 448, 473 S.W. 2d 176.
This Court in Morris v. State, 259 Ark. 755, 536 S.W. 2d 298 (1976), reaffirmed the principle enunciated in Williams, supra.
Fugate testified appellant told “Sheriff Crawford, in my presence, that he threw a billfold, a pair of shoes, and three expended shotgun shells into the water.” His testimony continued:
* * * He said that after he threw the shotgun shells and the shoes and the billfold into the water, he went up on a little hill or clump up north of the cut and slightly west of it and sat there for a while saying something to the effect of what have I done.
Appellant next argues that the trial court erred in including as an aggravating circumstance the question as to whether the capital murder was committed for pecuniary gain after the jury had returned a verdict of guilty to capital felony murder committed in perpetration of robbery.
We find it is within legislative prerogative to determine the factors to be considered by a jury when it decides whether the crime justifies the imposition of death as a sentence or life imprisonment without parole. Guidelines are necessary to enactment of a valid statute. In Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), in his plurality opinion Justice Stewart stated:
We have long recognized that “[f]or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender. ” Pennsylvania v. Ashe, 302 U.S. 51, 55, 82 L. Ed. 2d 43, 58 S. Ct. 59 (1937). * * *
* * *
. . . [T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that insures that the sentencing authority is given adequate information and guidance.
Certainly whether the crime was committed for pecuniary gain is a pertinent and proper factor for the jury’s consideration in determining whether the death sentence should be imposed.
The last point urged by appellant is that the court erred in failing to instruct the jury that it was not necessary to find mitigating circumstances in order to return a verdict of life imprisonment without parole.
Appellant’s position is based on the following episode in the trial. The jury, having found appellant guilty as charged, retired again to determine the imposition of punishment issue and subsequently returned to the courtroom.
JUROR KNIGHT: We have a question.
THE COURT: What is your question, Mr. Foreman?
JUROR KNIGHT: We have answered Form A and B and we have come down to section II-C.
THE COURT: Form C, number one?
JUROR KNIGHT: We are down to section II.
THE COURT: And what is your question?
JUROR KNIGHT: Your Honor, the way we have answered Forms A and B, section one, we have come down to section two where according to the law we have only one place to mark, and we can’t agree upon that now.
THE COURT: Without stating — how are you divided numerically? I take it you have answered all of the questions on Form A and B and all questions on Form C, part one, which is A, B, C, and D?
JUROR KNIGHT: Right.
Continuing the discussion concerning Form C:
THE COURT: Are you down to part two, A and B?
JUROR KNIGHT: Right.
THE COURT: And you cannot agree as between A and B?
JUROR KNIGHT: Yes, sir.
THE COURT: How are you numerically divided on that question?
JUROR KNIGHT: Seven and five.
THE COURT: Ladies and Gentlemen, it is now only twenty minutes until four. You have not been deliberating over a very long period of time. Without further instructions, I am going to require you to retire and deliberate and see if you cannot reconcile your differences by further deliberations and discussion among yourselves permitting everyone to be heard, to express their views and their opinions. Those opinions should prevail which appear most reasonable, logical, and sound.
You may now retire and deliberate, and if you are unable after a reasonable period of time, notify the bailiff.
Thereafter within a short period of time the jury returned with the unanimous verdict imposing the death sentence.
Appellant contends that the exchange between the judge and jury indicates “that the jury had the honest, though erroneous belief that since they had found aggravating circumstances existed, but found no mitigating circumstances, they had no choice but to render a verdict of death by electrocution. ” It is impossible now to ascertain the thinking of the jury, but we do not find the facts support this assumption made by appellant.
In order to determine if this point has merit we must review the events which transpired in light of the pertinent provisions of our statutes, Ark. Stat. Ann. §§ 41-4701 et seq. (Supp. 1973).
§ 41-4710. Trial procedure-Verdict in writing. A person charged with a capital felony shall be given a jury trial and sentenced pursuant to the following procedure:
(a) After presentation of all evidence and witnesses to be offered by the State and/or the defendant as to the guilt or innocence of the defendant, instructions to the jury, and argument by counsel, the jury shall retire and consider the case.
(b) If the jury finds the defendant guilty of a capital felony, the same jury shall sit again to determine whether the defendant shall be sentenced to death or life imprisonment without parole.
(c) In the proceeding to determine sentence, evidence may be presented as to any matters relevant to sentence and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in Sections 11 [§ 41-4711] and 12 [§ 41-4712] of this act. The State and the defendant or his counsel shall be permitted to present argument for or against the sentence of death.
(d) After hearing all the evidence as to sentence, the jury shall again retire and render a sentence based upon the following:
(i) whether beyond a reasonable doubt sufficient aggravating circumstances, as enumerated in Section 11 [§ 41-4711] of this act, exist to justify a sentence of death;
(ii) whether sufficient mitigating circumstances as enumerated in Section 12 [§ 41-4712] of this act exist to justify a sentence of life imprisonment without parole.
(e) The jury in rendering its verdict shall set forth in writing its findings as to each of the aggravating or mitigating circumstances enumerated in Sections 11 [§ 41-4711] and 12 [§ 41-4712] hereof and sliall set forth in writing its conclusion:
(i) that sufficient aggravating circumstances (do or do not) exist beyond a reasonable doubt to justify a sentence of death;
(ii) that there are (or are not) sufficient mitigating circumstances to outweigh the aggravating circumstances.
(f) if the jury does not make the findings requiring the death sentence by unanimous verdict, the court shall impose sentence of life imprisonment without parole [Acts 1973, No. 438, § 10, p__].
Section 41-4711 denominates the aggravating circumstances, and § 41-4712 the mitigating circumstances to be considered by the jury.
The court in accordance with our statutes instructed the jury as follows:
* * *
The aggravating circumstances set forth on Form A, which will be given to you, are the only circumstances that you may consider as aggravating circumstances. If you find that one or more of these aggravating circumstances existed beyond a reasonable doubt at the time of the commission of capital felony murder, you shall indicate your findings by checking the appropriate circumstance or circumstances on Form A, entitled Aggravating Circumstances, which shall be furnished to you before retiring.
A mitigating circumstance is one which does not justify or excuse the offense in question but may be considered as reducing the degree of the defendant’s punishment. The circumstances set forth on Form B, entitled Mitigating Circumstances, which will be given to you before you retire, are not the only circumstances which you may consider as mitigating circumstances. If you find that one or more of these mitigating circumstances existed at the time of the commission of capital felony murder, you shall likewise indicate your findings by checking the appropriate circumstance or circumstances on Form B, entitled Mitigating Circumstances.
If you find that any other mitigating circumstance or circumstances existed which are not set out in Form B, you shall indicate this finding in the appropriate space on Form B and write in such circumstance or circumstances on the back side of that form.
After making the determination required to complete Forms A and B, you shall then set forth in writing your conclusions on Form C, entitled Conclusions and Verdict, which will also be provided to you before you retire.
You may not return a verdict imposing the sentence of death unless you make written findings and conclusions first that beyond a reasonable doubt one or more of the aggravating circumstances indicated on Form A existed at the time of the commission of capital felony murder; second, that beyond a reasonable doubt no mitigating circumstance or circumstances which you may find to exist outweighs or equals in weight the aggravated circumstance or circumstances. And third, you must find that the aggravating circumstance or circumstances found to have existed are sufficient to justify beyond a reasonable doubt a sentence of death. Finally, the findings, conclusions and verdict form must be signed by each member of the jury. A copy of these instructions will be provided for you. You will be permitted to take them to the jury room with you for your deliberations for use during your deliberations.
When the jury returned to the courtroom the foreman advised the court that the jury had already completed Part 1 of Form C. The conclusions reached under Part 1 were that:
(a) (v) One or more aggravating circumstances existed, beyond a reasonable doubt, at the time of the commission of the capital felony murder.
(b) ( s/) One or more mitigating circumstances does not exist.
(c) (J) The mitigating circumstances are not sufficient to outweight the aggravating circumstances.
(d) (>/) The aggravating circumstances are sufficient to justify beyond a reasonable doubt, the imposition of sentence of death.
By answering the questions under Part 1 of Form C, as the jury did, the members had already decided the aggravating circumstances warranted beyond a reasonable doubt the imposition of the death sentence. As indicated by the foregoing steps, the jury complied with the required statutory procedure before finding the death penalty should be imposed.
We also find the judge had fully complied with the requirements of the statute in initially instructing the jury, and since the jury had answered all questions on Forms A and B and Part 1 of Form C no additional instructions were necessary for the jury to arrive at its decision as to imposition of sentence.
Pursuant to Ark. Stat. Ann. § 43-2725 (Supp. 1975), we have reviewed the entire record for possible error not raised by appellant and find no reversible error.
At the circuit court level appellant challenged the constitutionality of §§ 41-4701, et seq. but did not question their validity on appeal. This Court in Collins v. Stale, 261 Ark. 195, 548 S.W. 2d 106 (1977), upheld the constitutionality of §§ 41-4701, et seq.; therefore, any question as to the constitutionality of the statute has been resolved against appellant.
We find the facts of this case support the sentence of death by electrocution. At appellant’s trial the jury found that the capital felony murder was, beyond a reasonable doubt, committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody and that the capita! felony murder was, beyond a reasonable doubt, committed for pecuniary gain. The jury further found that one or more of the mitigating circumstances did not exist.
According to appellant’s confession he went to the victim’s house on September 3, 1975, to work on the victim’s Chevrolet pickup truck. After appellant fixed the truck the victim asked him if he knew where a house trailer might be for sale. Appellant replied in the affirmative and, riding in appellant’s automobile, they started to look for it. During the ride appellant saw that Baker had a roll of bills and at that time decided he would rob him. After appellant’s car ran out of gas Baker got out of the car and started walking away to rest under a shade tree while appellant put ifi Some gas from a container he had in the car. According to appellant, as the victim walked away from him he “reached in the car and got my Revelation 12 gauge pump shotgun, I got 3 shotgun shells out of the door pocket of my car and loaded the gun. I figured he had at least a couple hundred dollars judging from the money I’d seen in his billfold earlier over near Harrisburg. I walked up to the front of my car, Mr. Baker was walking away from me, I put the shotgun to my right shoulder and shot him one time in the left back. He was about 22 yards away from me, he fell to his stomach, then he got up on his hands and knees, he was moaning, he started crawling away from me. Then I walked or ran up close to him, he was still on his hands and knees, still crawling, still moaning. I pumped the empty shell out of the gun and shot him in the back again, he fell on his stomach. He kept on making them moaning sounds, I pumped the shotgun and shot him again in the side of the head. He quit moaning then, he’d rolled over on his back before I shot him the 3rd time. I layed my gun down in the road, then I got him by the feet and was turning him around, his shoes come off as I was doing this, I dragged him by his feet down the road a little ways and then I drug him out in the woods. I left the body in the woods, about 6 foot from the side of the road.”
The report of the State Medical Examiner verified appellant’s confessions as to the nature of the gunshot wounds and the pictures introduced as exhibits depicted the extent of the impact of the bullets particularly the last shot which was fired at a distance of approximately one foot from the victim’s head.
Appellant was 22 years of age at the time he committed the murder, and his confession shows that no other person was involved in the crime. There was no testimony from a psychiatrist or psychologist that appellant was suffering from any mental disease or defect at the time of the murder.
We find no error in imposition of the death penalty under the facts of this case.
The judgment is affirmed.
George Rose Smith, Holt and Hickman, JJ., concur in the result but adhere to the views expressed in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).
appendix
FORM "C"
CONCLUSIONS AND VERDICT
The Jury, having reached its final conslusions, will so indicate by having its Foreman place a check mark (f'J in the appropriate space in the sentence in accordance with the Jury's findings. Your conslusions must be unanimous. Each member of the Jury will then sign at the bottom of this form.
I.
WE THE JURY CONCLUDE:
(a) (v") One or more aggravating circumstances existed, beyond a reasonable doubt, at the'time of the commission of the capital felony murder.
(b) ( ) One or more mitigating circumstances does exist.
(c) ( ) The mitigating circumstances are sufficient to outweigh the aggravating circumstances.
( ) One or more aggravating circumstances did not exist at the time of the commission of the capital felony murder.
(If answer here is that aggravating circumstances "did not exist," ship (b), (c) and (d) and check II A below*)
Kv’f One or more mitigating circumstances does not exist.
i.\Sf The mitigating circumstances are not sufficient to outweigh the aggravating circumstances. .
(d) ( ) The aggravating circumstances are not sufficient to justify the imposition of the sentence of death.
((^ The aggravating circumstances are sufficient to justify, beyond a reasonable doubt, the imposition of the sentence of death.
II.
WE THE JURY, after careful deliberation, have determined that the defendant shall be sentenced to:
A. ( ) LIFE IMPRISONMENT WITHOUT PAROLE.
B. DEATH BY ELECTROCUTION.
(In order to have checked "B" above, you must have answered number I (a) above in the affirmative, number I (c) above in the negative, and number I (d) above in the affirmative.)
At trial appellant testified the entire statement was made up by the officers and he signed it because he was afraid. It is not surprising that the jury did not attach any credibility to this testimony since appellant in all three statements gave a myriad of details which would have been unknown to anyone else, such as being invited to eat watermelon with the deceased, what was done with the body and items in the possession of the deceased, etc. Testimony from other witnesses proved the accuracy of appellant’s' statements.
Ark. Stat. Ann. § 43-2021 (Repl. 1964).
Holmes was not called to testify.
Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
As an appendix we attach hereto a copy of Form C as returned by the jury.
All three statements are in accord on all the essential elements of the crime. The last two confessions contained a few more details than the first. | [
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PER CURIAM
Petitioner was convicted of aggravated robbery in the Circuit Court of Crawford County and sentenced to 15 years in prison and fined 110,000.00. Notice of appeal was filed by petitioner’s employed trial counsel on June 21, 1976. It appears that this attorney did not perfect the appeal because he received a letter from petitioner stating that appellant did not want to appeal this conviction. Petitioner in requesting that a belated appeal be allowed, contends that this waiver of his right to appeal was not voluntary because of the prosecuting attorney’s threats to prosecute him on other charges, if he did appeal. The employed trial counsel has not been given permission by this court to withdraw. See Rule 36.26, Rules of Criminal Procedure; Rule 11 (h), Rules of the Supreme Court. Appeal has not been dismissed, in this court, in spite of the fact that notice of appeal was given. See Rule 36.20, 36.23, Rules of Criminal Procedure; Norfleet v. Norfleet, 223 Ark. 751, 268 S.W. 2d 387; Sate v. Adkisson, 251 Ark. 119, 471 S.W. 2d 332. We can not ascertain whether the appeal was ever dismissed in the trial court.
Although we can grant a belated appeal, where notice was given, and the transcript record never filed here under Rule 36.9, Rules of Criminal Procedure, there are important questions of fact to be determined before we can say that there was good reason for the failure of appellant or his attorney to file the record here, and these questions can not be resolved on affidavits.
Petitioner’s request for a belated appeal is denied without prejudice to his applying to the trial court for a hearing on the question of whether his right to appeal was voluntarily waived, and if not, for an order for the filing of a transcript of the record in this court, and without prejudice to his right to appeal to this court from any ruling adverse to him.
Byrd, J., dissents. | [
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Darrell Hickman, Justice.
This is an appeal by State Farm Insurance Company from a judgment against it for $5,-000.00 obtained by its insured, George F. Cates. The judgment was for damages covered by the uninsured motorist provision of a State Farm policy.
State Farm alleges four errors on appeal. However, the main issue is an interpretation of the uninsured motorist clause and its application to the facts in this case.
Cates was injured when his vehicle was struck in the rear by a gravel truck driven by Thomas L. Dorathy, an employee of J. T. Allen. Cates suffered damages of at least $20,000.00. Cates, in a separate case, sued Dorathy and Allen, and Allen’s insurance company paid the limits of its policy, $5,-000.00. Louisiana Industries, Inc., who paid Allen for hauling gravel, was joined in the suit. Its insurance company paid Cates $7,500.00, but in the settlement agreement denied that it was the employer of Allen or Dorathy and recited that the settlement was a compromise of a doubtful and disputed claim.
Cates’ insurance with State Farm provided for a maximum of $10,000.00 coverage for personal injury damages resulting from an accident caused by an uninsured vehicle. When State Farm refused to pay Cates, this suit was filed. Cates asked for $5,000.00 plus a penalty and attorney’s fee.
The lower court asked the jury to determine fault, fix damages, and decide if Dorathy, the gravel truck driver, was working as an employee or agent of Louisiana Industries at the time of the accident. The jury found Dorathy at fault, fixed damages at $20,000.00, and found Dorathy was not working as an employee or agent of Louisiana Industries at the time of the accident. The court, based on these findings, granted Cates judgment against State Farm for $5,000.00, plus 12% penalty and $1,500.00 attorney’s fee.
The court properly instructed the jury on the law and the findings of the jury and the court will be affirmed.
State Farm argues on appeal the gravel truck was insured and if not, the payment of $7,500.00 by Louisiana Industries should reduce its liability to zero.
The State Farm policy describes an uninsured vehicle as one not insured to the limits of the Financial Responsibility Law, $10,000.00; or a vehicle which has no insurance “. . . applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle. ...” Obviously there was $5,000.00 insurance on the vehicle, which left $5,000.00 “uninsured” according to Arkansas law. Ark. Stat. Ann. § 66-4003 (Repl. 1966). Therefore, the question is, did Louisiana Industries’ insurance cover the gravel truck? If it did, the truck would be insured. If not, the truck would be uninsured. Since the jury found that Dorathy was not an agent or employee of Louisiana Industries, it follows that Louisiana Industries was not legally responsible for the use of the vehicle. Therefore, the truck was uninsured.
State Farm argues that the jury should have been asked to determine the relationship of J. T. Allen to Louisiana Industries, rather than Dorathy’s relationship. This argument is without merit because Dorathy was using the truck and caused the accident, not J. T. Allen.
State Farm also argues that even if the vehicle was uninsured, the $7,500.00 settlement paid to Cates by Louisiana Industries should reduce State Farm’s liability to zero. The State Farm policy does provide for a reduction of liability. The policy reads that any payment by “. . . any other person or organization jointly or severally liable together with such owner or operator for such bodily injury. ...” will reduce State Farm’s liability. The key word here is “liable.” The jury made a finding that Dorathy, the gravel truck driver, was not working for Louisiana Industries and, therefore, Louisiana Industries was not legally responsible or liable for Dorathv’s actions. See Courson v. Maryland Casualty Company, 475 F. 2d 1030 (8th Cir. 1973).
Finally, State Farm argues the court erred in overruling a motion for summary judgment and preventing the introduction of certain evidence. There was obviously a dispute of a material fact and the motion for summary judgment was properly denied. Southland Ins. v. Northwestern Nat’l. Inc., 255 Ark. 802, 502 S.W. 2d 474 (1973). State Farm offered into evidence some pleadings in the case of Cates v. Allen and Louisiana Industries, and the settlement agreement between Cates and Louisiana Industries. The court ruled in chambers that these pleadings and the settlement agreement should not be before the jury. The court was correct, because the jury needed to decide, without prejudice, the legal relationship between Louisiana Industries and Dorathy.
In summary, Cates received, through his legal efforts, a $7,500.00 settlement from Louisiana Industries’ insurance company. It was determined by a jury that Louisiana In dustries was not liable or legally responsible for Dorathy’s actions. Gates should not be penalized for his successful legal efforts, nor should State Farm be absolved of its legal responsibilities under their contract. An additional $500.00 attorney’s fee will be awarded.
Affirmed.
We agree. Harris, C.J., and George Rose Smith and Holt, JJ. | [
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Frank Holt, Justice.
Appellee was indefinitely suspended without pay by the chief of police from his position as a sergeant with the North Little Rock Police Department pending an investigation into certain criminal offenses involving appellee. The commission upheld the appellee’s suspension and he appealed to the circuit court seeking to recover his loss of wages from the date of his suspension until his resignation approximately eleven months later. The record before us does not reflect the ultimate disposition of the investigation. The court limited the appellee’s suspension to thirty days without pay on the basis that Ark. Stat. Ann. § 19-1603 (Repl. 1968) prohibits a suspension without pay in excess of that time period. The court then rendered judgment for appellee in the amount of his back pay less the offsets from appellee’s pay during his thirty day suspension and his outside earnings during the entire suspension. For reversal appellant contends that the court erred in its interpretation of the statute. It is argued that the statute should be “liberally” construed to permit a longer suspension than thirty days “where exigent circumstances so demand,” and, further, the commission’s power to discharge an employee impliedly gives it the incidental power to suspend for more than thirty days.
§ 19-1603 provides:
Rules and regulations. — The Board of Civil Service Commissioners herein provided shall prescribe, amend and enforce rules and regulations governing the fire and police departments of their respective cities, and said rules and regulations shall have the same force and effect of law. ****
These rules shall provide: ****
10th. For suspension for not longer than 30 days ****
The Commission shall adopt such rules not inconsistent with the act for the necessary enforcement of the act.
It appears that the appellart’s Civil Service and Police Department Rules also expressly limit a suspension of an officer or fireman to a definite period of thirty days as one form of disciplinary action.
Even so, appellant argues that exigent circumstances existed here since there was a pending invesitgation, in which appellee failed to properly assist and cooperate, with reference to appellee’s alleged criminal misconduct involving burglary and attempted rape. Therefore, a liberal construction of the statute and rules justified the indefinite suspension without pay. Appellant points out that its Civil Service Rules provide that “it shall be the duty of the authorities to take such action as the circumstances may warrant to maintain the standards of effective service.” The Police Department Rules and Regulations are of similar tenor. However, these rules as to Civil Service employees are subject to the restrictions imposed by the legislature. §§ 19-1603 and 19-1604.
We have held that “[T]he meaning of a statute must be determined from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning. **** It is our duty to construe a legislative enactment just as it reads.” Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W. 2d 881 (1965). We have also said “[I]n construing statutes in the absence of any indication of a different legislative intent, we give words their ordinary and usually accepted meaning in common language.” Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W. 2d 30 (1973).
In the case at bar the legislature, in plain and ordinary words, expressly limited a suspension of a policeman or fireman to a period of thirty days and then directed the appellant “[t]o adopt such rules not inconsistent with the act.” Therefore, the trial court was correct in its interpretation of the act. To hold otherwise would be contrary to the obvious and unambiguous intent of the legislature. That forum and not the courts is the proper place to urge a change in this legislative enactment.
Appellant finally contends that the court’s judgment was a summary judgment which was improper “as there was a genuine issue of material fact in regard to any set-off due to the city.” We cannot agree. The trial court awarded appellee judgment for the wages lost during the entire suspension period less the outside income he had earned and the sum of his salary for one month. The latter amount represents the thirty day suspension which was found to be justified by the court. See Ark. Stat. Ann. § 19-1605.1 (Repl. 1968). In response to appellee’s motion for a summary judgment, appellant replied that the issues of fact in appellee’s affidavit were uncontroverted except as to whether appellee’s indefinite suspension was justified. We have just said, as a matter of law, that the statute forbids it. The appellant made no request for any offset to which it might have been entitled and neither party requested permission to present additional evidence to the court in the de novo proceeding.
Affirmed.
We agree: Harris, C.J., and George Rose Smith, and Byrd, JJ. | [
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Conley Byrd, Justice.
Following our decision in Martindale v. Honey, 259 Ark. 416, 533 S.W. 2d 198 (1976), appellee Charles L. Honey moved for summary judgment on the issue of whether he should account for the funds he received in his capacity as deputy prosecuting attorney. Attached to the motion for summary judgment was the appellee’s affidavit showing that in accepting the funds he had in good faith performed the duties of the office by and with the consent of the Nevada County Circuit Court in accordance with Ark. Stat. Ann. § 24-119 (Repl. 1962). Appellant without filing counter affidavits responded:
“The defendant is not entitled to summary judgment because there are material issues of fact which the court must determine. These issues include:
1. If the defendant’s alleged good faith does constitute a defense to an accounting to plaintiff, the Court must decide the fact question whether the defendant acted in good faith and for what time period during his appointment as deputy prosecutor the defense is available.”
Based upon the record, the trial court entered a summary judgment in favor of appellee.
For reversal appellant here contends the trial court erred because Article 5 § 10 and Article 16 § 13 of the Constitution of Arkansas prohibits a member of the General Assembly from exercising the power or receiving the remuneration of other state offices while he is a member of the General Assembly. In making these contentions, appellant recognizes that we have held to the contrary in Starnes v. Sadler, 237 Ark. 325, 372 S.W. 2d 585 (1963) and Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279 (1964), but contends that they have been overruled by Tedford v. Mears, 258 Ark. 450, 526 S.W. 2d 1 (1975) and Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726 (1974). We adhere to the position stated in Starnes v. Sadler, supra, as follows:
“Concerning the prayer of appellants for an accounting by appellees of any funds unlawfully received by virtue of holding dual offices, there is nothing in the record to justify a finding that appellants have acted with any fraudulent intent, or that they have even appreciated the possibility of their holding illegal offices. Under the circumstances, those appellants should not be required to account for funds received for services rendered and expenses incurred as Members of the involved State Boards.”
Mackey v. McDonald, supra, involved an action to prevent the future illegal expenditure of federal revenue sharing funds and did not involve a reimbursement of funds expended in good faith. Neither can appellant find any relief in Tedford v. Mears, supra, which involved a specific constitutional prohibition against an officer receiving emoluments of his office in excess of a stated sum per annum. Here the constitutional prohibition involved only Article 5 § 10 prohibiting a member of the General Assembly from being appointed or elected to any civil office during the term for which he was elected.
Of course, to adopt the position of appellant here, the State, notwithstanding appellee’s good faith performance, would be in the position of accepting a windfall. Such a construction should not be given to a constitutional prohibition unless the context thereof clearly indicates that such a penalty should be exacted.
Affirmed.
Hickman, J., concurs. | [
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Conley Byrd, Justice.
This is an ejectment action brought by appellees William A. Brandon and Betty J. Brandon against appellants Mid-South Partitions, Inc., Bruce and Marjorie Thalheimer and Charles Leon and Linda Smith to settle a boundary dispute. The jury found the issues in favor of appellees. For reversal, appellants contend that the trial court erred in refusing to submit to the jury their instruction on adverse possession.
Admittedly appellants did not affirmatively plead adverse possession. However, they contend that in an ejectment action one does not have to affirmatively plead adverse possession and cite as authority Floyd v. Ricks, 14 Ark. 286 (1853) to the effect that in ejectment under a general denial it is permissible for the defendant to show any title either freehold or possessory which will defeat the plaintiff’s title. In making this argument, the appellants overlook Ark. Stat. Ann. § 34-1408 (Repl. 1962) which now requires the defendant in an ejectment action to state the facts showing a prima facie title. As we construe that statute, it requires a defendant to affirmatively plead the defense of adverse possession. See Stolz v. Franklin, 258 Ark. 999, 531 S.W. 2d 1 (1975), and Bridgman v. Drilling, 218 Ark. 772, 238 S.W. 2d 645 (1951).
In the alternative, the appellants contend that the issue of adverse possession was placed before the court by the complaint of the plaintiff. This contention is disputed by the appellees, but we need not reach it because as we view the record the evidence was insufficient to warrant the giving of the instruction.
For the appellants to show adverse possession it was necessary for them to tack their possession to J. M. Mullins, a former owner. Mr. Mullins testified that he purchased the property in 1961 and that he later constructed a building on a portion thereof. When he purchased the property he had it surveyed and the survey stakes were placed close to a fence. Later when the Teamster’s Building was erected, the contractor doing the work placed some dirt on Mullin’s property and smoothed it out close to the fence. Nowhere does Mr. Mullins show that he openly, notoriously and adversely held the property up to the fence. Other witnesses testified that they found evidence of a fence along the disputed strip but nobody testified what kind of a fence was involved nor that it was recognized by any adjoining owner as the boundary.
Upon the record, we cannot find any substantial evidence to support appellants’ claim of adverse possession. Consequently, the trial court did not err in refusing their instruction.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Holt, JJ. | [
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George Rose Smith, Justice.
This suit for an accounting was brought by the appellants as taxpayers and patrons of Junction City School District No. 75. The defendants are the members of the district’s board of directors and its superintendent of schools. After the case had been pending for more than a year it was set for a hearing on the merits on February 19, 1976. On that day the plaintiffs were not prepared to offer any evidence. Instead, they asked the court to set another hearing at some time in the future, to allow the plaintiffs “to get reasonable discovery” and to have an opportunity to establish whether the legislative audit reports of the district’s records were adequate and proper. The chancellor denied that request for further time and dismissed the complaint with prejudice. This appeal is from that decree.
The chancellor was right. The complaint was filed in January, 1975. It alleged serious wrongdoing on the part of the directors and superintendent, who were charged with converting school money and property to their own use and with fraudulently concealing those transactions from the public. The complaint, as later amended, also alleged that among the “many thousands of items” purchased by the district the plaintiffs had no way of giving detailed and specific information as to each instance of wrongdoing. An accounting of all transactions since 1968 was sought.
From the outset the defendants denied any wrongdoing. Defense counsel obtained copies of the legislative audits of the district for the years ending on June 30, 1973 and 1974, and offered to submit them for examination. It does not appear that any such examination was ever requested or made. Later on the court directed that the audits for earlier years be made available, but again there is no indication that the opportunity was availed of. On November 26, 1975, the court directed that the taking of all discovery depositions be completed by January 23; but no depositions were ever taken by counsel for the plaintiffs, nor were any interrogatories propounded.
The appellants’ argument seems to be twofold. First, it is contended that the appellees, being fiduciaries, should be required to make a detailed accounting for the six or seven years in question. The difficulty, however, is that the plaintiffs have offered no evidence whatever either of any wrongdoing on the part of the defendants or of any failure by them to keep the district’s records as required by law. In this respect the case differs materially from Brewer v. Hawkins, 248 Ark. 1325, 455 S.W. 2d 864 (1970), relied upon by the appellants, where the plaintiffs adduced the testimony of many witnesses. There a prima facie case was made, requiring the defendant to go forward with the evidence. Here there is no basis for the appellants’ demand that the appellees incur what would necessarily be a very substantial expense in order to make a detailed accounting, with no irregularity having been proved.
Alternatively, the appellants ask in their brief that they “be given time to scrutinize those legislative audits and take discovery pertaining to them, and, once appellants have completed that discovery, the trial court should then order a hearing to determine the issue of whether appellees have established their affirmative defense that they have fully accounted. At that hearing, if appellants establish that appellees have not fully accounted [our italics], appellants will have established their right to an accounting.” In other words, the appellants, having made no showing that a cause of action exists, seek an indefinite extension of time to explore the possibility that they really have a basis for complaint. It is fair to point out that such an investigation should have been made before a complaint charging misconduct in office was filed and that during the pendency of this suit in the trial court the plaintiffs had more than a year “to scrutinize those legislative audits and take discovery pertaining to them.” We can find no reason to say that the chancellor was wrong in bringing this case to an end. (It has not been argued by the appellants that the dismissal should have been without prejudice.)
Affirmed.
We agree. Harris, C.J., and Byrd and Holt, JJ.
Hickman, J., dissents. | [
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Elsijane T. Roy, Justice.
Appellant DeWayne Hulsey was charged with capital felony murder in violation of Ark. Stat. Ann. §§ 41-4701, et seq. (Supp. 1973). The facts developed at trial indicated that appellant while robbing a service station shot the attendant seven times, causing his death. After trial by jury appellant was found guilty as charged. The jury then heard evidence of aggravating and mitigating circumstances and after further deliberation determined appellant should be sentenced to death by electrocution.
Appellant raises for the first time on appeal the argument that prospective juror John L. Clark should have been excused for cause. The record discloses that the trial judge, upon learning that Juror Clark was a first cousin of the sheriff of St. Francis County, checked the statutes governing challenging of jurors for cause and voir dired Clark, but refused to excuse him. Appellant did not object to the trial court’s actions, nor did he ask that Clark be excused for cause. This Court has held that even in capital cases an objection must be made in the trial court in order to raise an issue on appeal. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975).
However, if we consider the merits, we find no support for appellant’s claim that Clark should be excused for cause. The sheriff was not a party to the action, and he did not testify. Furthermore, Clark testified on voir dire that he would give equal credence to the testimony of witnesses for the defense and the State.
On appeal appellant did not raise the issue of whether his confession was voluntary, but since this Court, pursuant to Ark. Stat. Ann. § 43-2725 (Supp. 1975), must review the record for all errors prejudicial to him, we will discuss the admissibility of the confession.
The trial court, pursuant to Ark. Stat. Ann. § 43-2105 (Supp. 1975), held the required Denno hearing to consider the circumstances surrounding the giving of appellant’s confession to law enforcement officers. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Under this statute it is the duty of the court “ . . . before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily. The trial court after hearing the testimony of four witnesses ruled appellant’s confession had been freely and voluntarily given.
The evidence at the Denno hearing included the testimony of all the police officers present when the confession was signed and a copy of rights statement signed by appellant. The rights statement form showed that appellant stated he understood he had the right to remain silent; that anything he said could be used against him in court; that he could consult with and have an attorney present before making any statement or answering any question; that if he could not afford an attorney one would be appointed and that he could stop the questioning at any time if he so desired.
Deputy Sheriff James Jones testified he was present when appellant signed the rights statement. Deputy Claude Ramsey testified the rights statment form was read to appellant and signed by him. Deputy Sheriff George Irwin testified he was present when appellant signed his confession and heard the confession read to appellant before he signed it. State Police Officer W. D. Davidson testified he read the statement of rights form to appellant, inquired as to whether appellant wished to waive his rights and witnessed the signing of the rights form. Davidson further testified that neither he nor anyone in his presence threatened, coerced or intimidated appellant, or promised leniency to appellant in order to obtain the confession. Thus the preponderance of the evidence reflects appellant’s confession was voluntary and was properly admitted by the trial court. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).
Appellant next contends the court abused its discretion in admitting certain photographs of the body of the victim because cotton swabs were sticking out the bullet wounds in the victim’s face. It is urged that the pictures were inflammatory, prejudicial and unnecessary. An examination of the photographs does not indicate the cotton swabs made the pictures prejudicial in any way.
Deputy Sheriff Irwin testified he asked a nurse to place some cotton-tip swabs in the facial area of the decedent to determine the number of wounds and the direction of travel of the bullets; that it was necessary to use the cotton-tip swabs because the large amount of blood made it difficult to find the bullet holes. The State Medical Examiner testified the decedent had four gunshot wounds to his head and face and three more to other parts of the body.
At the prosecuting attorney’s request the trial court gave a precautionary instruction, stating:
Ladies and Gentlemen, I’m going to permit these pictures to be passed and viewed by you. You have heard what it is that has been added, why they were so added, and you will disregard the pictures for any other purpose other than to help you understand where the deceased was shot.
# >ft
Furthermore, you may consider the pictures for purposes of showing the ferocity of the attack upon the deceased.
❖ *
It was proper for the jury to consider the photographs to determine the savagery of the attack upon the victim. Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975). Since the photographs corroborate appellant’s confession and clearly depict the wounds inflicted upon the victim, the trial judge properly admitted them. Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976). See also Shipman v. State, 252 Ark. 285, 478 S.W. 2d 421 (1972), wherein we stated the trial court has “wide discretion” in admitting photographs into evidence.
Prior to trial appellant filed a motion to suppress eyewitness identification because of a prejudicial line-up. Appellant did not pursue the motion when he learned there had not been a line-up but that the pre-trial identification was made by photographs.
Even if the pre-trial identification had been questioned on appeal, we find it wasjiroperfy handled. A pre-trial hearing was conducted to determine whether the pre-trial photographic identification was tainted. After hearing evidence the trial court ruled the pre-trial identification procedure was conducted in accordance with all the requirements of the law.
At the hearing Tim Brooks, the person who made the pre-trial identification, testified he picked appellant’s picture from a group of pictures and that when he saw appellant at the murder scene the lights at the service station were on, visibility was clear and appellant was about three feet away at one of the times he observed him. Deputy Sheriff Irwin testified he showed Brooks pictures of seven or eight white males and that Brooks picked out appellant’s picture; that he (Irwin) did not indicate any particular photograph; and that when the order was rearranged Brooks again immediately picked out appellant’s photograph.
From testimony and the totality of the circumstances we find the State has shown that there is no likelihood of misidentification in this case. Pollard v. State, 258 Ark. 512, 527 S.W. 2d 627 (1975).
Appellant next contends the trial court prejudiced the jury by commenting on the credibility of appellant’s testimony and that of Dr. Sophia McCay.
At the trial during cross-examination of appellant the following exchange took place.
THE COURT: Mr. Hulsey, please answer the questions.
THE DEFENDANT: I’ve answered the question as best I know how.
THE COURT: You have not answered it, Mr. Hulsey.
BY MR. RAFF: Q. I’ll repeat it to you one more time, and I am referring to this statement. Did any of the officers ask you to read this statement?
A. They asked me to read a statement similar.
MR. RAFF: Your Honor—
THE DEFENDANT: I don’t see how I can give—
MR. EASLEY: The defendant said the statement was on yellow legal paper.
THE COURT: He asked him if they asked him to read that statement there. Yes or no.
THE DEFENDANT: No, not that statement.
MR. EASLEY: He denied it.
MR. RAFF: No, sir, he has not answered the question, and it’s been propounded six times.
THE COURT: He just answered no. Now it has been answered.
The pertinent part of the examination of Dr. McCay follows:
MR. KINNEY: Let the witness finish.
MR. RAFF: She answered the question, and then she goes into other areas not covered by the question.
MR. KINNEY: She’s entitled to do this.
MR. RAFF: She is entitled to give an explanation of her answer, but not to answer others.
THE COURT: She is entitled to answer the question, but not quibble or explain it away.
MR. KINNEY: If it requires an explanation, then she, as an expert witness, is entitled to give that explanation.
Thereafter the court allowed the witness to make a full explanation of her answer. The record discloses appellant did not object, ask for a mistrial or request the jury be admonished in connection with the court’s remarks concerning Dr. McCay or appellant. The law is well settled that even in capital cases an objection must be made in order to raise an issue on appeal. Neal v. State, supra; Fields v. State, 235 Ark. 986, 363 S.W. 2d 905 (1963); and Johnson v. State, 127 Ark. 516, 192 S.W. 895 (1917).
* * * If appellant was under the impression that the remark made by the court was prejudicial it was his duty to so inform the court and give it an opportunity to make a retraction or explanation to the jury.
Roach v. State, 222 Ark. 738, 262 S.W. 2d 647 (1953).
We also note the trial court gave the following instruction:
* * #
I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything that I have done or said has seemed to so indicate, you will disregard it.
We do not view the remarks made by the trial judge as comments on credibility of the witnesses, but as comments necessary to control the examination of the witnesses.
Appellant also seeks reversal of his conviction on grounds that the trial judge should have given a cautionary instruction even though he had sustained appellant’s objection to the question, “Are you a penitentiary man?” At trial appellant did not ask the trial judge to give a cautionary instruction, and he cannot now raise the failure to give one as grounds for reversal. In Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976), this Court stated:
Since Spann did not request that the trial judge admonish the jury relative to the testimony about “some other guy,” he is in no position to argue his complaint on appeal based on the judge’s failure to do so. * * *
This Court held that similar questions did not amount to reversible error. In Coleman v. State, 256 Ark. 665, 509 S.W. 2d 824 (1974), the Court found no prejudice in the question, “Mr. Coleman, you’re what is known in contemplation of the law as a habitual criminal, is that correct?” See also Miller v. State, 250 Ark. 199, 464 S.W. 2d 594 (1971). We find no error on this point.
Appellant next contends the jury was illegally constituted because of age discrimination and he was thereby deprived of certain constitutional rights. He specifically contends that because he was only 22 and the jurors were years older he did not have a fair trial by his peers. However, no motion to quash the jury wheel was filed, no motion alleging age discrimination was; made prior to trial and no evidence nor proffer of proof was made that young people had been systematically excluded from jury service. We have held in a number of cases that an issue cannot be raised for the first time on appeal even in capital cases. Neal v. State, supra; Fields v. State, supra; and Johnson v. State, supra.
Appellant urges that because of recent decisions even though this issue was not raised in the trial court he shouid be allowed to raise it on appeal. We find no merit here as the United States Supreme Court, over thirty years ago, recognized that systematic exclusion of a particular group from jury service constituted a violation of the Sixth and Fourteenth Amendments to the Constitution of the United States. Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935). If appellant felt the jury panel did not represent a proper cross section, he should have timely filed a motion to quash the jury panel and adduced proof on the issue.
Appellant contends the trial court placed an unconstitutional burden of proof upon him when it instructed the jury it might consider five or more mitigating circumstances.
At trial counsel stated: “Your Honor, they [the instructions] are good for the defendant.” Appellant by failing to object to the instructions cannot now raise the issue on appeal even though this is a capital case. See Neal v. State, supra. Rule 13 of the Uniform Rules for Circuit and Chancery Courts, Ark. Stat. Ann., Vol. 3A, p. 139 (Supp. 1975), provides;
No party may assign as error the giving or the failure to give an instruction to a jury unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection. The trial judge shall give all parties an opportunity to make objections to instructions out of the hearing of the jury.
A mere general objection shall not be sufficient to obtain appellate review of the trial court’s actions relating to instructions to the jury except as to an instruction directing a verdict or the court’s action in declining to do so.
* * *
Furthermore the instructions reflect that the court did not place any burden on appellant to prove mitigating circumstances. The court stated each side would be permitted to put on testimony regarding mitigating or aggravating circumstances, and that all the evidence previously presented might be considered in determining the verdict. As to the aggravating circumstances the court instructed they must be found to exist beyond a reasonable doubt. As to mitigating circumstances he imposed no burden of proof but stated:
* * *
A mitigating circumstance is one which does not excuse the offense in question but which, in fairness and mercy, may justify your imposing less than the maximum possible sentence. The following are among the circumstances, but are not the only circumstances, which you may consider as mitigating circumstances:
* * *
Appellant relies on Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), but the issue in Mullaney was whether the State could be relieved of proving any ele ment of a crime beyond a reasonable doubt. The Court held the prosecution must prove every element of the crime and the burden did not shift to the defendant to prove he was acting with “heat or passion” in order to reduce his charge from murder to manslaughter.
In the case at bar the issue of guilt of the crime charged had already been resolved against appellant before mitigating circumstances were considered by the jury. Proof of all the essential elements of the crime was required and the jury found appellant guilty. Thus the holding of Mullaney is not applicable under these facts.
Appellant also contends the statute under which he was convicted is unconstitutional because “it does not provide for automatic appeal and makes no provision for comparative review of similarly situated defendants.” All of appellant’s contentions under this point, and others, have been considered and discussed in detail in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), and Neal v. State, 261 Ark. 336, 548 S.W. 2d 135 (1977), and found to be without merit. In both these cases this Court carefully reconsidered the constitutionality of §§ 41-4701 et seq. in light of Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976);Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Woodson and Waxton v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 352, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976), as directed by the mandate of the Supreme Court of the United States. We have attached hereto the same Appendix used in Collins, supra, to indicate the changes made in the felony murder rule by the Arkansas Criminal Code effective January 1, 1976.
The Arkansas statute having been found constitutional in Collins and Neal, we now review the jury’s findings as to aggravating and mitigating circumstances to ascertain if the verdict is adequately supported by the evidence. As to aggravating circumstances the jury found:
(8)
The Defendant did, beyond a reasonable doubt, in the commission of the capital felony, knowingly create a great risk of death to one (1) or more persons in addition to the victim. (\/)
(D)
The capital felony was, beyond a reasonable doubt, committed for pecuniary gain, (v/)
As to mitigating circumstances one of the defenses pled by appellant was intoxication or diminished capacity, and the jury found:
(B)
The capital felony was not committed while the capacity of the Defendant to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law, was impaired as a result of mental disease or defect, intoxication or drug abuse. (\/)
As indication of the jury’s fairness to appellant and serious consideration of mitigating factors the jury, though finding no mitigating circumstances on the list, wrote on the verdict form:
We, the jury, have found, in our judgment that Dewayne Hulsey had a very poor home life. We do feel that it plays a minor part in his behavior, but not to the extent of committing this brutal crime.
Thereafter the jury found the mitigating circumstances were not sufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficient to justify imposition of the death sentence.
In his reply brief appellant states through “oversight” he omitted his objections in the original brief to the instruction on diminished capacity. The questioned instruction and preceding one read as follows:
Instruction No. 10
You are instructed that the state is required to prove all of the material allegations in the information and to prove them to your minds beyond a reasonable doubt. * * *
Instruction No. 11
You are instructed that mere weakness of intellect will not shield one who commits a crime; however, a defendant’s mental condition may diminish his capacity to form certain specific intents. You are instructed that if you find that the defendant’s mental condition at the time of the alleged offense was such that he could not formulate the specific intents that I have instructed you are necessary elements of the crimes charged then you may find him guilty of a lesser offense not requiring specific intents but you could not find him guilty of those crimes which required the finding of specific intents.
The burden of proving diminished capacity is upon the defendant and then must be shown by a preponderance of the testimony in the case.
Relying upon Mullaney, supra, appellant contends it was violative of the Fourteenth Amendment Due Process Clause to place the burden of proof of any essential ingredient of the offense charged on the defendant.
After giving the instructions the court asked, “Any additional instructions to be tendered, or objections to be made to the instructions given?” Appellant’s attorney replied, “No, Your Honor.”
Appellant strenuously argues it would be violation of federal constitutional standards not to review the instruction regardless of Rule 13, supra. However, Arkansas’ Rule 13 is similar in nature to Rule 30 of the Federal Rules of Criminal Procedure. Rule 30 of the Federal Rules of Criminal Procedure provides:
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.
In United States v. Indiviglio, 352 F. 2d 276 (2d Cir. 1965), cert. denied 383 U.S. 907, 86 S. Ct. 887, 15 L. Ed. 2d 663 (1966), the court stated:
Federal courts, including the Supreme Court, have declined to notice errors not objected to below even though such errors involve a criminal defendant’s constitutional rights.
The position of federal courts that claimed error to which there are no objections will not be reviewed was reaffirmed May 3, 1976, in the cases of Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976) and Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976). In Estelle the Court held that the failure of a criminal defendant to object to being tried in jail clothing precluded him from seeking to collaterally attack the conviction in federal court. In the Francis case the Court found that by failure to object to the composition of the grand jury as required under a Louisiana rule of procedure prior to trial, the defendant in that case was precluded from raising the question of the racial composition of the grand jury in federal habeas corpus proceedings.
We do not view the court’s instruction here as an erroneous one since it does not change the burden of proof as to the essential elements of the crime which always remains on the State; only the burden of persuasion as to an affirmative defense is placed on appellant. Furthermore appellant’s actions do not reflect diminished capacity as he carefully planned and executed the crime by borrowing a gun, removing the license plate from his car and after completing the crime replacing the license plate and hiding the gun.
In Rivera v. State, 351 A. 2d 561 (Del. Super 1976), the court held the statute classifying mental illness as an affirmative defense which the defendant must prove by a preponderance of the evidence did not conflict with the due process clause citing in support of its position Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952). Rivera, supra, has the following comment:
We think that Leland remains the controlling authority on the question. Leland has not been overruled by Mullaney, in our view, either expressly or. implicitly.
Moreover, even if we assume error it is harmless beyond a reasonable doubt. In support of the propriety of the harmless error rationale, the jury (jid not find any factual existence at all for the defense of diminished capacity as a mitigating circumstance. See answers of jury, supra. The finding of no existence whatsoever of diminished capacity as a mitigating factor denies its operable existence regardless of upon whom the burden devolves. Although that determination was made at the sentencing stage, it was based upon the evidence adduced in both bifurcated stages of trial, guilt and sentencing. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975).
As was stated in Collins, supra (March 7, 1977), and Neal, supra (March 28, 1977), comparative review of a sentence is difficult, but we do have the precedent of Neal and Collins to serve as our guidelines here. In both cases the crimes were brutal murder and the death penalty was imposed.
On the afternoon of the crime here appellant had been drinking beer and vodka with a friend, Buddy Caldwell. They returned to the friend’s house, and appellant borrowed a rifle from him. According to the testimony of Caldwell, appellant stated he was going to rob a service station. Appellant’s confession reflected that after removing the license plate from his automobile and borrowing a rifle he drove to a service station. While the attendant, who was crippled in one leg and walked with a decided limp, was putting gas in the car appellant took the gun, got out of his automobile and told the attendant it was a robbery. Then he stated he shot the attendant in the chest as he grabbed for the gun. Thereafter the attendant walked into the station with appellant following him to the cash register. The attendant pleaded “I don’t think I am going to die — don’t do this, son.” Appellant then testified he came out from behind the register to where he could see the attendant who had moved toward the cigarette machine and shot him twice more in the head. Appellant’s confession indicated he was aware of what he was doing at the time of committing the crime.
The medical examiner testified:
The deceased had a total of seven gunshot wounds to his head and trunk areas; four of these wounds involved his head and face area. One wound that struck the right corner of his eye, and exit wound near the top portion of his head.
Another wound was a wound that struck the back of the deceased’s head, and in its path penetrated vital structures of the brain.
He had another wound that struck the right portion of his mid-face area that in its path entered the brain.
He had a similar wound that was located approximately near the jaw area, that in its path went into the brain.
He also had two wounds involving his left arm, one of which was located in his left upper arm, that went through his arm and penetrated the subcutaneous tissue of the left chest area.
He had a similar wound located and involving the left forearm that also was an exit wound and struck the left chest area. It did not penetrate the chest cavity itself.
The last wound was one that was located in the left lower abdomen, and it penetrated the abdominal cavity, and in its path penetrated the intestines several times. It was removed from one of the bones in the right pelvis area.
While appellant was still at the scene of the crime, Tim Melvin Brooks drove up to the station with two young children. Appellant posed as an attendant. Brooks testified appellant pointed the rifle at him from about ten feet, and said “I’ve robbed the station and I’ve killed one man, and I’ll kill another.” Then appellant pointed at the two boys and said, “If you think anything of your family you will get in your car and forget what you seen.”
Appellant was subsequently arrested, and upon conviction the jury sentenced him to death by electrocution pursuant to the bifurcated trial system utilized in capital cases for murder as heretofore set out.
We find under these facts there was clearly sufficient evidence to support the jury’s findings that appellant was guilty as charged and that the aggravating circumstances outweighed the mitigating circumstances warranting imposition of the death penalty.
We do not find either passion or prejudice entered into the jury’s deliberation, nor do we find imposition of the penalty for this merciless killing was arbitrary, capricious or wanton. We hold the imposition of the death penalty did not violate any of the provisions of the federal or state constitutions.
We have also reviewed the records as required by Ark. Stat. Ann. § 43-2725 (Supp» 1975) and find no reversible error.
Judgment affirmed.
George Rose Smith, Holt and Hickman, JJ., dissent only for the reasons stated in their dissents filed in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).
APPENDIX
Ark. Stat. Ann. § 41-1501 (Criminal Code 1976) changed the felony murder rule [formerly Ark. Stat. Ann. § 41-4702 (Supp. 1973)] by eliminating mass transit piracy and treason and adding escape in the first degree to the list of felonies to which the rule is applicable; and by including provisions creating accomplice liability (and affirmative defenses for an accomplice); by extending the rule to include a killing committed in immediate flight from an included felony; and by providing that the death be caused “under circumstances manifesting extreme indifference to the value of human life.”
It also changed the focus of an unlawful killing involving a public official from (E) the unlawful killing of a public official resulting from a premeditated design to kill anyone, to (d) the unlawful killing of anyone resulting from a premeditated design to kill a public official. It added murder pursuant to agreement as a capital murder.
Ark. Stat. Ann. § 41-1304 (Criminal Code 1976) is different from § 41-4712 (Supp. 1973) in that it states that mitigating circumstances are not limited to those provided in the statute and by adding as mitigation the fact that the defendant has no significant history of prior criminal activity.
Mitigating circumstances are no longer limited to those provided in the statute and now include the circumstance that the defendant has no significant history of prior criminal activity. Ark. Stat. Ann. § 41-1304 (Criminal Code), § 41-4712 (Supp. 1973).
Aggravating circumstances were changed somewhat as they relate to a person who has a prior record of commission of a felony. Ark. Stat. Ann. § 41-1303 (Criminal Code), § 41-4711 (Supp. 1973).
Substantive changes in trial procedure, § 41-1301 (Criminal Code), formerly § 41-4710 (Supp. 1973), include a provision that evidence of mitigating circumstances may be presented regardless of whether the evidence is admissible under the rules of evidence; and for waiver of the death penalty by the prosecutor, expressly or by stipulation as to the facts of mitigating and aggravating circumstances, after trial. §41-1302 (Criminal Code) allocates the burden of proof during the sentencing phase of a capital trial.
Previous opinion 259 Ark. 8, 531 S.W. 2d 13 (1975).
Previous opinion 259 Ark. 27. 531 S.W. 2d 17 (1975).
For affirmative defenses see Ark. Crim. Code § 41-601 (1976) (and commentary thereon) which codifies existing law. | [
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Frank Holt, Justice.
Appellant is the workmen’s compensation insurance carrier for Arkansas Louisiana Gas Company whose employee, Charles Lee Allen, was killed by a third party. Appellant paid benefits to the beneficiaries of the decedent. It then filed suit, pursuant to Ark. Stat. Ann. § 81-1340 (b) (Repl. 1976), to recover the amount of those benefits from the estate of Arlie Jones, the person allegedly responsible for Allen’s death. Appellees, co-administrators of Jones’ estate, filed a demurrer which the trial court sustained on the basis that appellant lacked the legal capacity to sue. The court then dismissed appellant’s complaint with prejudice. Appellant asserts that the trial court erred by holding that appellant, as the insurance carrier, could not maintain its subrogation claim without having first “joined” the workmen’s compensation beneficiaries.
Although the workmen’s compensation carrier and the beneficiary have separate rights to institute an action against a third party tortfeasor, there is only one cause of action and it cannot be split without the defendant’s consent. § 81-1340 (b); Amos v. Stroud, 252 Ark. 1100, 482 S.W. 2d 592 (1972); and Winfrey & Carlile v. Nickles, Admr., 223 Ark. 894, 270 S.W. 2d 923 (1954). The rule against splitting a cause of action is for the benefit of the defendant to protect him from a multiplicity of suits. St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 416 S.W. 2d 322 (1967). Here the appellee defendants objected to the splitting of the cause of action and, further, the complaint did not join the workmen’s compensation beneficiaries, who are necessary parties. § 81-1340 (b), supra. Therefore, the court correctly sustained the demurrer.
We must agree, however, with appellant’s contention that the court erred in refusing the appellant the opportunity to amend its complaint following its dismissal. In sustaining the demurrer and dismissing the complaint with prejudice, the court did not make any allowance for appellant to amend its complaint. Neither did the court’s written order, some two weeks later, approved as to form by appellant, make any provision for the right of the appellant to amend its complaint. It is undisputed that during the hearing on the demurrer that appellant’s counsel repeatedly indicated his desire to amend the compalint should the court sustain the demurrer. Ark. Stat. Ann. § 27-1117 (Repl. 1962) provides that if the court sustains a demurrer “the plaintiff may amend **** as the court may order.” Appellant had the right to amend subject to a reasonable time limitation. Temple Cotton Oil Co. v. Davis, 167 Ark. 448, 268 S.W. 38 (1925). See also Dickerson v. Hamby, 96 Ark. 163, 131 S.W. 674 (1910); and Bradley v. Mo. Pac. R.R. Co., 144 Ark. 604, 223 S.W. 35 (1920). Here we hold dismissal of the complaint without reserving the appellant’s right to amend its complaint is contrary to the provisions of the cited statute.
Reversed and remanded for proceedings not inconsistent with this opinion.
We agree: Harris, C.J., and George Rose Smith and Byrd, JJ. | [
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Darrell Hickman, Justice.
This case, started between cotton growers, Ernest Bullington, his brother, Earl, Ralph Murphy, and a cotton buyer, W. B. Dunavent and Company, who brought a lawsuit against a ginning company, Hill’s Coop Gin Company of Arkansas, Inc., over the loss of seventeen bales of cotton that burned while in the custody of the gin company.
The lower court granted a directed verdict to the growers and buyer for the amount they sued for, plus penalties and attorneys’ fees. Hill’s Co-op and Farm Bureau appeal the decision of the lower court alleging two errors: the court should have granted the defendants’ demurrer to the complaint because the buyer,. Dunavent, was not a proper plaintiff party to sue Hill’s and Farm Bureau; and the court was wrong in granting a directed verdict to the appellee growers and buyer.
We agree with the appellants.
Earl Bullington and his brother are cotton growers from Missouri who have a farm in St. Francis County. Ralph Murphy is a part owner of that farm. They had all contracted to sell all of the cotton from this farm to Dunavent, a nonresident corporation, for thirty-two cents a pound. The growers delivered their cotton to Hill’s Gin and after it was ginned, while in the custody of Hill’s, but before it was sampled and graded, seventeen bales burned. Farm Bureau had an insurance policy with the gin company and offered to pay the growers thirty-two cents a pound. That policy had the following provision:
This policy covers only seed cotton, baled cotton and baled motes, cotton seed, bagging and ties, fertilizer and insecticides; the property of the insured or for which the insured may be legally liable or for which the insured has assumed responsibility for providing insurance coverage.
The growers demanded the market price on the date of the loss for strict low middling, inch and 1 /16th cotton which was 82.15 a pound. It was not disputed that the seventeen bales of cotton weighed 9,070 pounds, less twenty-one pounds per bale for bagging and ties. 9,070 pounds at 82.15 a pound totals $7,451.05, which is the amount the growers sued for. The buyer, Dunavent, joined in this suit against the insurance company and the growers and the buyer asked for 12% penalty and attorneys’ fees, which is authorized by Ark. Stats. Ann. § 66-3238.
The appellants demurred to this complaint stating that Dunavent was not a proper party to sue Hill’s and Farm Bureau because it was not the owner of the cotton, or a customer of Hill’s and, therefore, not entitled to recover for the loss directly against the appellants. The appellants were right. Dunavent was not an owner of the cotton. It only had a claim against the growers and not the gin or insurance company. We decided that an insurance policy, such as one in this case, is not a liability policy but insurance for property that is on the premises. Pacific Fire Ins. Co. v. Murdock Cotton Co., 193 Ark. 327, 99 S.W. 2d 233 (1936). However, in the Pacific case, the suit was brought in the name of the owner who had legal title to the cotton. Dunavent did not have legal title to the cotton. It only had a contract with the growers to buy the cotton. Only the owners of the cotton at the time of the loss would be entitled to sue the gin and insurance company directly. Therefore, the trial court was wrong in not granting the demurrer to the complaint. Any claim Dunavent may have against the Bullingtons and Murphy is not before the court.
There is no direct evidence in the record of the grade of the seventeen bales of cotton. It is not disputed that strict low middling, inch and 1/16th cotton was worth 82.15 on the date of the fire. The proof in the record that this cotton was of ; that grade was all circumstantial. Also, it is undisputed that each bple had twenty-one pounds of bagging and ties, and this figure would have to be deducted from the total weight of 9,070 pounds to arrive at a figure for which a verdict could be entered. This is assuming the appellees proved this cotton was worth 82.15 per pound. Therefore, even assuming the cotton was worth 82.15 per pound, the court improperly entered a judgment for the amount sued for plus penalties and attorneys’ fees. Since Ark. Stats. Ann. § 66-3238 (Repl. 1966) only permits attorneys’ fees and penalties when the exact amount sued for is recovered, the court improperly awarded penalties and attorneys’ fees.
The trial court improperly concluded that it was not disputed as to the grade of the cotton. Whether or not the grade was proved depends upon the inferences that may be drawn from the circumstantial evidence on grade. This means market value was a fact question for the jury and not a matter of law for the court.
It is the burden of the plaintiffs, the appellees here, to prove the market value at the time of the loss. It was a matter for the jury to decide the market value based on the evidence presented. The court could not have directed a verdict in view of the fact that the market value was disputed.
Reversed and remanded.
We agree: Harris, C.J., and Fogleman and Byrd, JJ. | [
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Frank Holt, Justice.
Following our reversal of the conviction of appellants in Wilkens v. State, 260 Ark. 168, 538 S.W. 2d 298 (1976), five pending informations, which charged the appellants, husband and wife, with the offenses of possessirn of stolen property, were consolidated for trial. Appellant Helen Wilkens was found guilty on four of the charges and her husband on three of them. The jury assessed five years punishment in the Department of Correction in each case. The appellants’ first contention for reversal is that a mistrial should have been granted when reference was made to the appellants having been involved in other crimes not listed on the informations. A deputy sheriff was permitted to testify as to numerous items which were discovered at the residence and the auction barn of the appellants. The court admonished the jury, as requested by appellants, that evidence of possession of these various items by the appellants was to be considered only for the purpose of determining the intent or knowledge of appellants. Evidence as to the possession of the articles here, recently stolen, was relevant to the alleged offenses of possession of stolen property. The possession tended to show the motive, intent, design and scheme of appellants to engage in the alleged illegal transactions. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976); Derrick v. State, 259 Ark. 316, 532 S.W. 2d 431 (1976); Kurck v. State, 242 Ark. 742, 415 S.W. 2d 61 (1967); Haight v. State, 259 Ark. 478, 533 S.W. 2d 510 (1976); Puckett v. State, 194 Ark. 449, 108 S.W. 2d 468 (1937); and Long v. Stole, 192 Ark. 1089, 97 S.W. 2d 67 (1936).
It is next contended that the trial court erred by failing to grant appellants’ motion to suppress certain evidence seized pursuant to a search warrant. A deputy sheriff secured two search warrants, one for searching appellants’ residence and the other constituted authority to search their rented auction house. Both warrants directed that they be served in the day time. The search of the residence occurred during the day time (2:30 p.m.). However, the search of the auction house occurred that night (11:15 p.m.), when it was closed. It appears that at common law a search warrant was limited to the day time. However, presently a search warrant can be served at night when so provided by a statute or court rule. 68 Am. Jur. 2d, Searches and Seizures, § 110; 79 C.J.S., Searches and Seizures, § 83 c. In force at the time of the execution of these warrants was Ark. Stat. Ann. § 43-202 (Repl. 1964), which provides that a warrant to search for stolen property shall provide for an execution “in the day time.” However, § 43-203 provides that “If there be positive proof that any property stolen .... is concealed in any particular house or place, the warrant may order the searching of such house or place in the night time.” We also call attention to the present Rules of Grim. Proc., Rule 13.2, which is further restrictive. This rule provides:
.... Upon a finding by the issuing judicial officer of reasonable cause to believe that: (i) the place to be searched is difficult of speedy access; or (ii) the objects to be seized are in danger of imminent removal; or (iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy; the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
Here, the search of the auction barn was in clear contravention to the directive of the issuing magistrate and, consequently, all of the property seized there must be suppressed.
It is next contended by appellants that the trial court erred in permitting testimony of extra judicial identification of the stolen property. The deputy sheriff was permitted to testify without objection upon direct examination that he returned certain property to various individuals and he was cross-examined upon the subject. However, upon direct, the officer was permitted, over objections of appellants, to testify that the various owners of the alleged stolen property made “positive identification” in his presence. It is true that some of the owners later testified and made “positive identification.” No authority exists for admitting extrajudicial identification as evidence of the guilt of a defendant because testimony as to extra judicial identification “is incompetent as either substantive or corroborative evidence if there has been no impeachment of the prosecuting witness or his testimony.” Trimble v. State, 227 Ark. 867, 302 S.W. 2d 83 (1957); and Gill v. State, 194 Ark. 521, 108 S.W. 2d 785 (1937). In the circumstances, we are of the view that the admission of the officer’s testimony was prejudicial error. Further, his extra judicial identification of the property of the owners who did not testify is patently a violation of the hearsay rule.
Appellants’ final point is that the prosecuting attorney’s closing argument was improper and so prejudicial that the convictions should be reversed. Even so, the asserted error is not likely to recur upon a retrial. Again, however, we deem it necessary to observe we have held that arguments which are outside the record or have no evidentiary support constitute prejudicial error. Long v. State, 260 Ark. 417, 542 S.W. 2d 742 (1976); Brown v. State, 143 Ark. 523, 222 S.W. 377 (1920); Hughes v. State, 154 Ark. 621, 243 S.W. 70 (1922); Pritchett v. State, 160 Ark. 233, 254 S.W. 544 (1923); and Williams v. State, 259 Ark. 667, 535 S.W. 2d 842 (1976).
The judgments are reversed and the causes remanded.
We agree: Harris, C.J., and George Rose Smith and Byrd, JJ. | [
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Georoe Rose Smith, Justice.
Early in June, 1971, Daniel Lon Graham, serving a life sentence for kidnaping, escaped from the state penitentiary. Late in the afternoon of June 17 he bought a secondhand pistol at Bunyard Supply Company, Inc., in the city of Rogers. The seller assertedly violated a federal statute and federal regulations in making the sale. On the next day Graham robbed a grocery store in Springdale, taking three young employees as hostages. In a nearby wooded area Graham used the gun to murder two of the young men and wound the third.
This action for the wrongful deaths and personal injuries was brought by the appellants against Bunyard Supply, against Marion A. Bunyard, its president, manager, and principal stockholder, and against the company’s national affiliate, Western Auto Supply Company. Upon the basis of extensive discovery depositions and similar proof, the defendants moved for summary judgment on the ground that there was no genuine issue as to any material fact. This appeal is from a judgment granting the motion. The trial judge reasoned that Graham’s criminal use of the gun was an intervening efficient cause not forseeable by the seller.
The federal gun control law and regulations were examined by the Supreme Court in Huddleston v. United States, 415 U.S. 814 (1974). As stated in that opinion, Congress was concerned with the widespread traffic in firearms and the ease with which they could be obtained by criminals and others not legally entitled to possess them. The court noted that the principal agent in the scheme of federal enforcement of the law is the licensed dealer. He is required to keep records of [acquisition and] disposition and is criminally liable for disposing of a weapon contrary to the Act. Information drawn from the records kept by licensed dealers is a prime guarantee of the Act’s effectiveness in keeping lethal weapons out of the hands of criminals.
The regulations issued under the Act are, in our opinion, the real key to its enforcement. The regulations require the licensed dealer, prior to making an over-the-counter delivery of a firearm to a purchaser, to complete Form 4473, the Firearms Transaction Record. That record must show the buyer’s name, address, date and place of birth, height, weight, and race, and must include his signed certification that he has not been convicted of a crime punishable by imprisonment for more than one year and that he is not a fugitive from justice. The seller, before transferring the gun, must require the buyer to identify himself in any manner customarily used in commercial transactions, as by a driver’s license. Form 4473 requires the number on the identification, such as the driver’s license number, to be entered on the form.
According to the proof as a whole, and especially the affidavit of Howard McDaniel, the Bunyard clerk who made the sale, there was not even a token compliance with the law. Graham entered the store an hour ór so before its 5:30 closing time. He first negotiated for the. purchase of a clothes washer and drier (to be delivered the next morning, to a fictitious address), evidently as a ruse for obtaining a pistol. He then inquired about buying a used gun, to protect his chickens against dogs. He had no wallet, no money, no driver’s license, no identification of any kind. Even so, after giving a worthless check for more than $400 for the washer-drier and the gun, he was allowed to leave the store with the pistol without even signing Form 4473, as required by the regulations. According to McDaniel, that form was not filled out until the next day, after it was learned that the store had been duped. There were, of course, omissions in the form as filled out, such as Graham’s driver’s license number. Again according to McDaniel, he forged the name that Graham had given (Bill Shaw). Marion Bunyard signed the required certification that “it is my belief that it is not unlawful for me to sell . . . the firearm” to the purchaser.
We have no doubt that upon the issue raised by the motion for summary judgment and argued here, the proof presents questions of fact as to the liability of Bunyard Supply. (The separate liability of Marion Bunyard is not argued.) The violation of a statute or valid regulation is ordinarily evidence of negligence. Bussell v. Missouri Pac. R.R., 237 Ark. 812, 376 S.W. 2d 545 (1964); AMI Civil 2d, 601 (1974). On the issue of proximate cause, it is enough to point out that the tragedies could not have occurred as they did if the federal rules had been obeyed. That is, Graham had no means of identification — an essential prequisite to the purchase of a gun. This is not, as the appellees argue, a mere matter of record keeping. Form 4473 required the seller to obtain and record Graham’s identification before handing over the gun. Graham had no identification. Thus, had the law been obeyed, he could not have obtained possession of the gun and could not have used it to shoot innocent men the next day. On the issue of foreseeability, we need say only that the very purpose of the law is to keep pistols out of the hands of such persons as Graham, who was both a convicted criminal and a fugitive from justice. It certainly cannot be said that his use of the gun in such a way as to injure others was not foreseeable. Of course it is not required that the precise sequence of events leading to the injury be foreseeable. Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S.W. 473 (1912).
There is, however, no proof of liability on the part of Western Auto Supply Company. It is a national concern having company-owned and home-owned stores throughout the country. Bunyard Supply did business as Western Auto Supply, but it was home-owned and so identified to the public. In the franchise contract Bunyard Supply reserved to itself the “ownership, management, and control” of the store. The national chain agreed to sell its various brands of merchandise to the local store, but the vital power of control remained with Bunyard. And, specifically, the federal license to sell guns was issued to Bunyard Supply, not to Western Auto Supply Company. There was certainly no partnership between the two companies; so, in the absence of any power on the part of Western Auto Supply Company to control the actions of Bunyard Supply, there is no basis for a finding of liability on the theory of agency or joint venture. Hinson v. Culberson-Stowers Chevrolet, 244 Ark. 853, 427 S.W. 2d 539 (1968); Bennett v. Gundolf, 238 Ark. 582, 383 S.W. 2d 289 (1964).
As to Western Auto Supply Company, the judgment is affirmed; as to Bunyard Supply Company and Marion Bunyard, the judgment is reversed and the cause remanded. | [
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Frank Holt, Justice.
This appeal concerns the franchise tax liability of a foreign corporation doing business in Arkansas. The pertinent facts are stipulated. Appellant is an Indiana corporation authorized since 1969 to do business in Arkansas. In 1973 appellant validly amended its articles of incorporation, under the law of Indiana, reclassifying its authorized stock from no-par to fifty cents par value stock. This amendment was duly reported by appellant to appellee in its sworn franchise tax report which is required by Ark. Stat. Ann. § 84-1835 and §84-1836 (Repl. 1960) for the pur pose of computing the annual franchise tax. In its report appellant computed its tax according to the par value of its shares of stock as reflected by its amended articles of incorporation. Because appellant did not file an amended copy of its articles with the Arkansas Secretary of State, appellee refused to compute the tax liability on the basis of the amended articles (fifty cents par value stock) and instead assessed appellant’s stock at no-par value per share. By our statute § 84-1837, no-par stock is valued at $25 per share for franchise fax purposes. Consequently, appellant’s tax liability was increased from $405.82 (reported by appellant) to $20,291. Appellant paid the latter amount under protest and brought this action to recover the alleged overpayment. The chancellor held that the franchise tax imposed upon corporations in Arkansas is computed upon the stilted par value of the stock according to the official records of the Secretary of State of Arkansas. Appellant argues that the general assembly has enacted no statute that requires, explicitly or impliedly, a qualified foreign corporation to file in Arkansas copies of amendments to its articles of incorporation and, therefore, appellant is entitlted to recognition of its amended articles which are admittedly in compliance with the law of its domicile. We agree.
The Arkansas Business Corporation Act is codified as Ark. Stat. Ann. §§ 64-101, et seq. The distinctions between foreign and domestic corporations are evident from the definitions provided in § 64-102 which provides:
Definitions. - As used in this act [chapters 1-10 of this title], unless the context requires otherwise, the term:
A. ‘Corporation’ or ‘domestic corporation’ means a corporation for profit subject to the provisions of this act, except a foreign corporation. (Italics supplied.)
The distinction is further made evident by the fact that the legislature has provided a separate chapter governing foreign corporations, §§ 64-1201 - 64-1224. Further, the procedures and requirements outlined in §§ 64-117, 64-506, 64-507 and 64-510, relied on by appellee, concerning amendments to articles of incorporation, clearly apply only to domestic cor porations. We find no provision in any of these chapters nor is any cited to us that requires the filing of the amended articles here with the Secretary of State for tax computation purposes.
Appellee relies upon Art. 12, § 11, Arkansas Constitution (1874). That provision subjects foreign corporations to the same regulations, limitations and liabilities as domestic corporations only as to “contracts made or business done in this State.” We do not construe this provision as being applicable to the computation of franchise taxes of either domestic or foreign corporations. The relevant statutes on the subject of the franchise tax sought to be imposed here are § 84-1835, which requires an annual sworn report be made by domestic and foreign corporations to the appellee, and § 84-1838, which provides:
The Commissioner, from the facts reported and from any other facts coming to his knowledge bearing upon the subject, shall compute the amount of the tax by each of said corporations at the applicable rate or rates hereinbefore provided. . . .
In summary no requirement exists in our state that amended articles of foreign corporations be filed with the Secretary of State before their validity is recognized for the computation of the franchise tax here. It is the prerogative of our legislature to enact such a requirement. We note other states have done so: i.e., Miss. Code, § 79-3-231 and W. Vir. Code, §31-1-57.
Reversed and remanded for proceedings not inconsistent with this ppinion.
Hickman, J., disqualified and not participating. | [
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William C. Adair, Jr., Special Justice.
At a meeting of the Board of Corrections of the State of Arkansas, Appellees herein, on October 25, 1975, an executive session was called and the public excluded therefrom. Katherine Gosnell Wells, Appellant, a reporter for the Pine Bluff Commercial owned and operated by the Appellant Commercial Printing Company was present, objected to the calling and holding of the. executive session, and was ejected over her protest from the meeting. One member of the Board, Mr. Lynn Wade, opposed the Board’s decision to go into executive session and refused to participate therein and by separate counsel has filed an Appellee’s Brief in support of the Appellant’s argument. The executive session was called to discuss personnel matters, specifically the possible dismissal or disciplining of Department of Correction employees in connection with alleged wrong doing by these employees that had arisen after an inmate under their supervision had died.
Appellants Commercial Printing Company and its reporter, Katherine Gosnell Wells, sought a declaratory judgment declaring that the executive session held by the Board of Correction on October 25, 1975, was in violation of the Freedom of Information Act as set forth in Arkansas Statutes Annotated, Title 12, Chapter 28 (September, 1.967). A hearing was held and subsequently the lower court after reviewing a taped recording of the executive session ruled that the session was in accordance with the Freedom of Information Act as to the subject matter discussed. The Court also ruled, however, that the Board had violated the Freedom of Information Act when it called Department of Correction Commissioner Hutto and Cummins Superintendent Lockhart into the executive session at various times.
Appellants then filed a motion seeking to have the Court make public the tape recording and any transcript thereof on file be made immediately public. The Court denied the motion citing in its opinion that the subject matter of the session was proper within the Freedom of Information Act.
From the lower court’s judgment declaring that the subject matter of the executive session was proper and its refusal to make the tape recording of the session public, Appellants bring this appeal.
The issues prssented in this appeal are directed to the historic legal concepts of the “public’s right to know” versus the protection of the “rights of the individuals” involved. The Legislature has clearly expressed its intent concerning the policies of the Freedom of Information Act and the declared public policy of this State dealing with the public’s business in Ark. Stat. Ann. Section 12-2802:
“DECLARATION OF PUBLIC POLICY. It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials, and the decisions that are reached in public activity and in making public policy. Toward this end, this Act (Section 12-2801 — 2807) is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials.” This Court has declared: “We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praise-worthy purposes may be achieved.” Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753 (1968).
The Legislature has provided for both the public’s right to know and protection of the individual’s rights from unwarranted adverse publicity and ensuing damage to individual’s reputations in Ark. Stat. Ann. Section 12-2805 (Repl. 1968) providing:
“Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of . . . all boards, bureaus, commissions, or organizations of the State of Arkansas . . . supported wholly or in part by public funds, or expending public funds shall be public meetings. . . ”
“Executive sessions will be permitted only for the purpose of discussing or considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.”
The policy reasons dictating the rule of liberal construction of the act does not mean that the equally praiseworthy policy considerations which motivated the General Assembly to provide the single exception permitting executive sessions, i.e., for the purpose of discussing and considering personnel matters, are not equally meritorious, or are to be any more lightly regarded. The Act as a whole should be construed with reference to the public policy or policies it was designed to accomplish. Arkansas Tax Commission v. Crittenden County, 183 Ark. 738, 38 S.W. 2d 318 (1931). A statute must be analyzed in its entirety and meaning given to all portions. Construction of a statute which gives meaning and consistency to its various sections is desirable. Callahan v. Little Rock Distributing Company, 220 Ark. 443, 248 S.W. 2d 97 (1952).
Appellants earnestly urge with respect to the executive session in the present case that, “only after all of the discussion which took place in private had taken place in public and all of the information furnished and comments elicited should the Board of Correction have adjourned to executive session to determine if discipline was in order for particular public of ficers or employees.” If this interpretation of the executive session provision of the Freedom of Information Act is given effect, that section would be rendered virtually meaningless; and the legislative intent would be frustrated. A public discussion of allegations later proved unwarranted would lead to adverse publicity and unjustifiable damage to the reputation of the individuals involved. It is not the bare decision whether or not to discipline an employee that the executive session provision allows to be made in privacy, but rather the discussion or consideration of particular acts or omissions of the employee whose conduct has been called into question. This is the only way to avoid the “great and often unjustified damage to personal reputations, which such provisions are intended to prevent”. COMMENT, 75 Harv. L. Rev. at 1208 (1962).
The ultimate fact, the employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee should be public, and the public apprised of the officials acts of their elected and appointed public officials. At this time the public officials’ actions would be open to question and the evidentiary facts supporting the actions of the public officials be questioned and made known to the public.
Section 12-2805 further provides that, “Executive sessions must never be called for the purpose of defeating the reason or the spirit of the Freedom of Information Act.” The executive session under consideration in the present case was not called for that purpose. It was called for the purpose of discussing a personnel matter, and the discussion was carefully limited to the conduct of specific prison employees in relation to the death of an inmate. It is true as Appellant points out in its brief that general items were discussed concerning (1) Heat stroke symptoms and policies of the prison relating to the recognition of and treatment of such symptoms; (2) Assignment procedures in connection with inmates relating to work detail; (3) Policies for re-evaluation of medical reports; (4). Procedures for interviewing transferred inmates; (5) Procedures dealing with transfer of information from officers at the Cummins unit to officers at the Tucker unit; (6) Work habits and propensities of deceased inmates; (7) Prison policies concerning meals, especially relating to inmates being transferred in early morning hours from one unit to the other; (8) General Harassment; (9) Procedures for handling inmates who will not work; (10) The composition of hoe squads; (11) Procedures dealing with transfer runs and transfer vehicles; (12) Questions asked of Commissioner Hut-to and Superintendent Lockhart concerning the death of the inmate involved; (13) The State Police investigation into the death of the inmate in question; (14) Certain medical questions. However, this information was discussed within an overall general context of whether there had been any violation of board policies and procedures within which public disciplinary or other public action should be taken. The board could not make an informed decision as to discipline or any other action without this candid examination of the facts and free discussion of the board policies. No official acts of the board were taken in executive session. The Legislature has specifically provided for this discussion. “Executive sessions will be permitted only for the purpose of discussing or considering employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee.” Ark. Stat. Ann. Section 12-2805 (Repl. 1968). We agree with the following excerpt from the Opinion of the lower court:
“The Act provides that public bodies may meet in executive session for the purpose of considering, among other things, the disciplining of any employee. Once an executive session has been called for the purpose of disciplining, it is implicit in the act that all discussion must be related to the legal purposes for which the session was called. It is, however, both logical and within the spirit of the act to note that such discussion could of necessity deal with several areas which, taken out of the context of the total discussion, might be construed as improper subject matter for executive session. In fairness to the employee as well as the public, the discussion must delve into all circumstances surrounding the incident which has given rise to the question of discipline in the first place. The board must determine what lines of questioning it must follow to their logical ending to ferret out the relevant and material information necessary to determine what, if any, discipline is appropriate to the given situation. To do otherwise would be an injustice to the employee in question and a failure on the part of the board to meet the responsibility assigned to them by the Legislature.”
However, once a decision has been made in executive session that discipline, or other action is needed, all further acts of the board should be public, and the public officials accountable and answerable for their actions. In the instant case the board is to be commended on recording its executive session for its own record and possible judicial review. Of necessity the policies of a board must be reviewed to see if there has been an infraction which would warrant discipline or official action. The trial court properly reviewed the entire recording of the executive session in question in which official state reports and policies of the board were reviewed by the board for the purpose of determining if in fact there had been an infraction of board policy, and correctly made the tape recording a part of the record. See U.S. v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). It appears from our review of the record that a candid, free discussion was held on the way procedures were carried out by the penal institution by its officials with a view as to whether discipline was warranted. It should be pointed out that it was not the official function of this board to act as a grand jury or in the capacity of the prosecuting attorney’s office to bring possible criminal proceedings from the investigative reports from other agencies such as the State Police. The use of these reports and records of other agencies by the board in question was limited to the question of whether facts were available to indicate an infraction of board policy or procedure to warrant official board disciplinary action.
After reviewing the tape recording of the executive session in the present case the lower court determined that the discussion was limited to matters which were related to the possible need for disciplining certain named employees of the Department of Correction. Therefore, the court declared that, “The executive session . . . was in accordance with the Freedom of Information Act as to subject matter discussed.” While that finding is not binding on this Court, e.g., McGill v. Miller, 183 Ark. 585, 37 S.W. 2d 689 (1931), it should be ac corded significant weight. This Court has held that the judgment of a Circuit Court in a declaratory judgment proceeding is reviewed in the same manner as any other judgment, and if there is any substantial evidence to support the finding upon which the judgment is based, it will be affirmed. Midsouth Insurance Company v. Dellinger, 239 Ark. 169, 388 S.W. 2d 6 (1965); Ark. Stat. Ann. Section 34-2506 (Repl. 1962). In determining whether there is any substantial evidence to support the trial court’s finding, this Court has stated that it must view the record in the light most favorable to the Appellee. Power v. Howard, 253 Ark. 1052, 490 S.W. 2d 435 (1973). The presumptions on appeal are all in favor of the validity of the judgment of the trial court. Woodman of Union of America v. Henderson, 186 Ark. 524, 54 S.W. 2d 290 (1932). It is our finding that this court did not err in finding that the executive session was in accordance with the Freedom of Information Act as to subject matter discussed.
Appellants for their second point contend that the court erred in refusing to allow the plaintiff to make an offer of proof and play the tape into the record. It is conceded by the Appellant that the court did accept the taps nd what it said into evidence. The court accepted the tape ph, 4cally into the case and although not transcribed made it a part of the record. Appellants object to the court’s refusal to allow the tape to be transcribed by the court reporter. As previously discussed, the Freedom of Information Act specifically provides for an executive session without public purview. There is the presumption that public officials act lawfully, sincerely in good faith in carrying out their duties. Arkansas Pollution Control Commission v. Coyne, 252 Ark. 792, 481 S.W. 2d 322 (1972). Had the board not recorded the executive session the presumption that the members properly limited their discussion to personnel matters as required by law would have made the Appellant’s burden in proving the contrary practically impossible. However, as the board in acting in good faith had a tape recording made, it was appropriate for the judge to accept the tape into evidence and inspect it in camera, as he did. See Environmental Protection Agency v. Mink, 410 U.S. 73, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973). There was no reason for the court to order the contents of the tape recording of a confidential executive session to be transcribed once it was determined that the subject matter was within the exception. Accordingly, we find that the trial court was correct and within its discretion to refuse to have it transcribed.
Appellants further contend that the lower court erred in refusing to make the transcript public alleging that the board waived the confidentiality of the executive session because of the court’s finding that Commissioner Hutto and Superintendent Lockhart were improperly called into the executive session. This court acknowledges that the appearance of Correction Commissioner Teryl Don Hutto and Superintendent A. L. Lockhart, Cummins Prison Superintendent, before the Board in executive session on October 25, 1975, was at that time a violation of the Freedom of Information Act. However, we hold that the refusal of the lower court to make the tape recording of that session public was necessary to protect the individuals who were the subjects of the discussion in the executive session from unfair and/or unwarranted publicity. The prqcedural irregularity of allowing agents of the Board whose assistance the Board sought in its effort to determine whether certain lower echelon employees of the Department of Correction should be disciplined should not be held to destroy the confidential nature of an otherwise valid executive session. The individuals whose rights are protected by the exception to the Freedom of Information Act should not be penalized because of an innocent mistake by a board or commission which has at all times acted in good faith.
It should be noted, however, that the Arkansas Legislature in special session in 1976 amended the Freedom of Information Act to allow the presence in executive session of persons falling into their category.
AFFIRMED.
George Rose Smith, Hickman, JJ., and Lewis D. Jones, Special C.J., dissent.
Harris, C.J., and Holt, J., not participating. | [
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Elsijane T. Roy, Justice.
In 1973, appellee L. C. Cox, an 80 year old man, had for about three years been living with one of his daughters, appellant Orba Prentice, and two of her children at her home in Illinois. Some years before 1973 both of appellee’s legs had been amputated above the knees because of diabetes. He required regular medication and was confined to a wheel chair.
Appellee told appellant he would deed her 40 acres of his land in Arkansas if appellant would return to live on the farm and care for him during his life. Appellant was reluctant to accept the proposal, but after a few months she told her father she would agree to live on the farm and care for him. He was so pleased he told her he would “just give her 80 acres instead of 40 acres.”
In line with the agreement, in October, 1973, appellee executed and delivered to appellant a deed conveying 80 acres of land with the recited consideration of “One Dollar and love and affection I bear for my daughter.” After selling her home in Illinois, appellant, her youngest children and appellee moved to Arkansas in February, 1974. Thereafter misunderstandings arose between the parties and this action was filed by appellee to set aside the deed for failure of consideration.
The court in its findings, after citing cases, stated:
. . . [T]he plaintiff must establish only by a preponderance of the evidence the failure of the consideration to prevail. * * * (Italics supplied.)
* * * It will be the express holding of this court that the plaintiff must prove its case by a preponderance of the evidence. * * *
The court held appellee had not received that for which he bargained and the deed should be cancelled and title revested in appellee. This appeal is brought from the court’s decree.
Since our cases have not always been clear on the weight of evidence necessary to justify cancellation of a deed, a mistaken interpretation of the law is understandable. However, we find controlling under the facts here the principles enunciated in Bryant v. Bryant, 239 Ark. 61, 387 S.W. 2d 322 (1965), and Baker, Guardian v. Helms, 244 Ark. 29, 423 S.W. 2d 540 (1968). In Baker we pointed out that:
A mere preponderance of the evidence is not sufficient to establish an alleged unperformed agreement on the part of the grantee in a deed to support the grantor where that consideration is not expressed in the deed. Viesey v. Wooten, 220 Ark. 962, 251 S.W. 2d 593; Hammett v. Cannon, 226 Ark. 300, 289 S.W. 2d 683. Evidence to engraft upon a deed a consideration other than that expressed therein must be clear, cogent, and convincing. May v. Alsobrook, 221 Ark. 293, 253 S.W. 2d 29. Evidence to justify the cancellation in equity of a deed properly executed and acknowledged must also be something more than a mere preponderance. It must be clear, strong and conclusive, or clear, cogent and convincing, or clear, unequivocal and decisive. (Citing cases.)
In Bryant we reversed the chancellor’s cancellation of the deed for failure of consideration stating inter alia “. . . the testimony falls far short of establishing by clear, cogent and convincing testimony that the S3,500 was to be used for support of the mother. ...”
Appellee’s testimony seemed to indicate that his main causes of concern were responsibility for repairs on the house, being taken to a doctor against his wishes and later being left several days at his daughter Ellen’s house when he wanted to come home. However, appellee testified that he and appellant would still be living together if she could handle her two sons as she was mighty good about taking him to the doctor and things like that. He also testified he could have taken care of the sons if appellant hadn’t stolen his gun.
After appellant came to Arkansas she and appellee disagreed as to the financial responsibility for making necessary repairs on the house in which they were living. When she asked appellee to help with the repairs he became so violent and threatening that she consulted with his personal physician. She advised her father the physician recommended she take him to a nursing home at Jonesboro for an examination, but her father still did not want to go. However, she thought it was imperative under the circumstances, and it was necessary for her sons to hold his hands while she disarmed him. Her testimony was that after they returned home from Jonesboro the parties lived together happily and uneventfully for about three months until she received the notice to vacate the premises.
After the dispute about repairs one of appellant’s sons did the plumbing work on the house, screen doors were repaired and a new porch and a ramp for appellee’s wheel chair were built, with all materials being paid for by appellant or her sons. At the time of trial appellant testified the only money she had was $100 which had been given to her by her sons since all of her own funds had been expended on the costs of the move, materials for repairs, groceries, etc. Both parties agreed that appellee was to receive the income from the property as long as he lived.
Appellant testified as to how she had taken care of the house and her father in Arkansas the same way she had in Illinois for three years. She did the cooking, house cleaning, washing, ironing, bought the groceries, and took care of her father, including taking him to the doctor and seeing that he received his medication. She had no indication of dissatisfaction until she received the letter demanding that she move. She stated she loved her father and would live there and take care of him as agreed if he would let her.
Appellant’s oldest son, Vern Prentice, Jr., testified he came to the farm in late September of 1974 to help his younger brothers fix up the house for his mother and grandfather, arriving a few days before his mother received the notice to vacate. At appellee’s request he took him to visit his daughter Ellen and was to return in a few hours to bring appellee home. Appellee’s testimony was that Vern did not come back to get him and he thought appellant and “the boys” wanted to get rid of him. But Vern testified he called Ellen on the telephone and she advised him not to return because his grandfather wanted to spend a few days with her. Being unable to foresee the effect of his grandfather’s spending a few days with Ellen while the construction work on the house was going on, he continued working on the house and a few days later his mother received the letter ordering her to move. Shortly thereafter appellee filed this action.
Supplemental Opinion on Denial of Rehearing delivered April 4, 1977
(In Banc)
In her testimony Ellen denied that Vern had called but did admit that after appellee spent about a week with them her husband took appellee to the lawyer’s office to have the letter written to tell Orba to get out of the house. This was acrimonious family litigation, and the trial lasted several days with the testimony in sharp dispute. However, it would serve no useful purpose to elaborate further on the evidence for although the chancellor held appellee’s evidence preponderated this is not sufficient under our cases. We find the evidence did not rise to the required standard of clear, cogent and convincing and the deed should not have been cancelled. Bryant and Baker, supra.
The record having been fully developed the cause is remanded for entry of a decree not inconsistent with this opinion. Since we have reached this conclusion it is not necessary to discuss other allegations of error.
Reversed and remanded.
We agree. Harris, C.J., and Fogleman and Hickman, J.J-
Elsijane T. Roy, Justice.
Amplifying the opinion previously rendered in this case, we examine the complaint in more detail. It alleged no mental incapacity on appellee’s part at the time of execution of the deed, nor was there any allegation of fraud on the part of appellant in securing the deed.
The only ground for cancellation stated in the complaint was failure of consideration, and the only relief requested was a complete cancellation of the deed. The plaintiff prayed that the deed “be cancelled and title to the land described therein be revested in plaintiff. ” Thus the issue here is not the same as in an action for rescission or reformation of a contract.
Appellant, after receiving and recording the Arkansas deed, returned to Illinois, sold her home, paid all moving expenses in returning to Arkansas and invested the money from the equity in her Illinois home in the house located on the Arkansas property. Under these circumstances it is impossible to restore appellant to her original position, and no offer of restitution was made by appellee. It requires evidence which is clear, cogent and convincing to set aside a deed for alleged failure to care for appellant under these facts.
We cited in our original opinion Bryant v. Bryant, 239 Ark. 61, 387 S.W. 2d 322 (1965). Bryant contained a number of supporting cases including Kirkham v. Malone, 232 Ark. 390, 336 S.W. 2d 46 (1960), wherein we stated:
At the outset it must be recognized that the law is firmly established that to justify the setting aside of a deed for failure of consideration, the evidence of such failure must be clear, cogent and convincing. (Citing cases.)
The dissenting opinion cites Woolf v. Madison, 250 Ark. 314, 464 S. W. 2d 74 (1971), as being contra to our position on the weight of evidence necessary to cancel the deed in this case. We do not find Woolf appropos since the trial court refused to cancel the deed and in affirming this Court said “the evidence preponderately” shows grantee abided by the agreement. We do not find this to be support for the position that grantor would be entitled to have cancellation of the deed by a mere preponderance of the evidence.
In Edwards v. Locke, 134 Ark. 80, 203 S.W. 286 (1918), (another case cited in the dissent) the grantor-appellee in the complaint alleged inter alia that she was illiterate and did not understand the contents of the deed and that it had been executed through fraud, misrepresentation, intimidation and duress. She sought cancellation of the contract, the deed and a mortgage which was secured by the land in controversy.
The trial court construed the deed and the written contract together and found both should be cancelled not only because the consideration had failed, but also because appellant had practiced fraud and deceit upon appellee in securing the deed. On appeal we affirmed.
This factual situation is clearly distinguishable from the case at bar, and we reaffirm our position that the facts here necessitated a showing by clear, cogent and convincing evidence that appellant had failed to care for appellee before the deed could be cancelled.
Byrd, J., dissents.
On January 10, 1977, a stipulation was filed with this Court that L. C. Cox had died and the parties agreed the appeal should stand revived in the name of Emma Snider, executrix. | [
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John A. Fogleman, Justice.
American Savings & Loan Association asks us to prohibit the Circuit Court of Benton County from proceeding further in a tort action brought against the association in that court by Michael A. Mangione, a resident of Carroll County. The action was for alleged interference with a contractual agreement between Mangione and Mr. and Mrs. Charles Farley for the construction of a dwelling house for them in Eureka Springs. Summons was issued by the Clerk of the Circuit Court of Benton County and was served in that county on the manager of a branch of petitioner American Savings & Loan Association in Rogers. Petitioner appeared specially and moved to quash the summons, contending that the court had no jurisdiction over its person and that the venue was improper. The court denied the motion to quash and gave petitioner 15 days to plead further. Petitioner then commenced this proceeding, questioning the venue. We find that the venue is not improper and deny the writ.
American Savings & Loan Association is a savings and loan association with its principal office or place of business in Springdale, Washington County, and branch offices in Eureka Springs, Carroll County, and Rogers. No act upon which Mangione’s cause of action is based is alleged to have taken place in either Washington or Benton Counties. Petitioner contends that the venue of the cause of action is governed solely by Ark. Stat. Ann. § 27-605 (Repl. 1962) and thus lies in Washington County only. The circuit court, in finding venue in Benton County, held that the section relied upon by petitioner was supplemented by Ark. Stat. Ann. § 27-347 (Repl. 1962), which is Act 98 of 1909. We agree.
The pertinent part of § 27-605 reads:
An action other than those in §§ 84, 85 and 90 [Ark. Stat. Ann. §§ 27-601 - 27-603 (Repl. 1962)] against a corporation created by the laws of this state may be brought in the county in which it is situated or has its principal office or place of business or in which its chief officer resides . . .
Petitioner contended that the words, “may be brought” have been construed to mean “shall be brought.” Perhaps so, prior to the enactment of Act 98 of 1909. But we have not so considered these words since that act was adopted. InBeal-Doyle Dry Goods Co. v. Odd Fellows Bldg. Co., 109 Ark. 77, 158 S.W. 955 (overruled on another point in Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W. 2d 672), we rejected a contention that service, in the county in which the defendant corporation had its principal place of business, issued from a county where the corporation might have had a branch office should not be quashed. The plaintiff in that case relied upon, and we recognized the applicability of, the act now in question, but said that, in order to obtain service upon a defendant under that act the record should show that service of summons was had in compliance with that act. But the record did not show that the corporate defendant had a branch office in the county from which the process was issued or that service was had in that county.
In Ft. Smith Lumber Co. v. Shackleford, 115 Ark. 272, 171 S.W. 99, the act was applied. The corporate defendant had a commissary in Perry County as an adjunct to a logging operation. Process out of the Circuit Court of Perry County was served on the employee in charge. The corporation appeared specially and moved to suppress the service. We affirmed the denial of this motion on the basis of Act 98 of 1909.
In Duncan Lumber Co. v. Blaylock, 171 Ark. 397, 284 S.W. 15, (overruled on another point in Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W. 2d 672), we reversed a judgment of the Circuit Court of Scott County against a corporation, whose principal place of business was in Polk County, because the process was served on the general manager of the corporation in Polk County and not upon the manager of its operation in Scott County. The motion to quash in the trial court was based upon the fact that the corporation was domiciled and had its principal place of business in Polk County. In that case, citing §§27-347 and 27-605 and the two cases above treated, we said:
Under our statutes a domestic corporation must be sued in the county in which it is situated or has its principal office or business, or in which its chief officer resides, or in a county where it has a branch office or other place of business, by service of process upon the agent or employee in charge thereof.
Petitioner casts these cases aside as dicta, insofar as the question of venue is concerned, probably because the word “venue” is not mentioned in any of the opinions. Even if we should agree with appellant’s classification, we adhere to the language of Duncan, for reasons we will state.
We first note, however, that we have, in later cases read the act as we did in Duncan and its two predecessors. We reversed a refusal to quash service of summons in Chevrolet Motor Co. v. Landers Chevrolet Co., 183 Ark. 669, 37 S.W. 2d 873, on the basis that service of process from Fulton County in Pulaski County, where the defendant corporation had its principal office and its chief officers resided, was insufficient basis for jurisdiction of the Fulton County court, emphasizing the fact that the corporation did not keep or maintain a branch office or any other place of business in Fulton County when service was attempted. In Concrete, Inc. v. Arkhola Sand & Gravel Co., 228 Ark. 1016, 311 S.W. 2d 770, we affirmed a circuit court order sustaining a demurrer to venue and jurisdiction in Benton County, where the appellant-plaintiff urged here that the trial court’s action was contrary to our venue statutes. We there said:
*** Since the act contains no venue provisions the action against defendant is governed by Ark. Stats. § 27-605 which fixes venue for actions against domestic corporations. In construing this statute along with Ark. Stats. § 27-347 we have consistently held that a domestic corporation must be sued in the county in which it is situated or has its principal office or business, or in which its chief officer resides, or in a county where it has a branch office or other place of business, by service of process upon the agent or employee in charge thereof. ***
We held that the action was not maintainable against the defendant in Benton County, and that service on the corporation in Sebastian County where its principal place of business was located was properly quashed, becuse it had no place of business in Benton County and none of its officers resided there.
Petitioner argues that, by reason of this statute and the construction given it, the cause of action was not transitory, but that it could only be brought in a county in which its principal office was located or in which its chief officer resided, which, of course, could have been two different counties. Petitioner does not ignore § 27-347. It contends, however, that this staute is one providing for service of summons only, and is not a venue statute or a statute for service of process applying in transitory causes of action. Petitioner’s argument rests only upon the title of the act and its second section dealing with the effect of the act, overlooking the plain language of the act’s first section, the substantive part of the act. That section reads:
That from and after the passage of this Act any and all foreign and domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business, shall be subject to suits in any of the courts in any of said counties where said corporation so keeps or maintains such office or place of business, and that service of summons or other process of law from any of the said courts held in said counties upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporations and shall be sufficient to give jurisdiction to any of the courts of this State held in the Counties where said service of summons or other process of law is had upon said agent, servant or employee of said corporations.
It does not seem to us that the language of this section could any more clearly state that venue in an action against a domestic corporation can be laid in any county where the corporation maintains a branch office and that service of summons from any court held in such a county upon the person in charge of that office is sufficient to give that court jurisdiction.
The title of an act does not limit its application in Arkansas. See Berry v. Gordon, 237 Ark. 547, 865, 376 S.W. 2d 279; Huff v. Udey, 173 Ark. 464, 292 S.W. 693. Resort is not had to the title for construction of an act, unless the language of the act, unlike the act here, is ambiguous. Commercial National Bank v. Arkansas Children’s Hospital, 256 Ark. 1028, 511 S.W. 2d 640; McMahan v. Board of Trustees of the University of Arkansas, 255 Ark. 108, 499 S.W. 2d 56.
Petitioner says that the second section of the act limits the act to a statute governing service of process only, because to read it as a venue statute would repeal a prohibition against suing a domestic corporation in any county except that in which it maintains its principal office or in which its chief officer resides and that, somehow, the statute would not then be cumulative. Section 2 reads:
This Act shall not be taken and held by the courts of this State as repealing any of the laws of this State now in force and governing and regulating the service of process or summons upon corporations of this State, but shall be by the courts of this State construed and held as cumulative and in aid of the laws of this State now in force.
Petitioner’s misconstruction of this section is best illustrated by petitioner’s analysis of it in its brief, in these words:
The statute, on its face, clearly provides that it did not repeal any other statutes relating to service of process and the act was merely cumulative in the method of service in aid of the above methods.
The statute does not repeal any statute relating to the service of process, but nothing is said to limit its effect upon venue. Providing venue in additional counties is certainly “cumulative” in effect. The section cannot be read to be cumulative only (or merely) to statutes governing the method of service.
Petitioner says that it is inconceivable that a resident of County A (Carroll) can bring an action for tortious interference in County B (Benton), in which it can be served with process, when it has its principal place of business (residence) in County C (Washington). A similar result could be reached if the defendant were an individual residing in County C who was served with process in County B at a branch office of a business maintained by him. This accounts for the great care taken by petitioner to correctly point out that the provisions of Ark. Stat. Ann. § 27-613 (Repl. 1962) are not applicable. Why it should be unthinkable in the case of a corporation, but not an individual, to say the least, is unclear.
The writ is denied.
We agree. Harris, C.J., and Byrd and Hickman, JJ. | [
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PER CURIAM
Appellant contends that the trial court erred in granting judgment in favor of appellee based on appellant’s waiver of, or estoppel to assert, the right to avoid or forfeit an insurance policy because appellee failed to plead waiver or estoppel as an affirmative ground for relief; in concluding as a matter of law that a payment by appellee prior to a loss by her was sufficient to keep the policy in force; and in awarding $1,000 as reasonable attorney’s fees.
The judgment is affirmed under Rule 9 (e) (2) of the Rules of the Supreme Court of Arkansas [Vol. 3A, Ark. Stat. Ann. (Supp. 1975 p. 118)]. Appellant did not abstract any of the pleadings in the case or the judgment of the court. The case may well turn upon the content of a letter dated April 8, 1976. Appellant states, without record support, as the record is abstracted, that the circuit court’s holding on waiver was based on this letter. We are referred to the record, not the abstract, for support of very broad, general statements made by appellant in its argument in at least three instances, but even in these instances there is no transcript reference. Consequently, we consider the abstract flagrantly deficient.
The judgment is affirmed. | [
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Frank Holt, Justice.
This appeal involves the validity of an inter vivos trust created by Garland Richards (deceased) for the benefit of his wife, the appellant. After Garland’s death in 1973, his will, which predated the inter vivos trust, was filed for probate and appellant filed an election to take against the will. Appellant then sought a declaratory judgment to the effect that the inter vivos trust was invalid. The chancellor upheld the trust. For reversal appellant first argues that the chancellor erred in refusing to sustain her allegations that the inter vivos trust was testamentary in character or was an illusory scheme or device to defeat the appellant’s marital rights. The chancellor was correct.
On September 30, 1970, Richards created the inter vivos trust, naming appellee as trustee and provided $10,440 funding for the trust out of a checking account held jointly with his wife and her sister. Additional funding totaling $7,000 also originated from their joint account. Other funding of the trust came from Garland’s own property, bringing the total value of the trust res to $43,439.51. According to the pertinent terms of the trust, the trustee would distribute the net income from the trust res to the settlor, Garland Richards, during his life. After Garland’s death, the net income would be distributed to appellant, his wife, together with as much of the corpus as might be necessary for her care and comfort. Any assets remaining at appellant’s death would then go to certain of their named relatives in equal shares. Appellant argues that, by Garland reserving the income to himself for life and reserving the power to revoke the trust or withdraw the trust property, the trust is rendered testamentary in nature.
In the absence of a statute to the contrary, a settlor may create a trust for any lawful purpose and the trust may be created for his own benefit as well as the benefit of another. Gall v. Union National Bank, 203 Ark. 1000, 159 S.W. 2d 757 (1942); Murry v. Hale, 203 F. Supp. 583 (1962). A settlor has the power to reserve the right to consume the principal of the trust res or to revoke the trust in whole or in part. Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244 (1905); United Building & Loan Association v. Garrett, 64 F. Supp. 460 (1946); and see also 164 A.L.R. 881.
The general rule is stated in 1 Restatement of Trusts 2d, § 57:
Where an interest is created in a beneficiary other than the settlor, the disposition is not testamentary and invalid for failure to comply with the requirement of the Statute of Wills merely because the settlor reserves a beneficial life interest or because he reserves in addition a power to revoke the trust in whole or in part, and a power to modify the trust, and a power to control the trustee as to the administration of the trust.
See also 76 Am. Jur. 2d, Trusts, § 25. In United Building & Loan Association v. Garrett, supra, the settlor named himself trustee, reserved the income from the trust to himself for life, retained the power to revoke the trust or to withdraw the trust properties. One year after the settlor’s death, the assets were to be distributed to named beneficiaries. The trust was attacked on the ground that it was testamentary and therefore void for noncompliance with the Statute of Wills. The court upheld the validity of the trust stating the test to be:
If by terms of the instrument, an interest passes to the beneficiaries during the life of the settlor, even though possession or enjoyment thereof is postponed until the death of the settlor, the trust is not testamentary.
Here, the trust was created over two years before Garland’s death. At that time an interest was vested in the settlor, the appellant and other named beneficiaries of the trust res. Only the enjoyment of the interests of appellant and the other beneficiaries was delayed until the death of Garland. The settlor was within his legal rights in his reservation of powers and rights. Therefore, we hold that the chancellor was correct in ruling that the inter vivos trust was not testamentary in nature.
Appellant also argues that the inter vivos trust is an illusory scheme or device to defeat the appellant’s marital rights even though no “evil” intent existed. It is true that appellant will immediately receive less from the trust proceeds than if the trust were ruled invalid. However, this is not the test to be applied in determining if a trust is a fraud as to appellant’s marital rights. The important consideration is the settlor’s intent. Potter v. Winter, 280 S.W. 2d 27 (Mo. 1955); Sherill v. Mallicote, 57 Tenn. App. 241, 417 S.W. 2d 798 (1968); Rose v. St. Louis Union Trust Co., 43 Ill. 2d 312, 253 N.E. 2d 417 (1969); and In re Steck’s Estate, 275 Wis. 290, 81 N.W. 2d 729 (1957). Here the settlor was attempting to make adequate arrangements for the care of his wife, whose health was apparently failing. In addition to the provisions of the inter vivos trust, previously recited, Garland’s will left his home to his wife for her life with the remainder to her sister provided she lived with appellant and cared for her for a certain length of time following his demise. The residue of his property went into a testamentary trust from which, after one year, appellant was to receive $300 per month income and additional funds from the principal and earnings of the trust were to be distributed to appellant if necessary for her care. Any assets left in the trust following appellant’s death would be distributed to certain named relatives of each of them. Here it is apparent that Garland’s inter vivos trust was not a scheme or device to defeat his wife’s marital rights. To the contrary, it appears to be an additional provident method of assuring her future care and support. The chancellor was correct in ruling that the trust was not a scheme to defraud appellant of any property rights.
Appellant finally argues that the chancellor erred in approving the transfer of personalty by one tenant by the entirety (her deceased husband) into the inter vivos trust without the consent or knowledge of the other tenant by the entirety (appellant Myrtle). The parties stipulated that $17,440 of the trust res had its origin in a husband-wife joint checking account. A third person, appellant’s sister, was also listed on the account. Any one of the three persons listed on the joint account could have withdrawn all or any part of the funds. Ark. Stat. Ann. § 67-521 (Repl. 1966). As indicated, the funds were not withdrawn for the purpose of defrauding appellant but rather for the beneficient purpose of funding a trust for the assurance of her care and support. There is no evidence that appellant contributed anything to the joint ac count. The withdrawals were over a period of approximately two and one-half years. Appellant, as a party to the account, had access to the bank’s record or status of the account and is charged with notice of the withdrawals. Porter v. Trainor, 243 Ark. 550, 420 S.W. 2d 860 (1967). Here we agree with the chancellor that the transfer of funds by Garland to the inter vivos trust from a joint banking account was legal and proper.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Roy, JJ.
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Conley Byrd, Justice.
This is an appeal from a jury verdict finding the appellant guilty of theft and sentencing him to 18 months in the Arkansas State Department of Corrections.
The evidence stated in the light most favorable to the jury verdict shows that the appellant and two friends broke into the business of R. D. Wilmans and Sons in Jackson County, Arkansas and stole 52 cans of Trefian on or about March 4, 1976. The appellant raises two points hereinafter discussed.
POINT I. The appellant argues that the court erred in overruling his motion for directed verdict at the conclusion of the State’s proof for the reason that the State did not corroborate the testimony of the two accomplices who testified against him. We find no merit to this contention in that there was more than enough evidence to corroborate the accomplices’ testimony by connecting the appellant with the commission of the crime. See Ark. Stat. Ann. § 43-2116 (Repl. 1964). Roger Evans, a farmer and former employer of the appellant, received a phone call shortly after the break-in from a man who identified himself as the appellant and who offered to sell Treflan to him. Mr. Evans testified that he was unable to identify appellant as the caller. Michael Webb testified that he loaned his pickup truck to the accomplices and a third person who resembled the appellant around March 5, 1976, between 10:00 and 10:30 p.m. and that they did not return the truck until between 2:00 and 4:00 a.m. the next morning. D. B. Casteel, a Deputy Sheriff at the time of the break-in, testified that the appellant told him that the first he knew of the burglary was when he had driven past Wilman’s around 11:00 a.m. the day after the break-in and noticed the broken glass where the intruders had entered the building. However, the evidence showed the broken glass had been replaced by 9:30 that morning. Also, the evidence showed that the appellant and Mike Long, one of the accomplices, picked up a $100 check from Ed Thompson made out to Mark Wadley, Hershell Wadley’s brother, as an advance on some of the Treflan. However, Mark Wadley testified that his brother and Mike Long, the accomplices, and the appellant told him to cash the check as it was a loan from Ed Thompson to Hershell. Therefore, we find the State met its burden of corroborating the accomplices’ testimony by connecting the appellant with the commission of the crime.
POINT II. Appellant argues that the court erred in denying his motion for mistrial when the court, at the suggestion of the prosecuting attorney, required the appellant to speak the words “This is Kenneth Coffey” in open court. It is asserted this violated appellant’s Fifth Amendment right against self-incrimination. We find no merit to this contention.
Appellant could not possibly be prejudiced by the incident since the witness stated that he still cuuld not say that the telephone caller was appellant. The sole purpose of having the appellant stand up in open court and make the statement was so that Roger Evans could properly determine if the voice on the telephone was the same as the appellant’s. The privilege against self-incrimination applies to evidence of communication or testimony of the accused, but not to real or physical evidence derived from him. See People v. Ellis, 65 Cal. 2d 529, 55 Cal. Rptr. 385, 421 P. 2d 393 (1966). We feel that the evidence derived from the appellant falls in the latter category in that it was merely used to identify the voice of the appellant. As was said in People v. Ellis, supra, “In such a test, the speaker is asked, not to communicate ideas or knowledge of facts, but to engage in the physiological processes necessary to produce a series of articulated sounds, the verbal meanings of which are unimportant. The sounds alone are elicited for identification purposes through characteristics such as pitch, tone, intonation, accent, and word stress. The speech patterns of individuals are distinctive physical characteristics that serve to identify them just as do other physical characteristics such as color of eyes, hair, and skin, physical build and fingerprints.” See also United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926,18 L. Ed. 2d 1149 (1967).
Accordingly, the appellant’s right against self-incrimination was not violated.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Holt, JJ. | [
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Darrell Hickman, Justice.
The only issue in this case is, can a federal district court and a state circuit court have jurisdiction at the same time of the same subject matter involving identical parties? The trial court ruled that they could and we agree.
The appellant, Joe H. Carter, sued the appellee, Owens-Illinois, Inc., in the Federal District Court at Fort Smith over a vehicle accident that occurred in Fort Smith. Owens filed an answer to the lawsuit and later a counter-claim for property damages. After the lawsuit was filed in federal court, Owens filed a lawsuit in Sebastian Circuit Court against Joe Carter over the same accident. Therefore, we have identical claims involving the same parties concerning the same subject matter pending in two courts at the same time.
Carter asked the federal court to enjoin the state court from hearing the lawsuit. The federal court denied the request. See Carter v. Owens-Illinois, Inc., 420 F. Supp. 927 (1976). Apparently the case is still pending in federal court.
Carter next filed a motion for summary judgment in the state court asking the case to be dismissed because the federal case was filed first, involved the same matter, between the same parties. The trial court denied the motion, the case was tried before a jury, judgment was entered for Owens and denied Carter. Carter raises only the one issue of jurisdiction on appeal.
Federal district courts and state courts are separate jurisdictions. Identical cases between the same parties can be pending in each court at the same time. See Baker, et al v. Harrison, Judge, 247 Ark. 377, 445 S.W. 2d 498 (1969). It is the same situation as if identical cases between the same parties were pending in different states. In such a situation the first forum to dispose of the case by trial enters a judgment that is binding on the parties.
Arkansas law does prohibit identical cases between the same parties from proceeding in different Arkansas counties. However, this is a matter of venue and not jurisdiction. See Ark. Stats. Ann. § 27-1115 (Repl. 1962).
Affirmed.
We agree: Harris, C.J., and Fogleman and Byrd, JJ. | [
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George Rose Smith, Justice.
In this suit brought by Mrs. Bunker for divorce, alimony, child support, attorney’s fees, and similar relief, the key question is the extent to which the chancery court of Drew County, Arkansas, can exercise personal jurisdiction over the defendant husband, John Duane Bunker, who was residing in Louisiana when the suit was filed. The chancellor held that he had personal jurisdiction over Bunker only with respect to the cause of action for child support. An appeal and cross-appeal bring the entire case to us for review.
Bunker had been a lifelong resident of Arkansas and Mrs. Bunker was a college student at Fayetteville when the two were married in Oklahoma in 1963. During their marriage they lived principally in Arkansas but also in Texas and Guatemala. In April, 1975, they moved back to Arkansas and lived together in Drew County until November, when Bunker left Arkansas and apparently changed his domicile to Louisiana. Mrs. Bunker stayed in Drew County with the couple’s two children.
In January, 1976, Mrs. Bunker filed this suit for divorce, in Drew County, asserting a cause of action for personal indignities that occurred while the defendant was domiciled in Arkansas. Her attorneys knew that a valid divorce could be obtained in Drew County, which was Mrs. Bunker’s domicile and also the last matrimonial domicile. But counsel also wanted to obtain personal judgments for alimony, child support, and attorney’s fees. To that end, no attempt was made to obtain constructive service by warning order, which would have supported a divorce decree only. Instead, service was had upon the Arkansas Secretary of State, pursuant to Act 119 of 1963 (noted in 18 Ark. L. Rev. 124 [1964]). Ark. Stat. Ann. § 27-339.1 (Supp. 1975). As we have said, the chancellor limited his jurisdiction to the cause of action for child support.
We are firmly convinced that the chancellor was mistaken in restricting the full sweep of Act 119. It provides that any cause of action arising out of acts done by an individual in Arkansas may be sued upon here although the defendant has left the state. The statute is not limited to tort actions. Mallory v. Edmondson, 257 Ark. 909, 521 S.W. 2d 215 (1975). To. the contrary, it specifies any cause of action arising out of acts done in this state. Thus if jurisdiction is lacking in this case, it must be because the long arm of the statute cannot constitutionally reach as far as it was plainly intended to reach.
There is no longer any such constitutional limitation upon a state’s jurisdiction in a case like this one. The basic test is whether the defendant’s contacts within the state were such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 (1945). When the in-state conduct was tortious, jurisdiction is hardly ever open to question. The principles applicable to other conduct are well summarized in the Restatement, Second, Conflict of Laws, § 36 (1971), as follows:
A state is naturally interested in all acts done within its territory. A state will usually have judicial jurisdiction over an individual who does, or who causes to be done, in the state an act, even though it is not claimed to be tortious, as to causes of action arising from the act. This is true for the reason, among others, that a heavy burden may be imposed upon a local inhabitant if he is compelled to litigate without the state a claim based upon an act done within the state, whether the act is a tort, a breach of contract or something else. Whereas a state may exercise judicial jurisdiction over a nonresident individual who does a tortious act within its territory, there will be rare occasions when a state may not exercise judicial jurisdiction over the perpetrator of some other sort of act. Such jurisdiction will exist unless the state’s interest in, and relationship to, the actor and the act are so slight as to make the exercise of such jurisdiction unreasonable.
Whether an exercise of judicial jurisdiction on the basis of an act done, or caused to be done, in the state would be reasonable depends upon the facts of the case. The principal factors to be considered are the nature and quality of the act, the extent of the relationship of the state to the defendant and to the plaintiff and the degree of inconvenience which would result to the defendant by being forced to stand suit in the state on the particular cause of action.
We see no good reason for not recognizing Arkansas’s jurisdiction in this case. Arkansas was the Bunkers’ last matrimonial domicile. It is the place where Bunker’s asserted wrongful conduct created the cause of action for divorce and alimony. It has continued to be the residence of Mrs. Bunker and the children, where their living expenses must be paid. It is presumably the residence of the witnesses who will be called to testify. Finally, Bunker appears to have left this state voluntarily, creating the possibility of hardship if that conduct on his part deprives Mrs. Bunker of her right to bring her suit in Arkansas. Recent pertinent cases supporting our conclusion include Nickerson v. Nickerson, 25 Ariz. App. 251, 542 P. 2d 1131 (1975); Owens v. Superior Court of Los Angeles County, 52 Cal. 2d 822, 345 P. 2d 921 (1959); Scott v. Hall, 203 Kan. 331, 454 P. 2d 449 (1969); Mizner v. Mizner, Nev., 439 P. 2d 679 (1968).
With respect to the specific cause of action for child support, jurisdiction is expressly conferred by Act 297 of 1969, which applies to a father who, after having acquired a marital domicile in Arkansas, absents himself from the state and fails to support his dependent children here. Ark. Stat. Ann. § 34-2446 (Supp. 1975). For the reasons already stated, we agree with the chancellor in finding that statute to be valid.
Affirmed on direct appeal; reversed on cross appeal.
We agree. Harris, C.J., and Holt and Roy, JJ. | [
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Sam Robinson, Associate Justice.
Appellant was convicted of the crime of forgery, sentenced to five years in the penitentiary, and has appealed.
First, appellant argues that the trial court should have granted his motion for a mistrial because of the method used by the prosecuting attorney in cross-examining the defendant about the commission of other offenses. When the defendant takes the stand, as in the ease at bar, he is subject to the same rules of evidence as other witnesses, and for the purpose of throwing light on his credibility, he may, in good faith, be asked about other crimes he may have committed and other convictions, but he cannot be asked if he has been charged, indicted, or accused of other crimes. Sullivan v. State, 171 Ark. 768, 286 S. W. 939; Mathis v. State, 191 Ark. 1053, 89 S. W. 2d 599; Morrison v. State, 191 Ark. 720, 87 S. W. 2d 50; Kennedy v. Quinn, 166 Ark. 509, 266 S. W. 462.
If the defendant denies that he has committed other crimes he cannot be impeached by showing that he has given false answers. Montague v. State, 213 Ark. 575, 211 S. W. 2d 879. Here, the defendant was asked on cross-examination about other convictions which he readily admitted, but he denied other crimes for which apparently there had been no trial or conviction. The prosecuting attorney asked the defendant specifically if he had cashed a check in Lucille Brent’s Cafe. He answered “no”. The prosecuting attorney then said: “I ask the Court’s indulgence. I sent after some records and they will be here in just a minute.”
The prosecuting attorney then proceeded to question-the accused about other check writing offenses. The record is not exactly clear at this point as to whether the State’s attorney was using the alleged records in such manner as to lead the jury to believe that he was examining the accused from official records of charges against him, but apparently this was being done. The attorney for appellant then stated that if other records were to be introduced, he would like to discuss the matter in chambers. Finally, the Court and counsel retired to chambers and there, in the course of the discussion, the prosecuting attorney said: “I, at the time of this objection, am doing nothing more or less than looking at old information sheets with which the man was charged, specific checks and the specific name . . .”. The Court then asked: “Are these convictions according to the witness?” The prosecuting attorney replied: “They are charges.” The Court sustained the defendant’s objection, but did not grant the motion for a mistrial.
In view of the fact that the cause is being reversed on the question of the sufficiency of the evidence, we do not deem it necessary to rule on the above assignment of error any more than to point out that although it is proper for the State’s attorney, in good faith, to ask the defendant on cross-examination about the commission of, or the conviction for, other offenses, he should not attempt to get before the jury in an indirect way, or other wise, the fact that the defendant has been charged, indicted, or accused of other crimes.
The appellant was charged by felony information with forging the name of James Odam to a check drawn on the Morrilton Security Bank in the sum of $38.00. Billy F. Davidson, Assistant Cashier of the First State Bank (not the Morrilton Security Bank on which the check was drawn) was called' by the State as a witness regarding the alleged forged check. The name of James Odam appeared on the check as maker and the name James Payne appeared on the back of the check as endorser. The witness, Mr. Davidson, testified:
“ Q. At this time I hand you a check dated October 19, 1962, and ask you if you can, how it came into your hands originally?
A. "Well, that’s the one thing I can’t tell you, how it got into our bank. Presumably, someone cashed it at the window, but who, we don’t know, but its possible it came to us on a deposit and they didn’t put a stamp on it or write their name on it.”
The witness then testified that the check was forwarded to the Morrilton Security Bank and was returned by that bank with the notation “Sig. Inf.” written in pencil at the end of the name of the endorser on the back of the check. The witness further testified that the notation on the back of the check along side the endorsement means, in banking circles, that the signature does not correspond; that the known signature at the bank does not correspond with the signature on the check. He further testified: “We get them quite often, but not too often, occasionally.” The witness then stated that they (the bank) wrote to James Payne, whose name appeared on the check as endorser. The State attempted to prove by the witness what James Payne said, but, of course, such evidence was excluded by the Court as hearsay.
The State produced as a witness Dr. Orlando W. Stephenson, who testified as an expert, and said, in effect, that the defendant—appellant Johnson, had written the check in question, but apparently, to reach that con elusion it required about 30 days work on the part of the witness in comparing the handwriting on the check with known specimens of Johnson’s writing.
Other than the testimony of Dr. Stephenson, there is no competent evidence in the record that the defendant signed the name of James Odam on the check, and there is absolutely no evidence that James Odam’s name was forged. In order to constitute the offense of forgery it is necessary that there be an intent to defraud. Ferrell v. State, 165 Ark. 541, 265 S. W. 62; Rickman v. State, 135 Ark. 298, 205 S. W. 711. Of course, if one has permission to sign another’s name to the instrument in question, there could be no forgery.
Although the circumstantial evidence shows that there is such a person as James Odam who has a checking account at the Morrilton Security Bank, Odam was not called as a witness, and neither was anyone from the bank on which the check was drawn. The mere fact that one person signs another person’s name on a check or other instrument does not necessarily mean that a forgery has been committed.
Whether Odam authorized someone else to sign his name could have been proved very easily by calling him as a witness. There is nothing in the record indicating that he was not available as a witness, and certainly someone could have been called from the bank on which the check was drawn and Odam’s signature card could have been produced or its absence explained. It does not appear that Dr. Stephenson ever examined a signature of Odam known to be genuine. It might be asked why did the defendant not do these things. The answer is that the burden was on the State to prove the defendant guilty, the burden was not on the defendant to prove his innocence.
The evidence is not sufficient to support the verdict, but the case does not appear to have been fully developed; therefore, the cause is reversed and remanded for a new trial. Poole v. State, 234 Ark. 593, 353 S. W. 2d 359; Anderson v. State, 226 Ark. 498, 290 S. W. 2d 846; Grigson v. State, 221 Ark. 14, 251 S. W. 2d 1021. | [
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Frank Holt, Associate Justice.
This is ail action to rescind a written contract of sale. By said contract, the appellees, Mr. and Mrs. Brand, purchased from the appellant, Mrs. Clay, a tourist court (Wedgewood) which is located south of Mountainburg, Arkansas. As the basis for rescission, the appellees allege that appellant fraudulently misrepresented to them the adequacy of the water supply and sewage system at the Court. The appellees claim that they reasonably relied upon appellant’s assurances of adequacy. Appellant denies making any such representations and asserts the water supply and sewage system are adequate if properly operated. The written contract is silent with reference to the water supply or the sewage system. The trial court granted rescission of the contract and this appeal follows.
The appellant and her former husband, Mr. Houck, now deceased, had owned and operated the Wedgewood Court for about 18 years before the sale to appellees. Originally the court consisted of six units and the appellant later added two units. She also operated a beauty shop at the Court. The water need was supplied from a ' ‘bored well” and a 300-gallon storage tank operated by an automatic pump system. The storage tank was added to the supply system by the appellant several years ago.
The appellees, at the time of the purchase, resided in Texas where he was employed as a store manager and she operated a beauty shop. While visiting relatives in Fort Smith in June, 1961, the appellees contacted Mr. Don Roderick, a local realtor, about purchasing a motel or tourist court. Mr. Roderick showed them the Wedge-wood Court and appellees (buyers) claim that on June 7, 1961, the day they made the inspection tour of the Court, the appellant (seller) made the alleged misrepresentations.
On July 14, 1961, the contract of sale was signed by the parties and the appellees took possession of the Court the next day. They occupied and operated the Court until early January, 1962. By the terms of the contract the purchase price was $35,000.00. The appellees paid the required $2,500.00 initial payment, the balance to be paid in installments of $310.00 per month. These payments were made on August 15, September 15, and October 15, 1961. Following the last payment appellees claim they became convinced the water supply and sewage facilities were inadequate and they made no further payments. On December 22, 1961, the appellant, through her attorney, wrote the appellees demanding that they vacate the Court and return possession to appellant pursuant to the terms of their sale agreement.
On December 28, 1961, the appellees filed their complaint in equity seeking rescission of the contract. They also asked for the recovery of the down payment of $2,-500.00, the three monthly payments totaling $930.00, the value of the improvements to the property to the extent of $613.75, and cost of repairs to the water and sewage system totaling $250.00.
’ In granting rescission the court found that the appellant: “ * * * made representations, amounting to fraudulent representations, that there was an adequate supply of water in the well on said premises and connected with the water lines and system in the cabins and buildings thereto belonging for the operation of a motel and beauty shop when in truth and in fact there was no such adequate supply of water, which fact was known to the defendant at the time of such representations; that the plaintiffs have met the burden of proof as to fraud by a preponderance of the evidence which is clear and convincing and that they are entitled to a rescission of the contract * * * . ” In granting rescission the chancellor awarded recovery only for the $2,500.00 down payment and gave to appellant the choice of paying the $613.75 or allowing the improvements to be removed. There is no cross-appeal.
For reversal appellant urges that the chancellor’s findings that the appellant, seller, made fraudulent misrepresentations to the appellees and that the water supply is inadequate are against the clear preponderance of the evidence.
The appellee, Mrs. Brand, testified that the appellant, Mrs. Clay, told her when she inspected the tourist court there was ‘ ‘ plenty of water here ’ ’ and that Mrs. Clay brought the matter up several times; that Mrs. Clay assured her there was an adequate water supply for the needs of the house, the court and the beauty shop. Mr. and Mrs. Brand testified that the problem of a water shortage began about two weeks after they took possession of the Court and that they made their complaint to the real estate agent, Mr. Roderick, who testified he relayed this complaint to Mrs. Clay. Mrs. Brand testified that: “ * * * after we had protested to Mr. Roderick and he acted more or less as embassy for us, that she and Mr. Clay came up there one Sunday afternoon and brought some linens back to the motel, and she told me — she walked out in the back with us, and she walked over there, and she said, ‘Now, I will tell you what. We used to buy water from Henry. We got water from him and paid him so much, but you may be smarter. I don’t know who owns that property over there that is standing-vacant. Just drill you a well right here and try to tap their vein, because it is an everlasting well.’ ” The appellee, Mr. Brand, testified that during- their inspection tour Mrs. Clay represented to him, his wife, and her father, Sam Turner, that there was “enough water to run a beauty shop, do the motel linens, and an adequate water supply. ’ ’ Mr. Turner testified that he was present during the inspection of the Court and heard Mrs. Clay on two occasions represent that there was an adequate supply of water.
The Brands testified that because of the water shortage it was necessary to buy water and have it hauled to the Court on many occasions. Mrs. Brand estimated they had bought approximately twenty loads of water from' Everett Tucker. Mr. Tucker testified that he had hauled and sold water to the Brands “quite a few times.” According- to him, the capacity of the tanks in which he hauled water was 720 gallons.
The Brands testified that they had employed Frank Parker, a plumber, in an effort to correct the shortage. Mr. Parker testified: “Well, I know the last time I was up there I got a call on the well pump, to check the water pump, and I told them that evidently they just didn’t have «enough water to furnish the whole court. ’ ’ The Brands fixed this date as the latter part of October and thereafter made no further payments. There were other witnesses whose testimony tends to corroborate that of the appellees.
The appellant emphatically denies that the subject of a water supply was ever discussed during the negotiations ; that the appellees made any inquiry with reference to this subject, and that she, or anyone in her behalf, ever made any representations with reference to the water supply. She asserts that during the 18 years that she operated the Court and since taking possession again on January 4, 1962, she has never experienced any shortage of the water supply. Appellant claims that the water supply problem was due to the appellees’ inability to understand and properly operate the water supply system rather than an actual shortage in the water supply. Several witnesses appearing in behalf of Mrs. Clay corroborated her version of this dispute.
Of course fraud is never presumed and appellant contends that the quantum or degree of proof required to prove fraud is not found in this case. She relies on the case of Biddle v. Biddle, 206 Ark. 623, 177 S. W. 2d 32, from which we quote:
“ * * * There is no rule more firmly established than the one that fraud will not be presumed, and the burden is on the party alleging it to prove it by a preponderance of the evidence which is clear and convincing. Irons v. Reyburn, 11 Ark. 378; Home Mutual Benefit Ass’n. v. Rowland, 155 Ark. 450, 244 S. W. 719, 28 A. L. R. 86; U. S. Ozone Co. v. Morrilton Ice Co., 186 Ark. 485, 54 S. W. 2d 282; Russell v. Brooks, 92 Ark. 509, 122 S. W. 649; Crider v. Simmons, 192 Ark. 1075, 96 S. W. 2d 471.” (Emphasis added)
The cases cited by the Biddle case in support of the quoted rule are not authority for the rule in its entirety. The Irons case and Home Mutual Benefit case are authority only for the proposition that fraud will not be presumed. The U. S. Ozone case states the same rule and goes on to say that the findings of fact by the chancellor will not be set aside unless against the preponderance of the evidence. The Russell case states:
“ * * * While fraud will not be presumed, and while the burden is on him who alleges it to prove same by clear and satisfactory evidence, still it need not be shown by direct or positive evidence, but may be proved by circumstances.”
The Crider case relates that “fraud must be clearly proved” but the court was not there called on to apply that language to the facts since the case concerned an administrator who, acting in that capacity, had sold property in his charge to himself indirectly and the court found that this was legal fraud although the proof may not have been sufficient to find fraud in the ordinary case. We think these cases do not support the quoted rule as to “preponderance of the evidence which is clear and convincing.”
We are aware that later cases have quoted with approval the rule as stated in the Biddle case. See Bryan v. Thomas, 226 Ark. 646, 292 S. W. 2d 552; Robinson v. Williams, 231 Ark. 166, 328 S. W. 2d 494. But the “clear and convincing” language seems to have evolved from that line of cases which require that in order to cancel or reform a solemn writing because of fraud, accident or mutual mistake the proof must be clear and convincing. Eureka Stone Co. v. Roach, 120 Ark. 326, 179 S. W. 499; Martin v. Hempstead Co. Levee List. No. 1, 98 Ark. 23, 135 S. W. 453; Michell Mfg. Co. v. Ike Kempner & Bro., 84 Ark. 349, 105 S. W. 880; Welch v. Welch, 132 Ark. 227, 200 S. W. 139; Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458.
Thus, it appears that two rules of law with respect to proof of fraud have been developed with reference to written instruments. One, the ordinary rule which requires proof of fraud by a preponderance of the evidence and, two, the stricter rule which requires proof of fraud by a preponderance of the evidence which is clear and convincing.
The distinction between the two rules was recognized in Manhattan Credit Company v. Burns, 230 Ark. 418, 323 S. W. 2d 206 where this court said:
“ * * * ~We think the proof sufficient to establish the fact that the contract was obtained by misrepresentation, and this is so whether the case falls within the ordinary rule that fraud is to be proved by a preponderance of the evidence, Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524; Gregory v. Consolidated Utilities, 186 Ark. 406, 53 S. W. 2d 854; Rose v. Moore, 196 Ark. 527, 118 S. W. 2d 870, or within the rule that a stricter degree of proof is required when a solemn written instrument is to be upset. Welch v. Welch, 132 Ark. 227, 200 S. W. 139; Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458.”
In the present case the written contract is silent with reference to an adequate water supply which is the subject of the alleged fraudulent misrepresentation. Thus, the proof on this subject does not alter or contradict any of the written terms of this contract. Therefore, we believe that the ordinary rule as to proof of fraud by a preponderance of the evidence is applicable in this case.
However, even if the stricter degree of proof were required in this case, we cannot say that the findings of the chancellor are against the preponderance of the evidence which is clear and convincing.
Appellant also contends that the appellees had actual knowledge of the exact nature and limitations of the water system prior to the purchase and cannot now assert that they were misled by any statement of the appellant. It is argued that a casual inspection of the Court would have called to the attention of the appellees a sign in each cabin which stated: “We use water from a bored well, please conserve water, do no washing. If you leave a commode stuck it will pump the well dry. ’ ’ These signs were visible in each cabin on the date the appellees made ■ their inspection. The very existence of these signs could have prompted a discussion of the adequacy of the water supply which resulted in the alleged fraudulent misrepresentations.
In Castleman & Son v. Schuhardt, 128 Ark. 445, 194 S. W. 1028, we quoted from Hunt v. Davis, 98 Ark. 44, 135 S. W. 458, as follows:
“Although a purchaser must act with prudence and diligence in seeking the available means o.f ascertaining the truth, yet if the seller having peculiar knowledge of the matter, by any misrepresentation or artifice, induces the buyer to rely on his false statement, then the seller will not be heard to say that the buyer could have ascertained the truth. The very representations relied upon may have caused the purchaser to forbear from making further inquiry. If the false representations are made with the intent to induce the other party to act thereon, ordinary prudence does not require the party to test the truth of such .representations where they are within the knowledge of ‘the party making them or where they are made to induce the other party to refrain from seeldng further information.”
Appellant further contends that the appellees, by their continued occupancy and other affirmative acts, ratified the contract of sale after discovery of the alleged inadequate water supply and have, therefore, waived any right to rescind the sale which they might have had. Neither do we agree with this contention. The appellees made no further payments after they became convinced that there was an inadequate water supply. Under the facts in this case the appellees brought their action for rescission in apt time. Allen v. Overturf, 234 Ark. 612, 353 S. W. 2d 343; Ft. Smith Lumber Co. v. Baker, 123 Ark. 275, 185 S. W. 277. Also see Massey v. Tyra, 217 Ark. 970, 234 S. W. 2d 759; Kotz v. Rush, 218 Ark. 692, 238 S. W. 2d 634, quoting Danielson v. Skidmore, 125 Ark. 572, 189 S. W. 57.
Certainly an adequate water supply is a very material factor in the successful operation of a modern motel or tourist court. Mr. Roderick, the real estate agent, testified that the location is the most important factor ‘ ‘ and water would possibly be second’ ’, and ‘ ‘ that it takes a great deal of water.” He, himself, owns and operates a motel. The misrepresentation of a material fact is actionable fraud. Fausett & Company, Inc. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490; Massey v. Tyra, supra.
In the instant case the testimony in behalf of the appellees and the appellant is diametrically opposed and in hopeless conflict. The chancellor was in a position to observe the witnesses and evaluate their testimony and, therefore, we cannot say in this case that his findings were against the preponderance of the evidence.
The decree is affirmed.
Johnson, J., dissents.
Henry Hevron, a former neighbor of Mrs. Clay, was a non-resident of the state at the time of the trial. | [
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Carretón Harris, Chief Justice.
Appellant, Abel of Arkansas, Inc., is an Arkansas corporation engaged in the business of processing sand and gravel into aggregate for construction use, and its plant is located on the Saline River near Benton. Appellee, Mike Richards, is a resident of Benton engaged in contracting, and hauling gravel and other products. On August 27,1960, appellant and appellee entered into a -written contract, whereby the company agreed to pay Richards “the sum of 55 cents per cubic yard of raw gravel and aggregate taken from the Airport lands and removed and placed on the grounds in the plant of Abel;” appellant also agreed to pay to Richards an additional sum of 10 cents per cubic yard for an easement across Richards’ lands. Richards agreed to “put at least 500 cubic yards of aggregate in the plant per day,” except Sundays, and unless prevented by high water. Abel agreed to pay Richards for the gravel at the time of sale, or collection, but not later than 60 days after the sale. The contract was to run for one year.
On February 1, 1962, appellant instituted its complaint against Richards alleging that the latter had breached the contract by failing to deliver the 500 cubic yards per day, and that the company had been damaged in the sum of $42,753.50. Judgment was sought in that amount. Following the filing of a demurrer by appellee, a substituted complaint was filed by appellant, seeking-identical relief, but specifically setting up the manner in which the figure of $42,753.50 . had been reached. Richards answered with a general denial, and filed his cross complaint against appellant seeking- judgment in the sum of $5,825.45. It was alleged that no payments had been made to appellee since February 28, 1961, though appellant had sold a substantial amount of gravel since that time. Judgment was sought for alleged amounts due because of such sales, and the balance of appellee’s claim was predicated upon alleged rent due from the company for the use of certain equipment belonging to Richards, and for alleged conversion of, and damage to, other equipment owned by appellee. After the filing of other pleadings and interrogatories, the cause proceeded to trial, and the jury returned a verdict for Richards on his cross complaint in the sum of $6,712.00. The amount was reduced by the court to $5,825.45, inasmuch as Richards had only sought that sum in the cross complaint. From the judgment entered by the court in the last amount, appellant brings this appeal. Several points are urged for reversal which we proceed to discuss.
It is first asserted that the court erred in permitting counsel for appellee to cross-examine J. P. Brumbelow, Secretary and Treasurer of appellant company, relative to certain matters that had not been included in the interrogation on direct examination, and which (according to appellant) related only to the cross complaint filed by appellee. In the first place, the examination appears mainly to enlarge upon questions which were touched upon in the direct examination, and in the next place, though the general rule is that cross-examination must be confined to only those facts and circumstances connected with the matters actually stated by the witness during direct examination, we have also recognized the discretionary power of the trial court to allow variations from the customary order. Ordinarily we decline to consider as error any variation sanctioned by the trial court unless there is an abuse of discretion. St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S. W. 665; Hightower v. Sholes, 128 Ark. 88, 193 S. W. 257. See also article entitled “Cross Examination and Impeachment ” by Jeróme K. Heilbron, attorney of Fort Smith, at Page 41, Volume 15, Arkansas Law Review. We find no abuse of discretion in the present instance, particularly inasmuch as the subject matter was covered by later witnesses.
In making his opening statement to the jury, counsel for appellee remarked that the litigants “threw this contract out the window and made an oral contract. ’ ’ Appellant objected to the statement on the ground that no oral agreement had been pleaded. The objection was overruled. It is true that the answer and cross complaint do not assert any agreement made subsequent to the original contract, but we are unable to see that any prejudice resulted to appellant from the statement made by counsel in his opening remarks. After all, this was merely a statement — not evidence. A more proper moment for this objection to have been made was at the time the proof of a new agreement was offered. Richards offered this proof during his testimony — and no objection of any nature was made by appellant.
It is asserted that the judgment is contrary to the evidence, but the duty of passing upon the evidence was a proper prerogative of the jury, and not this court. The testimony was quite conflicting, constituting what is sometimes referred to as a “swearing match” between the litigants and their respective witnesses, and presented the questions of whether the parties proceeded entirely under the original agreement or under a subsequent agreement, which party first violated the contract under which they were operating, or whether, possibly, both abandoned any agreement that had been made. The company contended that Richards did not deliver the gravel in the quantities, nor manner, called for by the contract, and evidence was offered in support of that contention, and to explain the amount of damages sought ($42,753.50) in the complaint. From the testimony of Brumbelow:
“The total number of days should have been 365, but we started with October 26th, which is 295 — I beg your pardon — 294 days, and we — and I counted them by the calendar — it was 42 Sundays taken from that 294 which would leave 252 days. Of course, the contract had a high water clause, it would necessarily have a bad weather clause, and the added high water clause by most stated contracts will give a twenty-five percent leverage for high water on their contract, which we gave to him in determining the number of days of operation. So we took twenty-five percent off the 252 which would have been 63 days that we were allowing him for high water, would have been a total of 189 operating days at the plant. Now, 189 days times five hundred yards per day would have been 94,500 yards of material that should have been put to the plant in the 189 days of operation. Now, he actually put to the plant in those days a total of 8,993 yards. That figure I gave you while ago was correct. He actually put 8,993 yards to the plant, which, incidentally was only sixteen days of operation for the plant ont of that particular year forfeiting the contract, which would leave the amount under the contract of 85,507 yards, and that times fifty cents would be $42,753.50.”
Several other witnesses testified that Richards never did deliver as much as 500 cubic yards in any one day, and gravel was not delivered in sufficient amounts to permit full operation of the plant.
Appellee disputed these statements, testifying that he started hauling gravel as soon as the plant was ready for operation (some time in October). Richards stated,
‘ ‘ They had some gravel on the ground in the stockpile at all times, except one time when Mr. Ament asked me to shut off hauling for one week. There was so much stuff there, we had him covered up on the ground, so he could not get around with his loader, and it was one week there that we did not haul any gravel for him at his request. * * * Well, we would back up there with a load of gravel and nine dimes out of ten we would have to sit there and wait anywhere from ten minutes to an hour, and then when we did get a chance to dump it out we would have to raise the bed at least three times, because it would run over on the belt and it would shut down, and we would sit there. Every load we put in it was like that. They would ask us to do that because the conveyor belt would break. And on several occasions they would have to stop hauling and clean that hopper out with a shovel. ’ ’ Other witnesses also testified substantially to the same facts. Appellee testified that he finally quit hauling because £‘they went broke and didn’t have any money to operate on. ’ ’
Certainly, there was evidence under which the jury could find that a supplemental agreement was entered into. The testimony reflects that it became necessary to enter into a further contract relative to obtaining gravel to supplement the amount of gravel being hauled from the river. An agreement was entered into to pay Richards $1.05 per yard for gravel hauled from another location. While Brumbelow testified “that was all Mike’s idea,” the company did accept the gravel, and paid Richards for part of it. Admittedly, appellant still owes Richards $618.40.
Appellant complains that Richards should not have been permitted to present the proof just mentioned, since his pleadings did not assert this agreement; however, as heretofore pointed out, this evidence was offered without objection. In Fairbanks-Morse & Company v. Hogan, 201 Ark. 1114, 148 S. W. 2d 162, we said:
“Where the plaintiff acquiesced in the method of examining witnesses and did not contend trend of the testimony thus adduced was outside the scope of the pleading's, the answer will be treated as having been amended to conform.”
See also R.C.A. Victor Co., Inc. v. Daugherty, 191 Ark. 401, 86, S. W. 2d 559.
There ivas likewise testimony under which the jury could have found that appellant company was not in sufficient operating condition to use 500 cubic yards of aggregate each day. While this was stoutly denied by witnesses for appellant, the question was, as heretofore stated, entirely one for the jury to determine. Appellant frequently reiterates in its brief that appellee did not start hauling gravel until October, whereas Richards ivas supposed to start hauling in the latter part of August. Appellee’s answer to this contention was simply that the plant was not, at that time, operating in a manner that Avould enable it to handle the loads called for in the original agreement. In addition, it will also be noted from the testimony of BrumbeloAv (heretofore quoted) that the company, in figuring up the amount of damages in the complaint, used the commencement date of October 26. In other AA’ords, it Avould appear that, in effect, appel laiit abandoned the contention that appellee first violated the contract by not starting in August, and waived appellee ’s failure to do so, for in seeking damages, it relied on events that occurred subsequent to the 26th day of October.
Appellant also complains that the evidence (upon which the verdict for appellee was based) does not constitute substantial evidence. This objection primarily refers to various items mentioned by Richards in his testimony, which related to damage to his equipment. For instance, Richards testified that the company used a loader belonging to him and damaged it to the extent that he had to “tear it down and completely overhaul it” at a cost of $2,300. Appellee testified that he was not present at the time this was done and had acquired the information from his operator. Appellant says this evidence was inadmissible because it was hearsay evidence. Of course, it is hearsay evidence, but an examination of the record reflects that no objection was made at the time this testimony was given. In New Empire Ins. Co. v. Taylor, 235 Ark. 758 (Law Reporter of Nov. 26, 1962), 362 S. W. 2d 4, this court, quoting McCormick on Evidence, said:
“A failure to make a sufficient objection to evidence which is incompetent waives as we have seen any ground of complaint of the admission of the evidence. But it has another effect, equally important. -If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of whatever rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. Such incompetent evidence, unobjected to, may be relied on in argument, and alone or in part may support a verdict or finding. This principle is almost universally accepted and it applies to any ground of ineompeteney under the exclusionary rules.”
■ Appellant also asserts that the cost of repair was not the proper method to prove damage to secondhand equipment, but, as stated, no objection was made when the testimony was introduced. This same holding likewise applies to various other items of damage offered by-Richards that are now questioned by appellant, but to which no objection was made at the time of the introduction.
Appellant contends that inasmuch as the jury returned a verdict in an amount greater than that sought by appellee in his cross complaint, the court erred in not setting the verdict aside rather than reducing the judgment in the amount of $876.55. No motion to set aside the judgment was made, but at any rate, we cannot see how appellant was prejudiced by the court’s action; the reduction inured to the benefit of the company, and, in fact, a failure to have reduced the judgment to the amount sued for, would have constituted error. Cohn v. Hoffman, 45 Ark. 376; Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110.
Appellant asserts that the court erred in failing to instruct the jury on behalf of the plaintiff (appellant) as orally requested by plaintiff’s attorney, and that the court’s Instruction No. 1 failed to apprise the jury of the company’s rights. The objections which were made to this particular instruction are not well grounded, and appellant did not offer any instructions in its own behalf.
Appellant complains about certain instructions that were given to the jury by the court at the request of appellee. Appellee’s Instruction No. 2, which dealt with the burden of proof on the part of the plaintiff, is challenged by appellant, but we find no error in the instruction. Complaint is made of appellee’s Instructions No. 4 and No. 6, which are similar to each other. No. 4 reads as follows:
“You are instructed that the failure of one party to a contract to comply with its terms releases the other party from complying with it, so if you find from the evidence in this case that the plaintiff, Abel of Arkansas, did not comply with the terms of the contract sued on herein, then there was no further obligation on the part of the defendant, Mike Richards, to comply with the terms of said contract. ’ ’
An objection was made to this instruction on the basis that there was no evidence upon which to base it, and it was therefore abstract and “it is admitted by the defendant in his evidence that he did not deliver any aggregate to the plant until October 28.” We have already in onr prior discussion answered the quoted statement, and, as previously pointed out, there was evidence that Abel had not complied with the contract, so the objection is not well taken. Appellee’s Instruction No. 6 reads as follows :
“You are instructed that one breaking a contract cannot recover on said contract, so if you find from the evidence in this case that the plaintiff, Abel of Arkansas, first breached the contract sued on herein, then your verdict should be for the defendant, Mike Richards, on the complaint of the plaintiff.”
Objection was made that this instruction ‘ ‘is not a correct declaration of the law.” Of course, this objection is no more than a general objection, which is only good if an instruction is inherently erroneous, i.e., the instruction could not be correct under any circumstances. A general objection was not sufficient to challenge this instruction, and appellant failed to point out specific errors.
Appellant asserts some other alleged errors, but these are either not argued in the brief, or are found to be without merit.
No reversible error appearing, the judgment is affirmed.
The object was to install a washing- plant, for the purpose of stockpiling sand, gravel, and other aggregate at Abel’s plant.
According to the pleadings, “The $42,753.50 sued for herein is the amount or difference between what plaintiff was to pay defendant, plus the expense of processing the materials into finished products under the contract and the market value of the number of yards which defendant failed to deliver to plaintiff’s plant under said contract.”
Testimony was also offered by appellant that Richards entered into a federal contract and moved to Sheridan to service a gravel haul from Sheridan to Redfield; appellee offered testimony that appellant company entered into a contract with the Burks Company to haul gravel to the premises without his (Richards’) knowledge.
This was occasioned by the condition of the gravel hauled from the river. “It had so much polution of dirt and shale that they stopped me. It looked like a lot of gravel but when you reached down and picked it up there was this old black mud in it and it wasn’t altogether in the strippings either.”
While there are several cases that seem to support these instructions (Mo. Pac. Railway Co. v. Yarnell, 65 Ark. 320, 46 S. W. 943, Nakdimen v. Baker, 111 F. 2d 778, and some others), the statement that the one who first breaches a contract cannot recover on the contract, is generally qualified by other language. In St. Louis - S. F. Ry. Co. v. Mo. Pac. Rd. Co., 176 Ark. 1016, 5 S. W. 2d 364, this court pointed out, “There are exceptions to this general rule, growing out of the nature of the thing to be done and the conduct of the parties.” In Griffin v. Chesney, 168 Ark. 240, 269 S. W. 582, we said, “There is more uncertainty about who committed the first breach, and this appears to be the principal question of fact in the case. Cases are cited holding that the party who commits the first substantial (our emphasis) breach of a contract cannot maintain an action against the other contracting party for a subsequent failure to perform. This is, of course, a well settled principle of the law.” A pertinent discussion is found in Corbin on Contracts, Volume 6, Chapter 68, Sections 1253 and 1254. Without necessarily indicating our full approval or acceptance of the language therein used, we quote portions of those sections as interesting observations on the subject. From Section 1253 (Page 7) : “It is not always that a breach of contractual duty by one party to a bilateral contract discharges the duty of performance on the part of the other. As the term “breach” is used, a contractor who has committed a breach is guilty of a wrong for which some remedy is available, the remedy varying with the case. Being guilty of a wrong does not make him an outlaw or deprive him of all rights, even the rights that were created by the very contract that he breaks. This is true, in spite of many a contrary dictum, even when his breach is ‘wilful.’ Indeed, it seems best to say that breach by one party never discharges the other party, regarding breach merely as a wrong without regard to the extent and quality of its ill effects.’’ From Section 1254 (Page 17): “There is an often repeated doctrine to the effect that any wilful breach by one contractor discharges the other from further duty, without regard to the extent or materiality of the performance that is wilfully refused or withheld. The harshness^ with which such a rule as this would often operate, grossly penalizing the one party for a comparatively slight harm to the other, has generally been avoided, either by making no reference to the doctrine at all or by strained interpretations of the word ‘wilful.’ It is generally true that, in cases where the doctrine is expressly relied on, the breach is not only wilful but is also material in character and extent; frequently the breach that the court has in mind is a wilful and total abandonment.
But if the doctrine is strictly and honestly applied, in a case where one party wilfully commits a slight and immaterial breach, then there is a discharge by wilful breach, even though the nonperformance is one that would not in itself have been of the essence and there is no discharge by failure of consideration or by nonperformance of a condition. This is not justice.” | [
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Sam Bobinson, Associate Justice.
On the 9th day of July, 1952, the Administrator of the Employment Security Division of the State Labor Department filed with the Circuit Clerk of the Franklin Circuit Court, a certificate of assessment of contributions levied against appellee, Paul Mayner, under authority of the Arkansas Employment Security Act, Ark. Stats. 81-1115 - 81-1122. On September 12, 1961, appellant caused an execution to be issued on said assessment which, according to the statute, has the force and effect of a judgment. On November 1, 1961, appellee filed this action petitioning the court to set aside the purported judgment and to quash the execution, contending that the recorded assessment does not have the force and effect of a judgment; that it is invalid and void. The court granted the petition, set aside the judgment, and quashed the execution. The Commissioner of Labor has appealed.
Ark. Stats. 81-1117(e) provides: “If any person, firm, or corporation shall become delinquent in the payment of any contribution or interest or penalties required to be paid by the act, it shall be the duty of the Administrator, when the amount of such contribution, interest, and penalties is determined, either by the report of the employer or by such investigations as the Administrator may have made, to assess the contributions, interest and penalties so determined against such delinquent employer, and to certify the amount of such contributions, interest, and penalties to the Commissioner, and mail or otherwise deliver a copy of said assessment to the delinquent employer. At the end of ten [10] days thereafter, said assessment shall become prima facie correct, and the Administrator shall certify the amount of said delinquent contributions, interest, and penalties to the clerk of the circuit court of the county wherein the employer is domiciled or has a place of business and it shall be the duty of the clerk to file such certificate of record and to enter the same in the record of the circuit court for judgment and decrees under the procedure prescribed for filing transcripts of judgments by sections 8440 and 8442 of Pope’s Digest of the Statutes of Arkansas, 1937 [§§ 26-1121, 26-1123], and thereupon the said assessment shall have the force and effect of a judgment of the circuit court. Execution shall thereupon be issuable, at the request of the Administrator, his agent or attorney, or any other employee of the Employment Security Division of the Department of Labor of the State of Arkansas, forthwith by the clerk of the circuit court, directed to the sheriff, who shall make a levy on any property, assets, or effects of the employer against whom the contribution is assessed.”
Appellee Mayner contends, and the trial court held, that the certificate filed with the circuit clerk is null and void because it shows on its face that ten days had not elapsed from the time the Administrator made the assessment of delinquent contributions until the certificate of delinquency was executed. The matter was certified by the Administrator to the Commissioner of Labor on the 27th day of June, 1952, and on the 7th day of July, the Administrator certified that ten days had expired. Appellant contends that even if it is conceded that under the wording of the statute the first and last day should be excluded and therefore ten days had not expired, the appellee still cannot prevail.
There is no allegation or showing that appellee has a meritorious defense to the assessment. Appellant points out that under our statute and decisions, a judgment shall not be set aside until there is a showing of a meritorious defense to the action in which the judgment is rendered. Ark. Stats. 29-509 provides: “A judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered. ... ”. In Overton v. Alston, 199 Ark. 96, 132 S. W. 2d 834, it was held that a judgment could not be set aside on certiorari even though erroneous and void, unless it appears from the petition that petitioner has a meritorious defense to the action. See also St. Louis & San Francisco Railroad Co. v. Bowman, 76 Ark. 32, 88 S. W. 1033. In Berringer v. Stevens, 145 Ark. 293, 225 S. W. 14, it was held that “valid” as used in the statute, is synonymous with the word “meritorious ’ ’. See also Haville v. Pearrow, 233 Ark. 586, 346 S. W. 2d 204; Alexander v. Jones, 233 Ark. 708, 346 S. W. 2d 692.
Appellee contends that there is a distinction between a judgment and the assessment filed with the clerk in this case, which, according to the statute, has the force and effect of a judgment. We can see no valid distinction between a judgment and a recording having the force and effect of a judgment. The two are synonymous. There was an analogous situation in Davis v. Bank of Atkins, 205 Ark. 144, 167 S. W. 2d 876, where the court said: “The effect of this action on the part of appellee under the section of the statute, supra, was to transfer completely the judgment from the justice court, an inferior court, to the circuit court, a superior court, and to give this judgment the same force and effect, and the same remedies for enforcement, as if the judgment had been originally rendered by the superior court. ’ ’ (Our italics).
Here, the statute provides that when the assessment is filed with the clerk it shall have the force and effect of a judgment. This being true, it cannot be set aside until there has been a showing of a meritorious defense.
Reversed and remanded for further proceedings not inconsistent herewith.
Johnson, J. dissents. | [
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Ed. F. McFaddin, Associate Justice.
This case arose as a taxpayer’s suit brought by appellant, Peevy, under Act No. 193 of 1945 (Ark. Stat. Ann. § 17-304 et seq. [Repl. 1956]); and challenging the sale of county property to appellee, Cate. Drawn into the suit was the applicability of Act No. 481 of 1949 (Ark. Stat. Ann. § 17-1501 et seq. [Repl. 1956]) regarding county hospital property. From a decree affording the taxpayer only partial relief, both sides have appealed: so the entire controversy is before us for trial de novo on the record.
For many years Crawford County had owned twenty acres, commonly called “the county farm property,” but later called ‘ ‘ the county infirmary. ’ ’ In the 1932 depression, the Works Progress Administration erected a stone building on the property, and Crawford County used the building and property for the intended statutory purpose of a county poor farm. By 1960 the building had become dilapidated, and Old Age Assistance grants had relieved many people from being inmates of the county poor farm; so there remained only one occupant of the property. The use to be made of the county poor farm or county infirmary became a problem to Crawford County. It would have cost the County over $80,000.00 to equip the property for use as a suitable rest home. At the regular January 1961 meeting of the Quorum Court of Crawford County, a motion was adopted “that the County Judge be given authority to appoint a board to dispose of the County Infirmary as the board sees fit.”
The County Judge proceeded under Act No. 481 of 1949 (Ark. Stat. Ann. §_ 17-1501 et seq. [1947]) to accomplish the motion of the Quorum Court; and on February 15, 1961, there were appointed under the said Act eight persons as the Board of Governors of said “County Infirmary and grounds.” This Board met on the same day and gave serious consideration to the problem of the County Infirmary; and finally adopted a motion that the County Infirmary be placed on a long term lease to Clyde R. Cate (one of the appellees herein) for operation as a rest home. On March 14, 1961, a lease was executed by the said Board of Governors and by the County Judge and County Court, whereby Clyde R. Cate became the lessee of said County Infirmary. We briefly abstract the pertinent provisions of the lease, since its validity is one of the issues in this litigation: (a) the entire tract of twenty acres, with building, was leased to Clyde R. Cate for 25 years, with option to the lessee to renew for a like period; (b) the rental the County was to receive was $1.00 per year; (c) lessee agreed to expend enough money in improving and equipping the property to have and maintain a rest home that would meet State and national regulations; (d) lessee agreed to keep at all times, free of expense to Crawford County, one patient as sent by the County Judge. The lease also provided that the lessee had an option to purchase all of the leased property at any time during the life of the lease by paying Crawford County the sum of $7,500.00; and, in addition, if any of the twenty acres should be taken by eminent domain proceedings during the life of the lease, then the lessee would receive all such amounts paid in the eminent domain proceedings.
Mr. Cate entered into possession of the leased property and immediately commenced spending substantial sums in making the necessary and required improvements. At the time of the trial below it was testified, without substantial contradiction, that Mr. Cate had expended between $28,000.00 and $30,000.00, had an A-l rated rest home with a capability of accommodating 23 patients, and plans to enlarge the rest home to accommodate 60 patients.
With the lease of the rest home thus accomplished in March 1961, the matter might well have ended; but then commenced the course of events which directly caused this litigation. These events were evidently triggered by the realization of Mr. Cate that his option to purchase the property (as contained in his lease) might be null and void. On July 15, 1961, the County Court entered an order that the entire 20 acres (legally described), knowh as the “County Infirmary Property,” would be sold to the highest bidder “subject to the terms of the said lease ’ ’ held by Cates. This sale was a proceeding under Act No. 193 of 1945 (Ark. Stat. Ann. § 17-304 ei seq. [Eepl. 1956]); and every step prescribed by said Act was carefully followed. The sale was advertised, and only one bid was submitted; and that was the bid of Clyde E. Cate for $7,500.00. That bid was accepted, and the deed made and approved, as required by the law, and delivered to Mr. Cate on August 4, 1961: so everything seemed to be concluded.
Then on August 14, 1962, appellant Clyde Peevy, as a citizen and taxpayer for the benefit of Crawford County, filed the present suit in the Chancery Court as a proceeding under Act No. 193 of 1945 (Ark. Stat. Ann. § 17-304 [Eepl. 1956]), alleging that the sale of the property to Clyde E. Cate was invalid, and praying for a return of the property to Crawford County free of all mortgages and conveyances executed by Cate. Various lienholders and grantees from Cate were made defenda nts. The defense of all the defendants was the absolute validity of the sale of the property by the County to Cate, ■and the good faith of all parties. The cause was heard ore terns by the Chancery Court and resulted in a decree:
(a) Holding void the option given Cate in the lease to purchase the property for $7,500.00;
(b) Holding that the effect of making the sale of the property subject to the Cate lease was to stifle bidding;
(c) Holding that at the time of the sale of the property it was worth $10,000.00 instead of $7,500.00, and that the effect of the stifling of the bidding was to defeat the County of $2,500.00; and
(d) Holding that the County was entitled to receive for the property an additional $2,500.00.
The learned Chancellor delivered a splendid opinion which clearly shows the many intricate problems arising in this case, and the earnest and sincere desire on the part of the Chancellor to accomplish substantial justice and equity.
Prom that decree both sides have appealed. Peevy, as appellant, insists that the entire property (less the 4.85 acres acquired by the State Highway Commission) should be returned to Crawford County, free of all mortgages and conveyances; and he cites and strongly relies on Ark. Stat. Ann. § 17-309 (itepl. 1956), which says that when county property is sold in violation of the Act, the sale shall be null and void, and a citizen and taxpayer may bring a suit in the Chancery Court within two years; “and in the event such property is recovered for the county in such action the purchaser shall not be entitled to a refund of the consideration paid by him for such sale.” Peevy relies strongly on onr case, State for the use of Miller County v. Eason, 219 Ark. 36, 240 S. W. 2d 36. On the other hand, the appellees (Mr. and Mrs. Cate, Mr. and Mrs. Smith, and the Smith’s mortgagee, First Federal Savings & Loan Association) maintain that the Act No. 193 of 1945 was literally followed; and that the Chancellor should not have rendered judgment against Cate for $2,500.00.
I. The Lease Contract. The first question to be decided is whether the lease of the County Infirmary property to Cate was valid or void. We have concluded that the County properly proceeded under the provisions of Ark. Stat. Ann. § 17-1501 et seq. (Repl. 1956); but we have concluded that the provision giving Cate an option to purchase the property was void, as was also the provision giving Cate the right to any money received in the eminent domain proceeding. The reason these two provisions are void is because such provisions constitute a disposition of the County property without compliance with Ark. Stat. Ann. § 17-304 et seq. (Repl. 1956).
The next question is whether said void provisions rendered void the entire lease to Cate, or whether. Cate could claim that the lease was valid with these two provisions stricken. We conclude that Cate could legally so claim; and our authority for such conclusion is the case of Storthz v. Sanger, 108 Ark. 154, 156 S. W. 1020, which was also a chancery case. In the Storthz case, the guardian of an insane person executed a lease of real estate, which instrument gave the lessee an option to purchase the property on stated terms. Even though the lease was approved by the Probate Court, we held such option to purchase to be void, saying: “There appears nowhere in the statutes of this State any authority in the probate court to authorize the execution of such a contract. . . ”— i.e., option to the lessee to buy. But we further held:
‘ ‘ The invalidity of that part of the contract did not, however, deprive the lessor of the other benefits arising under it, and the heirs of the lessor were not put to an election either to ratify the- contract as a whole, including the option to purchase, or to let the lessee occupy the premises for the balance of the term free of rent. In other words, the lessees had rights under the contract notwithstanding the invalidity of one feature, and it was not within the power of the heirs of the lessor to repudiate the contract; therefore, they were not put to an election, either to affirm or repudiate it as a whole.” Under the authority of said case, we conclude that Clyde E. Cate could validly hold the lease here involved, with the void provisions stricken. The Chancery Court so held; and we affirm that portion of the decree.
II. Stifling of Bidding. We come next to the question as to whether the sale of the property was in full compliance with Ark. Stat. Ann. § 17-304 et seq. (Eepl. 1956); and we find that the letter of the law was fulfilled, just as we emphasized in State, use of Miller County v. Eason, 219 Ark. 36, 240 S. W. 2d 36:
(a) an order was entered in the County Court, setting forth the description of the property to be sold, giving the reason for the sale, and directing the County Assessor to appraise the property and certify same to the County Court;
(b) the County Assessor filed with the County Clerk his certificate of appraisal;
(c) the notice of sale was advertised in a newspaper for the time required by law, and Cate made a sealed bid of $7,500.00 ;
(d) the bid was for more than three-fourths of the said appraised value;
(e) a majority of the Board of Approval approved the sale to Cate; and
(f) the County Court entered its order approving the sale and giving details.
As we say, the requirements were followed to the “letter of the law.” It is true that in the present proceeding the plaintiff (appellant) challenged the appraisal, the publication, and other matters; but we need not consider such challenges because there is one point which shows that bidding was stifled; and that is the fact that the County Court order and notice stated: ‘ ‘ Said property will be offered for sale, and sold subject to a certain lease of Crawford County with Clyde Cate and Vian Cate, husband and wife, for a term of 25 to 50 years.” It must be remembered that the lease on its face gave Cate a lease for 25 to 50 years at $1.00 per year and the care of one patient, and that Cate had an option to buy the property at any time for $7,500.00, and in the interim Cate would receive all proceeds of any eminent domain money. Even though we are now holding such italicized clause to be void, nevertheless the italicized clause at the time of the sale had not been determined to be void; and any prospective purchaser other than Cate would be “buying a lawsuit” regarding such provisions. It is clearly apparent that the effect of making the sale subject to the Cate lease was to arrange matters in such a way that no one except Cate would be in a position to make a substantial bid for the property; and the fact, that Cate alone offered a bid, is proof of such statement. The said arrangement constituted stifling of bidding. “Any act of auctioneer, seller, or purchaser which diminishes competition and stifles or chills the sale, vitiates the sale.” 7 C.J.S. p. 1255. In Hinton v. Elliott, 187 Ark. 907, 63 S. W. 2d 633, the property was ordered sold by the Commissioner “in the manner and form as provided by law for the sale of lands under attachment.” We held that such language in the order of sale, coupled with the inadequacy of the price, was sufficient to amply justify the Court in refusing to confirm the sale.
It cannot be successfully claimed that when the County Court approved the sale of the property to Cate that stifling of bidding and all other defects and irregularities were cured, because the present proceeding is a taxpayer’s suit in chancery, under the provisions of Ark. Stat. Ann. § 17-304 et seq. (Eepl. 1956), and, under that statute, the taxpayer may urge any defect in the sale proceedings. So we hold that bidding was stifled in this sale; and the significant point is that the Sheriff (who was a member of the County Board of Approval under Ark. Stat. Ann. § 17-308 [Eepl. 1916]) refused to approve the sale. Here is what he testified, with no objections registered to such testimony:
“Q. As a member of the Board of Approval and as bearing upon your refusal to approve the sale, what did you consider the fair market value of the property to be at the time it was sold?
“A. One of the Hospital Board members and myself—
“Q. No, sii’, just tell me what you considered!
“A. Ten Thousand dollars.”
The Chancery Court held that the bidding was stifled, and that the property was worth Ten Thousand Dollars; and we affirm that portion of the decree.
III. The Disposition To Be Made Of This Case. We come, next, to this severe problem which confronted the learned Chancellor, and which confronts us on this appeal. The appellants vehemently urge that under Act 193 of 1945 (Ark. Stat. Ann. § 17-309 [Repl. 1956]) the property should be returned to Crawford County free of any claim of any of the appellees. It is true that the said statute says that any sale contrary to the provisions of the Act is void, “and in the event such property is recovered for the county in such action the purchaser shall not be entitled to a refund of the consideration paid by him for such sale.” The answer to the appellant’s contention is that this particular sale was not contrary to the provisions of the Act, but was subject to attack for a different reason. Hence, the sale was merely voidable, and equity could mould a remedy to fit the case. Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230; Young v. Young, 207 Ark. 36, 178 S. W. 2d 994.
Equity, in its power to mould the remedy to repair the wrong, may impose conditions on whatever relief it grants or refuses. In 19 Am. Jur. 51, “Equity” § 22, cases from many jurisdictions are cited to sustain this text:
“A court of equity has power to make its granting of relief dependent upon the performance of conditions by a party litigant, if the conditions are such as are imposed in the exercise of a sound discretion and of a character calculated to satisfy the dictates of conscience. The court may thus protect and give effect to the rights of one party while awarding relief to the other. The court is not restrained by strict legal rights.”
In Central Kentucky Co. v. Comm., 290 U. S. 264, 54 S. Ct. 154, 78 L. Ed. 307, Mr. Justice Stone used this language:
“The power of a court of equity, in the exercise of a sound discretion, to grant, upon equitable conditions, the extraordinary relief to which a plaintiff would otherwise be entitled, without condition, is undoubted. It may refuse its aid to him who seeks relief from an illegal tax or assessment unless he will do equity by paying that which is conceded to be due. State Railroad Tax Cases, 92 U. S. 575; Cummings v. National Bank, 101 U. S. 153; Peoples National Bank v. Marye, 191 U. S. 272, 287; see Norwood v. Baker, 172 U. S. 269, 294. It may withhold from a plaintiff the complete relief to which he would otherwise be entitled if the defendant is willing to give in its stead such substituted relief as, under the special circumstances of the case, satisfies the requirements of equity and good conscience.”
Our Court, in Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S. W. 2d 728, said:
“Conditions Imposed on Relief to Plaintiff. Having found that the cause is cognizable in a court of equity, and that relief may be granted by injunction, it follows as a corollary that the court may impose conditions on the relief to be granted the plaintiff, or may grant other relief in lieu of injunction. One of the peculiar attributes of a court of equity is the power to mould the relief to fit the particular case. There are salient facts in this case that call for the exercise of this equitable power.”
With the foregoing authorities in mind, we consider the situation confronting the Chancery Court. At the outset it must be remembered that even if the sale should be set aside, nevertheless the lease would remain as valid, less the option and the provisions about the eminent domain money, as heretofore mentioned: so the County would not recover possession of the property. Then there are other matters that complicate the situation. Mr. Cate and his wife had mortgaged this and other property to obtain the needed funds and had expended in excess of $28,000.00 in improving the property, equipping the rest home, and securing an A-l rating for it. Twenty-three persons are occupying the rest home because of State or federal aid. Whether Cate, or his mortgagee, could claim a lien to the extent of the improvements— under the theory of unjust enrichment—is itself an unanswered question.
Furthermore, Cate sold a small parcel of the property to Mr. and Mrs. Smith, who borrowed money from a building and loan association and built a home on the purchased parcel. To completely set aside the sale of all the property would be to put the Smiths and their mortgagee in an almost helpless position. In addition, the State Highway Commission, in eminent domain proceedings in the Circuit Court, has taken 4.8 acres of the property. To completely set aside the sale would leave open the question as to the validity, if any, of the condemnation proceedings, and the payment of the proceeds to Cate. The condemnation proceedings were in November 1961; the sale to the Smiths was in December 1961; and the present suit was not filed until August 14, 1962. Of course, under the statute, the taxpayer had until July 1963; but, by delaying until August 14,1962, the taxpayer allowed various situations to develop, as previously indicated, whereby to set aside the entire sale would work a grave inequity.
In such a complex factual and legal situation the learned Chancellor moulded the remedy to fit the wrong. The Court found that the property was actually worth $10,000.00 at the time of the sale to Cate; that Cate paid only $7,500.00; that Cate should pay an additional $2,-500.00, with interest thereon at 6% per annum from July 1961 until paid and should pay all costs of this litigation ; that when all such should he done by Cate, then equity would be satisfied and the sale would not be set aside; but that if Cate should not pay the said amount within a reasonable time, then the sale of the property from the County to Cate would be set aside. We conclude that the Chancellor made a wise and equitable decision; and we affirm his decree and remand the cause to the Chancery Court to reinvest that Court with jurisdiction to again fix a reasonable time within which Cate must comply with the decree, otherwise the Chancery Court will order a resale of the property on such terms and conditions as it sees fit. Costs of this appeal shall be paid by appellee.
Ark. Stat. Ann. § 83-301 et seq. (Repl. 1960) are the statutes concerning county poor houses.
The minutes of that meeting are before us, and the testimony of some of the Board members. We are impressed with the high type public service the members were attempting to render. That they acted in good faith, is readily apparent.
This option to purchase and the right to receive the proceeds of the eminent domain matters constitute problems later to be discussed.
It is claimed by appellants that the spirit of the law was entirely flouted in that the publication was in a little known newspaper; that the assessor signed his appraisal of the property without seeing it; and that various other matters occurred which showed that the spirit of the Act was not fulfilled; but all of these go to the matter of good faith and not to the “letter of the law” compliance.
Cate had received $4,000.00 from the State Highway Commission for 4.85 acres taken for highway purposes, and personal judgment against Cate was prayed for that amount. Cate had sold one small tract for $500.00 to Joe Smith, who had executed a mortgage on the tract and built a home; and a return of that tract, free of the mortgage, was prayed. Cate had mortgaged the property for funds used to make improvements, and a cancellation of all such mortgaged was prayed.
The Cates prayed that if the complaint of the plaintiffs be not dismissed, then the Cates “recover judgment for all improvements and taxes paid by them . . . and for all other just and equitable relief.” The prayers of the other defendants were couched in somewhat similar language.
This was the only bid received.
On stifling of bidding see: Am. Jur. Vol. 30 A. p. 957, “Judicial Sales” § 98; 50 C.J.S. p. 674, “Judicial Sales” § 54; 5 Am. Jur. p. 463, “Auctions” § 26; 7 C.J.S. p. 1255, “Auctions and Auctioneers” § 7. See also Preske v. Carroll (Md.), 16 A. 2d 291. In Dumas v. Owen, 210 Ark. 505, 196 S. W. 2d 987, we had occasion to consider stifling of bidding in judicial sales. See also generally Mulkey v. White, 219 Ark. 441, 242 S. W. 2d 836.
There is authority for requiring the purchaser to increase his bid as a condition for obtaining a confirmation of the sale. See State Nat’l Bank v. Neel, 53 Ark. 110, 13 S. W. 700, and annotation in 105 A.L.R. 366 entitled: “Power of court as condition of confirmation of judicial sale to require successful bidder to increase his bid.”
The Chancery decree gave the defendants (appellees here) sixty days from October 25,1962 to pay the additional $2,500.00 and interest. Since such time expired during this appeal, the Chancery Court may fix a new period. | [
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Jim Johnson, Associate Justice.
Appellant Bessie Mack sued her sister, appellee Sadie Cole, to set aside a deed. Appellant alleged that appellee had knowingly made false representations to her and her late husband, that they relied upon the representations and executed an absolute warranty deed conveying their home to appellee. Appellant further alleged that the parties had in fact agreed that appellant should retain a life estate in the property. At the close of appellant’s testimony, the Chancellor sustained appellee’s demurrer to the evidence and dismissed the complaint. An appeal was perfected by appellant and this court in Mack v. Cole, 233 Ark. 234, 343 S. W. 2d 791, held that the Chancellor had erred in sustaining the demurrer to the evidence and remanded the case for further proceedings.
Thereafter appellant amended her complaint seeking judgment for mortgage payments made by appellant, to which appellee answered that appellant had agreed to make the mortgage payments as rent for the privilege of living in the house. When the case proceeded to trial again, the parties stipulated that all of the testimony in the original proceedings should be made a part of the record, and then introduced further testimony. Upon conclusion the court ruled in favor of appellee and dismissed appellant’s complaint. This appeal ensued.
The first point urged for reversal is that the court erred in dismissing appellant’s complaint. The question involved here is whether, in the light of all the evidence, appellant sustained the burden of proof to establish by clear and convincing evidence that the deed executed by appellant and her late husband was induced by fraud and misrepresentations on the part of appellee and therefore should be set aside and cancelled.
We have been favored with excellent briefs and we particularly noted appellant’s fine abstract of the testimony adduced at both trials.
The following facts are generally undisputed: appellant and her late husband agreed to sell their home to appellee for $4,000 and assumption of the outstanding mortgage. They executed a warranty deed which retained a life estate and mailed the deed to appellee, which was rejected by her. Thereafter a quitclaim deed was sent which also retained a life estate, and which was also rejected by appellee. Later appellee came to Little Rock and had Beach Abstract Company prepare a warranty deed. At closing appellant and her husband executed that deed and received approximately $4,000.00. Appellant continued to live on the property, collecting rent from various tenants, and paying the mortgage payments and taxes. From there on, the testimony is in hopeless conflict. Appellant and four of her witnesses testified that appellee at one time or another stated that appellant had a life estate in the property, whereas appellee and five witnesses testified to statements of appellant diametrically opposed to her allegations.
It is well established by a host of cases rendered by this court that the quantum of proof necessary to set aside a deed must rise above a preponderance of the testimony; it must be clear, cogent and convincing. Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253; Sandefer v. Sandefer, 219 Ark. 943, 245 S. W. 2d 568; Aber deen Oil Co. v. Goucher, 235 Ark. 787, 362 S. W. 2d 20. From all the evidence adduced in this case, we on trial de novo, cannot say that the Chancellor, who heard and observed the witnesses, was in error in concluding that appellant failed to produce the quantum of proof required to set aside the deed.
Appellant’s second point urged for reversal is that the court erred in failing to award judgment to appellant for payments she paid on the mortgage.
It is axiomatic that appellant, or any other tenant, can be forced to pay rent, or move, by an owner of rented property. In the instant case appellant’s own witness, the escrow officer of the closing department of Beach Abstract Company, testified that when appellee came in to arrange the closing, she stated: “I am buying this property from my sister. I live in Chicago. She is going to continue to live there. She is going to collect the rent and all I am going to do is let her make the payments to the Guardian Company [mortgage holder]”. Appellant’s testimony shows that after the closing appellant did live on the property, did collect rent of about $175 per month, and did make the mortgage payments of $40.60 a month to the Guardian Company. From the testimony and the subsequent conduct of the parties, the Chancellor could reasonably find that this was the agreed rental between the parties, and no one has contended that appellant is entitled to a refund of rent. We find no error.
Affirmed. | [
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Carleton Harris, Chief Justice.
Southwestern Broadcasting Company, an Arkansas corporation, owned and operated Radio Station KVLC in Little Rock. Lake Broadcasting Company, an Arkansas Corporation, operated Radio Station KIKS at Sulphur, Louisiana. Southern National Insurance Company, likewise an Arkansas corporation, owned most of the stock in both broadcasting companies. Robert M. Saxon was the principal stockholder in this company. Dale Mahurin, appellee herein, was manager of the two stations, and was a minority stockholder in each of the broadcasting corporations, as well as a member of the Board of Directors of each.
In October, 1960, Albert Stegall, representing persons desiring to buy a majority of the stock in each of the broadcasting corporations, commenced negotiations with Saxon for the purchase of such stock from the Southern National Insurance Company. Negotiations culminated in the execution of a contract on February 27, 1961. The prospective purchasers thereupon applied to the Federal Communications Commission for authority to operate the stations, and the applications were approved and the transfer of the stock made, together with the surrendering of the management of the companies, oh June 1,1961. In the meantime, Mahurin continued with his duties as manager, and remained on the Board of Directors of each company.
Following the applications to the Federal Communications Commission, Victor Broadcasting Company, Inc., was incorporated under the laws of this state, and at approximately the same time Victor Radio Company, Inc., was likewise organized under the laws of Arkansas, it being contemplated that the Southwestern Broadcasting Company stock (purchased by Stegall’s principals) would be transferred to Victor Broadcasting Company, and the Lake Broadcasting Company stock (likewise purchased by Stegall’s principals) would be transferred to Victor Radio Company. On June 15, 1961, a joint stockholders meeting was held between stockholders of Southwestern and Victor Broadcasting Company, at which time said stockholders voted to merge the two companies. On the same day, a similar stockholders’ meeting ivas held between Lake and Victor Radio Company, at which time resolutions were passed authorizing the merger of those two companies. Mahurin was present at both meetings, and voted the shares that he owned in Southwestern, and 14 shares by proxy, for the merger of the first two mentioned companies; he voted the 6,000 shares that he owned in Lake Broadcasting Company and 2,800 shares by proxy in favor of the merger of the last two mentioned corporations. The merger has never been completely perfected.
The services of Mahurin were terminated on June 20, and twenty days later, appellee asserted to Lake and Victor Radio Company that the attempted mergers were void, and demand was made upon Victor for the fair market cash value of the stock which Mahurin held in the Lake Company. On August 4, 1961, Southwestern instituted suit against appellee, alleging that the latter had converted various items belonging to the broadcasting company to his individual use. Mahurin answered, denied any wrongful acts, and asserted matters justifying the taking; a cross complaint was filed alleging that his vote in favor of the merger was obtained by the fraudulent acts of Southwestern and Victor Broadcasting Company; that representations had been made to him that there would be no changes in the management or policies of the company ; that he had relied upon such material representations, and would have voted against the merger except for same, and have demanded payment in cash for his stock interest or provided by the laws of this state. Relief sought concluded with the prayer that he be awarded the fair cash value of his minority stock interest in Southwestern. On August 7, Lake Broadcasting Company filed a suit containing substantially the same allegations, and Mahurin filed an answer and cross-complaint similar to that mentioned above.
After the filing of various substituted pleadings and various amendments, and the substitution of some parties, the cases were consolidated and heard by the Chancery Court. On trial, that court dismissed the complaints of the complaining companies as being without equity, except for amounts admittedly owed the companies by Mahurin. As to the cross-complaint, the court found that the evidence clearly established that Mahurin was induced by fraud and misrepresentations to “part with the valuable right he had to require the payment to him of the cash value of his stock” as a condition to the mergers and “except for such fraud, misrepresentation and concealment the cross-complainant would have been entitled to receive the fair value of his stock in cash, and that such fair value is the appropriate measure of cross-complainant’s damages for the fraud which was perpetrated upon cross-complainant. ’ ’ Judgment was rendered for appellee against Victor Radio Company in the sum of $27,927.00 and against Victor Broadcasting Company in the amount of $622.67. The decree further provides that upon payment of the judgments, appellee’s stock interest in Lake Broadcasting Company and Southwestern Broadcasting Company “shall be terminated and cease, and cross-complainant, Dale D. Mahurin, is ordered and directed to deliver all of his stock in said corporations to their respective successors for the purpose of cancellations.”
From the decree so entered, comes this appeal. Appellants have abandoned their appeal insofar as it relates to the court’s dismissal of the complaints filed against Mahurin, and the only question presented here is whether appellee was entitled to recover on his cross-complaints. While the facts as hereinbefore set out, appear somewhat complicated, the issue is actually quite simple and poses only the question, “Is appellee entitled to receive the fair cash value of his minority stock and, if so, did the chancellor properly determine that value?”
Mahurin testified that when he learned Stegall’s group intended to buy the majority interest in the radio stations, he talked to Stegall and a Mr. Tiberris about selling his stock to them, but was advised they did not want to buy his stock because they did not know anything about the radio business, were only buying as an investment, and it was their desire that he stay on and operate the stations. Appellee stated that Stegall assured him that he would have the same privileges, same salary, and same arrangements as previously. He exhibited a letter from Stegall, dated December 27, 1960, which welcomed Mahurin and other employees into the organization, and inter alia stated:
“We hope that each of you will remain in your present position and continue to render the dedicated and efficient service that you have in the past.
“I feel that some of your associates may be disturbed at the change of ownership of this stock, however, you may assure them that we plan no change in the management, staff or policy of either station and are looking-forward to a long and happy association with each of you. ’ ’
Mahurin obtained an attorney to prepare a contract of employment, which was done, but appellee stated that Stegall, when shown the contract, though commenting that it appeared to essentially contain the agreement reached, said that it would have to be sent on to a Mr. Muscat, who was out of this country at the time, for approval. The witness testified that, relying upon Stegall’s assurances that he would be retained by the company, and that a contract would be entered into, embracing the terms of the one presented to Stegall by Mahurin, the latter voted for the merger. Appellee testified that except for Stegall’s assurance, he would not have voted for the merger.
R. M. Saxon, substantially the owner of Southern National Insurance Company, testified that his company purchased KVLC in 1950 and NIKS in 1956, and that Mahurin had been employed as engineer and manager for a period of 13 years. Saxon stated that he, along with Mahurin and Charles "VV. Davis, constituted the directors of the two companies. He corroborated Mahurin’s testimony that the purchasers assured appellee that he would be continued in his employment as manager, at the same salary, and under the same conditions of his (then) present employment. Saxon said that these assurances were given by Stegall and Tiberris.
Charles W. Davis, secretary-treasurer of Lake and Southwestern, likewise testified that the purchasers stated that they would not have bought the stations without being sure Mr. Mahurin would stay; that these statements were made in Mahurin’s presence. He added that he saw the contract which Mahurin had caused to be prepared, and the contract embraced essentially the terms that had been offered to Mahurin by the purchasers. Davis testified that he learned about 15 days after the new owners took over operations that Mahnrin had been discharged and he (Davis) was shocked to hear of it. The witness was complimentary of Mahnrin’s management policies with the stations that he had operated.
Mr. Albert Stegall, secretary of Southwestern, Lake, Victor Broadcasting, and Victor Radio (subsequent to the purchase of the stock), testified that he made no representations whatever to Mahurin relative to the latter’s voting for or against the merger. He stated he told Mahurin that the contract which the latter submitted was ridiculous but that he would submit it to the proper people who had authority to sign it. Relative to the letter that he had written to appellee, the witness stated that the purpose of the letter was to allay any apprehension that employees of the staff might have as to their future status under the new management. He testified that Mahurin was removed from his position because a partial audit uncovered additional accounts payable that the purchasers had not theretofore known about; that unpaid accounts in the amount of approximately $15,-000.00 were found, and employees that the purchasers had no prior knowledge of, were listed on the books.
Appellants first contend that the evidence does not justify the court’s finding that appellee should be awarded compensation for his minority stock interest. It is argued that there was no fraud, because at the time the promise of continued employment to Mahurin was made, appellants actually were sincere in their representations, and intended to retain Mahurin as manager; that the change of mind occurred because of the alleged irregularities appearing after the audit. Furthermore, appellants assert that the promise related to an event to occur in the future, rather than relating to a present or preexisting fact, and that under our cases, any representations and promises as to future conduct, are merely statements of opinion as to what the promissor intends to do, and the party to whom they are made has no legal right to rely on such representations. We do not agree with either of these contentions. Discussing the last first, appellants ’ argument that fraud cannot be predicated upon representations of events to occur in the future is, generally speaking, sound. But this rule of law does not apply if one makes a false promise, knowing at the time that it will not be kept, and injury results to the person relying on same. In Coleman v. Volentine, 211 Ark. 591, 201 S. W. 2d 592, this court said, “Ordinarily an action for fraud and deceit may arise only from false representation as to a past or existing situation, but there is authority for the holding that where one makes a false promise, knowing at the time that it will not be kept, the person injured thereby may have relief in action for fraud.”
In Wilson v. Southwestern Casualty Ins. Co., 228 Ark. 59, 305 S. W. 2d 677, it is likewise stated:
“A promissory representation may be the basis of fraud in procuring a release if the promissor never intended to fulfill the promise and made it for the purpose of obtaining the release. ’ ’
Our most recent holding to this effect was Thomason v. Hester Mobile Home Mfg., 235 Ark. 529, 361 S. W. 2d 91. As to the contention that the representation of continued employment was originally made in good faith, we are of the opinion that the weight of the evidence is to the contrary. Proof reflects that approximately a week after appellee voted for the merger, appellants offered to purchase Mahurin’s stock at approximately 50% ($12,996) of the value finally allowed by the chancellor. Mahurin asserts that the representations were made to him in order to obtain his favorable vote for the merger, and then to purchase his stock for less than half its value. Appellee states in his brief:
“Is it not also logical that such assurances which induced his cooperative vote were made with absolutely no intention of performance when only six days later he peremptorily received an offer to purchase, which in truth was a demand that he sell his stock, and upon declining, was discharged for sham reasons.”
Be that as it may, we think the circumstances justified the chancellor in reaching his conclusion. It is quite noticeable that though appellants apparently were most anxious to retain Mahurin at the outset, his services were terminated within two weeks after he had cast his vote in favor of the merger. To say the least, this was most unusual, particularly when it would appear that the new owners had a prior opportunity to examine the records; in fact, several months intervened during the period of negotiations, and the final consummation of the purchase. Apparently, the purchasers had every opportunity to investigate appellee for they had repeatedly told him that they desired to retain his services. During the trial, Stegall was asked, “What did you know about Mr. Mahurin on June 21 you did not know on June 15,1961?” The witness answered, “I clo not knoio what I tvould have known specifically
Also, there is some significance in the fact that, while appellants contended that Mahurin had misappropriated funds, suit was not instituted by the corporations until after receiving appellee’s notice of July 20, wherein Mahurin asserted that the attempted mergers were void, and made demand for the fair market cash value of the stock which he held in the Lake Company. It might be added that, although this litigation was commenced by the filing of the complaints against Mahurin, and though the chancellor found such complaints were without equity and dismissed them, that ruling has not been appealed to this court, which possibly is indicative of the strength (or lack of it) of appellants’ allegations in the first place. At any rate, (we hold that the chancellor’s finding that fraud was practiced upon Mahurin, and that appellee relied upon the fraudulent representations to his detriment, is not against the preponderance of the evidence.)
Appellants further urge that appellee is not entitled to recovery because he did not comply with the statutory provisions relative to receiving payment for his stock. This argument has reference to Section 64-703, Ark. Stats. 1957 Replacement, which provides the procedure for payment of the fair cash value of the stock of any stockholder voting against the merger. We do not deem a discussion of this contention necessary, inasmuch as, in onr view, the provisions of that section, and remedies therein granted, are not exclusive where fraud is present. Minority stockholders can maintain a suit for relief if fraud is practiced. Johnson v. Baldwin, (S. C.), 69 S. E. 2d 585; Alabama Fidelity Mortgage & Bond Co. v. Dubberly, et al, (Ala.), 73 So. 911; May v. Midwest Refining Co., (Me.), 121 F. 2d 431.
It is further asserted that the merger has never been consummated and Mahurin still has all of the stock in Lake and Southwestern that he ever had. This argument can be of no aid to appellants. For one thing, the record reflects that everything necessary to effect the merger has been done except for the technical filing with the Secretary of State; Mr. Joseph Peter Trantino testified that the merger took place on June 15,1961, but, “Due to the fact that the actual book merger did not take place until August 18, I was elected President of all four corporations on July 3,1961.” He stated that he was the custodian of the records of all four companies. For that matter, it would appear that appellants are estopped by the pleadings to assert that the merger was not completed, for the record reflects that Southwestern Broadcasting Company amended its complaint as follows:
“That the original plaintiff in this action Southwestern Broadcasting Company was merged into plaintiff corporation on or about the 18th day of August, 1961.
“That the style of this action be changed to reflect the plaintiff to be Victor Broadcasting Company, Inc., and that Victor Broadcasting Company, Inc. be substituted for Southwestern Broadcasting Company as plaintiff. That the amended complaint be amended only in this particular and in accordance -with the style of this pleading. ’ ’
An identical amendment to the complaint was filed relative to Lake Broadcasting Company and Victor Radio Company. Having asserted the merger of the corporations, appellants cannot now be heard to deny that fact.
Finally, it is contended that the chancellor used an erroneous method in arriving' at the fair cash value of Mahurin’s stock. The stock is not regularly traded, and there appears no set formula to determine the “fair cash value.” The court reached the figure allotted on the basis of the testimony of Charles W. Davis. The record reflects that Davis was asked the following question, relative to the Lake stock: “Based on the adjusted purchase price of the contractual purchase price of the majority stockholders, in KIKS, what is the fair cash value of that stock?” The answer was, “Four point eight, five space two.” The witness then stated that Mahurin owned 6,000 shares and that the value of his stock, based upon the Saxon sale (as adjusted) to Stegall and his principals, was $29,112. He likewise stated that, using the same formula, Mahurin’s three shares of stock in Southwestern had a value of $1,644.00.
We think, since there is no specified formula for determining the “fair cash value” of the stock in question, that the chancellor, under the facts in this case, was justified in basing this value on the testimony of Davis.
Finding no error, the decree is affirmed.
This, according to appellee’s brief (and which is not disputed by appellants) has reference to a compromise figure reached by the appellants and the Saxon interests. From the brief:
* ** * “appellants after first entering into a written contract establishing the per share value subsequently filed a law suit alleging misrepresentations by the Saxon interest and that per share value was then adjusted and compromised by a lower figure. Since appellants, of necessity, acquiesced in the compromise of the suit against Saxon which reduced the contractual value per share they certainly are in no position to complain of the adoption by the Chancellor of the same value they acquiesced in after the Saxon dispute.” * * * | [
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Carleton Harris, Chief Justice.
Appellants, plaintiffs below, brought a taxpayers’ suit in which they sought injunctive relief against appellees, Light and Water Commissioners in the City of Clarksville. Appellants urged that City Ordinance No. 387, under which appellees were acting, was invalid; that certain expenditures made by appellees from surplus funds acquired in the utility operations, were unlawful; an accounting was sought from appellees, as well as a judgment against them, for particular payments hereinafter set out that had already been made, and the court was asked to enjoin and restrain the commissioners from making such further expenditures. After the filing of an answer and various amendments to the pleadings, the case proceeded to trial before the chancellor, who, after taking the cause under advisement, rendered his opinion. The court found that “the Clarksville Light and Water Company” was an agency of the City of Clarksville, empowered to perform those duties specifically outlined in the ordinance, and further found that the commission had performed its duties in accordance with the expressed desire of the City Council. The court refused to grant a judgment or issue an injunction, as prayed, but did direct that in the future “the agency do and perform only those acts which are necessary to operate the utilities, pay the debts, and to build up a sound business operating reserve from the profits of the organization and when that reserve has been established that all profits of the organization be paid in to the City Treasurer as a part of the General Revenue.” Except for the directive, all relief sought by appellants was denied. A decree was entered in accordance with the opinion, and from such decree, appellants bring this appeal. For reversal, three points are relied upon as follows:
I. Ordinance No. 387 is invalid and does not create a valid utility commission or constitute appellees a valid commission or agency of the city of Clarksville.
II. Purchase of corporate stock was illegal; and appellees should be required to place the money back into the treasury with interest.
III. Appellees should be required to pay back into the city treasury with interest the $1,000 placed by them in the Dairy Expansion Fund.
— I —
In 1949, the city of Clarksville, which operated its own light and power plant, and water works system (originally acquired through municipal improvement districts), enacted Ordinance No. 387, creating a commission to be known as the “Clarksville Light and Water Commission of the City of Clarksville, Arkansas.” In brief, the ordinance sets forth that the commission shall be composed of three qualified resident electors of the city of Clarksville, and provides that the commissioners shall be appointed by the City Council. Section 2 places the commission in full charge and authority of the light and water plants “with the power to operate and maintain them and to exercise all power necessary or incident to the management, operation and control of the properties for the furnishing of water and electricity to the inhabitants of the City of Clarksville.” Section 3 authorizes the commission to enlarge the plants and extend such services as may become necessary in order to serve the residents of the city, but further provides that the commission shall not have the power to increase the rates, nor power to issue revenue bonds or notes, without the approval of the City Council. Section 4 sets out that “out of any surplus in revenue after making provision for the payment of bonds and interest and operation, the Commission shall set aside a reasonable sum for the maintenance of the plant and the depreciation account. Any sums remaining after providing for the funds herein defined shall be declared to be ‘net revenue’ and the Commission at its discretion may use such part of the net revenue as may be necessary or proper for the extension or enlargement of the two plants or their distribution systems, and any funds not so used shall he held hy the Commission as reserve fund, to he used hy the Commission as it deems best.”
The italicized portion, in large measure, was the basis for the disbursements that gave rise to this litigation. Section 5 states that the commissioners shall have “wide discretion in the exercise of the powers conferred upon them, it being the purpose of this ordinance to grant such commission the powers ordinarily exercised by the board of directors of a corporation, * * *” and the section further provides the manner of removal of a commissioner for improper exercise of authority. Section 6 sets out that members of the commission shall not receive any compensation for services but shall be reimbursed for expenses incurred in the performance of duties.
The commission is presently composed of Leslie E. Bryant, Earl K. Johnston, and Wilson Jones.
Appellants contend that the Chancellor erred in holding the ordinance valid, and they stoutly maintain that Act 95 of 1939 [Ark. Stat. Ann. §§ 19-4001 through 19-4033 (Repl. 1956) ] should control. This act authorized the creation, in cities of the second class and incorporated towns, of a board to be known as “The Board of Public Utilities,” and the statute provided that this board should have the sole and exclusive control of the maintenance, enlargement, and operations of electric light and water plants and sewerage systems owned by improvement districts, or where such districts had paid out and were under control of the city or town council. Appellants point out certain conflicts between provisions of this act and Ordinance 387, including the fact that the “Board of Public Utilities” requires 5 members and, further, that a Board of Public Utilities cannot be created until the plan is first approved by a majority of the voters in an election. Other differences are cited, but we do not consider a discussion of this phase of appellants’ argument to be necessary since Act 95 does not make compulsory the operation of utility plants by this board. Section 19-4001 simply provides that such a board may be created. Here, the citizens of Clarksville apparently did not desire to create the Board of Public Utilities, and the authority to operate the utilities, therefore remained in the City Council. We agree with the Chancellor, that in passing Ordinance 387, the city created an agency to operate the utilities heretofore mentioned. The city had the express statutory power to own and operate these utilities [Ark. Stat. Ann. § 20-316 (Repl. 1956)], and we have held that a City Council may designate agents to act, within the scope of their agency, on behalf of the city. Jonesboro v. Montague, 113 Ark. 13, 219 S. W. 309, Gladson v. Wilson, 196 Ark. 996, 120 S. W. 2d 732.
The Clarksville Light and Water Commission was not delegated power of a legislative nature, (which would have been unlawful) as shown by the fact that the ordinance provides that the commission shall not have power to increase rates, nor to issue revenue bonds or notes; the commission was only given executive and administrative functions in carrying out the provisions of the law which authorized the city to own and operate the utilities. In other words, the commission was simply acting for the City Council. As was stated in City of Mayfield v. Phipps, 263 S. W. (Ky.) 37:
“The electric light and water committee named under the ordinance passed by the council of the city of Mayfield was merely the arm of the city government acting in an administrative capacity. The acts and doings of the committee were in legal contemplation, at least the acts and doing of the council, when concurred in and approved by the council. It is generally conceded that powers of a purely ministerial, administrative, or executive nature may be delegated by a municipal council to a committee or to some appropriate officer, although it cannot delegate to such committee the power to decide upon legislative matters properly resting in the judgment and discretion of the council.”
We hold that the commission is but an agency of the •City Council, and City Ordinance No. 387 is valid.
— II —
The record indicates that the management of the municipal utilities (light, water, and sewer) by the three commissioners has been quite successful. The systems have increased greatly in value, and the growth in electric sales has shown a substantial increase even though the municipal population actually decreased. The record reflects that various projects have received financial support from the commission, said financial contributions being made from the surplus acquired from the utility operations. For instance, the commissioners subscribed to a $1,000.00 interest in a Dairy Expansion Fund; the commissioners paid part of the cost of constructing a municipal swimming pool sponsored by the City Council, and, inter alia, made contributions to the following: The College of the Ozarks, the Clarksville Chamber of Commerce, the Poultry Association, the purchase of municipal fire trucks, Christmas lighting of the streets of Clarksville, and lights for the high school football field. A $5,000.00 expenditure was made by the commissioners for the purchase of stock in Johnson County Frozen Foods, Inc., and several thousand dollars were expended for engineering fees for a city airport, a road to a new shoe factory and construction of a sea wall.
While, obviously, most of these expenditures have no direct connection with the operation of a utility plant, the fact remains that practically all were for the general benefit of the Clarksville area, and all apparently received public approval. Such expenditures had been made for a long period of years; all of the larger disbursements were approved by the city council, and tacit approval was given to the rest; some of the projects were approved at public elections.
Only two specific expenditures are challenged on this appeal. One relates to the purchase of $5,000.00 worth of stock in Johnson County Frozen Foods, Inc. This corporation was created in an effort to stimulate the industrial development of the Clarksville community through aiding the local peach industry, which had suffered serious reverses, and the commissioners were approached by a committee, heading the industrial drive, and requested ta, purchase the aforementioned amount of stock. After being advised by the commissioners that the purchase would have to be approved by the City Council, the committee returned and delivered to the commission a written authorization signed by the Mayor and all members of the City Council, approving and authorizing the expenditures. The stock purchase was thereupon consummated and the stock was acquired as the property of the city. Appellants point out that the Arkansas Constitution, Article 12, Section 5, prohibits any county, city, town or other municipal corporation from becoming a stockholder in any company, association, or corporation, nor can money be appropriated to any corporation, association or institution. Appellants are correct in this contention, but it must be borne in mind that the relief sought under this point is not prospective; in such event, appellants would likely prevail. Rather, this is a suit to compel appellees to repay to the city of Clarksville, from their own personal resources, the $5,000.00 of utility earnings already expended by the commissioners in the purchase of stock. In Hendrix v. Morris, 134 Ark. 358, 203 S. W. 1008, the school directors purchased a school bus, though at that time (1918) school districts had no authority to buy school buses. Suit was instituted to obtain a judgment against the directors for the amount of the purchase. In holding that the school directors were not liable, this court said:
“In Hendrix v. Morris, 127 Ark. 222, 225, we held that the directors of this district and the treasurer had no authority to expend the money of the district for such purposes, but it does not follow that the directors are individually liable for the money thus expended. While it is alleged and admitted that the directors had no authority to issue the warrants for the purpose mentioned, there is no allegation that they acted willfully or maliciously. This is essential in order to make the directors personally liable. Where school directors act in good faith, believing at that time that they have authority under the statute to expend the money for the purposes for which they issue warrants, they will not be held individually liable to the district for moneys so expended, even though they have no such authority.
“ ‘The general rule,’ says 35 Cyc. p. 910, ‘is that the officers of a school district cannot be held personally liable on a contract made on their part as such officers and solely for the benefits of the district, unless guilty of fraud and misrepresentation, or unless they expressly contract to assume personal liability.’
“As is said by the Supreme Court of Minnesota, ‘Were the rule otherwise, few persons of responsibility would be found willing to serve the public in that large capacity of offices, which requires a sacrifice of time and perhaps money, but affords neither honor nor profit to the incumbent.’ ”
In the instant litigation, there is neither allegation nor proof that the directors acted willfully or maliciously. Unquestionably, the record discloses that they acted in good faith. They were of the opinion that they had the authority under the ordinance to expend the money for the purpose mentioned, and though this particular expenditure was not approved by ordinance, the same men who held the offices of Mayor and Councilmen respectively, in writing, approved this action of the commissioners. It would be manifestly unjust, and utterly foreign to equitable principles, to render a personal judgment against these commissioners who are not accused of fraud or sharp dealing, and apparently acted sincerely for the best interests of their home town. Appellees have undoubtedly spent considerable time in serving on the commission, without pay, and solely in the line of civic duty. In fact, to hold these men personally liable for the stock purchased would simply be to require an agent to repay to the principal a sum of money which the principal ordered the agent to spend.
It might also be mentioned that the abstract reveals no evidence to the effect that the company is insolvent or that it has been placed in bankruptcy, and accordingly there is no evidence to measure the damage which the city of Clarksville might have sustained because of the purchase of this stock. In the Arizona case of Henderson v. McCormick, 215 Pac. 2d 608, the Supreme Court stated:
“The authorities universally uphold the rule that a taxpayer may maintain an action only when such taxpayer and taxpayers as a class have sustained or will sustain pecuniary loss.”
"While appellants cite the constitutional provision prohibiting a city from becoming a stockholder in a company, they have not called upon the city to dispose of such stock.
In accordance with the reasoning herein set forth, we are of the view that the commissioners only acted as agents for the city, and no personal liability attaches.
— Ill —
The Clarksville Chamber of Commerce instituted a plan for a Dairy Expansion Fund for the purpose of promoting the Dairy Industry in the community, and the commission made a $1,000.00 investment in the fund, for which it received a certificate. The reasoning employed under the preceding discussion is likewise applicable here, though it is not clear that this item was specifically approved by the members of the Council. Here, again, no effort has been made to compel the city to dispose of or ‘£ cash in ’ ’ the certificate received.
As heretofore stated, the Chancellor, in interpreting the ordinance, issued a directive relating to future operations of the commission. This directive was as follows:
“All surplus funds derived from the operation of such utility systems which may remain, after making the disbursements therefrom and establishing reserves as hereinabove authorized, shall be paid by defendants into the general treasury of the City of Clarksville; all funds thus paid into the general treasury to be subject to the exclusive control of the municipal council.
“It is the intent of this directive that defendants shall not apply any of the public utility revenues toward any charitable or quasi-eharitable purposes or toward any program designed to promote the industrial development of the City of Clarksville.”
This action of the court was entirely proper and will result in future expenditures (not connected with the operation of the utilities) being made by the proper authority, the actual principal, vis., the City of Clarksville, through its City Council. Of course, if the citizens of that city desire to create a commission as set forth in the applicable legislative act, Act 115 of 1957 [Ark. Stat. Ann. §§ 19-4061 through 19-4082 (Supp. 1961)], there is nothing to prevent such action.
Affirmed.
This is a trade name adopted by the members of the agency created by Ordinance No. 387 of the City of Clarksville.
The commission also operates the sewer system.
Emphasis supplied.
Bryant was one of the original commissioners, named in the ordinance, and has been continually reappointed.
Clarksville has now been a city of the first class for a number of years. | [
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Jim: Johnson, Associate Justice.
This appeal involves the question of whether a notary public and a realtor are practicing law when filling in simple standardized forms used in real estate transactions. The action was instituted by appellant Alfred Creekmore, a Notary Public in Mountainburg, to declare his right to continue to fill in the blanks in printed real estate forms, bills of sale, etc., none of which he contended constituted the practice of law. Clyman Izard and Fines F. Batchelor, Jr., as officers and members of the Crawford County Bar Association, and Marvin D. Thaxton, Chairman of the Unauthorized Practice of Law Committee of the Arkansas Bar Association, were made parties in their individual and representative capacities as members of a class in accordance with Ark. Stats. § 27-809. After an answer had been filed, Everett 0. Sewell, a regularly licensed and bonded real estate broker, was permitted to intervene, alleging that it was desirable for him in connection with his business as a real estate broker to be permitted to fill in the blanks in printed standardized real estate forms prepared or approved by a lawyer; that he possessed the required knowledge and skill to fill in such blanks in connection with real estate transactions handled by him as a real estate broker; and that his doing so would not adversely affect the public interest. Upon a trial on the merits, the trial court found that appellant Creekmore, a notary public, in filling in the blanks of printed forms of bills of sale, chattel mortgages, promissory notes, warranty deeds, quitclaim deeds, options, loan applications, real estate mortgages, deeds of trust, releases and satisfactions of real estate mortgages, powers of attorney, federal income tax returns, notices to quit or vacate real property and mineral (oil and gas) leases, constituted the practice of law; dismissed the intervention of appellant Sewell; and enjoined appellant Creek-more from performing the acts mentioned.
During oral argument, counsel for appellants admitted that they were entitled to no relief unless the rule in the case of Arkansas Bar Association v. Block, 230 Ark. 430, 323 S. W. 2d 912 could be relaxed. Following the decision in that case realtors were enjoined from the use of forms such as are involved in this case, see Block v. Arkan sas Bar Association, 233 Ark. 516, 345 S. W. 2d 471. Appellants earnestly argue that an engineer, an insurance agent, a banker, a merchant, a stock broker, and practically every other business or professional man does some acts which affect the legal rights of the people they serve, and that to require a person to employ a lawyer in every transaction involving them would virtually bring the wheels of commerce to a halt.
The appellees point out that the decision in Arkansas Bar Association v. Block, supra, is well decided and should remain undisturbed. In support of the soundness of the Block decision, they call to our attention the fact that it has been followed by a decision of the Arizona Supreme Court in the case of State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz. 76, 366 P. 2d 1, and that it conforms to a realtor-lawyer agreement entered into between the American Bar Association and the National Association of Real Estate Boards in 1942. In 28 Unauthorized Practice News 252, cited by appellees, the background of the lawyer-realtor controversy in Arizona both prior to and subsequent to the decision in State Bar of Arizona v. Arizona Land Title & Trust Co., supra, is discussed in detail by Wayland Cedarquist, a lawyer member of the National Conference of Lawyers and Realtors. This article suggests that, in the interest of the realtors, the lawyers and the public, some compromise between the lawyers and realtors should have been resorted to instead of the constitutional amendment which the Arizona realtors proposed.
The Supreme Court of Colorado, in Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P. 2d 998, after holding that the preparation of instruments such as are involved here constituted the practice of law, said:
“The remaining and most difficult question to be determined is:
“Should the defendants as licensed real estate brokers (none of whom are licensed attorneys) be enjoined from preparing in the regular course of their business the instruments enumerated above, at the reguests of their customers and only in connection with transactions involving sales of real estate, loans on real estate or the leasing of real estate, which transactions are being handled by them¶
“This question we answer in the negative.
‘ ‘ The announced purpose of these suits are twofold: (a) To protect the licenses, privileges and franchises granted to attorneys from encroachment and damage by reason of the alleged unauthorized acts of the defendants.
‘ ‘ (b) To protect the public and particularly those persons participating in real estate transactions through brokers, from the dangers inherent in the preparation of legal documents by persons unskilled in the intricacies of the law rather than by lawyers.
‘ ‘ The defendants are all engaged in a lawful business. It is considered of such importance that the State of Colorado has adopted regulatory legislation providing for the licensing of persons engaged therein.
“ ‘No person shall be granted a license until he shall have passed a satisfactory examination and shall have established that he is trustworthy and bears a good reputation for good and fair dealing and is competent to transact the business of a real estate broker or real estate salesman in such manner as to safeguard the interest of the public . . .’C.E. S. '53, 117-1-1.
“We distinguish between the part of the public in quest of legal advice and services and out of which arises only the relationship of attorney and client and those bent on buying, leasing or selling real estate or borrowing money thereon, and out of which arises the relationship of seller-broker, buyer-broker, lessee-broker, lessor-broker, lender-broker or borrower-broker.
“The record shows conclusively that the defendants do not prepare papers or give advice to anyone except their customers who through solicitation or otherwise engage or employ them as brokers,.
“On the other hand, the record shows conclusively that the defendants do select, prepare and explain the documents enumerated above at the request of their customers, without charge other than the usual broker’s commission, and only in connection with real estate transactions then being handled by them and property left in their charge for management.
“The testimony shows, and there is no effort to refute the same, that there are three counties in Colorado that have no lawyers, ten in each of which there is only one lawyer, seven in each of which there are only two lawyers; that many persons in various areas of the state reside at great distances from any lawyer’s office. The testimony shows without contradiction that the practices sought to be enjoined are of at least 50 years uninterrupted duration; that a vast majority of the people of the state who buy, sell, encumber and lease real estate have chosen real estate brokers rather than lawyers to perform the acts therein complained of. Though not controlling, we must make note of the fact that the record is devoid of evidence of any instance in which the public or any member thereof, layman or lawyer has suffered injury by reason of the act of any of the defendants sought to be enjoined. Likewise, though not controlling, we take judicial notice of the fact that the legislature of the state, composed of 100 members from all walks of life and every section of the state, usually called upon by their constituents to adopt legislation designed to eliminate evils and protect the public against practices contrary to the public welfare, has never taken any step to prevent continuation of the alleged evil which we are now asked to enjoin.
‘ ‘ The question here to be resolved, and similar questions involving other businesses, has been before the courts of most of the 48 states, with widely divergent views and decisions resulting. There is very respectable authority for enjoining the acts complained of here; there is also respectable authority for denying injunctive relief. We feel that the weight of authority and especially the more recent decisions, sanctions our holding that the acts of which complaint is made, done without separate charge therefor by licensed real estate brokers only in connection with their established business, and in behalf of their customers and in connection with a bona fide real estate transaction which they are handling as brokers, should not be enjoined.
‘ ‘ The plaintiffs have much logic in support of their contentions. Reason, public convenience and welfare seem to be on the side of the defendants.
“We feel that to grant the injunctive relief requested, thereby denying to the public the right to conduct real estate transactions in the manner in which they have been transacted for over half a century, with apparent satisfaction, and requiring all such transactions to be conducted through lawyers, would not be in the public interest; that the advantages, if any, to be derived by such limitation are outweighed by the conveniences now enjoyed by the public in being permitted to choose whether their broker or their lawyer shall do the acts or render the service which plaintiffs seek to enjoin.”
In many respects our laws and history are analogous to those recited in the Colorado case. The evidence in this case shows that there are no lawyers in Mountainburg, Arkansas, and for a distance of 20 miles or more in either direction, and that there are no lawyers in Evening Shade, Arkansas, and for a distance of 20 miles or more in either direction, and we take judicial notice that there are many such towns in Arkansas similarly situated in which there are no lawyers. The real estate brokers licensing statutes, Ark. Stats. § 71-1301, et seq., in addition to requiring applicants to bear a good reputation for honesty, truthfulness and fair dealing, require that a broker take a written examination and provide for a $2,000.00 bond, conditioned that the broker and any salesman employed by him shall well and truly comply with, the provisions of the brokers licens ing act. The act also gives the public the right to sue directly upon the bond for the violations enumerated in Ark. Stats. § 71-1307.
The testimony introduced on behalf of appellants shows that prior to the decision in Arkansas Bar Assn. v. Block, supra, it took only a matter of four or five minutes to fill in the blanks on the necessary deed and mortgage forms to complete a real estate transaction, but that since the Block decision it takes some three or four days to get a lawyer to prepare the necessary instruments; and that occasionally the broker takes a blank form, fills in all the necessary information, transmits it to the office of the lawyer, who subsequently retypes the whole instrument, for which he is paid a fee. Testimony further shows that many mistakes result from passing the information necessary to preparing a deed from the broker to the lawyer.
The appellants argued that should we, acting under our rule-making power under Amendment 28 to the Arkansas Constitution, permit a licensed and bonded real estate broker to complete the forms involved in a real estate transaction upon simple standardized forms approved by his lawyer, the broker’s lawyer, in addition to the Beal Estate Licensing Board, would also have an opportunity to say whether the particular licensed and bonded real estate broker possessed the requisite knowledge and skill to fill in the blanks in the forms approved by him. They also point out that the lawyer, at the same time, by the simple expedient of noting on the forms that they had been approved for a named broker by the approving lawyer, could police the broker’s future operations by picking up the forms that he had approved for that particular broker or by refusing to approve additional supplies of forms.
The individual members of this court have spent many hours of research in trying to determine what does and what does not constitute the practice of law. After the oral argument was held, we requested amicus curiae briefs. There seems to be no clear cut definition of the term. In Ark. Bar Assn. v. Union National Bank, 224 Ark. 48, 273 S. W. 2d 408, we said:
“An Individual Gan Practice Law For Himself. It is generally conceded that an individual who is not a licensed attorney can appear in the courts and engage in what is commonly conceded to be practicing law provided he does so for himself and in connection with his own business.”
Many activities fall within the ambit of the practice of law, for instance, a merchant collecting his own bills is not practicing law while a lawyer performing the same service for the merchant would be practicing law.
The relief here sought by appellant Sewell, the realtor, falls within the ambit of the merchant for the filling in of the simple standarized forms here involved is a necessary incident of his business just as the collection of the merchant’s bills is a necessary incident of his business. Therefore we are ruling that the decision in Ark. Bar Assn. v. Block, 230 Ark. 430, 323 S. W. 2d 912, should be modified to provide that a real estate broker, when the person for whom he is acting has declined to employ a lawyer to prepare the necessary instruments and has authorized the real estate broker to do so, may be permitted to fill in the blanks in simple printed standardized real estate forms, which forms must be approved by a lawyer; it being understood that these forms shall not be used for other than simple real estate transactions which arise in the usual course of the broker’s business and that such forms shall be used only in connection with real estate transactions actually handled by such brokers as a broker and then without charge for the simple service of filling in the blanks.
Appellant Creekmore, the notary public, does not stand in the same shoes as the broker. His preparation for a fee of deeds, mortgages, bills of sale, etc., clearly constitutes the practice of law for there is no connection between his business and that of preparing such instruments. The learned trial judge was correct in confining him in his capacity as a notary public to the taking of acknowledgments.
The decree of the trial court also enjoins appellant Creekmore from preparing income tax forms. In this particular, the decree is too broad. A person does not have to be a lawyer to fill out income tax forms. See Lowell Bar Assn. v. Loeb, 315 Mass. 176, 52 N. E. 2d 27, 31.
Some question has been raised as to whether this is a proper class action, but under our civil procedure, Ark. Stats. § 27-809, a person is entitled to sue as a member of a class or to sue representative members of a class as a whole. See Massey, Trustee v. Rogers, 232 Ark. 110, 334 S.W. 2d 664.
From what has been said it follows that the decree is reversed as to appellant Sewell and affirmed with respect to appellant Creekmore except for the injunction against filling out income tax forms, each party to bear his own costs.
MoFaddin and Robinson, JJ., dissent.
The Arizona constitutional amendment proposed by the realtors, giving them the right to fill in forms such as are involved here, carried by a vote of more than 3 to 1.
The General Assembly of the State of Arkansas passed Act 135 of 1941, designed to prohibit to some extent the drafting of instruments such as are involved here. This Act was referred to the people and defeated in a referendum in the general election of 1942.
Metropolitan Life Insurance Co. v. Fry, 184 Ark. 23, 41 S. W. 2d 766. | [
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Ed. F. McFaddin, Associate Justice.
This is an eminent domain proceeding. The City of El Dorado filed action in the Circuit Court, seeking to take a strip of ground 10 feet wide for an out fall sewer line. The strip went through the appellees ’ lands for a considerable distance. In their answer to the condemnation proceeding, the appellees (Mr. and Mrs. Kidwell) stated:
“Further answering, the defendants state that the sewer line described in the Complaint is not for public purposes and will not be constructed by the City of El Dorado, but rather for the sole benefit of the owners and developers of what is known as the Tanglewood Addition, a new subdivision, and therefore there is no right of eminent domain in defendant’s property.”
The Circuit Court proceeded to try the case on the issue joined; that is, whether the taking was for a public purpose. We have held that when the answer presents a defense cognizable in equity—-as here—and yet both sides proceed to trial in the law court, then the transfer to equity is waived and, on appeal from the circuit court, we test the judgment on equitable principles. Wilson v. White, 82 Ark. 407, 102 S. W. 201, 12 Ann. Cas. 378; Shane v. Dickson, 111 Ark. 353, 163 S. W. 1140; Hill v. Kavanaugh, 118 Ark. 134, 176 S. W. 336. We apply the rules of these cases to the case at bar. After an extended hearing, the Circuit Court found that the complaint should be dismissed as without merit. From that judgment there is this appeal; and the City urges only one point: “The -undisputed testimony establishes the City’s right to take the property involved.”
The City proceeded under Ark. Stat. Ann. § 19-4101 et seq. (Bepl. 1956) in filing this suit, and duly introduced the ordinance of the City Council, authorizing the City Attorney to file the eminent domain proceedings. By answer, the defendants (appellees) denied the necessity of the taking, and, in effect, claimed that such taking was not for a public purpose. In Wollard v. State Highway Comm., 220 Ark. 731, 249 S. W. 2d 564, we said that the landowners “shouldered a heavy burden of proof in attempting to persuade the courts” that the taking was not for a public purpose. The burden was not on the City to prove the public purpose—the statute under Avhich the City proceeded and the resolution of the City Council accomplished that purpose. Bather, the burden was on the landowner to prove that the taking was not for a public purpose; and with such burden understood, we examine the evidence.
The principal evidence of the landowner was directed to two points: (1) the proposed right of way would run diagonally through the landowners’ property and interfere materially with the present and future use of the lands; and (2) a new addition was being developed and this sewer line would be for the private benefit of those developers and not for the benefit of the general public.
As to the first point, the City offered to vary the proposed right of way to lessen the appellees’ damages; and the amount of the damages, with the change in location, is yet to be determined. So this first point is not a ground for denial of eminent domain. The second point is the real issue. It is true that a private developer is opening an addition; but already one or more residences have been constructed, and this proposed put fall line is shown to be the most feasible way for the City to handle the sewer problem. The Legislature has given the City the right of eminent domain for the purpose of acquiring rights of way for sewer lines; and the fact, that some individual developer of an addition will incidentally benefit by the sewer line, does not destroy the power of the City to exercise eminent domain for a right of way for a suitable sewer line. Cloth v. C. R. I. & P. R. Co., 97 Ark. 86, 132 S. W. 1005, Ann. Cas. 1912C 1115.
On a full review of the entire record, we conclude that the landowners did not discharge the “heavy burden” resting on them to prove that the taking was arbitrary or unlawful; so the judgment is reversed and the cause remanded for the entry of an order of condemnation and the assessing of the damages suffered by the appellees; and the costs of this appeal will he adjudged against the City, as the condemning party, since we test this case on equitable principles.
With this allegation in the answer, the proceedings in the cause • should have been transferred to equity. We have repeatedly held that the only issue to be tried in the law court is the damages the landowner will sustain by the taking, and that when the question of the validity of the taking is presented, the cause should be transferred to equity. Ozark Coal Co. v. Pa. Anthracite Rd. Co., 97 Ark. 495, 134 S. W. 634; St. L. I. M. and S. R. Co. v. Faisst, 99 Ark. 61, 137 S. W. 815; Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65. | [
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Sam Robinson, Associate Justice.
The appellee, Arkansas Power & Light Company, is a corporation organized under the laws of this State for the purpose of generating, transmitting, and supplying electricity for pub- lie use under the authority of Ark. Stats. 35-301 — 16. The power company filed this suit to condemn a right of way for a high voltage transmission line across lands owned by appellant, Hattie Boone Black. The Complaint was filed in the Circuit Court of Arkansas County; on defendant’s motion, the cause was transferred to equity. The Complaint was filed December 16, 1959; on the same day the Court issued an order authorizing the power company to go on the land and construct the line upon the making of a bond as directed by the Court. The bond was made, the power company proceeded to construct the line, and at the time the cause was heard in Chancery Court, the line was in use.
There was a taking by the power company of a right of way 125 feet wide near the southern boundary line of appellant’s property in two sections. There is a fraction over 26 acres in the right of way. The Chancellor found that the land taken for the right of way was worth $250.00 per acre, or a total of $6,632.50, and that appellant’s land adjacent to the right of way was damaged in the sum of $2,123.50. A judgment was rendered for the total sum of $8,756.00 and interest.
Appellant’s principal contentions on appeal are that the power company did not have the right to take the right of way, and that inadequate damages were awarded.
Appellant first argues that the trial court erred in holding that after the power company introduced its charter and the statutes were considered, the burden was on appellant to show an improper use of the power to condemn. Conceding without deciding that the trial court was in error on this point, it does not follow that the ruling was in any manner prejudicial to appellant, because the power company proceeded to introduce sufficient evidence to show that it was necessary to construct the transmission line to properly supply electricity to the public.
Appellant maintains that the preponderance of the evidence does not show that the transmission line was needed by the Arkansas Power & Light Company to serve its customers in Arkansas. The line is the main trans mission facility from the power company’s generating plant at Helena to its Woodward Distribution Station at Pine Bluff. Appellee’s entire distribution system is connected with the Woodward Station. The mere fact that the power company built at Helena a generating plant at the cost of millions of dollars, and a 230,000 kilowatt transmission line from Helena to Pine Bluff at the cost of more millions of dollars, is pretty strong evidence that the line was needed in Arkansas for Arkansas customers, and there is no substantial evidence in the record tending to prove the contrary. In addition, we quote from appellant’s brief an abstract of the testimony of Mr. Carroll Walsh, chief engineer of the power company, to the effect that, in his opinion, the line was necessary: “. . . that it was necessary to add some additional generation to their system to carry the loads expected for 1961; that the generation was, as an engineering decision, located at Helena; that a part of the generation was needed in East Arkansas, but a big part of it was needed at Pine Bluff, where they had large loads and no generation plant, the nearest one being at Little Bock, so it was necessary to build a transmission line to carry a heavy block of power from the new plant at Helena to take care of the loads in the Pine Bluff area.”
Appellant says that the effect of this evidence was largely destroyed by cross-examination, but we do not agree. True, it appears that on some occasions the power company sends into other states, electricity generated at Helena and transmitted over the line crossing appellant’s property, but this is done pursuant to an agreement with other power companies whereby appellee is enabled to bring into this state, when the occasion demands, for the use of its Arkansas customers, electricity generated elsewhere. The effect of this arrangement is beneficial to the people of this state, as it assures a constant and sufficient supply of electricity at all times.
Appellant stoutly argues that the compensation awarded for the 26 and a fraction acres condemned and for damages to the remaining property is inadequate. The Chancellor made a finding that the land taken for the right of way was worth $250.00 per acre, and that damages to the remaining land amounted to $2,123.50. Of course, the amount of damages sustained is a question of fact, and we will not reverse the Chancellor on a fact question unless the decree in that respect is against the preponderance of the evidence. Here, we do not feel that the Chancellor’s finding of damages is against the weight of the evidence. Appellant and several of her witnesses testified that the land taken was worth more than $250.00 per acre, and she and some of her witnesses testified that all of the farm land, consisting of more than 1,200 acres, had been damaged to the extent of $50 or $60 per acre. On the other hand, several qualified witnesses appeared in behalf of the power company and testified that the land taken for the right of way was worth $250.00 per acre or less, and that there was no damage to the land outside of the right of way.
The power line crosses appellant’s property within 110 to 125 feet of its southern boundary line. Appellant owns only about 13 acres south of the right of way of the power line. It appears that at the time the line was constructed, appellant had an oat crop on the property. The Chancellor made an award in the sum of $2,123.50 for damages to the land outside of the right of way. The evidence would sustain a finding that there was no damage to appellant’s property north of the right of way. If $1,000.00 was allowed’ for damage to the oats, there remains almost $90.00 per acre for damages to the 13 acres. Moreover, appellant can continue to cultivate the 125 foot strip in the right of way, notwithstanding she has been paid the full fee value, provided, of course, that she does not interfere with the transmission facilities. She may not be able to fertilize the 13 acres as well as formerly, because now it may be difficult to use an airplane for that purpose; but even so, we do not find that the amount of damages awarded by the Chancellor is against a preponderance of the evidence.
Affirmed. | [
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Sam Robinson, Associate Justice.
The Arkansas State Highway Commission filed this suit to enjoin appellee, Steve Marlar, from interfering with the Commission in removing shade trees and building a road on property in which Marlar owns the fee. The Chancery Court issued the injunction, but as a condition required the Commission to make a bond in the sum of $10,000.00.
On appeal the Commission contends that the Chancellor erred in requiring the bond. The Complaint herein was filed on June 12, 1962; the matter was set for hearing and heard on June 22, 1962. The appellee had filed no pleading at the time of the hearing. The statutory time in which a pleading could be filed had not expired.
It developed at the hearing that a county court order had been entered in 1958 condemning for- highway purposes the property involved in this proceeding; and that another court order was entered in January, 1962 condemning the same property. The Chancellor did not reach the merits of the case, but simply required the Highway Commission to make a bond to protect the property owner in the event it should develop at a hearing-on the merits that he was entitled to recover damages. It may develop that Marlar is bound by the 1958 order; that he filed no claim within a year and is not entitled ¿o recover damages. On the other hand, it maji be that Nevada County or the Highway Commission will have to reimburse him for damages sustained by the taking under the 1962 order.
Appellant made the required bond, thereby putting the restraining order into effect and has, therefore, accepted the benefits of the decree. Presumably, the shade trees have been removed, the road has been widened, and Marlar has suffered all the damages he will ever suffer by reason of the restraining order having been issued. In these circumstances, by making the bond the appellant is estopped to say that the Court erred in requiring the bond.
The general rule is that one cannot accept the benefits of a decree and question its validity. Baker v. Adams, 198 Ark. 482, 129 S. W. 2d 597; Mathis v. Litteral, 117 Ark. 481, 175 S. W. 398; Bolen v. Cumby, 53 Ark. 514, 14 S. W. 926. In 2 Am. Jur. 974 it is said: “The general rule ... is that a litigant who has, voluntarily and with knowledge of all the material facts, accepted the benefits of an order, decree, or judgment of a court, cannot afterwards take or prosecute an appeal or error proceeding to reverse it.”
In the case at bar, appellant could not have gone on the property and destroyed the shade trees and widened the road, pending appeal, without making the bond as provided in the court order, which the appellant chose to do. In these circumstances, appellant is now estopped to say that the Court erred in requiring the bond.
The appeal is dismissed.
MoFaddin, J., not participating. | [
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Paul Ward, Associate Justice.
On June 12, 1962, petitioner was judged in contempt of court and fined for disobeying an order of the court pertaining to the custody of Chris Songer, a nine year old son of the petitioner. He now brings before us, by .certiorari, the record of the contempt proceedings, seeking to have the order of contempt quashed.
Since many relevant facts and circumstances are set out in Songer v. Songer, 229 Ark. 228, 314 S. W. 2d 233 (opinion June 16, 1958) we deem it sufficient for this opinion to set out below a brief summary of the testimony contained in the record which preceded and led up to the contempt order.
The petitioner and his former wife were divorced in 1956; they had five children at the time; the two older ones are married and they both appear to be bitter toward their father at this time; one boy, Larry, now 14, is living with his father (the petitioner) and is not involved here; the youngest child is living with her mother and is not involved; Chris is now nine years old, and an incident over his custody precipitated this litigation. Petitioner has married again, and Mrs. Songer is now-married to a Mr. Halcumb. The parties have been in court almost continuously over the custody of the children.
FolloAving the directive in our decision referred to-above, the trial court gave petitioner custody of Chris- with his mother having the right to have him from Friday to Sunday each two weeks. The record discloses that Chris’ visits to his mother were a constant source of trouble. It seems that Chris’ father and mother each thought the other was mistreating him, and each vied for his company and affection.
On June 12, 1962 the trial court (apparently at the request of both parties) entered of record an order, the pertinent part of which reads:
“That the plaintiff (Mrs. Halcumb) shall have the right to pick up the parties’ minor son, Christopher Songer, at noon on June 15, 1962, and to take said minor child on a trip with her out west, and shall return the said child to the home of the defendant by 5:00 p.m. on July 1,1962.”
When Mrs. Halcumb went by Mr. Songer’s home at the designated hour to pick up Chris, preparatory to making the trip out west, she was unable to get him to go with her. Mrs. Halcumb, thinking that Mr. Songer had contrived to disobey the court’s order, had him cited for contempt. A hearing was had at which testimony was given by many witnesses, including all the members of the family (except Chris) referred to above. At the conclusion the trial court found: “That the defendant, Herschel Lee Songer, is in contempt of court for violation and disobedience of the order of this court on June 12, 1962. ’ ’ Then the court assessed a fine of $50 against the petitioner and sentenced him to three days in jail, but the jail sentence and $40 of the fine were suspended ‘ ‘ pending the future good behavior and cooperation of the defendant with the court and the plaintiff regarding plaintiff’s visitation privileges ...”
It is our conclusion, after careful consideration, that the order of the trial court should be sustained. Under our view of the case it is unnecessary to review all the evidence because we think the petitioner has a misconception of the applicable law. It is his contention that he was fined on a charge of criminal contempt of court, and that, therefore, we must find the evidence shows him guilty beyond a reasonable doubt, or reverse the trial court. We are not in agreement with this contention for reasons set out hereafter.
The distinction between civil and criminal contempt proceedings is clearly set out in the case of Blackard, et al. v. State, 217 Ark. 661, 232 S. W. 2d 977, to which reference is made for a fuller explanation. One primary distinction is that the purpose of punishment for criminal contempt is to preserve the dignity of the court, while the other is to enforce the rights of the third parties. No doubt the two purposes often merge as we think they do in this case. It appears from the wording of the court’s order that the petitioner was punished because he disobeyed the court’s mandate (that is, to preserve the dignity of the court) and also to insure cooperation of the petitioner in the future (that is, to enforce the rights of Mrs. Halcumb). It is not questioned that punishment for civil contempt will be upheld by this Court unless the order of the trial court is arbitrary or against the weight of the evidence. However, it is not necessary for us to hold the petitioner was found guilty of only civil contempt in order to sustain the trial court. We think the trial court should be sustained even if the petitioner were guilty of criminal contempt. In this situation the rule is clearly set out in the Blachard case, supra, where it is stated:
“On review by this Court in such proceedings by certiorari, we do not try the criminal contempt case de novo, despite any such language so intimating as contained in Jones v. State, 170 Ark. 863, 281 S. W. 663. Rather, we review the evidence just as we would in an appeal in any criminal case. The trial court in the first instance, in a criminal contempt proceeding must find the cited person guilty beyond a reasonable doubt. Then, on certiorari proceedings this Court reviews the record to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court. See Stewart v. United States, 236 Fed. 838; Binkley v. United States, 282 Fed. 244; Davidson v. Wilson, 286 Fed. 108; and In re Oriel, 23 Fed. 2d 409.”
Weighing the testimony under the above rules, we find there is substantial evidence to support the order of the trial court.
We purposely refrain from again setting out the testimony which reeks with bitterness and family strife. It must be conceded that no witness testified he saw or heard petitioner influence Chris’ decision not to accompany Ms mother on the occasion mentioned. There were, however, conceded circumstances from which the trial judge (who saw and heard the witnesses) could have reasonably concluded the petitioner did fail to cooperate in carrying out the court’s order. One such circumstance is the tender age of Chris, indicating he would obey his father; one is the fact that the petitioner left on an extended trip with Chris a very short time after Mrs. Halcumb went by to pick him up; and, another is that the petitioner had prearranged to leave on an out of state trip at the exact time Chris was to leave with Ms mother.
We call attention to the fact that the suspension of a part of the petitioner’s punishment cannot be revoked but is in effect a remission. See: Stewart, et al. v. State, 221 Ark. 496, 254 S. W. 2d 55.
Writ denied. | [
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ROBERT J. GLADWIN, Judge.
11 This one-brief appeal arises from the September 21, 2011 order of the Jefferson County Circuit' Court denying Pine Bluff National Bank’s (PBNB) petition for modification of a trust. On appeal, PBNB argues that the trial court erred in refusing to consent to the modification of the Ruby G. Owen Trust into a special-needs trust. We affirm.
On February 23, 2009, Ruby Owen created the Ruby G. Owen Trust for the benefit of her nine grandchildren, including her granddaughter, Kristian Owen, a resident of Alaska. The trust allows the trustee to distribute as much income and principal to Kristian as the trustee deems advisable, but it also instructs the trustee to remain mindful of and to always consider other resources available to Kristian. According to the trust, preservation of principal is a priority.
12In March 2010, approximately one year after creation of the trust, Kristian was diagnosed with schizophrenia, and a guardian was appointed for her. Ruby Owen, the grantor, died one month later, in April 2010. In June 2011, PBNB, as successor trustee, filed a petition asking the trial court to consent to modification of the trust into a special-needs trust, so that Kristian might qualify for public benefits, reserving the trust assets for assistance not provided by the government.
After a hearing and the consideration of a post hearing brief, the trial court entered an order on September 21, 2011, finding that the requested modification would violate Arkansas public policy forbidding the use of trusts to artificially sequester resources and qualify for government assistance. PBNB filed a notice of appeal on October 19, 2011, and an amended notice of appeal on December 21, 2011, from which this appeal followed.
The exclusive jurisdiction in cases involving trusts, and the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity, Winchel v. Craig, 55 Ark.App. 378, 934 S.W.2d 946 (1996), and courts of equity have inherent and exclusive jurisdiction of all kinds of trusts and trustees. Id. Arkansas appellate courts have traditionally reviewed matters that sounded in equity de novo on the record with respect to factual and legal questions. Hudson v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006). We have stated repeatedly that we would not reverse a finding by a trial court in an equity case unless it was clearly erroneous. Id. We have also stated that a finding of fact by a trial court sitting in an equity ease is clearly erroneous when, despite supporting evidence in the record, the |sappellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id.
Under Arkansas law, a trust may be modified by written consent of the settlor and the beneficiaries upon a finding that the trust’s purposes are not being fulfilled or are being frustrated due to unforeseen circumstances. Ark.Code Ann. § 28-69-401(a) (Repl.2012). If the settlor is deceased, a court can consent to the modification if it finds there is a general benefit to the trust beneficiary and her family. Ark.Code Ann. § 28-69 — 401(c)(1) (Repl.2012). Separately,- the Arkansas Trust Code empowers a court to modify the terms of a trust if, because of circumstances not anticipated by the settlor, the modification will further the purposes of the trust. Ark.Code Ann. § 28-73-412(a) (Repl.2012). According to comment “a” to the Restatement (Third) of Trusts § 66, this power of modification is known as “equitable deviation.” Based on the above-cited authority, PBNB contends that the trial court had the power to consent to the modification of the Ruby G. Owen trust into a special-needs trust.
PBNB argues that pursuant to Arkansas Code Annotated sections 28-69-401 and 28-73-412, the exercise of consent and/or the power of equitable deviation is guided by whether the proposed modification will provide a general family benefit and/or whether the proposed modification furthers the purposes of the trust. In this case, PBNB claims that the trial court disregarded these statutory standards and focused instead on whether the modification could achieve its ultimate purpose of making the trust assets a supplemental, | ¿rather than primary, source of benefits for the trust beneficiary. While acknowledging that the modification’s legal effectiveness might be put in issue when Kristian, a resident of Alaska, applies for benefits, PBNB argues that it was error for the trial court to give no consideration to the grantor’s intent; to deny Kristian the opportunity to enforce a valuable modification; and to usurp the Alaskan government’s role in deciding whether the modification should be recognized.
PBNB relies upon a factually similar case, In re Riddell, 138 Wash.App. 486, 157 P.3d 888 (2007). There, the trustee moved to modify a trust and create a special- or supplemental-needs trust on behalf of a beneficiary who suffered from schizophrenia affective disorder and bipolar disorder. Id. The trial court denied the modification, finding, among other things, that it would only permit the family to immunize itself financially from reimbursing the state for the beneficiary’s medical care. Id. The trustee appealed the trial court’s ruling, and the Washington Court of Appeals reversed. It noted that through the Omnibus Budget Reconciliation Act of 1993, Pub.L. No. 103-66, 107 Stat. 312 (1993), Congress authorized special-needs trusts (or supplemental-needs trusts), exempting certain assets from the resources counted for purposes of determining an individual’s eligibility for government assistance. Id. Rat 892 (citing 42 U.S.C. § 1396p(d)(4)(A)). Because federal law authorizing special-needs trusts allows disabled persons to receive governmental assistance for their medical care, while reserving extra funds for assistance the government does not provide, the Washington Court of Appeals held that
the trial court should not have considered any loss to the State in determining whether an equitable deviation is allowed. The law invites, rather than discourages, the creation of special-needs trusts in just this sort of situation. The proper focus is on the settlor’s intent, the changed circumstances, and what is equitable for these beneficiaries.
Riddell Testamentary Trust, 157 P.3d at 893 (emphasis added). PBNB submits that, in this case, the trial court’s inquiry should have concentrated on the grantor’s intent and whether the grantor would have made the modification, given the unanticipated or changed circumstances presented to the court.
Here, PBNB notes that the trust in question was created by Ruby Owen for the benefit of her granddaughter, and significantly, it provides that the trustee “shall be mindful of, and always consider, the other known resources available to Kristian Owen before making discretionary distributions.” It further states Ruby Owen’s “desire that preservation of principal be a priority ... and that genuine need be shown by Kristian Owen before my Trustee makes any discretionary distribution.” PBNB maintains that these provisions indicate an intention that the trust assets be a secondary resource for Kris-tian, not a primary resource, and that they show that Ruby Owen would have attempted to use Alaska public benefits before invading Kristian’s trust corpus.
| (¡Because the trust in this case is not self-settled, PBNB does not agree that the Arkansas authorities cited by the trial court would necessarily void the modification it has proposed. But to the extent it is proper to examine the ultimate effectiveness of the proposed modification before considering the grantor’s intent and whether there is a general family benefit, PBNB asserts that the trial court should have analyzed the issue using Alaska law, rather than Arkansas law, because that is where Kristian lives and would apply for assistance. PBNB notes that Alaska has enacted statutes governing eligibility for welfare benefits when the claimant is a trust beneficiary. See Alaska Admin. Code § 100.600 et seq. The authority includes a specific provision for the use of special-needs trusts. See Alaska Admin. Code § 100.612. PBNB acknowledges that it is possible the Alaskan government would deny Kristian’s eligibility for benefits, even with the proposed modification, or that it would require further modifications to the trust before granting her eligibility for public benefits. Nevertheless, PBNB maintains that it was error for the trial court to deny the trustee the opportunity to attempt the modification and thereby conserve trust resources. PBNB contends, as the appellate court in Riddell noted, at this stage the proper focus is on Ruby Owen’s intent and what is best for Kristian.
The trial court’s order specifically states:
The Arkansas General Assembly intended Medicaid assistance programs to supplement other potential sources of payment. Ark.Code Ann. § 20-77-101 (2004). Medicaid is the “payor of last resort [intended] to supplement and not supplant other sources.” Id. Arkansas also explicitly prohibits grantors from sequestering income from a trust in order to qualify themselves for medical assistance. Ark.Code Ann. § 28-69-102(b) (2004). A catchall provision in § 28-69-102(c) further elaborates that the purpose |7behind the statute is to prevent individuals from making themselves eligible for “medical assistance benefits ... by creating trusts.”
The trial court noted that the Arkansas Supreme Court has previously held that a trust provision that deliberately sequesters funds to qualify a beneficiary for Medicaid is void per public policy. Thomas v. Ark. Dep’t of Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995); Ark. Dep’t of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993). Furthermore, a beneficiary may not qualify for medical assistance when trust funds are available to the applicant. Thomas, 319 Ark. at 789, 894 S.W.2d at 588; Ark. Dep’t of Human Servs. v. Donis, 280 Ark. 169, 655 S.W.2d 452 (1983).
In Thomas, the Arkansas Supreme Court considered the trust provision void where it sequestered assets to qualify a beneficiary for Medicaid regardless of whether the beneficiary is also the grant- or. Thomas, 319 Ark. at 789, 894 S.W.2d at 588. The court considered whether a trust created by an employer for an em ployee was a Medicaid qualifying trust. Id. The language of the trust stated that the trustee “shall not make expenditures that will disqualify Primary Beneficiary from [government] benefits.” Id. at 785, 894 S.W.2d at 586. The supreme court voided the trust provisions on grounds that shielding assets to qualify for government benefits violated public policy, stating that “the public policy behind [section 28-69-102] is absolutely beyond dispute — trusts may not be created and used as devices to sequester resources for the purpose of qualifying individuals otherwise ineligible for Medicaid assistance.” Id. at 789, 894 S.W.2d at 588.
|RIn the present case, PBNB sought to modify the trust so that Kristian may qualify for government assistance. As indicated in Thomas, even trust provisions that do not expressly impoverish a beneficiary are void when the trust seeks to qualify a beneficiary for government benefits. Because PBNB’s intent to modify the trust was to qualify Kristian for “public benefits,” and because impoverishing her to qualify for government benefits would render those trust provisions void, the modified trust provisions would be void on public-policy grounds. The fact that the primary purpose for modifying the trust would be defeated was the reason behind the trial court’s denial of PBNB’s motion to modify the trust.
The trial court found that a beneficiary’s mere interest in a trust is enough to render the beneficiary ineligible for Medicaid when trust funds remain accessible. See Donis, 280 Ark. at 172, 655 S.W.2d at 454 (citing McNiff v. Olmsted Cnty. Welfare Dep’t, 287 Minn. 40, 176 N.W.2d 888 (1970)). Our supreme court in Donis concluded that savings accounts were accessible to the beneficiaries despite the fact that the beneficiaries had to petition the trial court for access to the account. Donis, 280 Ark. at 171, 655 S.W.2d at 458-54. There, the mother of the minor beneficiaries served as conservator of the funds, and although the trial court that controlled her access to the accounts required prior approval, it imposed no limitation on the use of the funds. Id. Despite these hurdles to access, the Arkansas Supreme Court determined that the trust funds remained accessible as a resource to be considered under the applicable Arkansas Department of Human Services regulation. Id. at 172, 655 S.W.2d at 454. When determining Medicaid eligibility, accessible trust funds can disqualify a beneficiary from government assistance. Id.
The trial court considered the cases cited by PBNB from other jurisdictions that allow the type of modification requested, but it was not persuaded that the proposed modification was allowable under current Arkansas law and public policy. Under our standard of review, we are not left with a definite and firm conviction that a mistake has been committed. Accordingly, we affirm.
Affirmed.
ROBBINS and GRUBER, JJ., agree.
. PBNB argues for the first time on appeal that Alaska law should govern rather than Arkansas law; accordingly, we decline to address it. Gillespie v. Gillespie, 2009 Ark. App. 95, 2009 WL 398215.
. A supplemental-needs trust is established for a disabled person’s benefit and is intended to supplement public benefits without increasing countable assets and resources so as to disqualify the individual from public benefits. Riddell, 157 P.3d at 892 (citing Jill S. Gilbert, Using Trusts in Planning for Disabled Beneficiaries, 70 Wis. Law. No. 2 (Feb. 1997), and Sullivan v. Cnty. of Suffolk, 174 F.3d 282, 284 (2d Cir.1999)). | [
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] |
Lawson Cloninger, Judge.
This action was instituted by appellee, Worthen Bank and Trust Company, to recover from Richard A. Abshire and appellant, William A. Brandon, on a promissory note allegedly executed by Abshire and appellant Brandon on December 5, 1979, in the amount of $30,641.04, due February 4,1980. A second note was executed solely by Abshire on March 18, 1980, in the amount of $31,032.75, due June 16, 1980, and it is appellant’s contention that the second note paid the first note, thereby discharging appellant from liability. Nothing was paid on either note.
Abshire did not appear at trial, and judgment was entered against him on the second note. In a non-jury trial, the trial court found that the second note executed by Abshire was taken by appellee bank as an extension of the time for payment of the original note, and gave j udgment for appellee against Abshire and against appellant as a comaker on the original note.
For reversal appellant urges that he was discharged when the bank substituted the new loan for the existing loan, and that the bank discharged Brandon by suspending its right to enforce against Abshire whether it be an extension or new note.
We hold that appellant’s argument has merit, and the decision of the trial court is reversed.
The only evidence relating to the execution of the original note and the second note are the official bank records: Appellant Brandon denies that he signed the original note and alleges that he was not even aware that there was a second note; Mr. Abshire did not appear at the trial; and appellee’s loan officer involved in the transactions was unavailable. The intent of the parties at the time of the execution of the notes thus must necessarily be determined on the basis of the bank records and correspondence between appellant and bank officers after collection on the notes was attempted.
The original note, for $30,000 plus interest of $641.04, purports to be signed by Abshire and appellant as comakers. Testimony showed that Abshire was indebted to Brandon Van & Storage Company, a company owned by appellant, in the sum of $30,000. After appellant demanded payment, Abshire obtained a loan from appellee and used the proceeds to repay the Brandon Van & Storage Company loan. Bank records show that the proceeds of the original note were paid to Abshire only. Appellant denies that he signed the original note, but in the alternative contends that if he signed the note at all, it was only as an accommodation maker. The trial court found that appellant did sign the original note, and that finding is not clearly against the preponderance of the evidence.
The original note was extended by appellee for thirty days, until March 4, 1980, and then on March 18, 1980, Abshire made an application for a new loan and signed a second note. The loan application shows that the second loan was assigned a new number and noted that it paid off the first loan. The interest rate on the original note was 13%, and the rate on the second note was 14%. On the bank’s ledger card for the original loan a notation recites “Paid out.” At the bottom of the ledger card are two credit or closing entries; one in the amount of $657.04 for the amount of interest owed, and the other in the amount of $30,000 for the principal owed. Below the credit entries on the ledger card was written, “3/20/80 papers to new loan.”
This case is very similar to Young v. Farmers Bank & Trust Company, 248 Ark. 613, 453 S.W.2d 47 (1970). There, Farmers Bank & Trust Company brought an action upon a $13,000 promissory note executed by Clyde Young and cosigned by Clyde’s brother as an accommodation maker. Upon filing the suit, the bank attached Clyde’s interest in certain land. The validity of the attachment depended upon whether Clyde was still liable on the note. Clyde contended that the bank released him from liability on the original note by accepting in its place a substitute note for $13,000, plus $850 interest, executed solely by Clyde’s brother Johnny. The trial court held in favor of Clyde. On appeal the bank asserted that there was no consideration for its proposed release of Clyde’s liability. The Arkansas Supreme Court affirmed the decision of the trial court, stating that a creditor is at liberty to accept one debtor in place of another if a creditor chooses to do so. The court cited Corbin on Contracts, § 1293 (1962) which states:
When two persons are jointly indebted to a third, the creditor may accept the note of one of them either as a mere collateral security or as a substituted contract and satisfaction. If the latter is found to be the fact, the co-obligor is at once discharged by novation. ... if a promissory note is given and is accepted as immediate discharge of a prior claim and in substitution for it, there is no revival of the original right even though the note is never paid.
In the Young case, the court held that there was ample proof to show that the bank had accepted Johnny Young as its sole debtor. The court noted that after Johnny Young had executed the second note, the bank entered that $13,580 payment as a credit to Clyde’s ledger account, reducing that account to exactly zero.
In the instant case, the evidence clearly supported appellant’s position that a new obligation was formed when the second note was created: a new loan number was given the second note executed by Abshire; the interest rate was changed on the second note from 13% to 14%; notations on the ledger card of the first note indicate that the note was “paid out” and credit entries of the principal and interest due on the note were made; the new loan was signed by Abshire solely on March 18, 1980; the loan application indicates that the $30,000 was to be disbursed to the first loan; Mr. Jordan, the Worthen Bank manager, admitted that the loan application showed that the second loan paid off the first loan; when the bank filed suit, it attempted only to collect and seek judgment on the second note.
In light of the above stated facts, it is the opinion of this court that the trial judge’s decision that the second note of Richard Abshire, dated June 18,1980, was taken by the bank as an extension of time for payment of the original note was clearly against a preponderance of the evidence. To the contrary, all of the evidence indicates that the second note was accepted by the bank as a substitute for the original note, that it was executed solely by Richard Abshire, and that, therefore, William Brandon was released from liability on the original note pursuant to Young v. Farmers Bank & Trust Company, supra.
The decision of the trial j udge is reversed and remanded to the trial court with instructions to enter judgment in favor of appellant, William A. Brandon.
Glaze, J., concurs. | [
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Tom Glaze, Judge.
Appellant brings this appeal from a conviction for aggravated robbery. He had been tried previously on the same charge but the court declared a mistrial. The sole issue raised by appellant is that the trial court erred in not granting a continuance to permit him to interview potential witnesses and to obtain a transcript of prior testimony of the prosecuting witness. The standard by which we review this case is that the trial judge’s action in denying a continuance will not be reversed on appeal in the absence of such a clear abuse of the sound judicial discretion of the trial judge as to amount to a denial of justice. The burden rests upon an appellant to show that there has been such an abuse. See Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). We find the appellant failed to meet that burden.
Appellant’s first trial ended in mistrial on October 21, 1981. On October 23, 1981, appellant’s new, substituted counsel filed a motion requesting the State to supply the names of persons (potential witnesses) who had talked to the prosecuting witness shortly before the alleged robbery. He also requested a continuance so that these persons could be interviewed prior to a second trial. At an Omnibus Hearing on November 2, 1981, the State gave appellant the names of the potential witnesses. The court then set a new trial date of November 12, 1981. At the hearing, it denied appellant’s motion for continuance, stating it saw no reason why appellant could not interview these potential witnesses before the trial date. On November 12, before the trial commenced, appellant’s counsel announced ready for trial and did not renew his motion for continuance.
Since appellant’s motion for continuance was not renewed at trial, we believe it was proper for the trial court to conclude that appellant was ready to proceed. See Decker v. State, 255 Ark. 138, 142, 499 S.W.2d 612, 615 (1973), and Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). Appellant never apprised the court that the potential witnesses had not been interviewed. Nor did appellant inform the court that he was unable to obtain the prosecuting witness’ prior testimony. In sum, the record fails to show the trial court abused its discretion in denying appellant’s pre-trial motion for continuance.
Affirmed. | [
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James R. Cooper, Judge.
This is the second appeal involving this appellant. In the first case, Worring v. State, 2 Ark. App. 27, 616 S.W.2d 23 (1981), we reversed appellant’s conviction for manslaughter and remanded the case for a new trial. After the retrial, appellant was convicted again of manslaughter and sentenced to two years in the Arkansas Department of Corrections. From that decision, comes this appeal.
THE FACTS
Appellant’s husband was killed by a single gunshot fired from a weapon which was in the possession of appellant. Appellant had followed her husband's truck to a darkened area behind a truck terminal in Stuttgart, Arkansas. Appellant found her husband seated in a parked automobile with Diane Moritz. There was some conversation between appellant and her husband, and the confrontation ended with the appellant’s husband being shot. He died a short time later at a local hospital. On this appeal, appellant raises several grounds for reversal.
THE PRIOR RECORDED TESTIMONY
Diane Moritz, the individual with whom the deceased was sitting at the time he was shot, testified at the first trial concerning the events which led to the shooting. After the second trial had begun, the trial court was informed that Ms. Moritz was reluctant to testify. She was some four or five months pregnant, and feared for the safety of her baby if she was required to testify. A letter from her obstetrician, Dr. Maxwell R. Baldwin, was introduced as court exhibit 1. The letter states:
September 22, 1981
Re: Diane Moritz
TO WHOM IT MAY CONCERN:
Mrs. Diane Moritz is a maternity patient of mine.
She is now about 18 weeks pregnant. I examined her in my office yesterday. Diane’s pregnancy is currently progressing satisfactorily. Diane was herself emotionally greatly distressed concerning her testifying in an upcoming trial.
Although there is no way that I can assert that Diane’s participation would definitely harm her pregnancy, I am concerned lest any unnecessary risks be taken. Unless her personal testimony is absolutely essential, my professional opinion is that her court appearance does represent a considerable hazard to her health and her pregnancy.
I am not recommending that Diane be excused from a court appearance for frivolous reasons. However, I understand that because of previous recorded testimony, her testifying again may not be essential. If this be so, then excusing Diane from a court appearance seems the safer approach at this time.
Sincerely,
/%/ Maxwell R. Baldwin Maxwell R. Baldwin, M.D.
[T. 387]
The trial court interviewed Ms. Moritz, outside the hearing of the jury, and she stated to the court that she believed testifying might make her lose her baby. She also indicated that she could not take the nerve medication that her physician had given her prior to her testifying in the first trial. After the hearing, the trial court noted appellant’s objection to the use of prior recorded testimony. Appellant objected on the basis that the charge in the case at bar was different from the charge in the original case, and that the elements and methods of defending against the charge were different. The court stated:
Now it certainly might be that some of her testimony in view of the reduced charge that she’s being tried on now may or may not be relevant or material to this charge and for that reason you might or the State might want to exclude certain parts of it. But the testimony is going to remain the same. [T. 384]
The court also noted Ms. Moritz’s condition during the hearing and stated:
You will all agree that with the exception of some brief moments she was steadily crying and she is obviously very emotionally upset to the point of I think being sick right now if the sounds I hear coming from . . .
By Mr. Brown: Yes, sir, I would have to agree.
BY THE COURT: I believe the lady is now sick in the court’s chambers. I don’t know if reliving that night would endanger her health or her unborn child’s health but I for one am not willing to take that chance. It may not but then again, it might. And I’m going to go back there and talk to her but my inclination is at this point that I’m going to declare that she’s not available in the sense that we can use her prior recorded testimony. [T. 384, 385]
The next morning, September 24,1981, at 8:30 a.m., the court again spoke with Ms. Moritz. The court stated to counsel:
When I visited with her Mrs. Moritz was still extremely emotionally upset to the point of being almost hysterical. She had become very ill and had become very sick at her stomach. After talking with her for about fifteen minutes I became quite satisfied that she would in all likelihood fall to pieces on the witness stand. She never was able to gain her composure in the court’s chambers. And in her pregnant condition the court was not going to take the risk of having any court appearance interfere with her pregnancy and I did excuse her from the subpoena that the State had issued and find that she is for all practical purposes not available to testify in the trial of this case and the State will be permitted to read to the jury the transcript of her testimony at the first trial_[T. 391, 392]
Further, the court inquired of counsel as to whether they had reviewed Ms. Moritz’s earlier testimony. Counsel indicated that they had, and that portions of it, alleged to be irrelevant to the current proceedings, were stricken.
The Uniform Rules of Evidence, Rule 804, Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides, in pertinent part, as follows:
Rule 804. Hearsay Exceptions — Declarant Unavailable. — (a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant: * * *
(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or . . .
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination.
The burden of proving the unavailability of the witness is on the party who offers the prior testimony. Looper v. State, 270 Ark. 376, 605 S.W.2d 490 (Ark. App. 1980); United States v. Amaya, 533 F.2d 188 (5th Cir. 1976). On appeal, the test is whether the trial court abused his discretion in determining that the witness was unavailable. Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1970); United States v. Amaya, supra.
In United States v. Myers, 626 F.2d 365 (4th Cir. 1980), the United States Court of Appeals, Fourth Circuit stated:
During trial, a government witness, who was pregnant, refused to testify because she was afraid. The court correctly ruled that she had waived her fifth amendment rights by testifying before a grand jury, but then, expressing concern over her condition, the court excused the witness and admitted her grand jury testimony. Under the circumstances, we find no reversible error in this ruling. On retrial, however, if she persists in her refusal, the court should not hesitate to use its contempt power in an effort to elicit her testimony so that she may be cross-examined.
In Peterson v. United States, 344 F.2d 419 (5th Cir. 1965), the United States Court of Appeals, Fifth Circuit dealt with a situation where the defendant was being retried on income tax evasion. Mrs. Helen Flora was the head bookkeeper. She had been present and testified at two earlier trials. She was unavailable for the third trial because of pregnancy and attendant complications. Her physician testified that her pregnancy was not normal and that she was unable to travel to the location of the trial without extreme risk to herself and her unborn baby. The appellate court held that Mrs. Flora’s prior testimony should not have been used to establish a conspiracy, because that was not an issue which had been presented on the two former trials, and therefore, her testimony was not tested by cross-examination on that issue. Further, one major difference in Peterson and the case at bar is that in Peterson the trial had not yet begun. The appellate court pointed out that a request for a continuance should have been made.
In Phillips v. Wyrick, 558 F.2d 489 (8th Cir. 1977), cert. denied, 434 U.S. 1088, 98 S. Ct. 1283, 55 L.Ed.2d 793 (1978), the court pointed out that admitting prior testimony of a witness did not violate the confrontation requirement where the witness was unavailable at trial, the testimony was given at a previous judicial proceeding against the same defendant, and the defendant had an opportunity to cross-examine the witnesses. The court referred to California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L.Ed.2d 489 (1970), and noted that:
The factors set forth as determinative were that at the preliminary hearing the witness was under oath; the defendant was represented by counsel, the same counsel, in fact, who later represented him at trial; the defendant had every opportunity to cross-examine the witness as to his statements; and the proceeding was conducted before a judicial tribunal equipped to provide a record of the hearing.
In the case at bar, the primary issue is whether the testimony of Ms. Moritz was sought and “unavailable” and not whether she was physically present in court. Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L.Ed.2d 255 (1968); Mason v. United States, 408 F.2d 903 (10th Cir. 1969), cert. denied, 400 U.S. 993, 91 S. Ct. 462, 27 L.Ed.2d 441 (1971).
On these facts, we hold that the trial court correctly ruled that the witness, Diane Moritz, was “unavailable”, and that, therefore, under Rule 804, her prior recorded testimony was admissible.
CLOSING ARGUMENTS
Appellant argues that the trial court erred in allowing the prosecuting attorney to argue outside of the record and to use inflammatory argument. We have examined the record and find that counsel refers to four occasions on which he alleges the court erred. In each of those instances, the trial court either sustained counsel’s objection or admonished the jury.
The trial court has broad discretion in controlling, supervising, and determining the propriety of arguments of counsel and its rulings in that regard will not be reversed on appeal in the absence of gross abuse. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980); Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980).
We find no abuse of discretion on the part of the trial court, and therefore we find this argument to be without merit.
SUFFICIENCY OF THE EVIDENCE
Appellant alleges that the evidence was insufficient to justify her conviction. Arkansas Statutes Annotated § 41-1504 (Repl. 1977), provides in pertinent part, as follows:
Manslaughter — (1) A person commits manslaughter if:
(a) he causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be;
* * #
(c) he recklessly causes the death of another person;...
In this case, the State elicited testimony which indicated that appellant observed her husband sitting in an automobile behind a truck terminal with another woman. She removed a .22 caliber pistol from under the seat of her car and walked up to the automobile in which her husband was seated. There is a conflict in the testimony as to whether appellant actually threatened her husband, but as a result of the confrontation he was shot once and died shortly thereafter.
There was ample evidence frorn which the jury could find that appellant either recklessly caused her husband’s death, or that she caused his death under extreme emotional disturbance. There was evidence in the form of testimony by Dr. Malak, the State Medical Examiner, which might have supported a finding by the jury that the gun discharged because the deceased grabbed it. Even if that fact had been conclusively proven, the jury still could have convicted appellant by finding that her actions were reckless and that she did cause her husband’s death by virtue of those actions.
In criminal cases, we affirm where there is substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978); Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). In determining whether the evidence is substantial, we review the evidence in the light most favorable to the appellee. Chaviers v. State, 267 Ark. 6, 588 S. W.2d 434 (1979); Pope v. State, supra. Substantial evidence has been defined as evidence which is:
of sufficient force and character that it will with reasonable and material certainty and precision, compel a conclusion one way or the other, it must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
We find the evidence sufficient to sustain the conviction, and, having found no merit to the other points raised by appellant, we affirm.
Affirmed. | [
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Melvin Mayfield, Chief Judge.
The Employment Security Division made a determination that the appellant in this case had received $117.00 in unemployment benefits to which he was not entitled. The overpayment resulted from the payment of $53.00 each week for a period of nine weeks when, according to the agency’s contention, the weekly payments should have been reduced to $40.00 under Section 3 (h) of the Employment Security Law, Ark. Stat. Ann. § 81-1104 (Supp. 1981), because appellant had previously quit a base-period employer without good cause connected with the work. However, that overpayment determination was appealed to the Appeal Tribunal which issued a decision on January 25, 1982, holding against the agency’s contention.
In the meantime, the agency had notified appellant that he was liable to repay the $117.00 and that repayment determination was appealed to the Appeal Tribunal and was set for hearing on January 28, 1982. At that hearing the referee found it would not be against equity and good conscience to require repayment of the $117.00. He ex plained, however, that although the base-period employer still had the right to appeal the tribunal’s January 25 decision holding that appellant had not been overpaid, it might be best for appellant to delay making any repayment because there probably would be no repayment due.
Nevertheless, the referee issued his decision that appellant was liable for repayment and that decision was affirmed by the Board of Review without any reference to the status of the overpayment determination. The board’s repayment decision is now before us for review.
In Brannan v. Everett, 5 Ark. App. 271, 636 S.W.2d 301 (1982), the appellant contended the Appeal Tribunal’s hearing on repayment was premature because the issue of overpayment was still on appeal. In sustaining that contention, we said:
We hold that, on these facts, the Agency should not have made a final decision regarding appellant’s liability for repayment of benefits when the ultimate question of his eligibility had not yet been resolved. We do not mean to imply that the Agency was without authority or jurisdiction to hold a hearing on the question of repayment, but only that a final determination as to his repayment liability was premature. If the case were decided otherwise, it is easy to see how appellant could, theoretically, be required to repay benefits to the Agency based on a hearing such as this one, when ultimately it might be decided on appeal that he was, in fact, eligible for the benefits.
Although the appellant in the instant case did not raise the issue in the hearing before the referee, the issue was raised by the referee himself and we think the reasoning and the holding in Brannan apply with equal force here. Even as this opinion is being written the issue may be moot. It could save the time, effort, and expense of the referee, the board, and this court to wait until the overpayment issue is finally determined.
The decision of the Board of Review is reversed and the matter is remanded with directions that a new hearing be held on the issue of repayment in the event the appeal of the overpayment issue is finally decided in favor of the agency.
Reversed and remanded. | [
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Tom Glaze, Judge.
Appellant seeks to reverse the decision of the trial court to revoke her suspended sentence. The events leading to this appeal began on October 27,1980, when the court gave appellant a three year probated sentence on a Forgery Second Degree charge. The State later moved to revoke the probated sentence, alleging, among other things, that she had violated the Arkansas Hot Check Law. On November 30,1981, the court revoked appellant’s probation, accepted her prior plea of guilty to the forgery charge and entered a five year suspended sentence. The court stated it was suspending the sentence in consideration of her child and husband. At this same hearing, appellant and her husband assured the court that they would pay all outstanding insufficient checks. On December 7,1981, the State moved to revoke appellant’s suspended sentence. The court considered the State’s second revocation motion at hearings held on December 14 and 18. On December 18, 1981, it ordered the suspended sentence revoked and committed appellant to imprisonment for five years less nineteen days jail time. The reason given by the court for revoking the November 30 suspended sentence was that it believed appellant had lied. In brief, the court found at the November 30 hearing appellant and her husband represented they had contacted all parties holding insufficient checks given to them by appellant, but, in truth, there were two parties who had not been contacted until after November 30. The court expressed the opinion that it would not have suspended appellant’s sentence if it had known of appellant’s misrepresentation.
In reviewing an order of revocation we affirm unless we find the court’s order to be clearly against the preponderance of the evidence. Cogburn v. State, 264 Ark. 173, 569 S.W.2d 658 (1978). After carefully reviewing the record here, we can only conclude that the court’s finding that appellant lied at the November 30 hearing was clearly erroneous. The misunderstanding between the court and appellant first became evident at the December 14 hearing where the trial judge said that appellant and her husband had previously stated all the parties holding insufficient checks had been contacted. On this point, the court was in error. Appellant’s husband did state at the November 30 hearing that he had made arrangements to pay the “people who have checks now,” i.e., at the time of the hearing. He then informed the court that he knew all of them — apparently referring to his preceding remark, “the people who have checks now.”
Perhaps the responses of appellant’s husband proved confusing to the court. Even so, later remarks by the court, appellant and prosecutor show conclusively that appellant never intended to mislead or lie to the court. The court asked if $200 (in insufficient checks) was out, and appellant responded, “It might be a little bit more.” The prosecutor said that he had checks that totaled about $ 110, so he did not have all the checks. Appellant expressed that she was “not quite sure exactly what’s out.” Nowhere in the record can we find that appellant stated that she or her husband had contacted all parties holding her insufficient checks. She simply did not know all those parties with checks, and she informed the court of this fact. The court’s recollection to the contrary was wrong.
Since the trial court apparently did not have the benefit of a written record of the November 30 proceeding, we certainly can perceive how the misunderstanding arose at the later hearings. Nevertheless, the trial court relied on appellant’s violations of the Hot Check Law when it revoked her probated sentence on November 30 and imposed a suspended sentence at the same time. These same violations could not later be used to revoke her suspended sentence. Recognizing this fact, the trial court based its revocation on the finding that appellant had lied. Since we find the court erred on this point, we hold that appellant’s suspended sentence revocation had no foundation in fact and the trial court’s decision must be reversed. See Ellerson, Jr. v. State, 261 Ark. 525, 530, 549 S.W.2d 495, 497 (1977).
In conclusion, we note the State’s argument that the trial court’s revocation order on December 18 was only to correct its revocation order rendered on November 30. In other words, the court’s decision on November 30 was based upon erroneous information given by appellant that the court corrected on December 18. Under these circumstances the court had the authority to correct the November 30 judgment before it was executed or appealed. To this effect, see Charles v. State, 256 Ark. 690, 510 S.W.2d 68 (1974), and Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). We find no merit in this argument. First, as we stated earlier, appellant did not offer erroneous information to the court so this could hardly be the basis upon which to correct the November 30 judgment. Secondly, the action taken by the trial court on December 18 was not to modify, amend or revise its earlier order. Instead, the court revoked the suspended sentence it had given appellant on November 30 and, in so doing, it made no attempt to vacate, modify or correct its November 30 order.
For the reasons stated above, we reverse and remand with directions to reinstate appellant’s suspended sentence as ordered on November 30, 1981.
Reversed and remanded. | [
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Lawson Cloninger, Judge.
Appellant, Alberta Brim, has appealed the decision of the Arkansas Workers’ Compensation Commission which denied her claim for temporary total disability benefits and medical expenses for an alleged job-related hernia.
Appellant urges that the Commission’s decision is not supported by substantial evidence and that the doctrine of estoppel should be invoked against appellees, Mid-Ark Truck Stop, the employer, and Mid-Ark’s insurance carrier.
We agree with appellant’s contentions, and the decision of the Commission is reversed.
Appellant worked as a cook at Mid-Ark Truck Stop and earned $3.10 an hour. She was thirty-one years old and had an eighth grade education. She testified that on July 28,1980 she slipped and fell on a wet floor at her place of work and that she felt something tear in the groin area.
Appellant did not see a doctor until September 2, 1980, after her condition became progressively worse, and surgery for the repair of a hernia was performed on October 1, 1980. Appellees contended that appellant had failed to satisfy the fifth requirement of the hernia statute, Ark. Stat. Ann. § 81-1313 (e) (Repl. 1976), by not actually seeing a doctor within 72 hours following the injury. There is no contention that appellant failed to prove compliance with the other four requirements of the statute.
Ark. Stat. Ann. § 81-1313 (e) (5) provides that in all cases of claims for hernia it shall be shown that “the physical distress following the occurrence of a hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after such occurrence.”
The statute does not require a claimant to prove that he was actually attended by a physician within 72 hours after the injury. The statutory requirement is met if the evidence shows that within 72 hours after the injury the claimant’s condition was such that he sought and needed the services of a physician. Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S.W.2d 929 (1963); Ammons v. Meuwly Machine Works, 266 Ark. 851, 587 S.W.2d 590 (Ark. App. 1979). The issue, then, is whether there was substantial evidence to support the Commission’s finding that claimant did not seek and need the services of a physician within 72 hours after the injury.
In Prince Poultry Co. v. Stevens, supra, the Arkansas Supreme Court cited with approval the interpretation given the word “required” by the Supreme Court of Mississippi in Lindsey v. Ingalls Shipbuilding Corporation, 68 So.2d 872, which was as follows:
To demand or exact as necessary or appropriate; hence to warrant; to need; call for.
Appellant in this case adequately met her burden of proof that she needed the services of a physician within 72 hours. Appellant testified that immediately after the injury her abdomen began to swell, became real sore, and was feverish. She stated that she was constantly sick at her stomach, that she could not do her housework, and could not dress herself. She said that she had to keep working but that the supervisor permitted her co-workers to do many of her tasks. Appellant’s children testified that appellant came from work early because of getting sick at her stomach, and could not get in and out of bed without help. The children said the hernia was visible, and that appellant would go to bed when she came home from work and would not get up until it was time to go to work again.
The only expert testimony was given by appellant’s treating physician who wrote that, in his opinion, the hernia of the type that appellant suffered from would have caused her sufficient distress to have required the services of a physician within 72 hours after its occurrence.
Appellant sufficiently sought the services of a physician within the 72-hour period. Appellant and a co-worker testified that on the day following the injury, appellant told the supervisor that she needed to see a doctor about the injury, and that the supervisor told appellant to see a doctor and bring the bill to her for reimbursement. Appellant stated that she did not see a doctor because she could not afford it. Her children needed school supplies and clothes, and she did not have sufficient money for a doctor. The supervisor testified that she did not recall the conversation. Such a statement by the supervisor could not be said to amount to a contradiction of the testimony of appellant and the other employee. Williams Manufacturing Co. v. Walker, 206 Ark. 392, 175 S.W.2d 380 (1943).
Ark. Stat. Ann. § 81-1313 (e), supra, also provides that in every case of hernia it shall be the duty of the employer forthwith to provide necessary and proper medical care.
In Harkleroad v. Cotter, 248 Ark. 810, 454 S.W.2d 76 (1970), the statement was made that it was incumbent upon the employer to send claimant to a doctor to determine what was the matter and the extent of his or her injury once the injury was reported to the employer. The court stated:
The statute places a separate and direct duty on the employer to furnish the necessary and proper medical, surgical and hospital care in hernia cases, as well as in other types of injury, and we see no connection between the duty imposed by a statute upon the employer and the duty imposed by a statute upon the employee.
Hence, it would seem that this duty is an affirmative duty on the part of the employer which is separate and distinct from the duty of the employee to seek the services of a physician.
Appellant argues in the alternative that the doctrine of estoppel should have been invoked to preclude appellees from arguing that the fifth requirement of the statute was not satisfied. In Prince Poultry Company v. Stevens, supra, as in this case, the Commission found that all requirements were met except for the fifth requirement of Ark. Stat. Ann. § 81-1313 (e). In that case, the Commission concluded that it had authority to excuse non-compliance with the fifth requirement and did so since claimant did properly report his injury to the employer and since the employer did not promptly provide medical attention, but instead asked the claimant to work the following day. Furthermore, the employer told claimant that if he did not feel better within a day or two he should go to a doctor. The Arkansas Supreme Court agreed with the Commission, holding that noncompliance with the fifth requirement was excused by the employer’s failure to provide prompt medical attention.
The Workers’ Compensation Act is entitled to receive a liberal construction from the courts. The humanitarian objects of such laws should not, in the administration of them, be defeated by over-emphasis on technicalities, by putting form above substance. Williams Manufacturing Co. v. Walker, supra. In the case before the court there is no intimation of bad faith or malingering on the part of appellant, and there is no serious contention by appellees that the injury resulting in the hernia was not received in the course of appellant’s employment. The representative of the employer had a positive duty to furnish the necessary and proper medical attention when appellant reported the injury and the need for a physician.
We hold that appellant sought and needed the services of a physician within the 72 hours required by statute, and that the employer is estopped from insisting upon strict compliance with the statute.
The decision of the Commission is reversed and remanded with directions to enter an award for appellant for temporary total disability benefits, medical expenses, and attorney’s fees for a controverted claim.
Mayfield, C.J., and Cracraft, J., dissent. | [
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James R. Cooper, Judge.
The appellant was charged with criminal trespass, in violation of Ark. Stat. Ann. § 41-2004 (Repl. 1977). He was convicted in the Municipal Court of Pine Bluff, Arkansas, and he appealed that decision to the Jefferson County Circuit Court. The appellant waived his right to a jury trial. After a trial de novo, he was found guilty and was fined $75.00 plus costs. From that decision, comes this appeal.
THE FACTS
On June 13, 1981, two Pine Bluff police officers, in response to radio instructions, went to a residence at 5704 Cheatham Street in Pine Bluff. Upon their arrival, they observed an injured woman being placed in an ambulance for transport to a hospital. The officers entered the residence to investigate the situation.
Inside the residence, the officers found the appellant and an unidentified woman. The officers testified that the woman claimed to live in the residence, and that she wanted the appellant to leave. They stated that the appellant did not respond to the woman’s statement concerning her occupancy of the residence, even though he heard it. They further testified that the appellant stated that he was not going to leave the residence.
The officers testified that they explained to the appellant that if the woman wanted him to leave, then he would have to do so, or be arrested for criminal trespass. The officers verified that the woman did want the appellant to leave, and they requested that he do so on several occasions. The appellant refused to leave, and he was arrested for criminal trespass. The testimony shows that the appellant never claimed any possessory or ownership right to the premises.
THE ADMISSIBILITY OF THE EVIDENCE
Arkansas Statutes Annotated § 41-2004 (Repl. 1977) provides that the offense of criminal trespass is committed when an individual purposely enters or remains unlawfully on the premises of another person. The appellant argues that the only evidence which proved that the premises belonged to another person was the hearsay testimony of the officers concerning the woman’s statements, and that this testimony was inadmissible hearsay. The appellant made a timely objection to the testimony, and the trial court ruled that the statements made by the woman, as testified to by the officers, were admissible as an adoptive admission of a party-opponent.
The Uniform Rules of Evidence, Rule 801 (d) (2) (ii), Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides that a statement is not hearsay if the statement is offered against a party and is a statement of which that party has manifested his adoption or belief in its truth. Prior to the adoption of this rule, Arkansas law recognized a “tacit admission” as an exception to the hearsay rule. Under that exception, proof of damaging statements against an accused, made in his presence, were admissible in evidence, on the theory that the jury might find that the silence of the accused in the face of the accusation was a tacit admission. Burford v. State, 242 Ark. 377, 413 S.W.2d 670 (1967); Moore v. State, 151 Ark. 515, 236 S.W. 846 (1922). Before hearsay evidence of an implied admission could fit within this exception, it must have been shown that the accused heard the statement, that he understood it, and that he failed to deny it. Kagen v. State, 232 Ark. 189, 334 S.W.2d 865 (1960).
The sole question in determining whether statements made by another person are admissible against a party as an admission by silence or acquiescence is whether a reasonable person, under the circumstances, would naturally have been expected to deny them, if the statements were untrue. Some of the factors which should be considered in determining whether a party has impliedly admitted the statements are:
(1) The statement must have been heard by the party against whom it is offered;
(2) it must have been understood by him;
(3) the subject matter must have been within his personal knowledge;
(4) he must have been physically and psychologically able to speak;
(5) the speaker or his relationship to the party or event must be such as to reasonably expect a denial; and
(6) the statement itself must be such that, if untrue, under the circumstances, it would have been denied.
Others factors besides these may need to be considered, depending on the facts of a particular case. See, 4 J. Wigmore, Evidence § 1071-1073 (Chadbourn rev. 1972); C. McCormick, The Law of Evidence § 270 (2d ed. 1972).
The Uniform Rules of Evidence, Rule 801 (d) (2) (ii), as adopted by the State of Arkansas, is identical to the Federal Rules of Evidence, Rule 801 (d) (2) (B). The manner in which the federal courts have applied their rule is helpful.
The federal cases indicate that before a statement can fall under the adoption admission rule, the trial court must find that sufficient foundational facts have been introduced so that the jury can reasonably infer that the accused heard and understood the statement and that the statement was such that, under the circumstances, if the accused were innocent he would normally respond. United States v. Fortes, 619 F.2d 108 (1st Cir. 1980); United States v. Moore, 522 F.2d 1068 (9th Cir. 1976), cert. denied, 423 U.S. 1049, 96 S. Ct. 775, 46 L.Ed.2d 637 (1976). Once a foundation has been established, the question is left to the jury to determine whether the accused acquiesced in the statement. United States v. Moore, supra.
The procedure used by the federal courts in applying Rule 801 is appropriate to use in applying our rule, since it is entirely consistent with the approach followed in applying the “tacit admission” exception to the hearsay rule under prior Arkansas law. Moore v. State, supra.
In the case at bar, the testimony indicates that the appellant was present, and in fact was within two feet of the officers and the woman, when the statements were made. Further, he made no comment or objection to the woman’s claim of right to occupy the residence. On these facts, adequate foundational facts were presented to the trial court so as to render the statements admissible. The trier of fact could reasonably infer that the appellant heard and understood the woman’s statements, and that, had her statements been untrue, he would have responded with either a denial or an explanation.
Preliminary questions regarding the admissibility of evidence are decided by the trial court, and the appellate court affirms such a decision unless it constitutes an abuse of discretion. Uniform Rules of Evidence, Rule 104 (a), (b), Ark. Stat. Ann. § 28-1001 (Repl. 1979); Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981). We hold that the trial court did not abuse his discretion by ruling that the officer’s testimony was admissible.
THE RIGHT OF CONFRONTATION
The appellant also argues that he was denied his constitutional right of confrontation of his accusers by the admission of the woman’s statements through the testimony of the police officers. The Sixth Amendment to the United States Constitution and Article 2, § 10 of the Arkansas Constitution assure an accused the right to be confronted with the witnesses against him.
Although the rules of evidence concerning hearsay and the confrontation clause generally safeguard similar rights, the overlap is not complete. A violation of the confrontation clause may be found even though statements were admitted under recognized hearsay exceptions, or a violation of the confrontation clause may not be found even when the statements are admitted in violation of long-established hearsay rules. California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L.Ed.2d 489 (1970). Thus, the determination that the use of an extrajudicial statement is permissible under the rules of evidence does not resolve the constitutional question regarding the right of confrontation. United States v. Rogers, 549 F.2d 490 (8th Cir. 1976), cert. denied, 431 U.S. 918, 97 S. Ct. 2182, 53 L.Ed.2d 229 (1977).
The confrontation clause prevents the state from trying the defendant by using ex parte affidavits or depositions in lieu of examination and cross-examination of the witnesses in front of the trier of fact. California v. Green, supra; Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L.Ed. 409 (1895).
In the case at bar, it is the appellant’s adoptive statement which is being used against him. While what is proved is the extrajudicial statement, the thing that proves it (the thing that makes it evidence) is the action of the appellant. By his silence, he adopted the statement as if he had spoken it himself. The reliability of the statement does not depend on the credibility of the third party who is not present in court. The statements were heard by the two police officers, and appellant’s reaction to the statements were observed by the officers. Appellant was able to confront these witnesses, and was not denied his constitutional right of confrontation guaranteed by the federal and state constitutions.
The judgment appealed from is affirmed.
Affirmed.
Silence by an accused or a claim of his Fifth Amendment right to remain silent made in response to a police accusation during custodial interrogation is inadmissible. Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L.Ed.2d 91 (1976). Even silence by an accused in response to incriminating statements made by a third person, while he was in police custody and before he was advised of his Fifth Amendment right to remain silent, is inadmissible. Kagebein v. State, 254 Ark. 904, 496 S.W.2d 435 (1973).
Even though a statement may be admissible under the adoptive admission rule, the trial court may still exclude such a statement if he finds that the probative value of the statement is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Uniform Rules of Evidence, Rule 403, Ark. Stat. Ann. § 28-1001 (Repl. 1979).
In Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965), the United States Supreme Court ruled that the right of confrontation provided to an accused by the Sixth Amendment to the United States Constitution is applicable to the States by the Fourteenth Amendment. | [
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Donald L. Corbin, Judge.
Appellant, Richard Williams, was convicted by a Perry County jury of rape, a violation of Ark. Stat. Ann. § 41-1803. He was sentenced toa term of twenty-five years of imprisonment. We affirm.
Appellant contends that the trial court erred in denying his motion in limine wherein he asked the Court to order the State not to use evidence of his prior rape or sexual abuse conviction to impeach his credibility as a witness. Appellant contended at trial that the prior crime had no relation to the defendant’s character for truthfulness; that the only purpose for eliciting the nature of the prior crime would be to imply that appellant, having been convicted of that crime previously, was likely to be guilty this time; and that any probative value of the evidence of the prior crime was greatly outweighed by its prejudicial nature. Rule 609 (a) of the Arkansas Uniform Rules of Evidence provides in pertinent part:
[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one (1) year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
In Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), the defendant was charged with the sexual abuse of a nine-year old boy. The trial court ruled that if the defendant elected to testify, the State would be allowed to impeach his credibility by showing that he had pleaded nolo contendere to an earlier charge of rape that involved a young boy. The Supreme Court reversed the trial court. The Court noted that “[t]here may be instances in which proof of an earlier conviction for the same crime as that on trial may be admissible, but there are sometimes strong reasons for excluding such proof because of the pressure on lay jurors to believe that ‘if he did it before he probably did so this time.’ ” The Court concluded that on the facts of the case before it involving the “particularly shameful and outrageous crime” of sexual abuse of a child, “the prejudicial effect of the previous conviction clearly outweighed its value as bearing on credibility.” The Court in Jones v. State, supra, also pointed put that the defendant had two previous convictions for burglary and theft which could have been used to impeach his credibility as a convicted felon and that proof of the rape conviction would have been of “scant probative value.”
In the present case, appellant admitted that the State might properly be allowed to impeach his credibility by proof that he was a convicted felon without mentioning that the prior felony conviction was for rape or sexual abuse.
In Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982), the defendant was charged with rape of a 78 year-old woman. At the pretrial hearing on the motion in limine in which the defendant sought to exclude evidence of prior convictions involving burglary and rape, the trial court ruled that the prior convictions were permissible pursuant to Rule 609. The trial court in Smith also ruled that the probative value of the evidence outweighed the possibility of prejudice to the defendant. The Supreme Court affirmed the trial court’s ruling citing Jones, but went on to say, "These matters must be decided on a case by case basis.”
The trial court is required to weigh the probative value of the prior conviction against its prejudicial effect. Here, the trial court made the following ruling at the hearing on appellant’s motion in limine as follows:
The bottom line of this case is whether the jury’s going to believe Mrs. Carter that it was forced or whether they’re going to believe Mr. Williams that it was by consent. And the State is entitled to attack Mr. Williams’ credibility just as you attacked Mrs. Carter’s credibility by inquiring that her husband was in the penitentiary. It shouldn’t but it did go to her.
But, be that as it may, the bottom line is credibility. I’m going to permit the State to inquire of his prior conviction for credibility purposes. And, if you want me to instruct the jury at that time, I will do so.
We cannot say that the trial court abused its discretion in this instance.
Finally, appellant contends that the trial court erred in failing to grant a mistrial upon the revelation by the victim on redirect that her husband was in jail with the appellant. This issue arose out of the following testimony by the victim:
Q. Did the defendant, Richard Williams, know that your husband was in prison?
A. Yes.
Q. Do you know how he knew that?
A. They had been jailed together.
Appellant concedes that no motion for mistrial was requested or admonition asked. The granting of a mistrial is a drastic remedy and should be resorted to only when the prejudice is so great that it cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). The declaring of a mistrial lies within the discretion of the trial court. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). Its actions will not be reversed absent a clear showing not only of abuse of that discretion but of prejudice likely to result. Daugherty v. State, 3 Ark. App. 112, 623 S.W.2d 209 (1981); Finch v. State, 262 Ark. 313, 556 S.W.2d 434(1977).
Although appellant cites Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982), in support of his argument, we believe its rationale is applicable in support of the State’s position that a mistrial was not warranted. The Supreme Court in Glick, supra, stated:
Conceding the testimony had some prejudicial aspects, it should be said that the state has a right to meet its burden of proof from the relevant facts of the case, even though some coincidental detriment to the defendant may result. If one of the victims of the robbery knew the accused in the penitentiary and recognized him because of that association, the state cannot be deprived of probative evidence connecting the defendant to the crime simply because there are dual aspects to such evidence. Appellant cites Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), but that decision is not in point — it deals with the question of when evidence of a prior offense, not part of the offense being tried, can be introduced. We are not dealing with prior offenses but simply with admissible evidence from which a jury might infer the accused had been, or was, in the penitentiary. While the state cannot make direct proof of that fact (and, indeed, should refrain from even drawing needless attention to it), because of the heavy burden of proof placed on the state under the law, it cannot be denied the opportunity of meeting that burden simply because some of the evidence has a coincidental implication not favorable to the accused. See Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980); and Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971).
The victim in this case merely stated the reason she knew that the appellant was aware that her husband did not live with her. Appellant injected this matter into the case through his questioning of the victim during cross-examination and he cannot complain of what was developed. Philmon v. State, 267 Ark. 1121, 593 S.W.2d 504 (Ark. App. 1980).
We affirm.
Mayfield, C.J., concurs.
Cooper and Glaze, JJ., dissent. | [
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Lawson Cloninger, Judge.
In 1974 appellant, Sherry Bice, was granted a divorce from appellee, Doug Bice, in the Chancery Court of Pope County, and appellant was awarded custody of the parties’ minor child. Appellee was ordered to pay into the registry of the court the sum of $26.25 per week for the support of the minor child.
On December 12, 1980, appellant filed her petition asking that appellee be cited for contempt for his failure to make child support payments as ordered by the decree of divorce. The trial court declined to hear the matter of alleged delinquent child support for the reason that appellee had made payments of child support directly to appellant and appellant had accepted the payments.
We feel that the trial court was in error in refusing to enforce the order for child support, and we reverse and remand.
The evidence shows that appellant made an effort to have the direct payments recorded at the clerk’s office, even when she lived out of town, and when appellant told appellee to have the payments recorded he told her to do it. The decree directs appellee to make payment through the registry of the court, and equity does not demand that appellant suffer a forfeiture for appellee’s violation of the decree.
No local court rule is set out in the record in this case, but statements made by the parties’ attorneys, in the presence of the trial judge, indicate that the trial court has a local rule that the court would not entertain a petition for a citation when any payments are made outside the registry of the court.
Uniform Rules for Circuit and Chancery Courts, Rule 12, provides that those rules may be supplemented by a local court if such supplemental rules do not conflict with the Uniform Rules and a copy is filed with the Clerk of the Supreme Court. It follows, of course, that no local rule can be in conflict with any statute, Supreme Court Rule, or case law.
Entitlement to payment of either alimony or child support vests in the person entitled to it, as the payments accrue, as the equivalent of a debt due. Sage v. Sage, 219 Ark. 853, 245 S. W.2d 398 (1952). As a general rule, an ex-spouse is entitled to judgment for all past due installments of alimony awarded by a decree of divorce, not barred by the statute of limitations, unless equity cannot lend its aid because of the actions or conduct of the ex-spouse seeking judgment. Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). In the case presently before the court, child support payments are involved, and the rule would apply in equal or greater force than it would in alimony cases.
The trial court had no authority to remit the accumulated payments in the circumstances of this case. The trial court is directed to allow appellant to prove the amount of unpaid installments not barred by the statute of limitations by any relevant and competent evidence, and to allow appellee to prove any payments made outside the registry of the court by relevant and competent evidence.
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Donald L. Corbin, Judge.
On November 16, 1980, the appellant Allen Monroe and Catherine Monroe, deceased, became engaged in a heated argument which culminated in Catherine Monroe’s being shot to death by appellant Allen Monroe. A Texas jury convicted him of voluntary manslaughter and he was given a sentence of twenty years.
Thereafter, Milton K. Dallas, the maternal grandfather, filed a petition in the Probate Court of Mississippi County, Arkansas, for his appointment as guardian of the minor nine-year-old child of Allen Monroe and Catherine Monroe, deceased. Appellant Allen Monroe filed his objection to the appointment of appellee as guardian and indicated his preference for the appointment of his brother Charles Monroe as the guardian. Appellant Charles Monroe then filed a petition for his appointment as guardian of the person and estate of the minor in the Probate Court of Dallas County, Texas. The appellant Charles Monroe also filed his objection, in the Arkansas proceeding, to the appointment of the appellee as the guardian of the minor. On September 18, 1981, over the objections of appellants, the court appointed the appellee as guardian of the person and estate of Mark Allen Monroe, a minor. We affirm.
Appellants argue that the Arkansas probate court erred in appointing the appellee as guardian of the minor child: (1) over the objection of the minor’s father, (2) contrary to the minor’s father’s preference of the appointee and (3) in disregard of the probate proceedings for appointment of a guardian for the minor in Texas. Appellants additionally argue that the Arkansas probate court had no jurisdiction to appoint a guardian as the minor child was a domiciliary of the State of Texas.
Ark. Stat. Ann. § 57-608 provides in part:
The parents of an unmarried minor, or either of them, if qualified and in the opinion of the court suitable, shall be preferred over all others for appointment as guardian of the person. Subject to this rule, the court shall appoint as guardian of an incompetent the one most suitable to serve who is willing to serve, having due regard to: (a) any request contained in a will or other written instrument executed by the parent for the appointment of a person as guardian of his minor child;... (d) the relationship by blood or marriage to the person for whom guardianship is sought.
A reading of this statute indicates that parental preference is only one of many factors to be considered in determining the one most suitable to serve as guardian. The Supreme Court has stated that the statute does not make an ironclad order of priority; instead, it leaves to the probate court’s sound discretion the appointment of a guardian who would forward the best interests of the ward. McCartney v. Merchants and Planters Bank, 227 Ark. 80, 296 S.W.2d 407 (1956). The probate judge has been vested with sound legal discretion in the matter of the appointment of the guardian for a minor, and his action will not be overturned except in a case of manifest abuse. Ark. Stat. Ann. § 62-2016 (g), Knight v. Deavers, 259 Ark. 45, 531 S.W.2d 252 (1976).
Evidence in the record supports the finding that the appellee, who is the maternal grandfather of the minor, is a person suitable to protect the minor’s welfare. ARCP Rule 52 provides in part:
Findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
We do not find that the appointment was an abuse of the probate court’s sound discretion.
In Shaw v. Shaw, 251 Ark. 665, 473 S.W.2d 848 (1971), the Supreme Court, quoting from Restatement, Second, Conflict of Laws, (1971), § 79, stated:
The state where the child is physically present has the most immediate concern with him; its courts also have direct access to the child and may be most qualified to decide what would best redound to his welfare.
Ark. Stat. Ann. § 57-606 (2) provides:
If the incompetent is not domiciled in this state but resides in this state, the county of his residence shall be the proper county for the appointment of a guardian.
The appellee went to Dallas after the death of his daughter and removed Mark from the State of Texas. The minor had lived with his grandparents in Blytheville for ten months as of the date of the hearing. The minor attends public school in Blytheville and is engaged in church and athletic activities. We find that the probate court in Arkansas had jurisdiction to appoint the appellee as guardian for this minor. In Shaw v. Shaw, supra, an action for divorce that was filed in Bazoria County, Texas, custody of the children was awarded to the father. The mother, in an action in Miller County, Arkansas, sought custody of the children on the basis of changed circumstances. Appellant-father contended that the Arkansas chancery court failed to give full faith and credit to the Texas decree by not ordering immediate delivery of the children to him. The Supreme Court adopted the position of Dr. Robert A. Leflar and Restatement, Second, Conflict of Laws, in holding:
We hold that physical presence of the children in this state is a proper basis for the exercise of jurisdiction by the Miller Chancery Court to determine whether there should be a change in custody of the children involved. The fact that the decree of that court might not be accorded extraterritorial effect should not limit the power of the courts of this State to act for the best welfare of the children physically present within their territorial jurisdiction and to treat them as its wards, at least when their presence is not purely transient. See Keneipp v. Phillips, 210 Ark. 265, 196 S.W.2d 220; Pope v. Pope, 239 Ark. 352, 389 SW.2d 425; Tucker v. Turner, 195 Ark. 632, 113 S.W.2d 508. The General Assembly has clearly made a policy determination which supports this view. A guardian who would have custody of a minor may be appointed by the probate court of a county in which he resides, even though he may be domiciled elsewhere. Ark. Stat. Ann. §§ 57-601, 606, 620,625 (Supp. 1969). This statutory determination can only be based on the premise that this state has such an interest in the welfare of a minor living within its borders that its courts should take such action as may be necessary to provide for its best welfare.
Arkansas has the most immediate concern for this minor’s welfare. The Arkansas probate court has access to Mark, as well as other evidence which will allow the probate court in Arkansas to make the most intelligent determination as to what action would best redound to Mark’s welfare. We do not believe in the instant case that the probate court erred or abused its discretion in exercising judicial jurisdiction to appoint the appellee, Milton K. Dallas, as guardian for Mark Monroe, his grandson. The minor had resided in Blytheville, Arkansas, for the ten months subsequent to his mother’s tragic death.
We affirm.
Glaze, J., not participating. | [
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Tom Glaze, Judge.
This case involves a petition to modify a decree of divorce wherein appellant requested permission to remove the parties’ children from Arkansas to Oklahoma. The trial court denied appellant’s petition, and she filed this appeal. We reverse.
In Ising v. Ward, 231 Ark. 767, 332 S.W.2d 495 (1960), the Supreme Court announced the general rule that the parent having custody of a child is ordinarily entitled to move to another state and to take the child to the new domicile. (See also, Antonacci v. Antonacci, 222 Ark. 881, 263 S.W.2d 484 [1954], in which the court permitted the mother to take the parties’ child from Arkansas to California).
Here, the parties were divorced in 1978, and appellant was awarded custody of their two children, ages eight and ten years. Appellant has since remarried, and her husband is employed and resides in Elk City, Oklahoma. Appellant brought this action to obtain permission of the court to move to Oklahoma with the children. Both children expressed a willingness to go. In fact, appellant told the children that if they did not like it in Oklahoma, they could return and live with their father. Except for the visitation difficulties which are created by the move to Oklahoma, we find nothing in the record which supports the trial court’s denial of appellant’s removing the children from the state. Concerning any visitation problems attendant to the move, appellant informed the court that she would cooperate in working out reasonable visitation arrangements so the children can see their father. Therefore, we reverse and remand this cause to the trial court to grant appellant’s petition to remove the children to Oklahoma and to establish reasonable visitation privileges for the appellee.
We find no merit in appellee’s contention that the trial court’s action concerning appellant’s petition was premature since his counterclaim seeking custody was pending and undecided. Although the best interests of the children and judicial economy may be served by considering all custody and visitation issues at the same time, there are often reasons why the court may find it impossible to do so. We find nothing in the record which reflects the court abused its discretion in acting on appellant’s petition and delaying action on appellee’s counterclaim for custody.
Reversed and remanded. | [
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George K. Cracraft, Judge.
On March 27, 1979, Robert Beene purchased from Marvin Hickmon, d/b/a H & H Auto Sales a 1975 Lincoln automobile under a conditional sale contract. On May 17, 1979, Hickmon repossessed the automobile in Dallas, Texas and returned it to Little Rock. Beene brought this action to recover possession of the motor vehicle asserting that the vehicle had been wrongfully repossessed. Hickmon answered that at the time he repossessed the vehicle the appellee was in default in several material respects. He further contended that as a result of the default he had declared the entire balance due and, deeming the collateral to be insecure, he physically repossessed it and sold it pursuant to the provisions of the Uniform Commercial Code.
The contract in question imposed on the buyer the obligation of paying all installments of principal and interest when due and of procuring and maintaining insurance against all risk of physical damage to the collateral. It declared that time was of the essence in the performance of all undertakings and that the entire balance should become due and payable without notice if — “(2) At holder’s option, if the customer defaults in performing any obligation under this contract or if holder in good faith deems itself insecure... holder may, without notice or legal action, peaceably enter any premises where collateral may be found, take possession of it and anything found in it.” The contract further provided that the holder should have the remedies of a secured party under the Uniform Commercial Code.
The evidence was in conflict as to whether or not the installment payments due under the contract were in default at the time of the repossession. It was admitted, however, that the appellee had not procured the required insurance on the vehicle and had so informed the appellant. There was also evidence that appellee had driven the vehicle to Texas and had left the car in Texas upon his return to Little Rock. The appellee denied any intent to abandon it but stated that he had left it with responsible persons. The trial court found that the required installments were not in default. It further found that “the facts that the automobile was out of state and not being kept at plaintiff’s residence in Arkansas and that there was no physical damage insurance coverage on the automobile were not sufficient grounds for defendant’s belief that his security was in jeopardy nor were they sufficient grounds, therefore, for the repossession.”
As the trial court found on conflicting evidence that the installments of principal and interest were not in default, appellant concedes that this finding is not clearly erroneous and appeals only with respect to the effect that failure to procure insurance and maintain the car at his place of residence has upon the right to accelerate the debt.
In making his order the special judge was obviously relying upon the “good faith requirement” of Ark. Stat. Ann. § 85-1-208 (Add. 1961) for the acceleration of the maturity date, as that section was applied in the original decision in Seay v. Davis, 246 Ark. 201, 438 S.W.2d 479 (1969) which was followed by the Court of Appeals in Rawhide Farms, Inc. v. Darby, 267 Ark. 776, 589 S.W.2d 210 (Ark. App. 1979). Those cases declare that the good faith requirement of the Commercial Code would apply in any case in which the note provided that it might be accelerated “at the option of the holder.” On September 12, 1982, after the learned special judge decided this case and the brief of the appellant had been filed, the Supreme Court handed down its opinion in Bowen v. Danna, 276 Ark. 528, 637 S. W.2d 560 (1982).
In Bowen the Supreme Court points out that in its opinion on rehearing it had modified its original opinion in Seay v. Davis, supra, leaving the question of the application of the good faith standard for future determination. Supplemental Opinion on Rehearing Seay v. Davis, 246 Ark. 627, 438 S. W.2d 479 (1969). In modifying Rawhide Farms the Supreme Court in Bowen answered its reserved question as follows:
Likewise, we hold that Ark. Stat. Ann. § 85-1-208 is inapplicable where the right to accelerate is conditioned upon the occurrence of an event, such as a lapse of required insurance coverage, which is in the complete control of the debtor. To this extent we modify Rawhide Farms, Inc. v. Darby, supra, and we affirm the chancellor’s refusal to apply the statute.
As the conditional sales agreement now under review did contain a default type acceleration clause rather than one providing for “acceleration at will” we hold that the trial court erred in applying the good faith requirements set forth in Ark. Stat. Ann. § 85-1-208 and reverse and remand this cause for entry of an order consistent with this opinion.
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Tom Glaze, Judge.
This case involves the revocation of appellant’s suspended sentence. He had previously entered a plea of guilty to breaking or entering and theft of property charges, and received a two-year sentence beginning September 11,1981. The imposition of appellant’s sentence was conditioned, among other things, on his not violating any federal or state law punishable by imprisonment. On October 12, 1981, the state filed a petition to revoke the suspended sentence, alleging that the appellant was guilty of the crimes of harassment, battery in the third degree (two counts), fleeing, disorderly conduct and carrying a weapon. At a hearing on November 6, 1981, the court granted the state’s petition, revoked his suspended sentence and sentenced him to five years in prison. The court found appellant was guilty of carrying a weapon, disorderly conduct and failing to report to the probation officer. The sole issue raised by appellant on appeal is that there was insufficient evidence of the three offenses with which appellant was charged and found guilty.
Only a clear preponderance of the evidence must be established to justify the revocation of probation. Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980). Thus, it is appellant’s burden to show that the trial court’s findings were against the preponderance of the evidence. In this connection, appellant argues that the state failed to show he was guilty of carrying a weapon, failing to report to his probation officer and disorderly conduct. Of course, if the evidence is sufficient to establish appellant committed any one of the named offenses, the trial court must be affirmed. Assuming, without deciding, that the evidence was not sufficient to prove appellant unlawfully carried a weapon or failed to report, we find the evidence is sufficient to prove that he was guilty of disorderly conduct.
A brief review of the facts reflects that two Little Rock police officers, on October 12, 1981, sought to locate appellant to ask him questions concerning information they had received relative to a drug matter. The officers found appellant walking in his neighborhood and tried unsuccessfully to engage him on two separate occasions. They subsequently went to the appellant’s residence and saw him enter the back door of his home. One officer went to the front door and the other to the back. Appellant’s mother permitted the officer at the front door to enter the home, and, as he did, appellant went out the back door. As appellant came out the back door, the officer at the rear of the house saw him and observed three knives in his belt. The officer asked him to remove the knives and place them on the ground. The officer then placed appellant under arrest. However, after appellant was detained and arrested, he fled from the arresting officer, running back into the house. While in the house, he was confronted by the second officer. This officer asked appellant twice to go outside, but he refused. The officer then took appellant’s arm, at which time appellant struck the officer in the face with his fist. A scuffle followed and the appellant was subsequently subdued by the officers. Appellant admitted his involvement in the scuffle with the police officers and testified that he “did get wild trying to get away from the dude.”
Disorderly conduct is defined in Ark. Stat. Ann. § 41-2908 (Repl. 1977), as follows:
41-2908. Disorderly conduct. — (1) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(a) engages in fighting or in violent, threatening or tumultuous behavior; or
(b) makes unreasonable or excessive noise; or
(c) in a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response; or
(d) disrupts or disturbs any lawful assembly or meeting of persons; or
(e) obstructs vehicular or pedestrian traffic; or
(f) congregates with two [2] other persons in a public place and refuses to comply with a lawful order to disperse of a law enforcement officer or other person engaged in enforcing or executing the law; or
(g) creates a hazardous or physically offensive condition; or
(h) in a public place, mars, defiles, desecrates, or otherwise damages a patriotic or religious symbol that is an object of respect by the public or a substantial segment thereof; or
(i) in a public place, exposes his private parts.
# # #
Appellant contends he did not violate § 41-2908 because his confrontation, fight and scuffle with the officers occurred in appellant’s yard and house, not in a public place. We cannot agree with this strained and narrow interpretation of the language contained in § 41-2908. Unquestionably, public inconvenience, annoyance or alarm can occur due to an individual’s conduct whether such conduct takes place on private or public property.
Here, two police officers were required to subdue appellant, and because of appellant’s evasive and combative actions, the officers charged appellant with committing six crimes. We fail to see how the public’s inconvenience is any less affected because appellant’s acts occurred on private rather than public property. Obviously, there are situations as are set out in § 41-2908 (1) (c) (e) (f) (h) and (i), which contemplate or specifically require that such disorderly conduct must take place in a public area. However, appellant’s violent and combative behavior with the officers here is clearly within that conduct contemplated under § 41-2908 (1) (a), supra, and there is no requirement that such conduct must take place on public property.
We affirm.
Affirmed.
At the hearing, the State orally amended its petition to charge appellant with failure to report. | [
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Tom Glaze, Judge.
Claimant was employed by Blevins Electric Company on February 16, 1981, and worked until June 3, 1981. On June 5, 1981, claimant quit her job, notifying her employer (the President of the Company) by phone that she was quitting because he had kissed and touched her without her permission. Claimant made the call from her lawyer’s office; the call was recorded without the employer’s knowledge.
Claimant filed for unemployment benefits on June 19, 1981. On July 6, 1981, the Agency awarded her benefits finding that she quit because of sexual harassment on the job, that she tried to preserve her job rights by talking with the vice-president, and that she quit with good cause connected with the work as required by Section 5 (a) of the Arkansas Employment Security Law.
Section 5 (a), which is found at Ark. Stat. Ann. § 81-1106 (a) (Cum. Supp. 1981), provides:
81-1106. Disqualification for benefits. — For all claims filed on and after July 1,1973, if so found by the Director an individual shall be disqualified for benefits:
(a) Voluntarily leaving work. If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least thirty (30) days of employment covered by an unemployment compensation law of this State, or another state, or of the United States.
Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification; or, if after making reasonable efforts to preserve his job rights, he left his last work because of his illness, injury, pregnancy or other disability.
* # #
On July 22,1981, an appeal hearing was held at the instance of the employer. Both the claimant and the employer attended the hearing and each was represented by counsel. On July 24, 1981, the Appeal Tribunal reversed the Agency and denied claimant benefits. The Tribunal found that claimant voluntarily quit her job without good cause connected with the work. The Tribunal noted that claimant had never voiced an objection to the alleged sexual harassment by the employer because she was in fear of losing her job. The employer denied the allegations of harassment, and the company’s vice-president (the employer’s son-in-law) testified that he had not observed anything out of the ordinary. The vice-president, however, did admit that the claimant had talked with him about her specific concerns over her employer’s treatment.
The claimant appealed to the Board of Review, and on November 19, 1981, it affirmed the decision of the Appeal Tribunal. The Board stated:
If the alleged sexual harassment were of such an extreme nature to cause her to quit her job, she made no effort to stop the harassment and she stated she endured it for several weeks. Not until her actual resignation, did she mention the reason for quitting to the employer. There is nothing in the record to show that the employer’s actions constituted sexual harassment to such a degree that it was unbearable. (Emphasis supplied.)
The Board’s finding in support of its decision to deny benefits implies that the sexual harassment claimant endured must be “unbearable” before such treatment could be considered good cause to voluntarily quit her job. We cannot agree. The proper standard in determining good cause is set forth in Teel v. Daniels, 270 Ark. 766, 769, 606 S.W.2d 151, 152 (1980) as follows:
“ ... [A] cause which would reasonably impel the average able-bodied, qualified worker to give up his or her employment. . . .
“ . . . ‘[G]ood cause’ is dependent not only on the reaction of the average employee, but also on the good faith of the employee involved. In this context, good faith, which has been held to be an essential element of good cause, means not only the absence of fraud, but also the presence of a genuine desire to work and to be self-supporting. . . .
“... [Another element] in determining good cause is whether the employee took appropriate steps to prevent the mistreatment from continuing. . . .
The conduct of the employer, of which claimant complained, included one instance of kissing, one of grabbing her breasts and other occasions of patting her “all on the back” or on her face. We can hardly agree with the Board if it intended, by its findings, to conclude that these types of acts are not reasonably sufficient to impel the average able-bodied, qualified worker to give up his or her employment.
Apparently, the Board was primarily concerned with claimant’s response, or lack thereof, to her employer’s affectionate displays. Claimant testified that she withdrew or jerked away from her employer when he kissed her and when one of the touching incidents occurred. However, she said that she never otherwise objected to the treatment because she needed the job. She undisputably expressed her complaints to the vice-president (and son-in-law of the employer), but he responded by saying that he was between “a rock and a hard place.” The only time claimant discussed these matters with the employer was when she telephoned him from her attorney’s office. As noted earlier, this conversation was recorded unbeknownst to her employer. Although appellee argues to the contrary on appeal, a fair reading of this conversation supports claimant’s story that unpermitted, sexual contact took place. Obviously, the Board agreed since it concluded that “[t]here is nothing in the record to show that the employer’s actions constituted sexual harassment to such a degree that it was unbearable.” In view of the Board’s finding on this point, it is not necessary for us to relate the text of the taped telephone conversation. It is enough to say that we cannot agree that sexual harassment must be “unbearable” before an employee can quit. Nor do we agree with the Board, under the facts of this case, that claimant’s response to such harassment failed to meet the standards required under § 81-1106 (a), supra. Claimant discussed the matter with the company’s vice-president, and he was unable to assist her. In fact, the vice-president expressed that he was placed in a difficult position in view of the complaints she directed toward the company’s president. We believe that claimant reasonably determined her situation was impossible to resolve. Since there was no other official or supervisor to whom she could turn to for help besides the person (employer) committing the acts, we believe it was reasonable under these circumstances for her to quit. Short of directly confronting her employer, she had no other recourse. We certainly cannot agree that she was required to resolve the complaints with the person who perpetrated the harassing acts when he also is the president of the company, the person who hired her and the one who could fire her. We fail to find any substantial evidence to show claimant failed to make every reasonable effort to preserve her job.
Actually, claimant testified the sexual harassment occurred during her last two weeks of employment. | [
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HART, J.,
(after stating the facts). It is a well settled rule of the common law that the waters of a natural stream or watercourse may not be so obstructed by a lower proprietor as to flow back to the detriment of those above him. In Taylor v. Rudy, 99 Ark. 128, we recognized this rule of the common law, and held that every owner of land through which a stream of water flows is entitled to the use and enjoyment of the water and to have it flow in its natural and accustomed course without obstruction, diversion, or corruption. It was also held in that case that equity would grant relief in the case of the raising of the water in a watercourse by means of a dam to the injury of upper riparian lands, where the injury is substantial and permanent, even though the rights have not been established at law.
It is first contended by counsel for the defendant however, that Johnson Creek ceased to be a natural watercourse when the drainage district was established and constructed. There is nothing in the record, however, which shows that there was any intention that Johnson Creek should be abandoned as a watercourse by the construction of the drainage district. On the other hand its situation and relation to the drainage ditch show that it was intended that it should be used as a part of the laterals of the drainage ditch and should continue to be a natural watercourse.
Again, it is contended by counsel for the defendant that Johnson Creek ceased to be a natural watercourse on the defendant’s land when the cut-off or scraper ditch was constructed. The record shows that Johnson Creek was a very crooked stream and drained about 800 acres of land in this neighborhood. The land owners whose lands were drained by Johnson Creek raised a fund by subscription for the purpose of straightening the creek on the defendant’s land, and by common consent the money raised for that purpose was applied in constructing what the parties called the cut-off or scraper ditch. This was done about ten years before the institution of this suit, and was used by the parties as a part of the channel of Johnson Creek for several years. The cut-off in question was dug at the joint expense of the owners of the land, and by common consent' was used as a part of the channel of Johnson Creek and remained open as a watercourse for several years thereafter. It has been held in such cases that the same rule governs that applies in the cases of other watercourses. Freeman v. Weeks (Mich.), 7 N. W. 904; Meir v. Kroft (Iowa), 80 N. W. 521; Brown v. Honeyfield (Iowa), 116 N. W. 731, and Rait v. Furrow (Kan.), 10 A. &. E. Ann. Cas. 1044.
Johnson Creek had a well defined channel with bed and banks in which there was running water. The testimony on both sides shows that Johnson Creek was a natural watercourse before the cut-off' or scraper ditch was constructed.
In the application of the principles above announced we think that the cut-off became a part of Johnson Creek and was therefore a part of the natural watercourse. It is true the plaintiff and defendant were not owners of the land at the time the cut-off was constructed, but they are bound by the agreement of their predecessors in title. The principle of law above announced was recognized and applied by this court in the case of Wynn v. Garland, 19 Ark. 23. There parties in possession of contigous unsurveyed public lands entered into an agreement to dig •certain ditches for the purpose of draining their lands. The ditches were dug according to their agreement and a main ditch was constructed to be the boundary line between them. Afterwards the land was surveyed by the government, and the lines of the public survey differed from those agreed upon. One of the parties entered the lands and, disregarding the boundaries agreed upon, closed the ditch and threw up embankments so as to obstruct the water and back it upon the land of the other party. It was held that the agreement between the parties to construct the ditch was in the nature of a license which, having been accepted and acted upon, could not be disregarded. It was further held that, though the agreement was for an interest or privilege in land and rested in parol, the performance on the part of the plaintiff constituted it an executed contract, and that the defendant had no right to close the ditch.
Therefore, the decree will be affirmed. | [
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HUMPHREYS, J.
By Act 30, .Acts of Arkansas, 1915, it was made a felony for any person to manufacture, or be interested, directly or indirectly, in the manufacture of any alcoholic, vinous, malt,., spirituous or fermented liquors. Appellant was indicted, tried and convicted in the Pike circuit court, for the crime of manufacturing liquor under the aforesaid act. His penalty was fixed at one year in the State penitentiary. From the verdict and judgment of conviction, he has prosecuted an appeal to this court.
It is insisted that the judgment is erroneous on account of an alleged insufficiency of evidence to support the verdict, and of alleged errors on the part of the court in refusing to give instructions Nos. 3, 6 and 8 requested by appellant. This court will not reverse a judgment on account of an insufficiency of evidence to support it unless brought into the record by a proper bill of exceptions. Norman v. Cammack, 105 Ark. 121. Neither will this court consider instructions which were refused in the course of the trial if they are not included in a proper bill of exceptions. O’Neal v. Parker, 83 Ark. 133; Ark. La. & Gulf Ry. Co. v. Kennedy, 87 Ark. 50; McKinley v. Broom, 94 Ark. 147. It is thus seen that the assignment of errors in the instant case consisted of such errors as must be brought into the.record by a proper bill of exceptions. , |
The attention of the court has been called to the fact that the bill of exceptions in the instant case was not signed by the trial judge. On inspection of the record it appears that the bill of- exceptions was signed by the prosecuting attorney and counsel for appellant. Since the passage of Act 218, Acts 1911, a bill of exceptions may be agreed upon when signed by one of counsel for the respective parties, and when filed shall become a part of the record in a cause, except in felony cases. Prior to the passage of said act, it was necessary for the trial judge to sign the bill of exceptions in all cases before it became a part of the record. Routh v. Thorpe, 103 Ark. 46. It is still necessary that the trial judge sign the bill of exceptions in a felony case before it can be admitted as a part of the record. It was not permissible to authenticate the bill of exceptions in the instant case by counsel for the respective parties, as it was a felony case, and, since the bill of exceptions was not signed by the judge, as required by law, it can not be treated as a part of the record. It follows that there are no errors before this court for review.
The judgment is therefore affirmed. | [
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WOOD, J.,
(after stating the facts). In Watkins v. Stough, 103 Ark. 468- 471, there was a contract let for the construction of certain bridges to the lowest bidder at public outcry. The facts are very similar to the case at bar. There was testimony tending to show that when the contract was offered at public outcry the county judge made a public announcement that county warrants could be cashed at 50-55 -cents on the dollar. The contract was let for the construction of the bridge at $3.40 per linear foot. The contract was attacked on the ground that the bid for the work was based on depreciated county scrip and that a fair cash price for construction of the bridges would have been $2 per linear foot. In that case the trial court found that the contractor used no fraud or decep tion in procuring the contract and was the lowest bidder for the contract. In that case we said: “When a contract, free from fraud or collusion, is entered into pursuant to the terms of the statute for the construction of a bridge, and the work is done according to the contract, the stipulated price becomes a valid claim against the county, payable, as are other claims, in warrants on the treasury. If the contract does not disclose on its face an illegal agreement for an increase of price on account of payment in depreciated warrants, or unless the proof establishes collusion to increase the bids on account of payment in depreciated warrants, then the reasons for the successful bidder fixing the amount of his bid can not be inquired into for the purpose of avoiding the contract.”
That case controls this. Here was a straight contract for the construction of the courthouse for $91,-806.90. There was no evidence of any collusion among the bidders to perpetrate a fraud on the court to have the contract let at a higher price because of the depreciated value of the county warrants, nor is there any testimony to warrant the conclusion that the county court entered into a collusion with the contractor to give him the contract at an increased price because the value of the county scrip was less than par. The fact that the bidders made inquiry and ascertained that the value of the county warrants was less than par and made their bid with -such knowledge does not establish that there was a collusion between them to stifle the bidding and to defraud the court by securing a contract at a higher price on account of the depreciated value of the county warrants. There is no allegation that the county court, or its commissioner, or the bidder, in securing the contract, were guilty of any fraud.
The complaint sets out the bid which, strictly construed, on its face calls for the payment of $91,000 in county warrants at “70-125 base,” which would necessitate the issuance of county warrants to the amount of about $118,000. If the contract had been expressed in these terms there would be grounds for saying that upon its face it was a fraud upon the court, but as already stated tbe contract calls for tbe payment of $91,000 in county warrants without any increase of tbe contract price on account of tbe warrants being below par.
Tbe decree is, therefore, correct and is affirmed. | [
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